Cases by Issue - Narcotics

United States v. Oakland Cannabis Buyers' Coop - Oral Argument

Fri, 09 Jan 2009 14:50:31 +0000

Case:

United States v. Oakland Cannabis Buyers' Coop

Media File:

00-151_20010328-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Barbara D. Underwood

Chief Justice Rehnquist: We'll hear argument next in Number 00-151, the United States v. Oakland Cannabis Buyers.

General Underwood.

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

The Controlled Substances Act prohibits the distribution of marijuana outside federally authorized research programs because Congress, the Attorney General and the Secretary of Health and Human Services have each determined that there is no currently accepted medical use for the drug, and it has a high potential for abuse.

The statute also recognizes that new information might come to light that would justify less restrictive controls so it establishes administrative procedure for changing the classification and the restrictions for marijuana and other controlled substances.

That statutory scheme leaves no room for the Oakland Cannabis Buyers' Cooperative to distribute marijuana without the approval of the Attorney General under a claim of medical necessity, and it leaves no room for a court to consider such a claim as a basis for refusing to enjoin the marijuana operations of the cooperative.

The Ninth Circuit's ruling in effect authorizes the operation of marijuana pharmacies outside the safeguards and restrictions of the Act and undermines the ability of the Act to protect the public from hazardous drugs.

The common law defense of necessity can sometimes authorize a person to violate the law in order to avoid a more serious harm but it doesn't apply here for three reasons.

First, because the legislature has already balanced the harms and come to a different conclusion.

Congress anticipated there would be claims of medical uses for controlled substances and provided an administrative procedure for evaluating them allowing trial judges and juries to redetermine that balance in individual cases would undermine the procedure established by Congress.

Second, because the defense has no application because the co-ops members and the co-op itself have alternatives to violating the criminal law.

They have substantive alternatives, other lawful medications including a synthetic form of the active ingredient of marijuana.

Justice Stevens: May I ask one question on that subject Ms. Underwood?

You have a footnote in your brief, footnote 11, that describes some of the situations there that gives the impression that this whole case is a sham, that it's really just a front for using marijuana and I'm wondering if... and your argument you're just making now suggests there are always alternatives.

Do you think we should take the case on the assumption that there really are some people for whom this is a medical necessity or should we assume that there are no such people.

Ms Underwood: The... on the assumption that there are no such people because the Food and Drug Administration charged with evaluating the medical... the scientific information and the DEA, that is the agency that report to the Attorney General and the Secretary of Health and Human Services having evaluated the claims of medical use have found that there is no accepted medical use, that some of the claims of medical use are simply wrong.

Justice Ginsburg: General Underwood, may I just stop you there because take one of the examples that was in the brief, the one about the man who was constantly vomiting and the only thing that calmed him down, he had a lymphoma or something like that, that is not an uncommon experience and what surprised me about this case was that that kind of thing has been going on, individual doctor prescribing marijuana just to prevent that kind of extreme suffering, and that seemed to have gone without enforcement until California passes this proposition and you get clinics selling it, not individual doctor.

Am I wrong in thinking that there has been quite a bit of this going on in the medical profession.

Ms Underwood: The record doesn't reflect and I don't know how much of it has been going on.

I think there are two things to say in response to that though, one is that the agencies charged with evaluating the medical uses here have ongoing studies and have so far concluded that there are... that the particular use that you're describing is best served... there's now an extract of marijuana that's been on the market... been available and been put on the lower schedule than schedule one for 15 or 16 years which is this Marinol and efforts are being made to find other methods of administering the pure substance and determining whether it has the effect that's described.

Justice Scalia: Ms. Underwood, these judgments made by the federal agencies, the FDA and the DEA, I think they take into account the overall public interest, I mean, they... I'm not sure that they have come to the conclusion that marijuana would never ever, ever be helpful to someone who's in extreme pain.

I think what they've probably done is made the judgment that the chances of its being that helpful and not being replaceable by something else are so slim that in view of the abuses to which general permission for its use would lead it's best that it be proscribed, is that an inaccurate determination on my part?

Could you really say that there has been a determination by the federal government that marijuana is never medically useful.

Ms Underwood: Well the determination that's been made is that the medical utility of it has not been established which is a slightly different way of putting it but there is a separate determination the FDA makes determinations as it does with substances that aren't on the controlled substances list, that is there are new drugs that are proposed all the time which might possibly be useful and aren't authorized for use until after tests satisfy the FDA that the drug is safe and effective for use and marijuana has not passed that screen.

There is an additional screen for controlled substances that is in addition to considering and the scheduling decision takes into account not just medical utility but also the potential for abuse, but the FDA's role in it, the Health and Human Services role in it is just to assess or it has a role in simply assessing the medical evidence and has concluded that to date there is insufficient reason to think that it is a safe and effective drug although there are continuing research projects going on to try and pursue the anecdotal information that it is sometimes helpful or that components of marijuana are sometimes helpful.

Justice Ginsburg: Ms. Underwood, it would help me, General Underwood, if you would tell me why the word preemption doesn't appear in the government's brief because I took the simple-minded approach looking at this, Congress says this is a schedule one drug and California says you can have it if you've got a note from a doctor that says you have a migraine headache.

Why isn't the federal law that says this is the schedule one drug preemptive, it must have been with some thought that you didn't use that word.

Ms Underwood: Well the California law doesn't actually purport to authorize the distribution of marijuana with a doctor's note, it provides a defense to California law.

Now it is true that an effort is being made here to invoke the judgment behind that law as in support of the claim of medical necessity, but California didn't purport to create a defense to federal law as it couldn't have if it had tried it would have been presumably preemptive... preempted.

But it's perfectly possible to comply with both California law and federal law.

There isn't that kind of conflict here.

Justice Ginsburg: Explain that to me because I thought to comply with federal law you can't sell it.

Ms Underwood: Well that's right but California law doesn't require you to sell it.

It simply says that you won't be... California could remove the... could eliminate--

Justice Ginsburg: All it says you'll be at the mercy of the feds and we won't go after you.

Ms Underwood: --That's correct.

That's correct.

And I should say that the decision of the federal agencies not to accept the kind of anecdotal evidence that you're suggesting is a decision that the federal... the Food and Drug Administration has made again not just in the controlled substance area but it has concluded that the anecdotal reports of individuals are a basis for research, a reason to conduct research and not a basis for authorizing the use of a drug or changing its scheduling.

Justice Kennedy: General Underwood, there's some indication in the trial court's observation, he had no choice but to enter this injunction, that's something of an over-reading, but suppose I were the district judge and I said, you know, General Underwood, you want me to basically supervise what's going to be a major effort to prosecute people and you're doing this under my contempt power, I don't want the court to get involved in this, you have your own United States and assistant United States attorneys, you have investigate these, bring these as prosecutions and then we'll hear these cases and if there's a necessity defense or something we can rule on it, but you're basically asking me to issue an injunction and in order to enforce it I'm going to have to make prosecutorial decisions, I don't want to be bothered with that because I think it intrudes upon a separation of powers balance, it's making me more of a prosecutor than a neutral judge.

If he said that would he be abusing his discretion?

Ms Underwood: Yes.

There are grounds on which a court can deny injunctive relief.

For example, if the court found that violations had stopped and are unlikely to recur and an injunction wasn't necessary to effectuate the purposes of the act, this Court noted that in Hecht against Bowles, and there may be other grounds but I would say that the judge who said what you just said would be, in fact, intruding on Article II executive prerogatives by insisting that when Congress has provided both civil and criminal enforcement mechanisms as it often does that the executive is not free to choose the enforcement mechanism, the civil enforcement mechanism that--

Justice Stevens: May I ask this question, does the executive, the district attorney have prosecutorial discretion not to bring a case if he thinks a particular defendant really is a person that has this serious illness and so forth.

Ms Underwood: --There's always prosecutorial discretion.

Justice Stevens: Why would a judge have less discretion than a prosecutor?

Ms Underwood: The judge has different discretion from a prosecutor, it is for the prosecutor to decide whether a case merits prosecution or whether a civil injunction is worth bringing.

Justice Stevens: If the judge reacts to precisely the same reasons that motivate a prosecutor not to bring a case, would that be an abuse of discretion?

Ms Underwood: Yes it would.

The court's role in the process is not the executive's role.

The court cannot deny an injunction on the grounds that the executive should for instance have chosen the criminal sanction or should not have brought the case at all.

If--

Justice Kennedy: Suppose the judge has legitimate concerns that given the resources of the court that it's going to make him basically substitute for the United States attorney in the Northern District of California, he's going to have to decide who to prosecute for contempt and it's going to be criminal contempt and so forth, basically it seems to me that he's now being put in the role of the supervising prosecutor just in order to enforce his injunction.

Ms Underwood: --Well no the contempt actions of him would be brought by prosecutor and I'd like to point out why civil--

Justice Kennedy: I'm sure that he has or should have a major say in how he's going to enforce his injunction, who he's going to bring to court for the contempt action in the first instance, what kind of examples he's going to make, et cetera.

Ms Underwood: --There's a reason why civil injunctive enforcement is authorized and why it's appropriate.

I don't think it's for the court to second-guess the prosecutor but there is a reason.

The civil injunctive remedy in this statute was patterned on a similar provision in the Food, Drug and Cosmetic Act, and the purpose of that was to provide a way to resolve legal disputes without the harshness of a criminal prosecution.

This is just that kind of dispute, open and ongoing violations of the law designed to test its statute with the California state law in the background, once... there's no reason to think that once a court resolves the question that... holds, for instance, that there is no medical necessity defense or holds that in any event whatever medical necessity defense there might be doesn't authorize the operations of marijuana pharmacies as in this case, that the Oakland Cannabis Buyers' Cooperative won't comply with the law.

Justice Souter: Well, maybe it will, but isn't the real concern, and I want to state a variant on Justice Kennedy's question, isn't the real concern behind this that with the passage of the California proposition and the popularity within the California population that that necessarily entails, it will be very, very difficult for the government ever to get a criminal conviction in a jury trial, and the reason, it seems to me, that the reason I assumed this was being brought was to avoid hung juries in criminal cases.

If the trial court in fact were to conclude that that is the reason and that's why the injunctive remedy was being invoked, would that be a good reason for the court to say it is not certainly a necessary and maybe not an appropriate use of equity to give the government an alternative to six month or less sentences for criminal contempt in order, in effect, to make a criminal statute enforceable which in the normal criminal course is not.

Would that be an abuse of discretion?

Ms Underwood: Not if the statute authorizes a civil injunctive remedy and... but I would like--

Justice Scalia: It would not be an abuse of--

Ms Underwood: --Excuse me.

I misspoke.

That would not be--

Justice Scalia: --You scared me there for a minute.

Ms Underwood: --It would be an abuse of discretion.

It would not be an appropriate ground for withholding injunctive relief but I would like to point out that the statute, this statute, perhaps out of a concern like that or perhaps for some other reason, contains a jury trial requirement... provides a jury trial for a trial of the contempt of an injunction that is obtained--

Justice Souter: No matter what the lengths of sentence requested?

Ms Underwood: --Yes.

Justice Scalia: General Underwood, do you agree with all of the premises of these questions?

I mean is--

Ms Underwood: No.

Justice Scalia: --Is it true that California juries generally don't convict people of crimes that they don't agree with?

Is that the practice in... I haven't lived in California in quite a while but California juries only enforce those criminal laws they like, is that the general practice.

Ms Underwood: I have no information about that but I would like to point--

Justice Scalia: Do we know whether this United States attorney brought this as a civil... as a civil matter precisely because of the legal doubt or rather in order to avoid a jury trial, do we have any idea which of the two it is.

Ms Underwood: --I was not... I don't have the answer to that question but I know--

Justice Scalia: And of course, this entire argument would disappear if Congress eliminated the criminal penalty and then presumably the U.S. attorney would be free to get as many injunctions as he liked with the same consequences.

Ms Underwood: --I should think so.

I would just like to--

Justice Ginsburg: There's one aspect of this General Underwood that Respondent says and this I think you might know the answer to, Respondent says that overwhelmingly this Act is enforced by a criminal prosecution rather than civil injunction.

And do you know that, what is the enforcement practice with respect to the CSA.

Ms Underwood: --I know that civil injunctions have been used on other... exactly on occasions under this statute as well as under other statutes where there is a business enterprise going on that has a dispute with the government about whether what they're doing is outside the statute.

I don't think it's--

Chief Justice Rehnquist: Romero-Barcelo was a civil injunction in connection with the EPA, wasn't it?

Ms Underwood: --That's correct but... and under this statute in particular though the Controlled Substances Act it is not customary to seek injunctions against street dealers of narcotics but it is customary to seek injunctions against, for instance, manufacturing plants that are claiming that their use of particular chemicals is... what they're doing is within the Act or without the Act, I mean, when there is essentially a dispute with the business enterprise about the legality and propriety of what they're doing and that is actually not just under the Controlled Substances Act but under many statutes, the kind of occasion when an injunction is used to resolve the legal dispute on the assumption that once that legal dispute is resolved it will not be necessary to seek further enforcement but there will be--

Justice Stevens: Of course you can make the same argument for bringing criminal prosecution, so presumably you put somebody in jail, they'll stop doing it too.

Ms Underwood: --Yes, but what Congress said actually in authorizing injunctive relief is that when there is this kind of dispute it is desirable to provide a mechanism for resolving it without putting people at risk of going to jail if... and that's one--

Justice Scalia: You're referring to the legislative history I presume, it doesn't say that in the statute, does it?

Ms Underwood: --No, it does not.

I'm referring to legislative history actually--

Justice Scalia: Some little piece of Congress said that, right?

Ms Underwood: --Well, I'm actually referring to legislative history of the Food, Drug... of the analog provision in the Food, Drug and Cosmetic Act simply to suggest not that we know that that's what Congress voted on but that that is a common widely-understood reason--

--That is a common widely-understood reason--

Justice Stevens: Yes but those are cases where there's a legitimate difference of opinion on whether there was a violation of law.

Your view here that violation of law is so obvious and clear that there isn't even any colorable argument to the contrary.

Ms Underwood: --That's our view but there is a claim to the contrary and I don't think it requires that we credit that claim to decide that an appropriate way to resolve that dispute is in a civil enforcement action, and that... so that's the story about when we sometimes use civil enforcement actions.

Actually very often... Respondent has suggested that it's hardly ever used because there aren't reported opinions, the most common occasion where civil enforcement actions are used they're also settled.

That is, the injunction... the complaint is filed and there's a civil settlement involving money and agreements to change practices and make an agreement not to deal in a particular drug, chemical for some period of time.

There are numerous examples of that.

Justice Kennedy: What is the advantage the government has from an injunction rather than a concerted effort of discrete prosecutions by the United States attorney's office?

Ms Underwood: For example, here, where we are arguing where it is our position that there simply is no medical-necessity defense at all and therefore that one shouldn't be entertaining evidence and adjudicating the appropriateness of a medical-necessity defense in a particular case, the way to get that resolved systemically is in a civil... a civil proceeding that simply presents that legal question.

Justice Kennedy: Then you do want us to rule on the issue that the Ninth Circuit... you're ruling just as a general matter that there's no medical-necessity defense.

Ms Underwood: It is a part of our argument--

Justice Kennedy: I'm concerned about using the courts to answer questions so remote from specific disputes.

Ms Underwood: --It isn't necessary to reach that result but it is a part of our argument that the reason the injunction... the reason the Ninth Circuit was wrong to suggest that the injunction might not issue or might be limited that the court predicated that holding on an error of law, I mean one... there are many reasons why a court might exercise its discretion but it is not a good reason to exercise its discretion to rely on a mistake of law and a mistaken view of the law and that mistake is that the Controlled Substances Act authorizes, contemplates or is consistent with a medical-necessity defense.

Justice Kennedy: Well, then you're very pleased with what the Ninth Circuit did in one sense because now you can get the issue resolved up here.

Ms Underwood: I would say that's the result of what the Ninth Circuit--

Justice Kennedy: But I just don't think that's a good use of the federal district court's authority.

Justice Scalia: Out of evil cometh good, General Underwood, isn't that wonderful.

Ms Underwood: --Pardon me?

Justice Scalia: I just said out of evil cometh good is your position on the Ninth Circuit.

Ms Underwood: Our initial position was not that we wanted to bring this to the United States Supreme Court but that the practice... that the Oakland Cannabis Buyers' Cooperative and similar cooperatives should be enjoined from engaging in the open and notorious violation of the Controlled Substances Act--

Chief Justice Rehnquist: General Underwood, if you take it as a criminal prosecution and it's an unsettled question of law whether it is a medical-necessity defense, a typical district trial judge is probably going to err on the side of letting it in since you can't say one way or the other and you may not get it resolved in a criminal prosecution.

Ms Underwood: --That's correct.

Justice Scalia: General Underwood, what is the penalty for violating an injunction?

Ms Underwood: The statute calls for enforcement by contempt.

Justice Scalia: Would be criminal contempt?

Ms Underwood: Well there's a... no, well, there's a civil contempt in the statute.

Justice Scalia: What I'm getting to is would you be entitled to a jury in the trial for contempt?

Ms Underwood: Yes, I said earlier the defendant by statute is entitled to a jury.

Justice Ginsburg: Still it's civil so it wouldn't be beyond a reasonable doubt, it would be I think it's clear and convincing in this case; is that right?

Ms Underwood: It's not a criminal proceeding it's a trial under Federal Rules of Civil Procedure--

Justice Scalia: That would make a big difference to a jury who doesn't want to convict this person.

I mean, at the end of the road there's a jury, which is going to let you off if it wants to let you off, whatever the standard of proof is so that if the U.S. attorney here were only trying to avoid a jury, he ought to be replaced.

Justice Souter: But the juries... there can be a criminal contempt proceeding if the injunction is violated under the statute, correct?

Something was said a minute ago about its being just a civil jury.

The U.S. attorney could bring criminal contempt if someone violated it and I thought your answer was under the statute even if it's criminal contempt and the penalty would be... the penalty requested would be within the minor offense range, they'd still get a jury trial and that was the answer to my suggestion.

Ms Underwood: --The statute's Section 882 says in case of an alleged violation of an injunction or a restraining order issued under this Section, trial shall upon demand of the accused be by a jury under the... in accordance with the Federal Rules of Civil Procedure.

That's what Congress contemplated and instructed.

Justice Ginsburg: I understood you before in answer to the question about why the civil injunction to say that you wouldn't do that with a street peddler but you want to put this clinic out of business.

Ms Underwood: Want to stop it from engaging in the unlawful distribution of marijuana, it might have some other business, but I don't believe the Oakland Cannabis Buyers' Cooperative at the moment is engaged in other businesses, and as I've said, that's the dispute that we have with the Oakland Cannabis Buyers' Cooperative about whether what they're doing is lawful or not is one that is ideally suited to resolution in a civil... in a civil litigation.

I think I'll reserve the rest of my time for rebuttal.

Argument of Gerald F. Uelmen

Chief Justice Rehnquist: Very well General Underwood.

Mr. Uelmen, we'll hear from you.

Mr. Uelmen: Mr. Chief justice and may it please the Court:

When the government initiated these proceedings, it made a tactical choice to forego criminal prosecution in favor of seeking injunctive relief pursuant to Section 882.

That choice had serious consequences for the Respondents because it deprived them of the full opportunity to a jury trial.

Justice Scalia: Did your Respondents ask to be prosecuted criminally, was that their preference?

Mr. Uelmen: We had no choice in the matter, Your Honor.

Justice Souter: How did it deprive them, I mean, Ms. Underwood's answer was they get a jury trial in any case.

Mr. Uelmen: It's a jury trial in accordance with the Federal Rules of Civil Procedure which means that the court can enter a summary judgment and the court does not apply the standard of proof beyond a reasonable doubt and that actually happened in this case.

Justice Souter: You mean for a criminal contempt?

Mr. Uelmen: For a civil contempt.

Justice Souter: What about criminal?

Mr. Uelmen: Well, they have not initiated a criminal contempt prosecution.

That would be a criminal prosecution and we would have a right, full right to--

Justice Kennedy: What's the sanction for finding of a civil contempt violation?

It can't be jail.

Mr. Uelmen: --No.

I believe they could be fined.

Chief Justice Rehnquist: In a civil contempt they say you have the key to the jail in your own pocket because it's enforced to cause to you do something, you can be jailed I believe on civil contempt.

Mr. Uelmen: If you refuse to--

Chief Justice Rehnquist: Right.

Mr. Uelmen: --Yes, until you conform with the order.

And that happened here.

I mean, these Respondents were found in contempt of court without a jury trial.

Chief Justice Rehnquist: Did they ask for a jury trial?

Mr. Uelmen: Yes, but the court ruled that under Section 882 the trial as conducted in accordance with the Federal Rules of Civil Procedure.

Therefore a summary judgment could be entered and the government succeeded in obtaining a summary judgment.

Justice Souter: And what was the penalty that was being requested, was the penalty a fine or cumulative incarceration?

Mr. Uelmen: No fine was imposed.

Justice Souter: What was requested when you went to trial, did the government say, we forego any incarceration as punishment we're going to ask for a fine as punishment, did the government make any specification of that sort?

Mr. Uelmen: No, the government asked that the sheriff or the marshal seize the premises in which the business was being operated and of course the Respondents were at risk of incarceration if they remained in contempt.

Justice Kennedy: Well, that's just like a civil nuisance action, it's just a nuisance action in the federal court is all it amounts to.

Mr. Uelmen: But the point is the defenses that the Respondents wished to assert were never determined by a jury.

Justice Souter: But you're in effect saying that even if it's purely civil contempt if they are found to violated the injunction and they do not agree to abide by the injunction in the future they can at least be jailed coercively.

Is that the point?

Mr. Uelmen: Absolutely.

Justice Souter: Okay.

Mr. Uelmen: Yes.

It would truly be ironic to hold that federal prosecutors have full discretion to decline prosecution but when they elect to come into a federal court sitting as a court of equity, that court has no discretion to decline to issue an injunction.

Justice Kennedy: Just... I take it that if I'm a trial judge and I have someone who's violated my injunction, I can't say, I'm going to put you in jail now until you sign an agreement not to do this anymore.

I can't do that.

It's a coercive action for something that's within the power... within your power to perform, to turnover some goods, to unlock a locker to... but that's not... so there can't be any... there can't be incarceration--

Mr. Uelmen: Clearly, you could incarcerate me until I obey the court order.

I mean, that's done all the time with a witness who refuses to testify and is held in contempt.

Justice Kennedy: --But these are all past acts, there's nothing to incarcerate for or am I wrong?

Am I missing something, did the judge incarcerated these people?

He couldn't.

Mr. Uelmen: He did not in this case because the Respondents agreed to refrain from the conduct, the contempt was purged ultimately, but if the... if the Respondents insisted on continuing their operation in violation of the injunction, they could have been jailed.

Justice Kennedy: Well, I disagree with that but we'll leave it.

Justice Scalia: Right.

I thought that this kind of civil contempt where you have the key in your pocket is only for the kind of contempt that's in the presence of the court where you refuse to testify or disrupt proceedings or something like that, I'm not sure that... any way, we can look that up.

Let me come to your perception that it would be unthinkable that it could be up to the U.S. attorney whether to bring a criminal action or not, but a federal judge could not decide that he won't issue an injunction using the same sort of discretion, why is that so unthinkable?

I mean, in a criminal case the federal judge certainly can't say, you know, I don't think this criminal case should have been brought at all.

Mr. Uelmen: In a criminal case, Your Honor--

Justice Scalia: It's a stupid prosecution and I'm going to ignore it.

He can't do that, can he?

Mr. Uelmen: --In a criminal case a judge is sitting as a court of law, what we're saying is when a federal court is sitting as a court of equity it has the traditional discretion to weigh the interests, to balance the interests--

Justice Scalia: To say this civil action should not have been brought, I disagree with the United States attorney that this civil action which is authorized... which he's authorized to bring under the statute should have been brought and therefore I will nullify it, you think a court has that power.

Mr. Uelmen: --What we're saying is that all the statute says is if the court has jurisdiction to issue an injunction surely they can come in and ask for an injunction and we're saying the court has discretion to say under these circumstances I'm not going to issue an injunction.

Chief Justice Rehnquist: What's your case authority for that sort of a proposition because the cases you cite in your brief strike me as quite far off the point, Hecht and company and Romero-Barcelo.

In those cases the person was either in compliance by the time it got to court or else the court said, look, I won't issue an injunction, Romero-Barcelo, but you have to go get a permit.

In no case did the Court ever say well we think you've got a defense to this act so we're not going to issue the injunction.

Mr. Uelmen: Well we believe that Hecht v. Bowles and Weinberger v. Romero-Barcelo are quite on point because in both cases it was within contemplation that future violations would occur and the Court still declined to exercise its jurisdiction--

Chief Justice Rehnquist: Because in one way it said, the violations had been cured as promptly as they'd been called the attention that Hecht's had put in a new staff to try to do things.

I mean, it's quite different from your case where you say we're going to just go ahead and do this.

Mr. Uelmen: --Well in Romero-Barcelo the Court, in effect, said that the Navy can continue to drop its bombs while it applies for a permit, so--

Justice Ginsburg: But there wasn't any failure to rule on what the law is in both of those cases.

The judge adjudicated the case and said you did wrong, but I'm not going to slap you with an injunction because in the Bowles case it was inadvertent and I have ever reason to believe you won't do it again.

I didn't get from any of the cases you cite authority that a judge would have to say, I'm just not going to participate in the adjudication of this case.

Mr. Uelmen: --Well, first of all, by declining to enjoin, the court is not allowing the violations to continue because the government still has the option of initiating a criminal prosecution at any time and that's--

Justice O'Connor: It seems to me what happened here is that it originally went to a federal district court judge who granted an injunction and then it was appealed--

Mr. Uelmen: --That's correct.

Justice O'Connor: --at the Ninth Circuit and the Ninth Circuit appeared at least to create some kind of a blanket exception to the provisions of the Controlled Substances Act and returned it to the district court which it required to withdraw or to enter.

Mr. Uelmen: What the Ninth Circuit held is that the district court had discretion to allow this exemption to the injunction for two reasons, first, because the Respondents who came within this common law necessity defense were not violating the Act so they should not be enjoined because--

Justice O'Connor: It was a kind of a blanket medical-necessity defense that it recognized when I would have thought that the initial trial judge did not abuse his discretion at all and that the Ninth Circuit erred at the point that it created this blanket defense.

Mr. Uelmen: --Well, it's not a blanket defense, Your Honor, in is the sense that every Respondent who wishes to take advantage of it is going to have to show that they are suffering from a serious medical condition, that they face imminent harm of death or blindness, that cannabis will alleviate their condition and that they have no reasonable alternative, that everybody alternative available has been tried and found ineffective for them so--

Justice Ginsburg: But the action is brought against the clinic not against the individual sufferers, so you seem to be putting together two things that don't mix, you're saying that an individual might have a plea of medical necessity, but the judge who is faced with a clinic that's selling to all kinds of people, some of them don't fit that description at all.

Mr. Uelmen: --Well, no, actually selling to anyone other than the limited number of patients who come within this exception is enjoined by the preliminary injunction, all the court has done is to create a very narrow exception for a very limited number of patients who come within these four criteria.

Justice Kennedy: It doesn't sound to me limited at all, even with drugs that can be dispensed, doctors are required, prescriptions are required, that wasn't any part of this injunction as envisioned by the Ninth Circuit at all.

Mr. Uelmen: Well our contention is that--

Justice Kennedy: Nonmedical people deciding the so-called medical necessity.

That's a huge rewriting of the statute.

Mr. Uelmen: --Well, it's implicit in all of these conditions that there is a medical decision being made.

That is, no patient qualifies under the California initiative unless they have a physician's recommendation or approval in meeting the criteria that all alternatives have been tried and failed implicitly assumes some medical supervision in that process.

Our contention is that when we come within this medical-necessity defense no prescription is necessary.

That we're dealing with highly unusual circumstances that were not contemplated by Congress when it required a prescription for the normal use of any drug, when a physician issues a--

Chief Justice Rehnquist: To say it wasn't contemplated by Congress when Congress made a finding that there's no known medical use for it doesn't make much sense, I think.

Mr. Uelmen: --Well, Your Honor, Congress never made such a finding.

They did not say there is no known medical use for cannabis.

Chief Justice Rehnquist: What is the definition of schedule one in the Controlled Substances Act.

Mr. Uelmen: The criteria for placement on schedule one or movement off of schedule one when it's done administratively by the DEA are set forth in Section 812 and those criteria do include no currently accepted medical use, but Congress itself put cannabis on schedule one, so it wasn't bound by those criteria.

Chief Justice Rehnquist: But presumably if it did it itself, it must have thought that it qualified for schedule one under those criteria, it just didn't want to leave it up to an administrative agency to make the decision.

Mr. Uelmen: All it had to conclude in terms of a rational basis test was that it wanted to impose the most restrictive limitation and that is schedule one, no use without a prescription, but we're saying even that finding, that there's no use without a prescription, is not a rejection that under limited circumstances where a patient is facing imminent harm and has no reasonable alternative, the drug cannot be used without a prescription, it's a classic illustration of the choice-of-evils defense.

Justice Scalia: If that's the case how could it be that the patient wouldn't be able to get a prescription.

I mean, you're saying it's absolutely necessary for you to stop the patient from dying or from vomiting or whatever.

Mr. Uelmen: That's right.

Justice Scalia: There's not a doctor in California who will say, you know, here I'll write you a prescription.

Mr. Uelmen: Not for cannabis, not for cannabis because it is on schedule one, a physician cannot write a prescription.

Justice Scalia: Okay, so it's not just a requirement of a prescription that Congress is prescribing.

Mr. Uelmen: Well, by putting it on schedule one they're saying you can't... you can't use it by prescription, now when a doctor issues a prescription all he's concluding is that this will help you, he's not required to conclude that you have no other alternative.

He's not required to conclude you have a serious condition and you may die or go blind if you don't have this medicine, all he's got to say is, this will help you, here's a prescription, go get it and take it.

But the medical-necessity defense requires much more.

It requires a conclusion that the patient is facing a serious medical crisis.

Chief Justice Rehnquist: Is there any other case in which this Court has recognized the medical-necessity defense.

Mr. Uelmen: Well, calling it medical necessity--

Chief Justice Rehnquist: Well, I asked you a question.

Mr. Uelmen: --No.

Okay.

But medical necessity is just an example of the classic necessity defense defined by the model penal code.

In fact, one of the examples--

Chief Justice Rehnquist: That's based on common law, is it not?

Mr. Uelmen: --Yes, it is.

Chief Justice Rehnquist: What you have here is a statute that Congress enacted that quite arguably simply ruled out the sort of defense that you're urging.

Mr. Uelmen: Well, Congress certainly didn't explicitly rule it out.

What the government is arguing is that we can imply this limitation from the structure of the Act and from its purpose, but a careful--

Chief Justice Rehnquist: Or from its placement on schedule one.

Mr. Uelmen: --Well, its placement on schedule one involves this issue of currently accepted medical use which is a term of art that does not address the question of whether under particular circumstances of an individual patient facing a medical crisis there might be medical utility for the drug.

Justice Ginsburg: Do I understand you correctly Mr. Uelmen from what you've argued about medical necessity, the California initiative is essentially irrelevant because you'd be making the same argument in any state; is that correct.

Mr. Uelmen: That is absolutely correct.

This defense should be available to any patient in any state regardless of whether that state has approved under broader conditions the general use of cannabis as medication.

Justice Scalia: I guess would it be limited to cannabis or would you have a similar exception to any of the prohibitions.

Mr. Uelmen: Well, if the conditions are met that you face this imminent crisis and no other alternative is available, yes, it should be available for other medications as well.

Justice Scalia: It would be up to the individual who wants it to take his chances and say I think there's medical necessity and then try and prove that later--

Mr. Uelmen: That's a risky venture because that individual is going to have to prove in a court of law that in fact he had... he was facing this crisis and he had no alternative.

Justice Scalia: --Well, you know if he really thinks he's going to die that's an easy gamble right, a jury versus the grim reaper, I'll take the jury any day.

Mr. Uelmen: Well, at least in the confines of the modification of this injunction we're talking about more than that, we're talking about a requirement that you prove that you have tried all of the other alternatives that might be available and they didn't help.

Chief Justice Rehnquist: How serious does your medical condition have to be?

I mean, I gather cannabis is not a life-saving drug.

It alleviates great pain and discomfort.

Mr. Uelmen: Well, we believe it is a life-saving drug.

It's a life-saving drug for AIDS patients who are not going to benefit from the new medications available to keep them alive if they can't keep their weight up, if they can't maintain their general health.

Chief Justice Rehnquist: So how serious... how serious does a case have to be before this medical-necessity defense kicks in, in your view.

Mr. Uelmen: Well, in the injunction we're talking in terms of imminent harm, we believe that--

Chief Justice Rehnquist: What sort of harm?

Mr. Uelmen: --Death, starvation, blindness.

Justice Scalia: Stomachache?

Mr. Uelmen: No.

Justice Scalia: That's a harm, isn't it?

Mr. Uelmen: We're talking about patients who are going to lose their sight, who are going to forego chemotherapy or radiation because they can't live with the severe nausea.

Justice Scalia: You have to add some adjective to just imminent harm, you want imminent life-threatening harm, imminent what?

You want to exclude a stomachache and an earache maybe.

Mr. Uelmen: No, I think we're talking about much more serious harm, but we're talking about balancing the choice of evils here.

Justice Ginsburg: Suppose Congress were to say we don't want a medical... we didn't... we thought controlled substance schedule one is prohibited.

Now we're going to make clear there's no medical-necessity defense then what happens to your--

Mr. Uelmen: Clearly Congress did not say that, but if it did, we would contend that we then have a serious constitutional problem in terms of a violation of the substantive due process right to preserve your life, then we can cite the Glucksberg case--

Justice Souter: --May I just ask you a question?

I take it there was no constitutional litigation below that you're raising the constitutional issue here on the constitutional avoidance rationale.

Mr. Uelmen: --Yes, the constitutional issue was raised but in a different context.

Justice Souter: Was it, I mean, did you put in evidence on it or did you argue it or was it just one of those things that you never got to?

Mr. Uelmen: It was argued in the context of the broader motion to dismiss, but with respect to the medical-necessity issue that's before this Court, our position is that if this statute is construed to preclude a medical-necessity defense under these circumstances where the patient faces loss of life or loss of sight there would be a violation of a substantive due process right--

Justice Souter: Do you also raise the Commerce Clause on constitutionality?

Mr. Uelmen: --We did, we did.

Chief Justice Rehnquist: Did you press both of those in the court of appeals when you were appealing from the original injunction.

Mr. Uelmen: They were fully briefed in the court of appeals in the context of the dismissal motion--

Chief Justice Rehnquist: And the court of appeals didn't pass on them I gather.

Mr. Uelmen: --No, they didn't, although they didn't address it specifically in the context of the medical-necessity defense.

Justice Kennedy: But you're asking us to uphold that this defense exists in broad general terms, it's a sweeping proposition with no specific plaintiff in front of us, with no specific symptoms or testimony from a doctor as to this person, which--

Mr. Uelmen: Well, it may be better.

Justice Kennedy: --Which led me to question that the whole use of the injunctive power to begin with but so long as we have the injunction, the statutory authority, it seems to me you have to wait for a specific case to raise this defense.

Mr. Uelmen: Well, that's our position Justice Kennedy that the availability of the medical-necessity defense should await a criminal prosecution in which the defense is asserted and evidence is presented and--

Justice Kennedy: Well, but in the meantime it seems to me that nuisance can be enjoined and if the defendant wants to take his chances on a criminal contempt he can do so.

Mr. Uelmen: --Well, our contention is that you can decide this Court just based on the traditional discretion that a court of equity has to allow this exception to the injunction.

Chief Justice Rehnquist: I think it was pointed out earlier that the district court here whose discretion it is originally granted the injunction just what the government asked for, and it was the court of appeals who does not have discretion which directed the district court to exercise it in a different way.

Mr. Uelmen: Well, the court of appeals was saying that the district court misconceived the law when the court was asked to modify the junction.

Chief Justice Rehnquist: And what should we do if we decide that the court of appeals misconceived the law?

I mean, what should we do with this case?

Mr. Uelmen: Well, if you feel that the court of appeals misconceived the law then of course you're going to have to reverse the court of appeals, but our position is the court of appeals was essentially correct on both grounds, that the court does have discretion to decline to enjoin and these... this conduct doesn't violate the statute because it comes within this medical necessity defense.

Justice Scalia: Mr. Uelmen, let me talk about the medical, I had understood medical-necessity defense, if it existed, to be a defense on the part of the person who is in medical necessity and who uses marijuana or any other prohibited drug when he shouldn't.

Now you would extend this also to the person who provides it to any persons who was in such needs.

Mr. Uelmen: That's correct.

Justice Scalia: And you would extend it beyond that to someone who opens up a business in order to provide prohibited drugs to people who need them.

That's a vast expansion beyond any necessity defense that I've ever heard of before.

Mr. Uelmen: Well it's perfectly--

Justice Scalia: I've heard of necessity defense on the part of defendant who used it or whatnot, but you're saying by reason of a necessity defense you can open up a business to provide for these necessities.

Mr. Uelmen: --If it's perfectly consistent with the choice of evils concept of the necessity defense because the person who provides the substance to the patient is also faced with a choice of evils.

The case of United States versus Newcomb which we cite in our brief on page 23 makes it very clear that this common law necessity defense extends to the third-party provider as well.

Chief Justice Rehnquist: Well, what choice of evils is the provider faced with?

Mr. Uelmen: Of letting someone die or violating the law.

Chief Justice Rehnquist: Well, of not being able to supply the person.

I mean it certainly isn't the provider's responsibility to look after the individual.

Mr. Uelmen: Well--

Chief Justice Rehnquist: You say letting someone die.

Mr. Uelmen: --We're saying the necessity defense permits or justifies this choice even by the provider as well as the patient.

Actually the choice of evils defense as described in the model penal code offers this as an example, a druggist may dispense a drug without the requisite prescription to alleviate grave distress in an emergency.

Justice Scalia: But is this is a regular druggist, this is not a druggist who's in the business of providing illegal drugs to people in necessity.

I mean you're making a business out of it.

I can understand--

Mr. Uelmen: It's a very limited business under this injunction which can serve only patients who meet these criteria, and I might point out it's a business in which the government itself has been engaged.

The government provides cannabis at the present time to eight patients who meet essentially the criteria of medical necessity and--

Chief Justice Rehnquist: --I don't think your example from the model penal code would envision a pharmacist filling a prescription or filling an order for some drug that is on schedule one which no prescription is good for.

Mr. Uelmen: --Well, we're saying the requirement of a prescription is not a judgment with respect to the availability of a necessity defense.

Even a drug as to which no prescription is permitted--

Chief Justice Rehnquist: It's one thing to say that a state law requiring a prescription for a bunch of drugs can be violated in an emergency.

It's another thing to say that a schedule one law which says there's no useful medical purpose for this drug shall be violated.

Mr. Uelmen: --Well the government's position actually is that there is no necessity defense for any drug under the Controlled Substances Act, and I think it's very important that the court realize that the reason we're here is because the government shut down the only program that could accommodate these patients.

For many years they provided Cannabis and still do for eight patients who come within this medical necessity criteria, and they closed that program down in 1992 and they say in their brief we can do it because we're the Federal Government.

You can't do it because you're a private citizen.

Well, we're saying if you won't do it, we can do it because the only justification you have to do it is the same necessity defense that we're asserting and the way the necessity defense works is if a patient comes in and says I have to have this to live and the court says well, the government has a program.

They'll give it to you.

Therefore you have a reasonable alternative.

You don't have a necessity defense and that's exactly what happened in United States versus Burton the sixth circuit case.

A patient with glaucoma comes into court, asserts a necessity defense.

The court says you have a reasonable alternative and that patient then goes to the government and they put him on the compassionate IND program and provide him with cannabis.

Well, now the government decides we're not going to operate that program anymore and we say if you're not going to do it then we can because the only justification you had to do it was this medical necessity concept.

There is no authorization within the Controlled Substances Act for the government to give Cannabis as medicine to patients and when this program was examined by Congress, and I especially invite the Court to carefully look at the hearings held by Congress on the therapeutic uses of marijuana in schedule one drugs.

The way this program was explained to Congress in 1980 was we are providing Cannabis for medical use by these patients and the reason we're doing it is because of compassion and because of the therapeutics.

That was the explanation given by Congress.

Justice Ginsburg: I thought it came out of a settlement of a lawsuit.

Mr. Uelmen: It came out of a settlement of a lawsuit where the patient successfully asserted a medical necessity defense and the federal authorities then stepped in and said we will provide you with the Cannabis you need to preserve your sight.

Justice Ginsburg: Successfully in what way did the plaintiff get a judgment in that case?

Unknown Speaker: You said there was a settlement.

Mr. Uelmen: This was after he was acquitted he brought a civil lawsuit and in settlement of that suit this program was established.

Unknown Speaker: Thank you, Mr. Uelmen.

General Underwood, you have three minutes remaining.

Rebuttal of Barbara D. Underwood

Ms Underwood: A medical necessity defense is foreclosed here not only by the fact that Congress contemplated and rejected it and not only by the fact that alternatives are available but also because any necessity defense is a response to unusual and unforeseen circumstances.

It couldn't possibly, the common law necessity defense couldn't possibly authorize an ongoing enterprise designed to stand ready and provide supplies to people who might show up with their own individual claims of medical necessity.

There's no constitutional problem with the statutory procedure for deciding when and if medical uses for a drug exist where with... and the court held in Weinberger against Hynson that it's perfectly appropriate for the FDA to reject anecdotal evidence and insist on controlled studies.

There's also no problem with protecting sick people from charlatans or unsafe and ineffective drugs as this Court held in Rutherford in dealing with Laetrile the claim that there was a right to use Laetrile.

Respondents in this case have never presented their claims, the claims they're making here, to the FDA.

They've never sought review of the classification of marijuana in schedule one, they've never sought access to, at least so far as the record reflects, to the clinical trials that are ongoing right now to deal with synthetic manufacture of components of marijuana, and on the remedy for contempt at the petition appendix at 25 A and again at 37 A it's perfectly clear that the government was not seeking fines or incarceration, that the judge wasn't contemplating fines or incarceration but just evicting and padlocking, closing down this business.

Chief Justice Rehnquist: Thank you General Underwood.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Richardson v. United States - Oral Argument

Fri, 09 Jan 2009 14:50:14 +0000

Case:

Richardson v. United States

Media File:

97-8629_19990222-argument.mp3

Related Transcript:

1998_97_8629_argument.xml

Transcript:

Argument of William A. Barnett, Jr.

Chief Justice Rehnquist: We'll hear argument next in No. 97-8629, Eddie Richardson v. the United States.

Mr. Barnett.

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

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

The jury is a finder of fact.

The prosecutor's decision in the case...

Justice Kennedy: And... and what is the principal authority for that proposition?

Mr. Barnett: Pardon me, Your Honor?

Justice Kennedy: What is the principal authority for that proposition?

Winship?

Mr. Barnett: Winship.

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

Justice O'Connor: Yes, but I had thought in... in Schad there was some indication that different jurors can be persuaded by different pieces of evidence so long as they all agree on the bottom line.

I... I think there's some indication that jurors don't have to view each piece of evidence unanimously...

Mr. Barnett: Well, the...

Justice O'Connor: if they agree on the bottom line.

Mr. Barnett: The question I guess is what is the bottom line, and the bottom line in...

Justice O'Connor: Guilt or not guilt of the charged offense.

Mr. Barnett: Yes, but the offense is defined.

And with respect to the definition of the offense, there are certain constituent facts which the jury, as the finder of fact, is required to find beyond a reasonable doubt.

In the continuing criminal enterprise statute, those constituent facts are that the primary elements are that the defendant be... have committed a crime which is a felony under the Federal narcotics statutes...

Justice O'Connor: And if it's part of a continuing series of violations, and it doesn't say how many or what.

I mean, I'm not sure that you can pin this statute down as you would seek to do it.

Mr. Barnett: Well, if you cannot pin it down...

Justice O'Connor: Well, Congress didn't seem to pin it down.

Mr. Barnett: Congress...

Justice O'Connor: Now, in RICO you've got a much more precise scheme spelled out than here.

Congress just said a continuing series of violations.

Mr. Barnett: Well, you're correct, Your Honor.

In the RICO statute, it specifically states that there have to be at least two and that they have to fall within a certain time period with relationship to each other.

Chief Justice Rehnquist: Right.

Mr. Barnett: On the other hand, just because Congress called it a series of violations, in this case instead of defining it as three or more violations or some other specific definition, nevertheless, the word series is a conclusion.

It's a conclusory statement of fact.

The word series means nothing without a context, without an object of the preposition.

What is it a series of?

And they have defined that specifically in the continuing criminal enterprise statute as violations of the Federal narcotics laws.

Those violations are very specifically defined throughout the... the statutory framework, each and every one, and each and every one has well defined elements which have been defined and judicially interpreted over the years.

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

Justice O'Connor: Well, there was ample evidence here of, if you will, a continuing series.

Mr. Barnett: Well, a series is made up of the constituent elements.

So, in order to find a series, you would have to find that they... and it then occurred at one time, a second time, a third time, a fourth time...

Chief Justice Rehnquist: Well, there was plenty of evidence to support the findings necessary.

Your complaint is just about the instruction, is it not?

Mr. Barnett: That's correct, Judge.

This is not a sufficiency of the evidence case.

Justice Ginsburg: Mr. Barnett...

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

Mr. Barnett: That's correct, Your Honor.

Justice Kennedy: You're not alleging that there was a defect in... in the findings as to that part of the statute, are you?

You're just addressing subclause 2, which is the continuing series.

Mr. Barnett: I'm not... I'm not suggesting there's a defect in the statute at all.

Justice Kennedy: Pardon me.

A defect in the proof under the statute.

Mr. Barnett: I'm not suggesting there was a defect in the proof here.

This is not a case about the proof.

It's a question as to whether or not the jury was properly instructed that it had to unanimously find that each of the elements had been...

Justice Kennedy: My own questions are imprecise.

Are you saying that there is an insufficient finding on the part of the jury with reference to paragraph 1 of the statute as well as to paragraph 2?

Mr. Barnett: Insofar as it is implicitly included in the series, yes, I am.

I know that the Government has taken the position that that issue has been waived.

On the other hand, by our request for an instruction that the jury find with respect to the series, defined as at least three, that it find unanimously that each of the three has been proved, I would suggest that we preserve that issue.

And the instruction given by the court to the effect that it need not... the jury need not find unanimously with respect to any of the underlying predicate offenses in the event that... well, in effect, told them they wouldn't have to agree with respect to that first offense.

And that was... at least I'm arguing here today that was legally wrong and violative of the Constitution.

Chief Justice Rehnquist: Well, what do you mean violative of the Constitution?

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

Chief Justice Rehnquist: Well, that's the indictment.

There's nothing wrong with the indictment here.

The indictment gives him notice of what he's charged with.

Mr. Barnett: Yes, but during the course of the trial, a man must be able to meet the charges that are being made against a man.

When it is set forth in a scattershot fashion so that he's, in effect, asked to hit a moving target in... in cross-examining witnesses as to specific events when they don't give testimony with respect to specific events and it's a generic type of testimony, then it puts him in an untenable position... excuse me.

Chief Justice Rehnquist: Supposing in this case, there had been evidence of six other convictions... criminal enterprises that met that definition, and the judge had charged the jury that you must find that the person committed three of those offenses.

Now, do you think that the law requires that the jurors agree on which three of the six were committed?

Mr. Barnett: Yes, I do, Judge, and the reason for that is because if they do not agree... if you cannot get the jurors to agree unanimously as to any one of those elements, you have to drop it out.

So, if you have six, but you can only get unanimous agreement on two, for instance, you haven't proved a series of six.

Justice Ginsburg: What about if you have thousands?

Because wasn't that the Government's case?

To talk in the abstract about agreeing on the particulars versus the conclusion is one thing, but here the Government says where we have a continuing series that involves thousands of separate transactions and they didn't...

Mr. Barnett: But...

Justice Ginsburg: Was the prosecutor wrong in saying that that was the series?

He said every $10 bag of crack, every $20 bag of heroin, each one of those sales was a transaction in this series, and he said that the proof supported literally thousands of... and from the thousands, the jury is supposed to pick out three or four?

That just seems to make no sense to me.

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

Justice Ginsburg: First, did the Government charge that... that that was the... that's the continuing enterprise that they were dealing with, one that involved thousands of transactions?

Are you challenging that that was an accurate characterization of the series that the Government charged?

Mr. Barnett: The way it was charged was as a... a conspiracy, and off the top of my head, I can't remember if they said this involved thousands of transactions.

But you can certainly make the... the inferential jump from the terms of the indictment and the way the conspiracy was described to... to conclude that, yes, this was a case involving thousands of transactions.

Justice Ginsburg: And the judge is supposed to tell the jury, this case involves thousands of transactions, but you have to pick out three and agree on those.

If that's so, then... then doesn't the judge have to list all the thousands, every runner who testified?

They didn't remember their individual sales, but they were able to say, yes, we sold on an average of so much a week, so much a day.

Mr. Barnett: Well, the...

Justice Scalia: Well, I guess nobody made the Government charge thousands, did... did they?

Mr. Barnett: No.

Justice Scalia: They could have charged just 10.

Mr. Barnett: And they...

Justice Scalia: They're just being greedy here.

They could have charged five, maybe three.

Right?

Mr. Barnett: That's true.

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

Mr. Barnett: They also could have charged predicate acts as substantive crimes, which they chose not to do, which interestingly, the... the RICO statute, which has been referred to here... routinely the Government charges the predicate acts as substantive crimes.

And the convictions on those underlying substantive crimes become the basis for finding the predicate in the RICO charge.

But in this statute, the Government has taken the position that because the word series of violations is not as specific as in RICO, they don't even have to charge any predicate offenses.

And... and I'm not quarreling with that.

The case law is clear that they do not, but if they do not, they should at least be required to point to three offenses and say, you've got a series.

If you can agree on the three offenses, and particularly one within the statute of limitations, then you've got a series...

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

Mr. Barnett: The five-person requirement, as I view the statute, is significantly different from the underlying offenses.

The... the basic criminality of the continuing criminal enterprise statute is contained within the fact that there are narcotics violations which have occurred.

There is nothing else in the statute that's criminal.

Hanging around with five other people or making a lot of money is not criminal in and of itself.

Those... and in the structure of the statute, those are subsidiary to the primary element that the violation be part of a continuing series.

They are...

Justice Breyer: But, I mean, in terms of your... in terms of knowledge of the defendant, in terms of your knowledge as a defense attorney, when you see the indictment, does it list the five people by name?

Does it have to?

Mr. Barnett: No.

Justice Scalia: No.

Justice Breyer: All right.

So, what do you do if you want to know who they are?

Mr. Barnett: You can file a motion for a bill of particulars.

Justice Kennedy: Exactly.

Justice Breyer: And so, I... I suppose that that's just what you would do in respect to the offenses as well, if you lose this case.

And you may win it, but... but... but... but if you'd lose it, it wouldn't be a problem of notice.

It would be the same problem, wouldn't it?

You'd say I don't know who they are and file a bill of particulars.

And... and... so, I don't see there's a notice problem.

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

Justice Breyer: Suppose there are thousands of people, thousands of people.

Indeed, there may have been in this case.

Mr. Barnett: Well, in that event... well, let me back up a second.

Chief Justice Rehnquist: If... if you're worried about that, isn't your move to move for a bill of particulars?

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

The question...

Justice Souter: In other words, you want... you want to have to prepare for less.

That's the guts of your argument, isn't it?

Mr. Barnett: Well, yes, that's true.

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

Mr. Barnett: That's correct.

Justice Souter: So, what you're really saying is, I have a right to... to prepare, in effect, the... the narrowest and most... and hence most manageable case possible.

That's... that's basically your argument.

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

Because if you don't have an agreement on a specific... if you don't have an agreement on enough specifics to make a series, then you don't have agreement on a series.

The series is...

Justice Stevens: That's not necessarily... excuse me.

Justice Kennedy: Go ahead.

Justice Stevens: Isn't there an intermediate position?

I'm trying to... could it not be true that there are three or four witnesses who could testify that I sold heroin on a such and such a street corner over and over again for 5 years?

I can't remember any specific date or any specific transaction, but I did it over and over again.

And then there's another witness who says, as I guess in this case, he sold white heroin, somebody sold brown heroin, somebody sold cocaine.

They might not remember the specific details, but did you argue that they at least ought to be compelled to find that there were... they agreed on which series took place?

In other words, if they agreed that the witness who testified that there were transactions in brown heroin for 6 months in a row, I can't remember any specific transaction, that that would be enough for a series if they all agreed on that particular series?

But here you've got several series.

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

Mr. Barnett: Are you referring to my argument in the court?

Justice Stevens: In the district court.

Mr. Barnett: In the district court?

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

It seems to me there's a big difference.

Mr. Barnett: The instruction that we requested was...

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

Mr. Barnett: Well, the way it was phrased was that... it wasn't quite that specific or well thought out...

Justice O'Connor: No.

Mr. Barnett: I have to say.

It's you must unanimously agree on which three acts constituted the series of violations.

And that was as specific as we got in our requested instruction.

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

Chief Justice Rehnquist: What was the sentence before the however?

Mr. Barnett: Oh.

You must unanimously agree that the defendant committed at least three Federal narcotics offenses.

You do not, however, have to agree as to the particular three or more Federal narcotics offenses.

Justice Scalia: We don't really know that the Government... I guess we can ask the Government when it comes up, but we don't really know that the Government concedes that the jury has to decide upon a particular series.

I suspect the Government's view will be that if nine jurors believed without a... beyond a reasonable doubt that... and all nine of them believed beyond a reasonable doubt that this defendant engaged in a series of drug transactions, it doesn't matter which series each of the jurors had in mind so long as all... all of them believed beyond a reasonable doubt that there was some series.

Mr. Barnett: I think that logic...

Justice Scalia: You don't like that either.

Mr. Barnett: Oh, no, I certainly don't.

Justice Scalia: That's even worse I suppose.

Right?

Unidentified Justice: [Laughter]

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

Chief Justice Rehnquist: You might ask what the other three jurors...

Unidentified Justice: [Laughter]

Justice Breyer: How do you... what do you think about the robbery statute, whoever by force and violence or by intimidation takes money from a federally insured bank?

How does the Government have to proceed there if they have... where they're not... there are some people who think that force and violence but not intimidation this particular defendant used and some think it's intimidation but not force or violence?

Now, does the... do you have to have unanimity on each of those if they say, we're certain of one thing, he did it one way or the other, but we're not certain?

Some of them think it's force and violence; some of them think it's intimidation.

That sounds familiar.

That's called Schad.

Mr. Barnett: Yes.

It's very...

Justice Souter: All right.

Now, all right, fine.

Justice Breyer: So... so, what's the difference?

Mr. Barnett: Well, the... there's a difference between the characterization and the act, the legal characterization of what the criminal act which has occurred is, and whether the jury can distinguish between two different legal characterizations of the same actus reus may lend itself to this morally equivalence analysis which is set forth in Schad.

If they're morally equivalent, does it make any difference whether it's taking by force or taking by intimidation?

We think not.

Therefore, the jury just has to unanimously agree, but they are unanimously agreeing on a particular set of facts, an actus reus, an act by the defendant which has a particular victim, and with respect to that, they are finding the guilt.

Chief Justice Rehnquist: What about Justice... I think it was Justice Scalia's hypothetical in his concurring opinion in Schad that a person is charged with first degree murder and there's evidence that the... the killing was committed in the course of a felony?

There's also evidence that... that the defendant intended and deliberated.

Does the... do the jurors have to pick between those two theories of first degree murder?

Mr. Barnett: Well, as in Schad, the... the... the same... well, that was the case in Schad, although it was a State court case.

But that... once again, that is not a question as to whether a particular actus reus has occurred.

That's a...

Chief Justice Rehnquist: What's... what's an actus reus?

Mr. Barnett: The... the criminal act, the specific set of...

Chief Justice Rehnquist: What the defendant did?

Mr. Barnett: Yes, what he did.

That has to do with what he was thinking when he did it.

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

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

Just... the jurors may unanimously...

Chief Justice Rehnquist: He'd be entitled to a severance certainly.

Unidentified Justice: [Laughter]

Mr. Barnett: There's a... there's a difference between the jurors unanimously agreeing that a... a crime has occurred on such and such a date and... and the jurors unanimously calling something that happens a crime.

Now, 12 jurors can each think to themselves a man has done, let's call it, a crime and one because he thinks he committed a murder, one because he thinks he committed a robbery, one because he thinks he committed a rape.

And they don't unanimously agree that he did any of those things, but each one of them says this man committed a crime and they're unanimous on that.

That is not unanimous agreement on a specific crime with which this man is charged.

Justice Kennedy: And you would say that... that that rule applies in the hypothetical where six jurors think the dope was sold at high school 1, six jurors think the dope was sold at high school 2.

They don't disagree necessarily with the findings of the other six, but they just focus on a... on a different high school.

Mr. Barnett: Well, when you say they don't disagree, Your Honor, I think...

Justice Kennedy: They don't come to any conclusion.

They don't... they don't negate that finding.

They just say I... in going around the jury table, six say, I'm convinced he sold it at high school number 1; six jurors say, I'm convinced he sold it at high school number 2.

Isn't that just the mode of committing a series of... of transactions?

Mr. Barnett: No, I would not say that's a mode.

That's the essence of the transaction, what transactions have occurred.

And do you have 12 people unanimously agreeing that the transactions have occurred, or do you have 12 people agreeing that transactions occurred and we're all willing to call whatever transactions we think occurred a series?

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

Mr. Barnett: Yes, I do.

Justice Souter: Well, the trouble that... the trouble is I don't think you can differentiate it from... from Schad by saying that Schad was essentially a case on characterization.

You said, well, it's a case about characterization because it wasn't a case in which anything turned on... on distinctions of what you called the actus reus.

But it seems to me that... that it did.

Take the... the homicide example, the homicide in a case which... in a State which defines homicide in... in unitary terms.

In... one alternative for proving a homicide would be to prove as a fact that the defendant went through a certain thought process, i.e., deliberation and premeditation.

Another alternative for proving that homicide... the same... the same victim... would be to prove as a fact that the defendant was engaged in robbery at the time he killed.

The distinction between those two cases is not a distinction in characterization.

It's a distinction between two different facts, the fact of thought, the fact of robbery.

And... and I don't see how you can distinguish Schad as a characterization case.

Am I... do I misunderstand your argument?

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

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

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

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

Mr. Barnett: Oh, I don't think it...

Justice Souter: I mean, I think... I think in order to... to make... in order to avoid having those kinds of distinctions get into this case, we've got to recognize that Schad was, among other things, making the... the due process judgment based on... on traditions of how we prove crimes.

And... and one tradition that would pretty clearly be excluded would be the... the... the... the charge simply of one crime, choosing one day and one victim, another day and another victim as an alternative.

And that may be a very strong argument for the Government... against the Government's desire to... to sort of have the whole hog here and say that... that even the... as it were, the principal act here could be proven in any of alternative ways.

But I thought the case that you had brought to us was whether in addition to proving the... the principal act here, the series could be proven in alternative ways.

And... and I think my point is you can't distinguish the alternative ways of proving a series from the situation in Schad by saying that Schad was merely a case about characterization because Schad was a case about different acts.

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

Justice Souter: Well, it doesn't because we don't have the kind of historical precedent one way or the other that you're talking about.

And that's why I tried to pin you down a little bit to find out what in practical terms is really bothering you here.

And I thought what's really bothering you is... is the problem of... of case preparation.

You want to be in a position to... to narrow down the facts which you've got to negate, assuming you put on a defense or cross examine, and I thought that was... that was what you were in practice really worried about here.

Mr. Barnett: That is a very strong part of the... the argument.

Justice Ginsburg: Well, suppose Congress wants... wants to pass a statute that says we want to get at these operations where there are lots of runners and people who will not be able to tell you precisely any particular sale, but will be able to testify in gross, I sold X... on average X many bags a week.

Suppose Congress wanted to get at that.

Could it?

Or are you saying, no, because you have to prove discrete acts?

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

Justice Ginsburg: This is a runner who says, I'm in the business of selling crack.

I can't tell you... I've been doing it for years... on any given day who... who I sold it to.

Suppose Congress thinks that that exists in the real world and wants to make a crime that covers that.

Are you saying they can't?

Mr. Barnett: I'm not saying they can't legislate against a continuing criminal enterprise, which is what they did here.

What I'm saying is that they should be... the Government should be subject to the same rules of proof that they are in any kind of a case, which is they've got a fact that they have to prove and they bring witnesses in who can testify to it.

And I think that to take the position that their witnesses are... that they're not going to have witnesses that are competent and therefore we should just disregard the requirements that they prove a case would be contrary to the Fifth Amendment.

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

Argument of Irving L. Gornstein

Chief Justice Rehnquist: Thank you, Mr. Barnett.

Mr. Gornstein, we'll hear from you.

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

It is an established principle of the criminal law that while a jury must unanimously agree that the prosecution has proven the elements of an offense, it need not agree on the evidence supporting each element.

As applied to the CCE statute, that principle means that the jury must unanimously agree that the defendant engaged in a continuing series of violations, but it need not agree on the particular acts that make up such a series.

Justice Kennedy: And what... what is the best authority for that from this Court?

Mr. Gornstein: The Schad case and the cases that precede Schad establish the basic controlling principle here, which is that the only thing that a jury has to be unanimous about is the elements of the offense and the jurors do not have to agree on the evidence that support each element.

In Schad, the crime was murder, and in Schad, some jurors... six jurors could think it was a felony of robbery, six jurors could believe there was an intent to kill.

As long as they all agreed that the relevant mens rea was... was established, they did not have to be unanimous.

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

Mr. Gornstein: Now you're talking about for a CCE?

Justice Scalia: Yes.

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

Justice Stevens: No.

Justice Kennedy: I'm assuming that there was a series of transactions...

Mr. Gornstein: Right.

Justice Scalia: at high school 1 and a series of transactions at high school 2.

Mr. Gornstein: Right.

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

Justice Scalia: Suppose that half the...

Well, who decides that they were all...

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

Mr. Gornstein: Right.

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

Mr. Gornstein: Justice Kennedy, that... the same result would follow.

Just as in Schad, if six jurors had concluded there was no robbery at all and six jurors had concluded there was no intent to kill at all, they would still unanimously agree on the relevant mens rea.

All that... that... the question of what is an element of... of an offense is essentially a question of statutory construction.

What did Congress intend for the elements of an offense to be?

Here the text of the act expressly says that the relevant element is that there must be a continuing series of violations.

Given that definition of the element, the only thing that the jury must be unanimous about is that the defendant engaged in a continuing series of drug violations.

Justice Scalia: But it isn't just a question of intent.

You wouldn't say that the Government could enact a crime which says anyone who, you know, is... is either guilty of... of filing an incorrect income tax return or of... of rape shall go to jail for 30 years, and then throw it to the jury and let the jury decide.

You know, you have some evidence of rape, some evidence of failure to file a proper income tax return.

None of the... on neither count can you get 12 jurors, but you get 6 on one and 6 on the other.

Can the Government do that?

Mr. Gornstein: No... no, it...

Justice Scalia: So long as it intends to do it.

That's really what the Government intends.

Mr. Gornstein: You were right to correct me, Justice Scalia.

The first question is one of legislative intent.

What did Congress intend for the element to be?

Once you know what Congress intended for the elements to be, there is then a due process question about whether Congress can rationally... rationally define the elements of the offense in the way that it did.

And the... the hypothetical of he... she struck A on Monday or B on Tuesday is completely unlike this CCE statute in due process terms.

Justice Scalia: What if the series... you say so long as it's rational.

What if the series elements were not tagged on to a... a concrete violation that you needed 12 jurors for?

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

Mr. Gornstein: We do not agree with that, Justice...

Justice Breyer: You don't even think you need 12...

Mr. Gornstein: We do not agree on that.

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

Mr. Gornstein: They do have to agree about the elements of the offense, but not the facts underlying it.

And what the... what the first element... we would acknowledge it is a more difficult question because if you look at the first element in isolation, it does look like it's focusing on a discrete act by a single defendant.

Chief Justice Rehnquist: It sure does.

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

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

Mr. Gornstein: Well, you'd have to prove a series, but the...

Justice Scalia: You'd have to prove a series.

Mr. Gornstein: Correct.

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

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

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

Justice Scalia: Schad was decided mostly on the basis of tradition.

It had been done this way, you know, for a long time.

And if I had to apply the same rule to the present case, I would look to those cases that... that dealt with recidivism.

And as I... you know, you're guilty of this offense.

You'll... if... if you have committed a prior offense as well, you... you have a higher sentence.

And let's assume that they're both elements of the... of the offense.

And in those cases, as I understand the historical background, you had... you had to prove the prior offense by a unanimous jury and you couldn't say the jury... you know, the jury thinks you committed a prior crime.

Mr. Gornstein: Justice Scalia, I'm not sure about the background that you're speaking of, but I don't think it's fair to compare this statute to a recidivism statute.

It is not.

It is a completely different kind of statute.

What it is... what Congress was addressing here was a new kind of crime, and that is the operation by drug kingpins of large scale drug businesses from which they derive substantial revenues.

It is not just somebody committed one crime and then another.

It is a drug business crime, and that's why it's called continuing criminal enterprise.

And in... in responding to that distinct form of criminal activity, it was entirely rational for Congress to say... to define the series element so as to require agreement on a series but not on the particular acts.

And I would also distinguish this case from the... the case where you just have to prove a series because there are other elements to this offense.

The Government has to prove that there was a conspiracy.

It has to prove that the... the... that the defendant derived substantial revenues from that conspiracy, and the addition of... of those elements helps to establish that what Congress was doing was responding to...

Justice Stevens: May I give you this... this hypothetical?

Supposing in this... the facts of this very case, the Government had brought four different CCE charges, one involving the sale of brown heroin from 1984 to 1990, the second involving the sale of white heroin in 1988, and the third involving the sale of cooked cocaine in November of 1993... three separate... and then the fourth, charging the whole bunch.

Under your view, if I understand it, the defendant could be found not guilty on all of the three charges but guilty on the fourth.

Mr. Gornstein: I have to work through that hypothetical a second, Justice...

Justice Stevens: Well, each is a continuing criminal enterprise.

The first involves brown heroin from 1984 to 1990.

The second involves white heroin in 1990, and the third involves cooked cocaine...

Mr. Gornstein: And then there's one overriding...

Justice Scalia: And then there's one overriding.

Mr. Gornstein: One overriding...

Justice Stevens: And they could be... and they charge all four.

Mr. Gornstein: Right.

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

Mr. Gornstein: That's possible, and... and that is possible...

Justice Stevens: That is consistent with your theory.

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

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

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

And that is the...

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

Mr. Gornstein: I just don't...

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

What... what would that destroy?

Mr. Gornstein: Justice Scalia, I...

Justice Scalia: What classic statutes would that harm that...

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

Justice Scalia: we're exactly answering whether we should let these modern statutes proceed.

It's bank robbery.

Justice Breyer: It's bank robbery.

Whoever by physical... you know, what is it?

Assault or... or intimidation, I mean, extortion.

I don't know.

I guess you could charge under bank robbery he either did it through extortion...

Mr. Gornstein: You could.

You could charge one or the other.

Justice Breyer: Or you could say he did it through assault, which is a crime, and some of the people say it was assault and some of the people think it's extortion.

I mean, sending somebody a note, give me the money or your life, is... I would worry that there are lots of classical statutes that would be affected by that.

Chief Justice Rehnquist: Well, and I suppose one could get... get around the rule that Justice Scalia proposes, if it were ever adopted, by... you know, Congress comes in and says, well, we're not talking about crimes here.

We're talking about something called drug transactions.

And they're not separately criminal, but if you combine them in such a way, then they are criminal.

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

Justice Breyer: How do you...

Justice Souter: The answer... no, please go ahead.

The answer may be, as I think Justice Scalia suggested a second ago in... in preface to his question, Schad assumed that there was in... it was possible in the analysis to make a distinction between means and ends.

The end in Schad was... was the killing.

One of the means by which that killing, in effect, was accomplished was... was... was what we tend to call the mental element.

And historically we have said the mental element can be proven either as, you know, the factual element... he deliberated... or the mental element can be satisfied by proving that he was committing another offense when the killing occurred, i.e., in Schad's case, robbery.

There was a means/ ends distinction.

The trouble with applying Schad here is that I don't think we're talking about the same kind of means/ ends distinction because what we're talking about here is an entirely separate element that does not go to the end of proving the one crime which... which brought us into court.

The particular transaction, which was the transaction principally charged here, was not committed by this other series.

It was committed, whether he committed three other offenses or didn't commit three other offenses.

And so, we don't have the same kind of means/ ends distinction possible here that we had in Schad.

Mr. Gornstein: I don't see the distinction.

What we have here is the element is defined that we're dealing with as a continuing series of violations.

And it's true, that's not the whole crime, but it seems to me the same analysis would apply to a particular element.

And that is...

Justice Souter: Yes, but you... you apply... well, that's right.

But what you're doing is saying, there are different means of proving the series, this three, that three, a third three, and so on.

But the relationship between the series and the principal crime charged here, i.e., this particular transaction that brought us into court, is not the same as it was in Schad.

So, query whether... whether... whether Schad should open the door to proving an element which is not itself a means to the... to the commission of the principal crime in the same manner that Schad would allow if it were an element going to the means of proving...

Mr. Gornstein: But Schad announced a principle that was broader than just the means.

It was a distinction between what is the element and what are the facts that helped to prove the element, the element as defined by the legislature.

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

But the first question is just a question of statutory interpretation under Schad, and here the text of the act says that all the element is is proof of a continuing series of violations.

Given that definition of the element, the only thing the jury has to be unanimous about is that there's such a series.

And now we have a question.

Did Congress... is that a rational way to proceed?

Justice Scalia: Well, should rationality include... include whether it... it simply deprives the jury of its historic function?

I mean, any crime could now be... you... you could dispense with the unanimity requirement of the jury by charging... enacting new statutes for a series of burglaries, for a series of robberies, for a series of rapes, and the defendant would be... would be held before the court and... and... and all you would need is a... is a minority of the jury to believe that one or another rape occurred, a robbery occurred, or burglary occurred.

And that's just so contrary to what our tradition has been.

Mr. Gornstein: As I said...

Justice Scalia: Is that... is that an irrational definition?

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

Chief Justice Rehnquist: What if a defendant is charged with speeding on the... on or about such and such a date at the intersection of 15th and Pennsylvania Avenue?

And after the evidence, six of the jury say he was really speeding when he was on Pennsylvania Avenue, but not when he turned into 15th, and the other part of the jury says, well, he wasn't really speeding when he was on Pennsylvania.

It was after he turned onto 15th.

Do you think that that jury can properly return a verdict of guilty on that charge?

Mr. Gornstein: They can, yes.

I think if you... even if you had a crime like reckless driving and a number of things... and that was the definition of the crime, and a number of things happened, he turned into the right lane, he sped, he did a number of things, you could charge the crime of reckless driving.

And then as long as the jurors agreed that he was recklessly driving, they wouldn't have to agree on the particular facts that convinced them that he was recklessly driving.

Justice Breyer: What about the Hobbs Act or the Travel Act?

I mean, suppose that you have a person traveling in interstate commerce intending to distribute the proceeds of an unlawful activity.

Six jurors think that the unlawful activity was robbing a bank; six jurors think that, on a totally different day, the unlawful activity was selling a lottery ticket without permission.

In other words, is this going to apply to the Travel Act?

And then you look at the Hobbs Act with extortion.

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

I mean, does this apply across the board?

The Travel Act, the Hobbs Act, all the illegal gambling statutes?

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

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

Justice Scalia: Well, that defines...

Mr. Gornstein: In some... in some cases there could be two... two separate acts, each of which... for example, if you take a drug distribution, each drug distribution is a separate offense that is charged and punishable as such.

And therefore, you could not charge an either/ or, either he distributed A or B.

That would be two distinct offenses.

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

Mr. Gornstein: Here in this case what we have...

Justice O'Connor: Here's it's not this?

Mr. Gornstein: That's right.

Justice Breyer: It's not that in the Hobbs Act.

It's not that in the Travel Act.

Look at the money laundering statutes.

Six people think that this money laundering came from... from a copyright violation.

That's one of them under the... six of them think that the money came from a big dope ring.

Does it matter?

Justice Scalia: I'm not asking because I have a view.

I'm asking you...

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

Chief Justice Rehnquist: No, no.

Mr. Gornstein: or just alternative ways of...

Justice Stevens: It's not.

Justice Breyer: We know what the Hobbs Act says.

Justice Scalia: We know what the Travel Act says.

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

You'd have to decide...

Justice Breyer: Well, we all know that... I mean, the Travel Act says whoever travels in interstate commerce with intent to distribute the proceeds of any unlawful activity.

Justice Stevens: That's it.

Mr. Gornstein: Right.

That sounds like...

Justice O'Connor: Now... now, six people think...

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

Justice Breyer: So, basically you're... you're saying across the board...

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

Justice Breyer: Well, but to think of the Hobbs Act, the Hobbs Act... the crime is affecting interstate commerce.

And one person thinks affecting interstate commerce through, for example, extortion defined as extorting money under official right.

All right?

Now, they all think he affected interstate commerce.

That's awfully broad.

And six people think he affected interstate commerce by pretending to be a policeman and robbing a bank or being a policeman and going in and robbing a bank, getting in that way, and six people think what he did was take a bribe from somebody he stopped to get a traffic ticket.

Justice Scalia: Now, what about...

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

Justice Scalia: By the way, they're totally different days and...

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

Justice Breyer: All right.

Now, my problem is suppose that I think with the Hobbs Act, anyway, that's just too broad because all you have as the common thing is you affected interstate commerce.

Now, if I go down that track, I have to draw a line and I don't know how to draw the line.

You're telling me don't go down it.

But, my goodness, if I don't go down it, look what happens.

Mr. Gornstein: I... I think that you can start in this case with realizing that this act starts with a conspiracy.

Under Rutledge, it said that we have a conspiracy plus other elements.

Here all the predicates charged were undertaken pursuant to a single conspiracy.

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

Mr. Gornstein: We did not specifically mention conspiracy as a predicate act.

Conspiracy was in a separate count, but it was very clear from count 1 and count 2 that the very continuing criminal enterprise was... was undertaken pursuant to the conspiracy that was set out...

Justice Scalia: Well, but you're saying that this is a...

Justice Kennedy: The conspiracy, any particular conspiracy?

Justice Scalia: As I understand your case, they could have all had different... the different jurors could have different conspiracies in mind.

Mr. Gornstein: No.

There was just one conspiracy charged in the indictment.

Justice Scalia: Well, but there could have been a lot of other... I mean, there could have been...

Mr. Gornstein: There was only one and it was a conspiracy to distribute drugs...

Justice Scalia: But that's probably accidental.

Justice O'Connor: I mean...

Mr. Gornstein: It is... that is the way the Government charges these cases, Justice Scalia.

Justice Scalia: But the Government... but the Government could charge these cases by saying, you know, it could have been this conspiracy, it could have... you could have conspired with these eight people or maybe it's these eight people or maybe it's these eight people.

And it's up to the jury if... if you get four for each, you have a conviction on the conspiracy count as well.

Right?

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

Justice Kennedy: It seems to me the direction you're going in now is to say that this is like a traditional conspiracy, and you're attempting to answer the problem raised earlier when we said that this is a modern sort of crime that's troubling.

And so, you say, well, it's like... enough like a conspiracy that we shouldn't have to worry too much.

Is that about where the argument is going?

Mr. Gornstein: Well, no.

I don't... I think that one of the things that you don't have to worry about is how... that Congress really was, and all these elements of the offense established, responding to a new and distinct form of criminal activity.

It wasn't just taking a traditional offense and wiping out unanimity.

It saw a whole new kind of criminal activity which was the operation by drug kingpins of drug businesses from which they derived substantial revenues.

Nobody disputes that that was a new and distinct form of criminal activity that Congress was confronted with.

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

Chief Justice Rehnquist: But rationally may not be the happiest adverb there because rationally suggests there has to be a connection between means and ends.

And if Congress' end is to, you know, catch as many of these people as possible and send them to prison, then they're probably going to define the thing in such a way that the... a hung jury is not much of a threat to them.

I think you... you've got to spell out a little bit more why this was a permissible...

Mr. Gornstein: Well, but you have to look... look at the elements of this offense.

There has to be a conspiracy.

There has to be a series of violations.

There has to be substantial revenues derived from the conspiracy.

That spells out pretty clearly exactly the problem that Congress was faced with.

Justice Scalia: Mr. Gornstein, what's new about this problem?

I mean, habitual drug dealers may be new, but there were habitual pick-pockets.

There were habitual bank robbers.

There's no reason why statutes like this couldn't have been enacted in the past.

But it's part of our Anglo-Saxon legal tradition that we didn't have statutes like this.

We didn't put somebody in jail for being a traditional... an habitual speeder and then having the jury decide whether he might have speeded on any of 10 different days.

We habitually have not done this.

Unidentified Justice: [Laughter]

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

But second of all, there are other State law crimes that to some extent have gone to define a series as the basis for the crime.

For example, child abuse is a... is a classic example where all the jury has to agree upon is...

Justice Stevens: Mr. Gornstein, it just occurred to me, when you talked about multiple conspiracies, in the Kantiakis case, the court held you can't just find a whole bunch of conspiracies if you charge one.

I really think your position may be inconsistent with the... with that ancient case.

Mr. Gornstein: The...

Justice Stevens: The Kantiakis case.

Mr. Gornstein: Well, you can't find one.

If there's just one, then you find one.

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

Mr. Gornstein: Well, if there's... I'm not sure I'm following the hypothetical.

Justice Stevens: It's not a hypothetical.

It's 328 U.S....

Mr. Gornstein: No, no.

I'm sorry.

Which... which part of my position are you questioning?

That's...

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

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

Justice Stevens: No.

Justice O'Connor: They have to agree it's the same conspiracy.

Mr. Gornstein: That's right, and that's what... that was what was charged here.

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

Mr. Gornstein: No, I think that you did agree that there was... that they were the same in this sense.

They were all undertaken pursuant to a single conspiracy that was managed and led by the defendant from 1984 to 1991.

It involved the sale of all three kinds of drugs in the area of Chicago, Illinois.

That was the... the very conspiracy charged in count 1, and that they were all... all the acts were undertaken pursuant to that single conspiracy and they were a single course of related conduct in that sense.

Justice Souter: Well, maybe what you're suggesting to us is that we ought to decide how far the means/ ends distinction can be applied by asking how much more difficult, if at all, it... it makes the... it makes it for the defendant to prepare for trial.

And you're saying, well, this isn't making it any tougher than it is to defend a conspiracy case.

Mr. Gornstein: That's correct.

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

Mr. Gornstein: I don't think that was the principle the Court was articulating in Schad.

I just think...

Justice Breyer: Well, maybe it should have.

Mr. Gornstein: But I think that what you've articulated is just that that answers a second objection that there may be here, a notice objection.

There really isn't a notice objection here.

Justice Scalia: Yes, but that isn't the only objection.

I mean, he's not concerned just about the preparation.

He's also concerned that his client is entitled to 12... to 12 votes instead of just 6.

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

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

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

Justice Ginsburg: The modern problem is Oliver Twist, Murder, Incorporated.

I mean, there have been continuing criminal enterprises I guess since the beginning of time.

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

Justice Scalia: The ones that exist in our time always seem worse, of course.

I mean, I'm not worried about Oliver... about... about Fagin anymore, but...

Unidentified Justice: [Laughter]

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

And that's the distinction.

Chief Justice Rehnquist: Thank you, Mr. Gornstein.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The Oyez Project

Featured:

Edwards v. United States - Oral Argument

Fri, 09 Jan 2009 14:50:03 +0000

Case:

Edwards v. United States

Media File:

96-8732_19980223-argument.mp3

Related Transcript:

1997_96_8732_argument.xml

Transcript:

Argument of Steven Shobat

Chief Justice Rehnquist: We'll hear argument this afternoon in Number 96-8732, Vincent Edwards, et al., v. United States.

Mr. Shobat.

Am I pronouncing your name correctly?

Mr. Shobat: Yes.

Chief Justice Rehnquist: Thank you.

Mr. Shobat: Mr. Chief Justice and may it please the Court:

The ambiguous general verdicts returned in this case cannot support the sentencing court's finding that the conspiracy embraced both objectives charged in this dual object conspiracy, the two objectives being the distribution of powder cocaine and the distribution of crack cocaine, and they cannot be for four reasons.

First, Congress required the jury to determine the type of drug involved in the drug conspiracy before sentence could be imposed upon that object.

Second, the Fifth and Sixth Amendment rights to a jury determination of all the essential elements of a conspiracy requires the jury to determine what the object of the offense was, and particular to the type of drug.

Third, the Due Process Clause of the Fifth Amendment does not permit punishment to be imposed in excess of the statutory maximum provided by Congress and, finally, nothing in the Sentencing Guidelines, to the extent that they ever could, undermines these principles.

With respect to what Congress intended, it's clear that in enacting section 846 Congress wanted to fix the maximum punishment available to a person convicted of that section to the offense, the object of which the conspiracy was intending to accomplish.

Unknown Speaker: Mr. Shobat, does your argument depend on finding that both the type and the quantity of drugs are elements of the section 846 conspiracy?

Mr. Shobat: No, Your Honor, it does not.

It's clear that Congress, in listing the various different factors in section 841(b), intended that some of them be elements of the offense and some of them not be.

Congress made it explicitly clear in enacting section 851 that the existence of a prior conviction was one of the factors listed in 841(b) that should not be considered by the jury, and it did so by removing it from the jury's consideration, placing it in a separate statutory provision, and saying that the judge should make that determination.

It is also clear that, in considering whether or not--

Unknown Speaker: Where is that?

Mr. Shobat: --Section 851, Your Honor?

Section 851--

Unknown Speaker: You say by placing it in 851 rather than as one of the subsections of 841, you say?

Mr. Shobat: --Yes.

By removing it from the subsection of 841(b) and placing it in a separate statutory provision, and then having the judge, not the jury, determine... and interestingly, beyond a reasonable doubt, whether the--

Unknown Speaker: Do you have 851 in your appendix?

I don't think you do, do you?

Mr. Shobat: --I'm... I don't... I'm not sure that it is in the appendix, Your Honor.

Unknown Speaker: Okay.

Mr. Shobat: But it did remove that consideration from the jury.

What it did not remove were the type of drugs and the quantity, but it is not necessary that those be treated identically for purposes of an 846 conspiracy, and there are several reasons for that.

First, Congress could well have intended that a conspiracy to commit a specific objective, which is an inchoate offense which does not require the completion of the object of the conspiracy and has separate elements from an 841(a) conspiracy to embrace a more specific object than would, say, an ordinary 841(a)(1) violation of possession, or a distribution.

In addition--

Unknown Speaker: I don't understand what you just said.

Do you want to say it again?

Mr. Shobat: --Yes, Your Honor.

A conspiracy offense under 846 is an inchoate offense and therefore the only two elements that the Government need satisfy beyond a reasonable doubt for an 846 offense is that a conspiracy with a particular objective exists and that a particular defendant that was being considered by the jury be a member of that conspiracy.

In many conspiracies there are no actual drugs involved, very typically, in the case in which the agents pose as the sellers of drugs and they engage in negotiations and discussions with respective buyers and then a seizure or a bust takes place, an arrest at a planned exchange of drugs for money, and there is, in fact no actual controlled substance.

In that case--

Unknown Speaker: Well, surely there's an attempt to buy a particular... I mean, are these drug dealers that stupid that they don't contract to buy a particular substance?

Mr. Shobat: --Not at all.

Not at all, Your Honor.

Unknown Speaker: Well, that would be the conspiracy then, wouldn't it, in substance?

Mr. Shobat: Absolutely, it would be a conspiracy conviction, but now the question becomes, what maximum penalty did Congress provide for that conspiracy, and the answer to that question is, what was their conspiratorial objective.

That's what Congress expressly says in section 846, punish persons who agree to commit a very specific object as if they had committed that object, and in the case of the type of drug, that specific... excuse me.

In the case of a distribution offense, that specific offense is only knowable by reference to the specific type of drug.

Unknown Speaker: But why not an amount as well, since there's such a--

--Right.

So much turns on amount.

Why does it turn on the type of drug more or less than the amount of the drug?

Mr. Shobat: Your Honor, it can be and, in fact, it's not squarely raised in this case, but we would submit that quantity could be considered an element by Congress.

Congress could have intended it to be an element, but it isn't necessarily the case.

That question isn't squarely presented, we believe--

Unknown Speaker: You're saying, type of drug is an element of the offense, but amount of drug is not an element of the offense?

Mr. Shobat: --Justice Breyer, we're not saying definitively that it is not an element of the offense.

Unknown Speaker: Are you... well, what is the argument?

Is the argument--

Mr. Shobat: The argument is that it might be an element of the offence.

Unknown Speaker: --Well, I--

Mr. Shobat: We believe that it is.

However--

Unknown Speaker: --You believe that amount is as well?

So in other words, we have a big list in 841(b) of penalties, and the penalties vary, sometimes dramatically, depending upon the amount of the drug and depending upon what kind of drug and, as you said recidivism, which is treated specially.

All right.

Now, your point is that jury has to find type and probably amount.

Mr. Shobat: --Yes.

Yes.

Unknown Speaker: The difficulty with doing that is, why does it have to find it, because Congress intended it?

Mr. Shobat: Because Congress intended it.

Unknown Speaker: Why would Congress have intended the following: a person is accused, for example, of possessing with intent to distribute more than one... more than... between 5 and 10 kilograms of heroin, let's say, and the person's defense is, I wasn't there.

I was in Chicago.

Is he supposed to make the alternative defense, oh, by the way, if I was there, it was only 1/2 a kilo?

I mean, why would we ask a jury to decide that kind of thing?

Why would we want to put a defendant in that kind of position?

Mr. Shobat: Your Honor, I suppose there are two answers to that question.

The first is, the question becomes, what is the appropriate punishment for an individual like that who had that agreement?

Unknown Speaker: And that's why I would think that 841(b) includes punishment factors, and if it is supposed to be punishment factors there's no problem for the defendant, and if it's supposed to be punishment factors in respect to amounts, I don't see how you could distinguish why it shouldn't be punishment factors in respect to type.

Mr. Shobat: One of the ways that we attempt to distinguish it, Justice Breyer, is to note that as part of the 841(a)(1) elements the jury is asked to conclude that the substance being agreed to be distributed or manufactured under an 841(a)(1) and 846 offense, the jury is going down the road of determining and must determine that the agreement impacted a controlled substance.

Now, not every substance is a controlled substance, so the jury must make a decision, a finding, that the particular substance contemplated in 846 was one of the substances listed in section (a)(12).

Unknown Speaker: When you say finding you're not talking about a special verdict, you're just talking about a finding in its deliberative process that results in a verdict of guilty.

Mr. Shobat: That's correct, Mr. Chief Justice.

They are asking themselves, was there an agreement to distribute a controlled substance?

To know that, that this is not salt or sugar, they must come to the view that it's one of those substances under (a)(12), at least that that was contemplated in this conspiracy.

That means that the jury is already going down that road in determining what the substance is.

We think that's distinguishable--

Unknown Speaker: All the jury perhaps has to determine is that it was a controlled substance, but not a specific type or amount.

I mean, that's possible under the structure of the statutes, it seems to me.

Mr. Shobat: --That's possible Justice O'Connor, but in concluding that it is a controlled substance, they are concluding that it is one of the substances identified in section (a)(12), which lists all the controlled substances there can be, and so they're making that finding.

They may not come out and say, we find it was cocaine, or we find it was heroin, but they are saying we find it was a controlled substance, and therefore--

Unknown Speaker: It means that there's been a violation of the statute, and then perhaps the punishment is up to the sentencing authority, the judge.

Mr. Shobat: --We submit, Your Honor, that the jury going down that road to make that finding, Congress made clear that that's the kind of finding that the jury should make, and that the jury must make, and not leave it solely to the sentencing--

Unknown Speaker: But ordinarily a finding in terms of the statute is perfectly sufficient, isn't it?

Here 841 says, it shall be unlawful for any person knowingly or intentionally to manufacture, dispute or... distribute or possess a controlled substance.

So isn't it... one would think that a verdict that says, guilty of 841, or guilty of possessing or conspiring to distribute a controlled substance, would be sufficient for the guilt element.

Mr. Shobat: --Mr. Chief Justice, we don't believe that that is sufficient, that particularly in a case such as this, where the Government charges not just any controlled substance but a very specific controlled substance, that--

Unknown Speaker: You think it would have been okay if the Government just charged a controlled substance generally and left itself free to prove any number of other things?

Mr. Shobat: --I think that it would be permissible for the Government to have charged simply a controlled substance, but I think it would have additional problems of its own.

That is to say, I think there might be a case in which it's not exactly clear whether which of the controlled substances a particular defendant conspired to, and in that case the Government might not want to commit that it was particularly heroin, or a jury might be able to conclude, well, I think it was heroin, or I believe beyond a reasonable doubt it was heroin, I believe beyond a reasonable doubt it was cocaine, I'm not sure whether it was marijuana.

Under the instructions that the judge gives me, I must find this individual guilty.

So that in this case, the jurors could have decided that these individuals conspired to distribute crack cocaine, or they might have decided that they distributed powder cocaine.

Unknown Speaker: Well, regardless, wouldn't evidence, if there was such, showing there was some involvement with cocaine base, be factored in as relevant conduct under the guidelines?

I don't see how the sentences would change in any event.

Mr. Shobat: Justice O'Connor, they would change in the... for a number of significant reasons.

First of all, the statutory penalty is not based on a consideration of the guidelines or relevant conduct, but it's based on what was the agreement, what was the offense of conviction, so that if the offense of conviction were--

Unknown Speaker: Well, the offense was a conspiracy to possess and/or distribute a controlled substance.

Mr. Shobat: --That's not the offense that was charged in this case, and we would submit that to know what the statutory maximum penalty is, that there needs to be a determination as to the type of drug.

After all, the differential in the punishment between the two objects was 100 to 1.

100 grams of powder cocaine is treated equivalently under the guidelines... excuse me, under the statutory penalty as the same as 1 gram of crack cocaine, and that was why the particular problem that arises in this case is especially important, depending on which objective--

Unknown Speaker: What was the difference in the maximum sentence that could be imposed under the one or under the other?

Mr. Shobat: --That's a very difficult question to answer, Justice Scalia, because the indictment in this case charged no specific threshold quantity in terms of giving us notice as to the particular drug.

Under the indictment... the Government suggests in its brief that we should just simply look at the indictment and look at the statute, and that's how we know our maximum penalty.

If that's in fact the standard, looking at this indictment, in which there's no specific quantity or threshold quantity even alleged, no reference to any subsection under 841(b), the maximum penalty is 20 years for that type of offense and when there's a schedule 1 or schedule 2 narcotic involved, so the maximum penalty would be 20 years.

But what happened in this case is that at sentencing the judge made some findings with regard to a different sort of conspiracy, that is, one which embraced both the crack cocaine and the powder cocaine, made specific findings about exact amounts, of type of drug, and quantity, and determined that with respect to some of the petitioners the maximum was life imprisonment, but with respect to other petitioners the maximum was 40 years.

Unknown Speaker: So what you're saying is, if it was powder cocaine it was... the maximum was 20, and if it was crack, the maximum was 100?

Mr. Shobat: Well, if it was crack the maximum would also be 20 if the sole basis for determining the maximum punishment is to look at the indictment and to read the statute.

That's what the Government says you should do, but in reality, what the district court did was not simply look at the indictment.

What the district court said is, quantity determinations are mine to make, and so once I make these quantity determinations, that alters the maximum penalties.

Unknown Speaker: Well, of course, I guess conspiracy is a completed offense even before the drugs are actually purchased.

Suppose the conspiracy is... the conspirators are apprehended before they effected the buy.

How does the judge determine the sentence in that case?

Mr. Shobat: What the judge must do in that case is first determine what the statutory penalty is.

It first must say to itself, what was the offense of conviction, and once it determines that... let's say there were negotiations, recorded conversations, and it appeared that the person was trying to acquire 5 kilograms of crack.

Unknown Speaker: My hypothetical is, they're not sure.

They want to just acquire some... how much do you have +/?

and then they're apprehended.

Mr. Shobat: In that case, the only way that a sentencing judge could determine what the maximum penalty would be, first under the statute is to make a finding as to what the amount was, or at least what the threshold amount was.

That is, was it more than 50--

Unknown Speaker: He can't.

Mr. Shobat: --was it more than 5 kilos--

Unknown Speaker: He can't.

They haven't gone far enough in the negotiations.

I assume then he would have to use whatever the minimum is.

Mr. Shobat: --In the event the--

Unknown Speaker: The most he can say is that there was some transaction, but I can't say that there's enough to kick it over into any punishment higher than the minimum.

Isn't that your position?

Mr. Shobat: --In--

Unknown Speaker: If you don't know, the minimum is what governs.

Mr. Shobat: --Exactly, and it also depends, then, on the type of drug, and if he doesn't know the type of drug, then there is absolutely--

Unknown Speaker: The same thing.

If you don't know, you assume it's the one that's punished the least severely.

Is your argument... it can't be about... the indictment says these particular people conspired to distribute, to possess with intent to distribute cocaine, and they also conspired with intent... possessed with intent to distribute cocaine base... crack.

There's 26 very specific paragraphs, and it says that violated 846 and 841.

So the person, to get the penalty, would look up 846 and look up 841, and he'll see the big list, and there's a big list of maximums.

There's nothing wrong with that, is there?

Mr. Shobat: --Well, there's nothing wrong with that if he knows what the threshold quantity is.

Unknown Speaker: No.

That's true of every instance of guideline sentencing, and it's true of every instance in which Congress has passed a statute that increases maximum penalties for what is called a sentencing factor.

Am I right that you must be complaining about one or about the other?

Mr. Shobat: I don't believe--

Unknown Speaker: All right.

Then I'm not sure what your argument--

Mr. Shobat: --that you're exactly correct, because in this statute, under this specific statute the statutory maximum changes based on not only the type of drug but the threshold quantity of drugs involved in the offense.

Unknown Speaker: --That's true of every instance in which Congress increases a penalty for what they call a sentencing factor.

Am I right?

Mr. Shobat: That the possible... generally most of them fall within a statutory maximum.

Unknown Speaker: But sometimes Congress passes a statute... drugs, immigration... you know, where they say, if you've done X in committing the crime, the maximum goes from 2 years to 20 years, or from... so you're complaining about all those, is that right, or is there something special here?

Mr. Shobat: We're complaining about that, but we're also complaining about the particular charge in this case and the way the jury was instructed, because what we don't know is what the offense of conviction was.

We don't know whether this jury determined... because the jury was instructed that it could find either powder cocaine or crack cocaine as an objective and, given that instruction, we don't know whether the jury found that this was a powder cocaine conspiracy, a crack cocaine conspiracy, or perhaps both.

Unknown Speaker: And of course, it made no finding whatsoever on quantity, so you don't know that, either--

Mr. Shobat: We don't know that.

Unknown Speaker: --as far as the jury is concerned.

Mr. Shobat: We don't know that.

All the findings that happened that fixed the sentencing occurred right on the eve of sentencing, during the sentencing process.

Unknown Speaker: I didn't do the math, but I... is it correct that if you draw this distinction between type of drug and quantity of drug, and you win your argument, and the Court says yes, the jury must make the determination on type of drug, is it necessarily the case that all of these sentences would, in fact, have to be... have to be vacated, given the fact that you let the judge make the quantity determination?

I guess my question is, did the judge make a quantity determination even with respect to the lesser of the two drugs that would support the sentences, or the ranges within which he's sentenced?

Mr. Shobat: I think that the answer to that question is yes, that it would necessarily affect some of the petitioners.

Each of the five petitioners--

Unknown Speaker: Some but not all?

Mr. Shobat: --Some but not all, and it would necessarily affect all of them in determining first what the statutory maximum penalty is.

Remember that the sentencing judge utilized the Sentencing Guidelines and said, here's what I conclude everybody is held accountable for.

Considering that the offensive conviction embraced both objectives, his findings as to what was relevant conduct or what amounts should be attributable would be vastly different if he were to analyze this from the question of what... if the conviction was merely a powder cocaine conspiracy.

Unknown Speaker: Did you request an instruction that the jury be required to specify amounts or choose as between cocaine and cocaine base?

Mr. Shobat: No, Your Honor.

The jury was instructed that it could find the defendants guilty if they found either cocaine or powdered--

Unknown Speaker: And you didn't object to that instruction?

Mr. Shobat: --There was no objection to that.

It's our position, however, Your Honor, that since the Government brought the dual object conspiracy, and since the Government wanted to seek punishment on the higher objective... that is, the objective carrying the higher penalty... that it was incumbent upon them to seek such... either a special--

Unknown Speaker: You're not complaining about the jury's finding your clients guilty.

You're saying you're willing to accept that verdict, but you're saying the way it went to the jury, all you can punish them for is the least of what was charged.

Mr. Shobat: --That's correct, and the only way we would complain about what the jury determine... excuse me, about what happened at trial is if the Government tried to take what resulted and say, but we... the judge concludes that what you were convicted of was a crack conspiracy conviction.

That, we say, is completely impermissible, particularly when the statutory penalties for powder cocaine are significantly less than those for crack cocaine.

Unknown Speaker: But you agree, don't you, Mr. Shobat, that if there had not been this ambiguity in the jury verdict, nonetheless a sentencing judge could have taken into consideration a wide number of things in deciding what to sentence your clients to, a prior offense, prior indictment, prior conduct?

Mr. Shobat: Under the Sentencing Guidelines that's absolutely correct.

That is... that... it would not be true, however, in fixing the statutory penalty, but we acknowledge that under this Court's decision in Witte and Watts, that the juge is free to consider a wide range and not just simply say, well, I thought about it, but actually to make the findings required under the Sentencing Guidelines... but that is, again, a guideline determination.

In this case, there were no statutory maximum penalty determinations made.

What the judge did is just do the guideline analysis and then say, based on these guideline results, I'm now determining what the statutory maximum was.

Unknown Speaker: If that changes... in another case we've been involved in this, but the... if that changes, because it's not just guideline but also statutory addons... let's call them sentencing factors.

If you think that changes the fact that it's a statutory sentencing factor that increases a penalty, if you think that makes a difference in your favor here, what do you do with the earlier Supreme Court cases, McMillian and so forth, that we've been looking into, which say that where you have a sentencing factor such as possession of a gun, which increases the maximum penalty, that can be a determination to be made by a judge.

It needn't be charged in the indictment, and it needn't... in fact, in McMillian I think we found beyond a reasonable doubt.

So how do you deal with those cases and also win your case?

Mr. Shobat: McMillan supports our position, Your Honor because--

Unknown Speaker: Because?

Mr. Shobat: --in McMillan there was no increase in the statutory maximum penalty.

The only increase was in a mandatory minimum so that the visible possession of a firearm in McMillan caused there to be a minimum of 5 years imposed but did not in any way increase the statutory maximum.

Unknown Speaker: Why isn't that worse?

Why aren't mandatory minimum penalties from a defendant's point of view actually a lot worse than an increase in the maximum?

Mr. Shobat: We think that they're bad, but the reason they're not worse in part, I think, lies in the power of a sentencing judge to grant an upward departure.

The statutory maximum provides protection to a defendant to prevent a sentencing court from going beyond the statutory maximum.

In this case, had there been a reason to grant an upward departure, for example, with respect to petitioners Joiner or Edwards, who received a 10-year sentence, they might have gotten a 20-year sentence if that were the statutory maximum for them.

If they had been considered to have the same statutory maximum as petitioner Fort, who had a life maximum, then it would be very significant to know that, even if there was an upward departure granted in this case, it would not exceed 20 years and risk, you know, possibly a life sentence.

And so under McMillan, the reason... one of the reasons we say that this is an essential element of the offense is because it not only alters the range, but it alters the statutory maximum penalty.

Mr. Chief Justice--

Unknown Speaker: Are you saying that a special verdict would have been compatible with your view of this case?

That is, the judge says, jury, the Government has charged both powdered cocaine and crack cocaine, and so I want you to find specially as to each.

That would be all right.

Mr. Shobat: --Yes, Your Honor.

The jury--

Unknown Speaker: Even though defendants don't ordinarily like special verdicts.

Mr. Shobat: --The jury could have been instructed as it was that you could find either or, but then, in addition, the jury should have been asked which do you find, either powder, crack, or perhaps both.

Unknown Speaker: And ask that in a special verdict?

Mr. Shobat: Yes, and then there would be a jury determination as to what the object of the conspiracy was.

Unknown Speaker: Yes.

Does it follow from what you've been telling us that it would be perfectly proper under your theory for the Government to charge two separate conspiracies, one for powdered cocaine, the other for crack, and then for the punishments to be consecutive?

Mr. Shobat: It... yes, Your Honor.

It is the logic of our position that the Government is free to do that and, in fact, they are doing that every day with respect to distributions.

In fact, the Government in response to defense arguments that you can't do that, that violates double jeopardy, crack and cocaine are the same thing, the Government has said no, crack cocaine and powered cocaine are different substances.

They can't be punished consecutively, or cumulatively, and now in this case the Government is saying, oh, no, it's really just a controlled substance.

And so we think that's a significantly inconsistent position that the Government is taking, We acknowledge that that is possible to be done.

Mr. Chief Justice, I would like to reserve whatever time I have.

Unknown Speaker: Yes, Mr. Shobat.

Mr. DuMont, we'll hear from you.

Argument of Edward C. DuMont

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

There is one issue that's rather straightforward that is genuinely presented on the facts of this case and, if I may, I'd like to address that just for a moment first.

Some of the courts of appeals have held that when a drug conspiracy verdict does not reveal exactly what drug the jury may have concluded was involved, or more than one drug, that under the guidelines the court is limited to sentencing only on the basis of the drug that will produce the lower penalty.

Unknown Speaker: Under the guidelines, or under the statute?

Mr. DuMont: Under the guidelines.

There are at least three--

Unknown Speaker: How can the guidelines control what statutory maximum is available?

I don't understand that.

Mr. DuMont: --In our view they don't control that at all, but three of the courts of appeals have held that even if you're talking about a case where the statutory maximum and minimum are clear, that in terms of applying the guidelines the district court at sentencing must apply... must take into account only the drug that will produce the lower guidelines sentence.

Unknown Speaker: But the statutory maximum and minimum cannot be clear if you don't know what the substance is, can they?

Mr. DuMont: I'm not sure that's true now, because you could have a couple of possibilities, both of which would put you into, say, the minimum category, the zero to 20 category, but one of which would put you at 19 years under the guidelines, and one of which would put you at 5 years, so it can make quite a difference.

Unknown Speaker: But they wouldn't be similarly inconsequential as far as the guidelines are concerned, they're only inconsequential as to the statutory grades?

Mr. DuMont: Well, my only point is--

Unknown Speaker: I mean, would the guidelines treat differently two substances that are treated the same in the statute?

Mr. DuMont: --The guidelines are much more specific about what... how you do the quantity calculations and how you take things into account, but my point is only that even in cases where there is no controversy about what the statutory range is, the guidelines range can differ quite a bit, depending on whether you take into account some crack or don't take into account some crack.

And some of the courts of appeals have, in fact, held that in a case like this, if you accepted the verdict was ambiguous, the judge would be limited to taking into account only the powdered cocaine that was involved.

Now, we think that those cases are... that issue is presented here on the facts of this case, because it would make a big difference to these petitioners whether they are sentenced for powder or for crack, but we think that those cases that would limit the court to powder under the guidelines are flatly inconsistent with this Court's sentencing jurisprudence, most recently, obviously, the decision last term in Watts and the Court's decision in Witte.

We know from Watts that even if they had been charged, as petitioners say they could have been, with two separate conspiracies and the jury had acquitted on the crack conduct, that the crack cocaine could have been taken into account at sentencing by the judge, and it cannot be true that that is permissible but then it's not permissible to do so here, where--

Unknown Speaker: The commission could deal with that as it wishes, couldn't it?

I mean, if the commission said, look, what we think you have to do is sentence the person to 10 years if he has 5 grams of crack, and you have to sentence him to 2 years if it's 5 grams of cocaine, and you, the sentencing judge, are to take as a... an assumption of what the amounts are that which is found by the jury and if there is no jury finding you will assume, blah, blah, blah.

They could write a guideline like that, couldn't they?

Mr. DuMont: --Well--

Unknown Speaker: And if they don't like the way the judges are doing it, they can write the opposite guideline.

Mr. DuMont: --I think there may be some question about whether the commission would have power to do anything that would seem to trench on what this Court said in Watts and required by--

Unknown Speaker: But if the courts that find the way you think is wrong are finding that way because they think the guidelines require them to do so, then the answer would be that the commission could make clear that that isn't--

Mr. DuMont: --Oh--

Unknown Speaker: --what the guidelines require.

Mr. DuMont: --Yes, absolutely.

That's true.

If--

Unknown Speaker: So there's nothing for us to decide--

Mr. DuMont: --If the courts feel they are being bound by the guidelines.

But as we pointed out in our acquiescence in this case, there is no indication... the cases in the courts of appeals that have held that the district judge is limited in sentencing to the lesser drug not only don't address that issue, they don't even mention the guidelines.

I mean, it's one of our quarrels with them.

They seem to be innocent of the developments in the sentencing law under the guidelines.

So we would submit that those cases are flatly wrong, and that's what this case is really about.

It's what's presented on the facts here, and the decision on that issue ought to be clear.

Now, it is true, as petitioners argue, that statutory maxima and minima trump whatever is in the guidelines, and it is therefore relevant to ask what the verdict ambiguity does or should or might have to do with setting the statutory minimum and maximum.

Now, the short answer, as we pointed out in our brief, in this case is no effect, because if you calculate... and we did do the math, and it's been... petitioners have not demonstrated that there's anything wrong with our math... that if you calculate the statutory ranges in this case based purely on the district judge's powder cocaine findings, you will find that the sentences actually imposed in every case fall within permissible statutory range, so our submission would be there's no issue on the facts of this case under the statute.

But should the Court wish to proceed and consider that issue, we think it's plain from the structure and language of the relevant statutes here, sections 846 and 841, that the answer to that is that these are sentencing factors for the trial judge.

Now, section 846, which is on pages 1 and 2 of the appendix in the blue brief, says any person who attempts or conspires to commit any offense defined in this sub chapter shall be subject to the same penalties, and so on.

The offenses are defined by the other sections in that portion of the United States Code.

If you then look at 841, which is the object defense here, 841(a) defines the offense, and the offense is either possession or... with the intent to distribute, or distribution--

Unknown Speaker: --Well, it can't define the offense if, indeed, as you just read, you are to be punished with the same penalties as those prescribed for the offense.

There are no penalties prescribed for 841(a).

When you read 841(a) you have no idea what the penalties are, so that cannot be the offense--

Mr. DuMont: --Well--

Unknown Speaker: --referred to in 846.

Mr. DuMont: --Well, with respect, we would obviously disagree with that.

What you know from 846 is that you're looking for an object offense.

The object offense is defined in 841(a), which says, unlawful acts, except as authorized and so on you may not distribute, or possess--

Unknown Speaker: Right.

Mr. DuMont: --with intent to distribute controlled substances.

Unknown Speaker: Right, and if all I had before me was 841, I would agree.

But you have before you 846, which you just read, which says any person who attempts or conspires to commit any offense defined in this chapter shall be subject to the same penalties as those prescribed for the offense.

There are no penalties prescribed for the offense of violating 841(a).

Mr. DuMont: Well--

Unknown Speaker: I can read you 841(a) and you can't tell me what penalty is prescribed for that.

Mr. DuMont: --Well, with respect--

Unknown Speaker: You have to go down to (b) to figure it out.

Mr. DuMont: --With respect, I can, because what I'll say is, you look down to (b), which prescribes the penalties for the offense defined in (a).

Unknown Speaker: Fine.

I'm willing to accept (b).

Then (b) becomes part of the offense.

Mr. DuMont: We disagree about that.

Unknown Speaker: That's fine.

Mr. DuMont: We disagree about that, obviously, and our analysis is that 841(a) defines an offense which is complete once the jury finds that you have distributed or manufactured or possessed with the intent a controlled substance, and it's true they... in a substantive count, then in the nature of things they will have to find a controlled substance involved.

I would point out, as came out from some of the questions, in a conspiracy offense that's not at all clear.

There are certainly conspiracies for which you could be charged and which you could be found guilty where you would have no idea what the type of substance involved was.

Now, I grant you, that will give rise, in those cases, if they actually happen, to strange sentencing issues under both 841(b) and under the guidelines, because it's not clear what you do with something where you really don't know even what type of drug was involved, but the fact is the conviction would--

Unknown Speaker: You apply the minimum.

I think that's an easy answer, isn't it?

It's up to the Government to prove whatever is necessary to prove in order to impose a penalty and if you can't figure out what it was, the most you can impose is the minimum, I would assume.

What's hard about that?

Mr. DuMont: --That's a potential answer to that question.

Unknown Speaker: It seems to me it's the only answer.

The burden's on the Government to establish what needs to be established to impose the penalty, isn't it?

Mr. DuMont: Well, for present purposes my point would be, we would establish that at sentencing to the judge, and the conviction would be valid.

Even if it were true that we could not impose a term of imprisonment, the conviction, the special assessment and the record and so on would reflect a conviction for a felony, and that felony would be defined by 841(a).

It would have nothing to do with 841(b).

841(b) has to do with prescribing the penalties that are appropriate under particular circumstances for violations of 841(a).

Unknown Speaker: And if you commit the offense of conspiracy you perhaps under one view would simply be subject to the risk of being sentenced based on what the conspiracy turned up and the judge says, it's 5 grams, or 10 grams, or whatever.

Mr. DuMont: That's absolutely right, and our point here is, when you move into the realm of conspiracy... now, 846 obviously covers a wide range of different target statutes and so on, and in this particular case we're dealing with 846, referring to 841 as the object statute.

We think it's fairly clear that what Congress would have intended here is when you are convicted of conspiracy to violate 841 what happens is the judge at sentencing looks at the complex of offense conduct involved in that conspiracy under very traditional Pinkerton type conspiracy vicarious--

Unknown Speaker: May I interrupt with just one question to be sure... what if, in this case, instead of a general verdict you have a special verdict and the jury... a whole stream of different alternatives, and the jury found not guilty as to 9 out of the 10, but on one they said he was guilty of conspiring to distribute 5 grams of powder, and that's all.

Under your view, could the judge nevertheless sentence... the judge has a different view of the evidence.

He thinks he really committed 100 kilograms of crack.

That's the judge's view.

The judge could nevertheless sentence on the basis of his view of the evidence even in the conspiracy context.

Mr. DuMont: --Well--

Unknown Speaker: With specific findings.

Mr. DuMont: --I would say particularly in the conspiracy context... in the conspiracy context, the answer is clearly yes, because as long as the conviction is valid, everything else is a sentencing factor and, as the court pointed out in Watts, the difference in standard of proof makes a huge difference there, because all the jury has said by declining to convict on the other counts is they weren't convinced beyond a reasonable doubt, but there's a big range there between that and preponderance of the evidence where the court can operate.

Now, what I will say is, it's a harder case if you have a substantive... a set of substantive distribution counts and the jury acquits on several but convicts on only one, because in that case there's a... I think a substantial statutory interpretation question that arises about what 841(b) means when it says, in the case of a violation of subsection (a), involving.

Now, the circuits are split on that issue and it's certainly not presented here, but it would not be unreasonable for a court to hold, and several courts of appeals have taken this route, that in a substantive distribution case you are limited in terms of your statutory maximum by the offense conduct that would be dealt with in that one substantive distribution count.

Unknown Speaker: That's not the Government's view, is it?

Mr. DuMont: We haven't taken a position in this Court on that question, and I hesitate to concede it in this case because it's not presented, but it would certainly be a plausible... a plausible statutory outcome.

The Tenth Circuit has gone the other way on that question and has said that no, all of these things are sentencing factors to be dealt with by the judge, even under the statute.

I think... so we think that... just to refer back to that language that I was just quoting, again, if we're talking about what is an element here and what is a sentencing factor, we think that the language of 841 is pretty clear on that.

It's about as clear as you get.

Unknown Speaker: It's your position that as with the guidelines those sentencing factors only require judgment by a preponderance of the evidence--

Mr. DuMont: That's right.

Unknown Speaker: --by the judge, so the judge makes the decision that it's more likely than not, by a hair, that this was crack rather than powdered, and therefore you get 40 more years, or 20 more years, by a preponderance.

Gee, I--

Mr. DuMont: Well, subject to statutory minimum and maximum that might supervene, and--

Unknown Speaker: --No, I'm talking about the maximum, that the statutory maximum I could have given you if it was one, you know, if it was powdered, is, say, 20, and the statutory maximum I can give you if it was crack is 40, or 60.

There's a big difference depending on the quantity, I guess.

And all the judge has to say is, well, it's a close question, but by a hair I think it's more likely that it was crack than powder and therefore I'm going to give you 60 years instead of 20.

That doesn't seem to you, something wrong with that?

Mr. DuMont: --Well, if we're talking about the simple distribution offense, and we're... if the question is, under 841(b), are all of those always just at the decision of the judge, I think that is a difficult question, and we will certainly address it in the cases it arises in--

It doesn't arise in this case, partly because this is a conspiracy case.

In a conspiracy case we think what happens is what happened here, which is the judge goes through all the evidence very carefully... I commend to you the very, very detailed sentencing findings that the judge made in this case, and he goes through all the evidence, sifts it and decides in this case, not very favorably to the Government, I would add, what the quantities of drugs are, what types of drugs are involved, and what quantities can be properly attributed to any given defendant.

And in this case it makes no difference under the statute because whatever... all of his findings that he made for purposes of the guidelines put these defendants in the right statutory minimum and maximum range, or the same range, depending on how you calculate it.

Unknown Speaker: Well, what if it did make a difference, that's the point.

The Government--

Mr. DuMont: It did make a difference.

I think in a conspiracy case the result would be the same, because even the courts that have held... even the courts of appeals that have held that you need to be limited by the offense of conviction have said well, of course, in a conspiracy case, when you're talking about defining what was involved in the offense of conviction for 841(b) purposes you pick up Pinkerton principles, and principles of vicarious liability.

So that ends up being either indistinguishable from or very, very close to the relevant conduct inquiry under the guidelines, so in a conspiracy case we really think there is no substantial issue about that, that your statutory maximum and minimum are going to set by the same process as your guidelines sentence, and there's really nothing wrong with that.

Unknown Speaker: --And if it's not a conspiracy case and it makes a huge difference, you want to say you're not going to say.

Mr. DuMont: Our position for purposes of argument in this case is that the judge has the authority to decide that, but I acknowledge that it's a very difficult--

Unknown Speaker: There are several... I mean, are you talking... which question?

I mean, there's a question reserved in Watts, I take it.

The question reserved in Watts is whether a sentencing factor can be decided by a judge by a preponderance of the evidence or whether the judge might decide it beyond a reasonable doubt.

That's one question which we haven't decided, I guess.

Is that right?

Mr. DuMont: --That's correct.

Unknown Speaker: A separate question is who has to decide.

Another question might be whether you had to get notice in an indictment, and whether it's called an element or something.

I mean, there are a bunch of questions there.

Mr. DuMont: There are--

Unknown Speaker: What do we have to decide here?

Mr. DuMont: --There are any number of questions that you don't have to decide here, and we would urge the Court to stick generally to the facts of this case, because I think that's useful and I think the facts of this case are typical.

But in response to Justice O'Connor's question, I understood that to be about the limited question of, in a simple distribution case where there is a certain amount of... there's one distribution, for instance, at issue, and the question is then does the judge get to decide what is involved in that distribution.

And I would submit the following intermediate position, which is, there may be circumstances where all that is proved to the jury might be a small amount of one drug, for instance, but that on particular facts the judge might be able to conclude that because of a suppression motion or for some other reason the jury didn't see all of the conduct that was involved in that particular distribution, and we would say certainly in that case that it is a sentencing decision for the judge to make about what was involved with that particular offense.

But it's a substantially difficult question.

I can't honestly tell you what the Government's position would be in this Court on the question of, when it was perfectly clear what was involved in that distribution, perfectly clear that was the only conviction, and then there was--

Unknown Speaker: Would you refresh my recollection on--

Mr. DuMont: --other conduct that was sought to be taken into account.

Unknown Speaker: --on one minor point.

Had we decided that the judge in the sentencing proceeding can rely on illegally seized evidence in making this determination?

You just suggested he might know about it through a suppression motion, for example.

Have we said that's permissible?

Mr. DuMont: I don't think this Court has said--

Unknown Speaker: But your position is, it's permissible?

Mr. DuMont: --I think that under the statutes--

Unknown Speaker: Because that's your example you happened to pick to explain what the judge could see that the jury might not see.

Mr. DuMont: --It's another question that's not presented, but yes, I think under the statutes that say that anything can come under sentencing--

Unknown Speaker: So he can... he only has to do it by a preponderance.

He can do it even if the jury finds him not guilty, and even if he relies on illegally seized evidence.

It's a pretty extreme position.

Well, we decided the issue if it's a not guilty finding, haven't we?

Mr. DuMont: --In Watts.

Unknown Speaker: In Watts.

Yes.

Mr. DuMont: Yes, absolutely.

Unknown Speaker: Mr. DuMont, would you explain again, because I don't understand it, how it's possible that you can come out with one response to Justice O'Connor's question, where it's a conspiracy charge but a different response where you're being prosecuted for simple distribution?

I mean, it seems to me, if your answer is in simple distribution we're not going to let the judge do it, I don't see why it... why you can let the judge do it in the conspiracy thing, since the conspiracy statute refers to the distribution statute.

Mr. DuMont: Well, it's not a constitutional question.

It's a statutory question.

Unknown Speaker: Yes.

Mr. DuMont: The point is, the statutory analysis proceeds as follows.

18... 841(a) defines an offense, unlawful acts, then (b) says as to penalties any person who violates subsection (a) shall be sentenced as follows.

Unknown Speaker: Right.

Mr. DuMont: Then the form of the following phrase is, in the case of a violation of subsection (a) involving.

Unknown Speaker: Right.

Mr. DuMont: Now, it's always been the Government's position, as my colleague points out, that for distribution, simple distribution, each possession or distribution of each drug is a separate offense, and it is consistent with that to say that if you're convicted of only one substantive count, then when you get to (b) what you have to look at is, what is involved in that substantive count.

What's different about conspiracy is that when you come to apply 846 in the 841 context you're told by 846, okay, if they've conspired to commit an 841 offense you need to... they'll be subject to the same penalties as those for 841.

The same... we interpret that language, as have the courts of appeals that have looked at this, to say, well, what you are liable for in the conspiracy context under Pinkerton and all the vicarious liability cases is your conduct and the conduct of your coconspirators in furtherance of the conspiracy, and so that is the universe of what you're liable for.

You take all of that, making those findings, and then you come up with a number of drugs and a quantity of drugs, and then you apply the statutory guidelines in effect that Congress has provided in 841(b).

Unknown Speaker: Well, I guess what I'm saying, I don't see how that's rational.

I mean, if it refers to the offense in 841, and if you're treating 841 as consisting not of one offense in (a) but of each one being a separate offense for purposes of double jeopardy and everything else, I don't see how you can treat it any differently for purposes of 846, which refers to the offense in 841.

But I understand your position.

Mr. DuMont: You understand our position, and I--

Unknown Speaker: Let's... yes.

Mr. DuMont: --And I would point out that the Court reviewed in Chapman the history of the drug statute.

Unknown Speaker: Yes.

Mr. DuMont: And one thing I would point out about that is, when Congress enacted the current form of 841(b) in 1986, what it had in mind was setting three broad categories, which were king pin distributors, serious street level distributors, and then regular distributors.

And we think it would be odd if what Congress accomplished through all of this was to say that in a conspiracy case, where every normal principle of construction tells us that when you're found guilty of the conspiracy you are then liable for all the conduct involving the conspiracy, it would be a passing odd result to find that when you apply that under the statutory structure you end up with something different.

So that if you have somebody who has participated in a long term, broad scale wide distribution conspiracy, that suddenly you are limited at sentencing to taking into account something other than that conduct.

I think... I'd just like to clear up two persistent sources of misconception, I think, in this case.

One--

Unknown Speaker: May I ask first if you agree with Judge Easterbrook that it would be sufficient if the indictment simply alleged controlled substance, without any identification?

Mr. DuMont: --For the purposes we are centrally controlled with here, yes, it would be sufficient.

Now, it raises another set of questions, and I think the courts have consistently said that.

They've said, well, an indictment is sufficient if it charges in terms of the statute, and the statute says--

Unknown Speaker: But the defendant has to know enough about the case to defend--

Mr. DuMont: --But... of course.

There are notice principles that come in both under the rules, under practice, and under the Constitution that require the defendant have adequate notice of what he's being charged with both for purposes of defense at trial and for purposes of pleading and bar, and I would point out that there is a whole body of cases in the courts of appeals about how you distinguish one conspiracy from another for purposes of double jeopardy, and I think that would be, for instance, relevant in that context.

If I might just point out that there's a lot of talk about dual object conspiracies here, and it's a source of a lot of confusion in the briefs and I think, with respect, in my colleague's argument.

The indictment here charged a dual object conspiracy in the sense that it charged both possession with intent and distribution, each of which is a separate offense under 841.

Now, they happen to be in this case offenses that violate the same substantive statute.

It did not charge a dual object conspiracy by charging that there was both cocaine and crack cocaine involved in this conspiracy.

Those are means of satisfying the same element of either the distribution offense or the possession offense.

They are not objects of the conspiracy, and I think it's quite important, actually, conceptually to keep that in mind.

The offense of conviction--

Unknown Speaker: --The object of the conspiracy was either to distribute or to possess with intent to distribute?

Mr. DuMont: --That's correct, and we know from Griffin that if there was sufficient evidence to convict on either one of those, and there clearly was, they conceded there was, the convictions are perfectly valid.

But it is false and misleading to say, oh, well, this is dual objects because one object was crack and one object was powder.

That's just not the way it works.

The other thing is, the offense of conviction, which we talk about both in terms of 841 as a statute--

Unknown Speaker: Excuse me.

Just before you go on, that's quite correct unless you accept your colleague's view of what 846 requires.

I mean, if you acknowledge that 846 does require you to charge something other than an intent to distribute some controlled substance, and if you acknowledged his view that it requires you to specify a controlled substance, then it would be a dual object, under his view of the world.

Mr. DuMont: --Under his view of the world I think that's right, and there would be... there would be more serious problems than figuring out the sentence, frankly, because I think there would be problems with convictions, although they've never stood up to the plate on that one.

Again, in view of the offense of conviction, which is important, is a conspiracy to distribute controlled substances, and I think if we look, as my colleague was suggesting, at the indictment and at the statute, he said, well, if you didn't specify quantity, the maximum statutory sentence would be 20 years, and we would quite strongly disagree with that.

If you get an indictment that charges you with participating in a drug conspiracy and no quantity is specified, when you look at the statute you ought to be on notice... you are on notice that the maximum penalty is life in prison.

It depends on the quantity, which is something that hasn't been specified.

Now, you may want to seek clarification of that in one way or another, but it is not--

Unknown Speaker: Do they still have bills of particulars?

Mr. DuMont: --They absolutely do, Your Honor.

It is not true that you somehow know from that indictment that your exposure is limited to 20 years.

So I might just return to the fact that there is one real and straightforward issue in this case, and the other... and that is the guidelines issue that I was dealing with earlier, and the circuits are in conflict on that issue, and the Court ought to resolve it in the way that we think is plainly correct under Watts and Witte.

The other questions we've been considering are very interesting, and they may, in fact, be difficult in some future case that presents them, but this case, when we return to our sheet, is really a very simple one, and the judgment below ought to be affirmed.

Thank you.

Unknown Speaker: Thank you, Mr. DuMont.

Mr. Shobat, you have 2 minutes remaining.

Rebuttal of Steven Shobat

Mr. Shobat: Mr. Chief Justice, the issue that is not before the Court is the guideline issue.

Quite frankly, this case doesn't raise the concerns of the guidelines.

It raises the question of the statutory maximum and the offense of conviction, and that's the starting point.

Even before the district court could proceed to the question of the Sentencing Guidelines, it had to know what the offense of conviction was, and it had to know what the statutory maximums--

Unknown Speaker: Well, were all these sentences within the range of the powered cocaine range?

Mr. Shobat: --The answer to that question is no.

Unknown Speaker: No?

Mr. Shobat: It's really, we don't know, but it's very likely that it is no.

Unknown Speaker: The Government says it's calculated them all and the answer is yes.

Mr. Shobat: Well, what the Government has relied upon, Your Honor, is the findings of the Court after having considered the defendants of being... of having been convicted of a conspiracy that we don't know that they were convicted of, and so now, after the fact, we have a determination by the sentencing court.

If the judge were to look at this anew and say the conspiracy of which they were convicted was powdered cocaine distribution, then the Court might say, well, I think the amount of powdered cocaine is less than I previously attributed to this conspiracy because then I thought the conspiracy embraced both crack cocaine and powder cocaine.

After all, in this conspiracy there were quantities of powder cocaine that were converted into crack cocaine and, for example, with respect to petitioner Wintersmith, he was held accountable for 540 grams of powder cocaine.

If just 40 grams of that substance were attributable to the crack conspiracy... that is, that part of the conspiracy that had to do with converting the powder to crack and selling it out of a drug house... just diminution of that 40 grams would mean that his maximum penalty was 20 years.

Now, he received a sentence of 21 years, less than the 40-year maximum that would have been applied at a 500-gram level, and so we think that the similar analysis applies to each of the petitioners in varying degrees.

Certainly with regard to some of the petitioners there was more evidence, there was a greater involvement in the conspiracy, and that is the central problem with these dual object conspiracies.

The Government could potentially bring a case which has very strong evidence--

Chief Justice Rehnquist: Thank you, Mr. Shobat.

Your time has expired.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Neal v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:45 +0000

Case:

Neal v. United States

Media File:

94-9088_19951204-argument.mp3

Related Transcript:

1995_94_9088_argument.xml

Transcript:

Argument of Donald T. Bergerson

Chief Justice Rehnquist: We'll hear argument next in Number 94-9088, Meirl Gilbert Neal v. The United States.

Mr. Bergerson, you may proceed.

Mr. Bergerson: Thank you.

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

In 1984, after 10 years of careful study, Congress responded to growing criticism of Federal criminal justice systems by creating the United States Sentencing Commission.

The task of the commission was to eliminate unpredictable, unequal, and unfair sentences which had marred Federal criminal law for decades.

To achieve this goal, the commission was vested with broad factfinding resources, staffed with jurists and leading experts in the sentencing field, and structured to interact symbiotically with the courts and other branches of Government so as to evolve predictable and proportionate sentencing practices throughout the Federal courts.

This case offers this Court an opportunity to define the role of the commission in such a way as to fulfill the express intentions of the Congress which created it.

Meirl Neal was convicted of trafficking in LSD in 1989.

Section 841(b) of title 21 requires a mandatory 10-year penalty for trafficking in 10 or more grams of a mixture of LSD.

At the time Mr. Neal was sentenced, neither the sentencing guideline nor the code contained a definition of the term, mixture.

In this case, and under the rule later announced by this Court in Chapman v. United States, the relevant mixture was held to consist of the blotter paper onto which the LSD was placed for purposes of sale and distribution.

Under this definition, Mr. Neal received a sentence of 16 years imprisonment.

Four years after Mr. Neal was sentenced, the Sentencing Commission conducted hearings on whether the sentencing practice used in his case could be reconciled with section 841.

The hearing was required under the commission's 1984 enabling legislation which chartered it and made numerous reference to its absolute and abiding duty to eliminate unwarranted sentencing disparities in Federal criminal cases.

Congress equipped the commission with numerous tools to achieve this result.

Unknown Speaker: Mr. Bergerson--

Mr. Bergerson: Yes.

Unknown Speaker: --if all we had before us were the facts in this case and this Court's Chapman interpretation of the statute, would we consider the weight of the blotter paper?

Mr. Bergerson: If all... Justice O'Connor, if all the Court had before it were simply Mr. Neal coming up and asking the Court simply to reconsider Chapman in the absence of commission action--

Unknown Speaker: Right.

Mr. Bergerson: --Would you reconsider?

No.

Unknown Speaker: Well, you didn't... are you asking that we now overturn Chapman to reach the result, or are you arguing that you can leave Chapman where it is but the sentencing guidelines changes means the statute should be interpreted differently?

Mr. Bergerson: First of all, I am--

Unknown Speaker: It's not clear to me.

Mr. Bergerson: --Okay.

I'm arguing the latter, but I also believe a modification of the former is the appropriate statement of my principle in this case.

Unknown Speaker: Well--

--Modification of the former, to what--

Mr. Bergerson: Of the former proposition, which is revisiting Chapman.

There is no stare decisis problem in this--

Unknown Speaker: --But do you think that the commission has power to redefine statutory terms that this Court has already defined?

Mr. Bergerson: --I think that the commission has--

Unknown Speaker: And that we should defer to that?

Mr. Bergerson: --I believe that this Court should defer to the--

Unknown Speaker: Is the answer yes?

Mr. Bergerson: --The answer is yes, Justice O'Connor.

I believe that this Court should look to the act of Congress in 1984 which vested the commission with the duty and the power to interpret terms and penalty statutes so as to establish--

Unknown Speaker: And you think that vested the Sentencing Commission with the authority to define a term of the... a statutory term differently than this Court defined it?

Mr. Bergerson: --I don't believe that the Sentencing--

Unknown Speaker: Can't you answer the question yes or no?

Mr. Bergerson: --No, I do not believe that the Sentencing Commission has the power to define a statute in a way different from the way this Court--

Unknown Speaker: When we have already defined the meaning of a statutory term in Chapman.

Mr. Bergerson: --This Court in Chapman held that in answer to the question of whether to include blotter paper in the weighing of LSD, in answer to the specific question, does mixture or substance refer to pure LSD, this Court held that one must include the blotter paper because Congress adopted a market-oriented approach for purposes of sentencing under 841.

The commission has, after thorough exploration, factfinding and hearings, reinterpreted the term mixture in light of the realities of the market.

Unknown Speaker: Contrary to what this Court interpreted it as in Chapman?

Mr. Bergerson: Your Honor, words like--

Unknown Speaker: Well, but can you answer yes or no?

You're describing the commission's interpretation of the term mixture, and I'm asking, is that contrary to the way this Court defined it in Chapman.

Now, certainly you can explain, but you can answer it yes or no.

Mr. Bergerson: --No.

It is an expansion.

This is a second generation case.

This Court in Chapman held that mixture or substance containing LSD requires that the paper be weighed in terms of sentencing, because the meaning of the statute was to punish drugs as they are sold in the market.

Unknown Speaker: What was the judgment that the Court... was it a judgment that the Court affirmed?

The Court affirmed the Seventh Circuit, wasn't it, in Chapman?

Mr. Bergerson: In both cases the Court affirmed the Seventh Circuit.

Unknown Speaker: Yes, and what was the judgment?

Was it set according to just some weight to the blotter paper, or full weight?

Mr. Bergerson: There was language in Chapman which was not necessary to the resolution or solution of the case which said that all the blotter paper should be weighed.

Unknown Speaker: Wasn't this a question of a conviction and a sentence that had been entered in Chapman?

Mr. Bergerson: Yes.

Unknown Speaker: And if the position that you are now taking, that all the Court said was that you give some weight, not necessarily full weight, to the blotter paper, then wouldn't the judgment have to have been vacated so that it could be modified to reflect something less than full weight?

Mr. Bergerson: No.

In Chapman, the issue before the Court was whether the phrase, mixture or substance, referred to pure LSD.

The commission had not yet spoken to the issue, nor had any other agency, nor had Congress spoken, and the term had no fixed common law meaning.

Accordingly, the Court was obligated to use the plain meaning of the word.

What we are arguing in this case is that the plain meaning of the word has changed in light of the commission's thorough factual exploration into what that plain meaning--

Unknown Speaker: And the meaning couldn't be plain.

If the meaning was plain, it wouldn't have changed.

Mr. Bergerson: --Well, but the meaning can change in the context of the statute, because the statute refers to the drug market.

Unknown Speaker: Well--

Mr. Bergerson: And that's what the commission studied, was the drug market.

Unknown Speaker: --Well, what if in a totally different context this Court had said we take the plain meaning of the word employee, in a case that Justice Breyer wrote for the Court a few weeks ago, and then a great convention of lexicographers came along and said, well, we really want to get to the bottom of this thing, and we now think that employee means something different, could the next party come along and say, well, this case should be modified because you are wrong in deciding what employee meant?

Mr. Bergerson: No, because there is no congressionally delegated convention of lexicographers tasked with precisely the task that you've outlined in your hypothetical.

Unknown Speaker: But Congress could do that.

That's the only thing lacking, really, right?

Congress can have this Court second-guessed all the time.

All it has to do is designate a particular convention of lexicographers, just as here it designated a certain aggregation of judges and scholars who could be commissioners.

Mr. Bergerson: If Congress designated a convention of lexicographers with the same thoroughness as it did--

Unknown Speaker: Right.

Mr. Bergerson: --the Sentencing Commission, then the answer would be yes.

Unknown Speaker: Gee, I feel a lot less important than I did before.

[Laughter]

Well, that's contrary to some of our decided cases, isn't it, that another body could in effect overrule our decisions?

In fact, it's contrary to that case back in 1790, the pension case.

Mr. Bergerson: Your Honor, this is not a case of stare decisis, and those cases all deal with stare decisis, and it's not a case of stare decisis for two reasons.

First, the language in Chapman which is problematic here, the language which talks about weighing all the blotter paper, was not necessary for the resolution of the Chapman case because the question presented in Chapman was simply answered by saying that the mixture includes blotter paper.

Unknown Speaker: Did the length of the sentence in Chapman depend on the actual weight, including the weight of the blotter paper?

Mr. Bergerson: What was at issue in Chapman--

Unknown Speaker: Yes or no.

Mr. Bergerson: --The length of the sentence under the statute did.

The guideline sentence in Chapman was not directly challenged.

It was simply tracking along with the mandatory--

Unknown Speaker: So that the answer is yes, the sentence depended on the actual weight of the mixture or substance.

Mr. Bergerson: --The sentence in Chapman--

Unknown Speaker: Well--

Mr. Bergerson: --given the two alternatives--

Unknown Speaker: --the answer is yes, isn't it?

Mr. Bergerson: --Yes.

The answer is yes, Justice Souter.

The sentence did depend on the weight of the blotter paper entirely because no other alternative was presented.

Either one had to give Mr. Chapman a sentence--

Unknown Speaker: Well then, that was the holding of the case.

Whether another argument or another alternative might have been presented is beside the point.

That's what the case held.

The entire weight will be considered and the sentence will be set accordingly.

Right?

Mr. Bergerson: --Right at the time, but now the term, mixture or substance, has been revisited by the Sentencing Commission which was tasked with the task of--

Unknown Speaker: Which means, on your view, the Sentencing Commission can, in fact, modify the holding of the case.

Mr. Bergerson: --That is not my position, Justice Souter.

My position is that the Sentencing Commission can, given the delegation that Congress has given to it, explore reality by means of the hearings that Congress has tasked it to do under section--

Unknown Speaker: And when reality has been explored, what is left of the holding in Chapman?

Mr. Bergerson: --What is left of the holding in Chapman is the essentials of section 841, to wit that there is a market-oriented approach to drug sentencing, that the--

Unknown Speaker: But not the rule that the actual weight will be considered.

That's gone.

Mr. Bergerson: --That would be--

Unknown Speaker: That has yielded to reality.

Mr. Bergerson: --That has yielded--

Unknown Speaker: Right?

Mr. Bergerson: --to the new plain meaning--

Unknown Speaker: Yes.

Mr. Bergerson: --of the term, and the reason that it yields to the new plain meaning of the term is because mixture or substance, as defined as gross weight blotter paper, with no input from the Sentencing Commission's expert study of the issue, is inconsistent with section 841(b) as framed by Congress.

Unknown Speaker: I'm not sure that it matters, but when we're talking about reality, is it correct to say, as I think the Government has pointed out, that the putative weight adopted by the commission is approximately 1/20th of the characteristic average weight?

Mr. Bergerson: It is in fact.

Unknown Speaker: Mr. Bergerson, not only do I have some doubt whether we have to follow the Sentencing Commission, I have some doubt whether the Sentencing Commission doesn't have to follow us.

Is there any way in which the Government can challenge the Sentencing Commission guidelines as in effect creating a skewed system in which you get a 10-year minimum on the basis of our holding, and then everything from there is computed on a very different basis?

Apparently the commission thought that was okay, but it seems to me a crazy system.

Is there any way in which what the commission says is challengeable as not being in accordance with the statutory law?

Mr. Bergerson: Not under the delegation that's been given to the commission, Justice Scalia, to establish sentencing guidelines.

The Government concedes and we agree that it--

Unknown Speaker: No matter how irrational those sentencing guidelines are?

That is, you have a 10-year minimum based on our holding, and then they use a totally different basis for deciding the increments of punishment above 10 years, which seems to me quite irrational.

Mr. Bergerson: --However, the totally different basis is entirely in keeping with the language of the statute because it punishes LSD in a--

Unknown Speaker: Theirs is and ours is, but you have the two of them working, and you say the commission's ought to prevail over ours.

If I think that ours ought to prevail over the commission's, I wonder... but you say there's no way to set the commission right.

Well, the Government can always go to Congress and ask that it not approve the Sentencing Commission's recommendations, can't it, the way it did with this crack cocaine thing?

Mr. Bergerson: --That's correct, Mr. Chief Justice, and the Government can go to Congress and ask Congress to change the Sentencing Reform Act for 1984.

Unknown Speaker: Congress doesn't change things just because they're illogical.

[Laughter]

I mean, that's... Congress doesn't care about that sort of thing.

Mr. Bergerson: Nonetheless.

Unknown Speaker: I mean, we do.

[Laughter]

Mr. Bergerson: Congress has given to the Sentencing Commission the power to do what it did and reserve for itself the power to do what the Chief Justice is suggesting.

Unknown Speaker: Did it exercise that power, assuming it had it?

I mean, what's stopping me in this at the moment is it says, nonetheless this approach does not override the applicability of mixture or substance for the purpose of applying any mandatory minimum sentence, and then it cites Chapman, and then it cites 5G1.1(b), and in 5G1.1(b) it says, when a statutory minimum sentence is greater than the maximum guideline, apply the statutory minimum.

Now, I know you could find some ambiguity in that, but it's hard to find more than ambiguity, and what it sounds as if they're saying is, we're changing it for purposes of the guideline, but the mandatory minimum in the statute of course trumps the guideline, and there's nothing here that suggests we're changing that in any way.

That... I mean, that's what I'm concerned about from your point of view.

Mr. Bergerson: I would respectfully disagree with that interpretation.

Of course the statute trumps the guideline, and of course the commission is powerless to rewrite the statute.

However, what I read the commission as saying in that passage is two things.

First of all, it is proclaiming that the guideline is consistent with the statute.

It does not override the statute for purposes of setting a mandatory minimum.

Second, in light of the history, as I've outlined in my reply brief, of this amendment, the commission is simply proclaiming the process by which it reached its result.

Unknown Speaker: But if I were on the commission and were doing this thing, which is pretty radical, trying to change a case of the Supreme Court, interpreting a statute of Congress, which I can't remember an instance where the commission would try to do that, wouldn't the commission at least tell people what they were trying to do and explain it, rather than putting a sentence in the guideline that implies to an ordinary reading the contrary?

Mr. Bergerson: Well, the sentence is in the commentary to the guideline, and to the degree that it's inconsistent with the guideline it's not binding on this Court under this Court's Stinson decision, but my submission would be that the guideline is plain enough and the delegation to the commission to do what it did is plain enough that the commission need not have said anything, and simply proclaiming that it is trying to be consistent with section 841 and this Court's reasoning in Chapman is nothing more than the commission's own statement of its own limitations.

Unknown Speaker: There's another question that you may have.

I'm going to ask them the same question, but this is the great mystery here, which is a vacuum to me, and I'd like to try to find out about it.

I, of course, think that these things make more sense than people sometimes think--

[Laughter]

--and one of the efforts here and in Congress is, they don't make these numbers up.

What they do is, they go to experts, particularly DEA, and they say to DEA, what should we do here to get our intent, so there was at some point some representation from DEA to Congress that would have told them how technically to write a statute that's going to achieve a particular objective.

But the particular objective was to put big guys and big deal gangs in jail for 5 years or 10 years, 5 years medium, and less than 5 years, itty-bitty, all right.

Now, what is the definition of this?

Did Congress have in mind that a fairly big-sized expert, or drug guy, or LSD guy was a person with 125 doses, or a person that was trying to sell 2,500?

Now, that's a huge difference, and somebody on the staff there would have found out from DEA and there would have been pamphlets, and there would have been writings about whether the dangerous people were 125-dose people, or 2,500-dose people.

So you've looked into this.

I haven't been able to find anything.

Mr. Bergerson: In the Chapman dissent there is a footnote, footnote 12, which indicates that if you strip away the paper, then the doses become equivalent for all the drugs listed in section 841(b).

That led the arguers in Chapman to believe that it was likely that Congress simply did not take into account the paper, but that issue has been decided.

What we're saying now is that the DEA had equal input into the commission's definition, and that the commission's definition was done with reference to all the provisions of the statute.

Unknown Speaker: Yes, but this is quite later.

At the time that this statute was passed, the DEA was going and telling the commission and Congress about the same thing as to how to write it, and so what I'm trying to figure out is, there must be a manual or something somewhere that refers us to whether it's 125 doses that looks... defines a fairly big guy, or 2,500 doses.

That's the key to this, and what is it?

Mr. Bergerson: The DEA's pre-1986 and post 1986 statements all weigh LSD in terms of pure LSD.

That's the reference to which they make--

Unknown Speaker: It doesn't matter how you weigh it.

What matters is whether you're trying to put the 125-dose guy in jail for 5 years, or whether you're trying to put the 2,500-dose guy in jail for 5 years.

You can have any kind of weighing system you want, do it in a thousand different ways, but what's the objective?

Mr. Bergerson: --In answer to Your Honor's question, the DEA did not provide input to Congress on the question that Your Honor has asked.

The DEA provided data to Congress on the precise weight of pure LSD.

However, if one looks at the statute and construes it as a whole in accordance with the jurisprudence of this Court, it is clear that Congress intended to punish these drugs in pari materia.

The relevant language of the statute is not simply mixture or substance, but all the other references, to 10 years, different doses, different quantities, absolute quantities of drugs that yield roughly equivalent doses, and one assumes that the commission was correct in interpreting the statute to mean that what Congress wanted was to go and have LSD punished at roughly the same level as the other drugs.

Unknown Speaker: Mr. Bergerson--

Mr. Bergerson: Yes.

Unknown Speaker: --are you making at least as a fallback argument the suggestion that the Court has ruled one way in Chapman, it should be enlightened but not bound by what the Sentencing Commission has done, and therefore reconsider and modify Chapman?

Instead of trying to make two inconsistent things consistent, which seems to be the thrust of your argument up to now, to say the Sentencing Commission thought about this, the Court ought to reconsider?

Mr. Bergerson: That is one position, Your Honor.

I would clarify it to say the Sentencing Commission did not merely think about it but studied the market to such a degree as to give the words used in the statute a new plain meaning in the real world and therefore this Court--

Unknown Speaker: I find it powerfully hard to take the term plain meaning, which should mean the word means something plain, and then say because there was an expert commission that gave this a lot of study, then the plain meaning, the meaning that people, ordinary people would understand, changes.

Mr. Bergerson: --Yes, Your Honor.

I will point out, however, that the commission studied the drug market to which the statute directly pertains according to the legislative history of the statute and according to the finding of this Court in Chapman and, studying that drug market, came up with the definition it has here.

Unknown Speaker: We couldn't possibly have interpreted the statute to mean anything resembling what the commission says it's going to use for purposes of sentencing, could we?

How could you possibly get that out of the language of the statute?

Mr. Bergerson: On the record presented to you in Chapman, you could not, Your Honor, because Chapman involved no comment from the Sentencing Commission, having undertaken expert study.

Unknown Speaker: Even with a comment or without a comment, we can't read, you know, the word mixture to mean, you know, so many doses.

That's just... that's legislating, it's not interpreting a text at all.

Mr. Bergerson: Your Honor, we submit that it is not legislating.

We submit that what the commission did was study the weights of drug mixtures in the actual--

Unknown Speaker: How would you have us interpret the language in Chapman?

What is it you think we should have said in Chapman the relevant language means?

Mr. Bergerson: --What we would submit is that--

Unknown Speaker: The language in question is what, mixture?

Mr. Bergerson: --Well, the language in question is the statute as a whole, but turning to mixture in the context of the statute--

Unknown Speaker: Mm-hmm.

Mr. Bergerson: --I would submit that a mixture or substance containing LSD means that quantum of LSD which yield sentences consistent with the obvious intent of Congress to regulate street drugs in like quantities with like mandatory penalties in the form they're sold on the market.

Unknown Speaker: You deduce that just from the language, a mixture or substance containing a detectable amount of LSD?

Mr. Bergerson: I deduce that from the market-oriented approach of the statute--

Unknown Speaker: Well, but--

Mr. Bergerson: --which is where this Court achieved its deduction in Chapman as well.

Unknown Speaker: --That the Court described Congress' approach as a market-oriented one, that may be helpful in deciding what a word means, but it doesn't enable one to simply apply the language that Congress has used and say well, anything market-oriented will do.

Mr. Bergerson: What Congress intended to do, Your Honor, was to--

Unknown Speaker: Well, we know best what Congress intended to do from the language it chose, and it chose the language, a mixture or substance containing a detectable amount of LSD.

Mr. Bergerson: --That's correct, but what Congress intended to do with that language was to plug it into the remainder of the statute, and the remainder of the statute provides like penalties for different amounts of drugs which, if interpreted in the manner done by the commission, yields results consistent within the statute with other drugs--

Unknown Speaker: I understand... all I want to know is what you think we should have said.

Just tell me how the opinion would have read in Chapman had you written it, in light of, you know, later developments at the commission.

Mr. Bergerson: --Your Honor, this is an evolutionary process.

The commission hadn't spoken at the time of Chapman, although in Chapman this Court looked to the commission for guidance on the issue.

Had the commission--

Unknown Speaker: You're not listening to my question.

I just want to know what you think Chapman should have... suppose we were rewriting Chapman today.

What should it say?

Mixture or substance means what?

Mr. Bergerson: --Chapman posed a different issue.

Reconsidering the issue of what mixture or substance means in light of the reality found by the commission in its exploration, mixture or substance means what it says in amendment 488.

It means.4 milligrams per dosage unit of LSD, so as to cohere the statute amongst itself--

Unknown Speaker: Wow.

Mr. Bergerson: --and to cure penalties with other penalties for like drugs.

Unknown Speaker: You think a court can interpret mixture or substance to mean.4 milligram dosage of LSD?

Mr. Bergerson: Not in a vacuum, Your Honor, but Congress established the Sentencing Commission to do precisely what it did here.

Unknown Speaker: But it didn't establish the Sentencing Commission to amend the provisions of the Criminal Code.

Mr. Bergerson: Nor did it.

Unknown Speaker: The Criminal Code remains what it is.

Mr. Bergerson: Absolutely, and that's why the Sentencing Commission proclaimed that its findings were consistent with Chapman and with the statute.

The commission didn't amend the Criminal Code.

It kept mandatory minimum sentencing in the form that it was intended by Congress to be.

Unknown Speaker: But if the Criminal Code is not amended, then you still have the language to deal with, mixture or substance, and to say, well, now we see that mixture or substance means.04 grams of something when the statute doesn't say anything like that, is just a tremendous leap.

Mr. Bergerson: It has always been in the tradition of this Court's jurisprudence to defer to expert agencies in defining the realities of the--

Unknown Speaker: Well, you mean we must defer to the Sentencing Commission in defining the terms of the Criminal Code?

I thought we defined those.

Mr. Bergerson: --No.

The Sentencing Commission did not define the terms in the Criminal Code.

Unknown Speaker: But you're saying it did.

Mr. Bergerson: I'm saying that the Sentencing Commission has come up with an interpretation of mixture or substance as it exists in the real drug markets.

That, in turn, references back to the Criminal Code.

Unknown Speaker: That sounds all very well, but just what exactly does it do?

The Criminal Code says one thing.

It was enacted by Congress, and it uses some words.

The Sentencing Commission now meets and says that for guidelines purposes this means.04 something, and then we simply go back and say, well, now we see that the term mixture or substance as Congress... means.04?

Mr. Bergerson: Your Honor, the Sentencing Commission did not define the words mixture or substance.

Unknown Speaker: You simply don't answer the questions, Mr. Bergerson.

Are you through?

Mr. Bergerson: My answer is that the Sentencing Commission did not do what... it did not define the terms in the statute.

It gave an explanation of those terms in the drug market as it was chartered by Congress to study the drug market, and it is to the commission that courts must look in terms of seeing what those words mean in the drug market Congress sought to regulate under section 841.

I would reserve the balance of my time.

Unknown Speaker: Very well.

Mr. Wolfson, we'll hear from you.

Argument of Paul R. Q. Wolfson

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

In Chapman v. United States this Court held that the actual weight of the entire carrier medium must be used to determine whether the defendant is subject to the mandatory minimum sentencing statute for trafficking in LSD, and the question in this case is whether that rule was changed by the Sentencing Commission's new LSD guideline, which does not use the actual weight of the drug and the carrier, but instead uses a constructive weight for each dose of LSD and calibrates the defendant's sentence essentially to doses of LSD.

Unknown Speaker: Can they do that?

Can they just ignore our interpretation of what the statute means in determining what the penalties are going to be under the statute?

Mr. Wolfson: Not for the purpose of determining what the penalties mean, are under the statute, no.

The Sentencing Commission does not have the authority to construe terms in the mandatory minimum sentencing statute.

Unknown Speaker: It seems to me we're in a very strange position here, where the minimum is determined, now determined on the basis of one theory and the length of time in prison, unless the minimum interferes, is being determined on a totally different theory.

Doesn't the commission, in drawing up its proposals, have to adhere to the meaning of the law as we've determined it?

Mr. Wolfson: Justice Scalia, we don't argue that... leaving aside how the minimum applies, the Sentencing Commission does retain authority except for that point.

In other words, for sentences that fall below the 1-gram threshold, the Sentencing Commission has its plenary authority, and--

Unknown Speaker: It's not plenary.

I mean, it's not arbitrary either.

There's no such thing as an arbitrary decision by the commission?

Mr. Wolfson: --There is such a thing as an arbitrary decision by the commission if it were inconsistent with the Sentencing Reform Act of 1984, but we're not taking the position--

Unknown Speaker: But not... inconsistency with the criminal law whose penalties they're prescribing doesn't count.

There's--

Mr. Wolfson: --Well, for sentences that are less than 1 gram, the penalty statute doesn't apply, so it doesn't... the statute only applies for 1 gram or more, or 10 grams or more.

It's a two-step threshold.

Unknown Speaker: --I understand, but once the minimum applies, you agree that the minimum bears no relationship to the rest of the sentencing scheme.

Mr. Wolfson: Once the minimum applies... well, this Court construed... construed Chapman, construed the minimum statute in Chapman, and the Sentencing Commission cannot... the Sentencing Commission does not have the authority to determine when the statute comes into play, but other than that--

Unknown Speaker: Other than that--

Mr. Wolfson: --Other than that, yes--

Unknown Speaker: --It doesn't have to construct the sentences based upon the meaning of the criminal law as this Court has interpreted the criminal law?

Mr. Wolfson: --Congress did not require the Sentencing Commission to use the mixture or substance approach with respect to its own guidelines.

Now, it did that... it did that at the time that Chapman was decided by this Court.

Unknown Speaker: I mean, Congress didn't say that explicitly, but with other agencies we certainly can say that a particular rule made by the agency produces such an illogical result that it's arbitrary, and therefore... is there any way the commission's decision on these matters can be reversed as being arbitrary, as being contrary to law, or whatever it says is law automatically?

Mr. Wolfson: If it's inconsistent with the fundamental statute, which is the Sentencing Reform Act, then a guideline could be invalid, but it cannot be--

Unknown Speaker: That's the only thing it can contradict--

Mr. Wolfson: --It cannot be challenged... it cannot be challenged on the basis that it is... on this basis that it's inconsistent with the mandatory minimum statute, and--

Unknown Speaker: --But it could if it worked against--

--The defendant.

--the defendant.

Mr. Wolfson: --If it were... yes.

If it were wholly arbitrary enough to deny the defendant due process, but I... that simply is not the case... that is not the case here.

Unknown Speaker: Well then, if that's the law... you're saying whatever the commission does is the law, then I assume that the defendant who gets hit with a mandatory minimum in a scheme that's totally different from the scheme that the commission is using for the rest of the statute, he has that claim.

It seems to me either the guidelines or our interpretation of Chapman denies... it puts somebody in a very weird position.

Somebody must have a claim here, and you're saying you can't challenge what the commission does.

Mr. Wolfson: What the commission did within its own bounds, the guideline is certainly valid, and it has the effect of considerably lowering the sentences for LSD trafficking both below the 1-gram threshold and between... between the 1 and 10-gram threshold it brings most of them down to 5 years, and then above the 10-gram threshold it brings many sentences down.

Now, within the confines of its authority, we believe that the guideline is valid, but the commission does not have the authority to determine or to redetermine, because it would require a reexamination of this Court's decision in Chapman, when those statutes are triggered, and Congress did not delegate to the commission the authority to determine when the mandatory minimum sentencing statute applies.

And even if it were otherwise, the... our position is there's no way that you can... that the commission... the commission's new LSD guideline, the approach that it takes to sentences for trafficking in LSD is not consistent with the Court's definitive construction of the statute in Chapman.

In Chapman, the Court construed the terms that were in the statute, mixture or substance, and it used traditional tools of statutory interpretation to arrive at its construction.

It looked at the ordinary meaning of the words that were in the statute.

It invoked the canon of interpretation that every word in the statute has to be given effect wherever possible, and as a result it concluded that so long as it contains a detectable amount, the entire mixture or substance is to be weighed when determining whether a defendant is subject to those statutory penalties.

Now, the new guideline really is not consistent with that approach.

The two approaches are not the same at all, because the new guideline--

Unknown Speaker: You'd think that the more mixture you got, the more punishment you'd get, and what the commissioner has said is, no, that's not true, even though we have said the statute is based on what the mixture weighs.

Mr. Wolfson: --That is correct.

The statute is based on--

Unknown Speaker: The commissioner said the punishment isn't going to be based on what the mixture weighs.

Mr. Wolfson: --I guess--

Unknown Speaker: The... I mean, you answer it as you wish.

I would have thought there are lots of statutes that govern the commission, and sometimes it's not possible to be literally consistent with the policy underlying each of them, but that's primarily a judgment for the commission, isn't it, and if it decided here that this was too tough, the mandatory minimum, because of policies involving in other statutes, maybe it has the statutory authority to do that, and then leave the statute in place, because, of course, it can't trump a statute.

I mean, if that's... what I'm sort of interested in here, though, is... look, does the commission have some authority to interpret a statute in the following sense.

You have a piece of blotter paper.

There isn't chemical binding between every molecule on the blotter paper.

Suppose they throw LSD into the Atlantic Ocean.

You don't weigh the entire Atlantic Ocean, so there must be some... some technical matter where the commission might, because of its knowledge, let us know how much of the binding that takes place in a matter of degree is that portion of the paper that should count, because they would go talk to the technical experts on that.

Now, I guess in that sense the commission, while it couldn't legally bind the courts, could tell the courts some information that might be relevant to them in deciding how much to weigh, how much of this piece of blotter paper is actually part of the mixture or substance connected with the LSD.

It could do that, couldn't it?

Mr. Wolfson: --Justice Breyer, I... the commission's information could be useful to the court, but the task at the end of the day is a pure one of statutory interpretation.

Unknown Speaker: Oh, but... yes.

Mr. Wolfson: Is this... in the indication... in an unusual situation where there is doubt as to whether something is a mixture or substance, that fundamentally is a question of--

Unknown Speaker: It's not so unusual.

I take it that the molecules of the LSD thrown into the Atlantic Ocean might be dispersed among yards and yards or miles and miles of water, and so there will have to be a point where people will talk about the concentration of the LSD interspersed with the other molecules that bring it within the range, mixture or substance, and when it makes that kind of a decision, shouldn't the courts and the commission also take into account the policy that underlies this statute, namely, how big a guy Congress wants to put in jail for 5 years.

Mr. Wolfson: --The courts take into account the objective the Congress was seeking to accomplish when it enacted the statute when it gives content to the terms, and whether it considers whether a result in a particular case is demonstrably at odds with what Congress intended, and comment by the commission can be useful to the court.

It can help the court understand whether it is reasonable to conclude that something was or was not an intent that Congress intended, but it is not deference in the sense that this Court conventionally uses that term as a presumptively binding interpretation of a statute in the absence of a showing that it is unreasonable.

Unknown Speaker: So I agree with that, but then that... this is my... what I'm trying to lead up to basically is the Government must have in its file somewhere the information that Congress had in its mind, whether staff or Congressmen, at the time this statute was passed, and did Congress believe that they were putting in prison for 5 years people who distributed 125 doses of LSD, or did they think they were putting in prison for 5 years people who distributed 2,500 doses of LSD?

They could have read it in pamphlets, they could have talked to LSD people, maybe it's in hearings, maybe it was in memos, what's the answer to that question?

Mr. Wolfson: Justice Breyer, I have to say I do not know of the pamphlet that you are looking for.

I will say that in the legislative history to the Anti-Drug Abuse Act of 1986, there is a comment that the 5-year penalty is intended for the people who keep the street market going.

The 10-year is intended for the people higher up the chain, the 5-year in general is for the people who keep the street market going, the people who fill the vials, who pass out the baggies, that sort of thing.

I do not think that it is implausible that 120, even 125 doses of LSD could answer to that description.

That's a... that is certainly somebody who is keeping the street market going, and that is... Congress could definitely conclude that that was somebody who would warrant 5 years.

Unknown Speaker: But does 125-dose test apply to other drugs in the same way?

Mr. Wolfson: Justice Stevens, I have to acknowledge that the doses for LSD that bring into play the 5 and 10-year penalties are less than... are lesser, fewer, rather, than they are for other drugs, but of course, that was before the Court in Chapman--

Unknown Speaker: That was the argument the Court rejected in Chapman.

Mr. Wolfson: --That was before the Court in Chapman, and essentially I think the petitioner is left with urging the same arguments and asking the Court to reconsider Chapman.

Unknown Speaker: In the light... in that light of reconsideration, would the 4....4 solution that the commission has come to, would that have been a permissible interpretation of the statute for the Court?

Let's assume that the guideline interpretation came first.

The Seventh Circuit had dealt with the Chapman issue, but this Court had not.

Enlightened by the guideline, would it have been impermissible interpretation of the mixture or substance statute?

Mr. Wolfson: No.

Justice Ginsburg, I do not think that it is... even if the question were still open in Chapman, or if the Court were reconsidering the matter, this is not a permissible interpretation of the statute because the only reasonable reading of the statute I think is an actual... the actual weight of an actual mixture or substance.

The statute says 1 gram or more of a mixture or substance.

It does not refer to hypothetical abstract or constructive weight, constructive--

Unknown Speaker: May I give you... I hope it's not too hypothetical.

Supposing that you have a blotter on which you normally drop a spot of ink, and you can have a blotter that's about 4 inches long, and you see the spot of ink on it.

A lot of the blotter is white, and then there's a dark blue... you can also have a blotter such as we have here, about 3 feet by 5 feet, same drop of ink on it.

Would it be permissible to say that the mixture or substance merely includes the discolored portion of the blotter, because the rest of it isn't mixed with the ink at all?

Mr. Wolfson: --I think there are situations in which, because mixture means a situation in which the molecules are interspersed or distributed--

Unknown Speaker: Correct.

Mr. Wolfson: --among another, and that's how the Court interpreted mixture in Chapman.

There could be very extreme situations in which an infinitesimal amount of a substance is mixed, but that's certainly not this case--

Unknown Speaker: No, it's a clearly detectable amount in order to qualify, and you can see... with an ink blotter, it's easy.

You can see how far it is.

But supposing it's LSD, and you'd have a huge blotter on the one hand and a tiny blotter on the other.

Do you think it's irrational to treat them the same, even though the amount of the mixture, the geographical scope of the mixture is precisely the same?

Mr. Wolfson: --I think there are situations where you could exclude the 99 percent of unmixed blotter paper, but that is not, I must emphasize, what the commission was doing, and I have to say I think it is... I do not think it is correct to say that the commission was really defining or considering what is a mixture, or what is a mixture or substance.

I don't think that is really what the commission was doing.

It's true that they used the... they kept in place the drug quantity table for purposes of convenience, and they used language referring to mixture or substance except as otherwise provided, but really what they were doing was putting... setting aside, departing from a system of sentencing based on the weight of the substance and relying, and adopting a scheme based on sentencing calibrated to the number of doses distributed.

Now, it's true that for purposes of convenience they assigned to each dose a particular weight, and that I think was just so they wouldn't have to write a new drug quantity table solely for LSD, because they had in place this useful system.

But I think it's wrong even to say that the Sentencing Commission was reconsidering what is a mixture, they really were just adopting a new--

Unknown Speaker: Just saying how much of the mixture shall we count.

Mr. Wolfson: --No, I... not how much of any actual mixture.

They were... in other words, they weren't saying, take a piece of blotter paper and arrive at some reasonable judgment of how much is soaked with LSD.

They didn't even do that, and that--

Unknown Speaker: Really what they tried to do is take this market approach to it, but they still left this substance still much more heavily punished in terms of number of doses, even under the commission's formula.

Mr. Wolfson: --Well, the commission believed that it was bringing the penalties roughly in line with other substances, including PCP, making it punished slightly less than PCP because it believed that ought to be the case, but--

Unknown Speaker: Well, that depends on whether you think the statute was punishing the sale of mixtures or substances or whether it was punishing the sale of hits--

Mr. Wolfson: --Well, the statute was--

Unknown Speaker: --and the statute says mixture or substance, and that's how we interpreted it, and I don't know why the commission can conclude that really Congress was looking at... you know, it's like the prohibition law that somehow it's... as far as I was aware, it applied to whether the liquor was 40 proof or 100 proof.

It didn't matter.

Mr. Wolfson: --That is correct, and that was the original approach under the 1970 Controlled Substances Act, that substances were punished.

It was any mixture or substance containing whatever--

Unknown Speaker: Well, any mixture, and that's how we interpreted subsection 5 here, and I don't know where the commission gets off interpreting it differently for purposes of deciding what the incremental penalties are.

Our holding clearly is that section 5, as it says, applies to mixture or substance, and then the commission comes in with a sentencing scheme that uses a totally different criteria quite inconsistent with our holding in Chapman.

Mr. Wolfson: --Justice Scalia, I don't think that the commission was purporting to say when did the statute apply.

They were drawing up their own system, but they... I do not think... there's been a lot of discussion about what does the background commentary mean, where it says this approach does not override the applicability of mixture or substance, see Chapman and 5G1.1(b).

I think what that indicates is the commission recognized that Chapman and the binding force of section 841 were controlling.

It could not overturn that, and 5G1.1(b) clearly indicates that where there is a conflict between the statute and the guideline sentencing range, the statute controls in every case.

However, when you read what the commission did, they were not deciding when did the 5-year and when did the 10-year mandatory minimum sentence come into play.

They were setting... and so I don't think you even get past the threshold, which is, they were not purporting to overrule Chapman or decide when the statute applies.

They were setting up their own--

Unknown Speaker: That may well be, Mr. Wolfson, but I have the distinct impression that if any other agency that I know of interpreted a statute this way, that the minimum applies to the mixture or substance, but the incremental penalty does not apply to the mixture or substance but to the number of grams in the mixture or substance, we would say, you can't have it both ways.

Mr. Wolfson: --Well, of course--

Unknown Speaker: The statute simply is... you must be consistent.

This is irrational.

It is arbitrary and capricious, and therefore the rule you've adopted is invalid.

Now--

Mr. Wolfson: --Well, of course, had there been no Sentencing Commission at all, had this just been left to the discretion of the district judges, as it was before... of course, there wasn't any mandatory minimum sentence, but had there just been mandatory minimum statutes and pure discretion of the district judges, the district judges could have sentenced all offenders who came within the reach of the statute at the low end--

Unknown Speaker: --There would have been nothing inconsistent with any law, however.

And why concede that it's irrational, because after all, the commission operates under a mandate, which is to make sense of a crazy quilt of criminal punishment sentences statutes which create a crazy quilt of policies that one cannot live up to each policy in every area that the statute doesn't cover, right?

That's their basic mandate.

Mr. Wolfson: --I certainly--

Unknown Speaker: So in fact there is no way to follow the mandatory minimum drug penalties into areas where they don't... I mean, all right.

Anyway, we--

Mr. Wolfson: --I certainly don't believe that there was an irrational result, and the petitioner had--

Unknown Speaker: --Mr. Wolfson, is this discussion academic to the extent that there's nobody qualified to challenge what the commission has done for the purpose of computing the guideline sentence?

That is, you could have said to Congress, don't let this one go through because we disagree with it, but you are not equipped now, you have no way of asking this Court, and you're not asking this Court to change the commission's interpretation.

Mr. Wolfson: --We are certainly not asking this Court to hold that the guidelines are invalid, the guideline sentencing range are invalid, even after--

Unknown Speaker: And that's what this... what I... the interesting problem to me, which I don't have the answer to, is this is a statute that if you take it literally it seems as irrational as any that we've come across, because it seems as if somebody threw LSD into the Atlantic Ocean, you would weigh the entire Atlantic Ocean, and so what is it... what way is there to interpret this statute that does not produce in some instance absurd results?

How do you define mixture and substance to avoid that very odd result?

Mr. Wolfson: --Well, first, this is clearly not a case where... a case like that.

Unknown Speaker: If he sells the Atlantic Ocean you'd get him, wouldn't you, for the minimum?

[Laughter]

Mr. Wolfson: I--

Unknown Speaker: Would you get him for the minimum or not?

Mr. Wolfson: --I would have to--

Unknown Speaker: You would pursue for the minimum, would you not?

Mr. Wolfson: --But I would expect to be rebuffed.

Unknown Speaker: Worried about that happening?

[Laughter]

Mr. Wolfson: I don't think... I think that Congress can certainly write a statute for the majority of the cases, and that's what Congress has done here.

Unknown Speaker: Mr. Wolfson, my line of inquiry is not academic.

I seriously do not know whether I can go along with the Government if I think that the result of going along with the Government is endorsing a system that has such incompatible sentences.

It is irrational, to my mind, and you are telling me that there is nothing that the Government can do about the guidelines, is that right, so that my only choice is to reinterpret the statute.

Mr. Wolfson: No, the Government has... in other cases, the Government... there are cases currently going on in the Federal system where the Government is challenging the validity of a guideline, not as inconsistent with... not as inconsistent with a separate penalty statute--

Unknown Speaker: Yes.

Mr. Wolfson: --that the Sentencing Commission does not have authority to construe, but as inconsistent with provisions of the Sentencing Reform Act.

Unknown Speaker: But it is the Government's position that the guidelines can be as inconsistent as you like with the substantive criminal statutes, including minimums.

Is that the Government's position?

Mr. Wolfson: If they are inconsistent in the sense... if they are inconsistent in the sense that they interfere with the ability of the minimums to apply, obviously not, but if they are within the Sentencing Commission's own sphere, own domain, as is the case with less than 1 gram here, that that... the Sentencing Commission is not--

Unknown Speaker: Why can they not be unlawful because they are incompatible with the substantive criminal statute?

Mr. Wolfson: --Because the Sentencing Commission is not under a statutory obligation to bring those guidelines into conformity with the... with 841(b) for offenses that don't meet the threshold for that statute to apply.

The Sentencing Commission is following its general authority under--

Unknown Speaker: Well, then you have a problem with me.

If they don't have to follow us, maybe we should revise our law to follow them, because otherwise the system in place seems to me quite irrational.

Mr. Wolfson: --Well, now, Justice Scalia, let me point out that, of course, Congress could have decriminalized LSD altogether under 1 gram.

There could be no penalty, and... or Congress could have said, for 1 gram or less, we simply don't think it's a matter of Federal concern, and we'll leave it up to the States to punish.

Now, there would be nothing--

Unknown Speaker: Congress could be irrational.

They are entitled to be irrational.

Agencies cannot.

We have doctrines about arbitrary and capricious agency action.

Mr. Wolfson: --Well, on its own terms, of course, there's... what the Sentencing Commission has done, the scheme that they have set up is not arbitrary.

It's appropriate to base... we would agree that it would be appropriate to base a sentencing scheme on doses of LSD, but it's not arbitrary and capricious, but neither is it contrary to law, because it does not run up against any limit on the Sentencing Commission's authority to set--

Unknown Speaker: Nothing in the submission of this case raises any question about the rationality of the guidelines, does it?

The petitioner was sentenced under the provisions of Chapman.

Mr. Wolfson: --That is correct.

Unknown Speaker: He said he should have been sentenced under the guidelines and the district court refused to do so, and the court of appeals upheld it.

Mr. Wolfson: That is correct, so--

Unknown Speaker: Well, the guidelines did have an impact to this extent.

He ended up with less--

Mr. Wolfson: --Yes.

Unknown Speaker: --than he did when the commission was interpreting the guideline in sync with the way this Court has interpreted the statute.

Mr. Wolfson: Yes, and we agreed--

Unknown Speaker: There was a lot of months difference, wasn't there?

Mr. Wolfson: --Yes.

It was I think almost 5 years, 5 or 6 years difference in his sentence, and we agreed to that extent, that he was entitled to a reduction in his sentence down to 120 months.

Unknown Speaker: Mr.--

--He points to somebody else who has sold a whole lot more of grams of the substance, and this other person who's sold a whole lot more still only gets 10 years.

Mr. Wolfson: Well, of course, Congress could have adopted a determinate sentence approach as well.

This again was before the Court in Chapman, and had Congress said, if you sell 10 grams or more of a mixture or substance for LSD, you get 10 years, no... you know, no... nothing higher, nothing lower.

That's a... it's a completely determinate sentence.

That would be rational, and that was a system in sentencing that was common in this country until a generation or so ago.

Unknown Speaker: Mr. Wolfson, if the Government did think that what the guidelines... what the Sentencing Commission did in adopting a particular guideline was irrational in light of the statutory language and the scheme that's in place, exactly what is it that the Government can do to challenge it?

You can tell Congress when they're looking at the guidelines that you don't think it should be allowed to go into effect?

Mr. Wolfson: Two things.

Certainly during the 180-day period we could go to Congress and ask Congress--

Unknown Speaker: And failing that, if that is not done, you just were asleep at the switch over there in looking at it, what later could you do?

Mr. Wolfson: --In another... in a case involving a different issue, we... the Attorney General has instructed the U.S. attorneys to oppose application of a guideline in particular cases and to appeal sentences if they're based on the guidelines, because in that case we believe they're inconsistent with the Sentencing Reform Act.

Unknown Speaker: With the statute, and therefore irrational and arbitrary and invalid.

Mr. Wolfson: I would say contrary to law, is how I would describe it.

Unknown Speaker: And then if you prevail in that, what happens if the guideline is simply obliterated?

I mean, what's left?

Mr. Wolfson: Well, in that case--

Unknown Speaker: In this other case you're--

Mr. Wolfson: --Right.

In another case we... it's our position that there's a statute that requires... it requires the Sentencing Commission to base guidelines on a... the highest available sentence under a statute, and the question is whether that... if I have it correctly, whether that involves... the calculation has to be made with--

Unknown Speaker: --Then sentencing--

Mr. Wolfson: --counting prior convictions or not.

Unknown Speaker: --And sentencing is just held in abeyance until there's some new guideline.

Mr. Wolfson: In that case we think there's only one possible interpretation of the statute.

Unknown Speaker: I see.

Mr. Wolfson: In sum, as earlier, we argued that the Chapman rule remains the controlling interpretation of section 841, and we would request the judgment of the court of appeals be affirmed.

Unknown Speaker: Thank you, Mr. Wolfson.

Mr. Bergerson, you have 4 minutes remaining.

Rebuttal of Donald T. Bergerson

Mr. Bergerson: Thank you.

Congress created the Sentencing Commission with the idea of reconciling and eliminating precisely the irrationalities we have now been talking about for an hour, and which we've been talking about since the Chapman case.

The place is to inform the courts of the realities of criminal sentencing, and that's why this case is before this Court now.

The commission recognized in this case by a factual finding of great quality and depth that the sentencing in LSD cases was irrational and not consistent with the statute as it interpreted as a whole, but more than that, it defined the reality of what mixture or substance containing LSD means in accordance with the market realities of 841.

It didn't purport to overrule this Court, and it said it wasn't doing so, but it did give a new plain meaning to the word.

This Court recognized that the commission had precisely this place in the scheme of things.

What we're asking the Court to do is to allow the commission to do here what the commission does all the time, which is to establish binding guidelines for sentencing in criminal cases.

Our position is that.4 milligrams of LSD is a mixture or substance containing LSD within the meaning of section 841(b) in light of the realities, and that under this Court's jurisprudence, deference should be paid to what the commission has done.

If there are no further questions, we would submit.

Chief Justice Rehnquist: Thank you, Mr. Bergerson.

The case is submitted.

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

Attribution:

The Oyez Project

Featured:

United States v. Robertson - Oral Argument

Fri, 09 Jan 2009 14:49:57 +0000

Case:

United States v. Robertson

Media File:

94-251_19950227-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Miguel A. Estrada

Chief Justice Rehnquist: We'll hear argument next in Number 94-251, the United States v. Juan Paul Robertson.

Mr. Estrada.

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

The respondent was a California lawyer who became involved in drug dealing and other crimes.

With money obtained from his crimes, he invested in a venture to mine gold in Alaska.

He was eventually convicted of narcotics offenses and of violating the Racketeering Influenced and Corrupt Organizations Act, known as RICO.

RICO makes it a crime for any person to use income derived from a pattern of racketeering activity to acquire an interest in any enterprise

"which is engaged in, or the activities of which affect interstate or foreign commerce. "

The Ninth Circuit affirmed the narcotics conviction, but it reversed the RICO conviction for lack of proof that the activities of the gold mining venture affected interstate commerce.

The court held that a minimal effect on interstate commerce would be sufficient to satisfy RICO, but that an incidental effect on that commerce would not.

The court then found that the Government's evidence, including the fact that the gold mining venture had hired employees outside of Alaska and purchased equipment outside of Alaska, showed, at most, an incidental effect on interstate commerce.

The Ninth Circuit emphasized that Alaska's geographical isolation means that most supplies and equipment must get there via interstate commerce, and it believed that Alaska's dependence on interstate commerce should not mean that local businesses in Alaska are covered by RICO.

We brought the case here because the Ninth Circuit decision conflicts with the view of every other court of appeals that has considered what sort of a jurisdictional proof satisfies the requirements of RICO.

Unknown Speaker: I think it's we rather than you who brought the case here.

Mr. Estrada: Well, I stand corrected, Mr. Chief Justice.

Our argument in the case, now that it is here, Mr. Chief Justice, starts with the language of RICO, and that language reaches all enterprises the activities of which affect interstate or foreign commerce.

This Court's cases made clear that the phrase, affect commerce, is a term of art that Congress uses to exercise all commerce power it has under the Constitution, and that Congress intended to exercise all of its constitutional power in RICO is confirmed not only by its use of that term of art, but also by the fact that one of its principal goals in enacting RICO, which was to safeguard small businesses from infiltration by organized crime, could likely not be achieved under any narrower view of the jurisdictional requirement.

Under RICO, then, in our view, the question is whether the activities of the enterprise, here the gold mining venture, affect commerce when measured by the full constitutional authority of Congress and, under that standard, the evidence in this case was sufficient to meet the Government's burden.

The Ninth Circuit conceded that respondent and his employees traveled between Alaska and the Lower 48 States in connection with the work in the mine, that the mine obtained supplies and equipment from the Lower 48 States, and the respondent mortgaged a home he owned in Arizona to finance the second mining season in 1986.

In addition, the evidence showed that the mine sold a substantial amount of gold in Alaska worth at least $200,000, that the purchasers of the gold were part of a broader market in precious metals that reached beyond Alaska, and that therefore the mine's output was part of a class of activities that in the aggregate substantially affects interstate commerce.

In addition, the evidence showed that respondent and his associates used the instrumentalities of interstate commerce repeatedly, the mail and the telephones, as part of the business of the mine.

In our view, all of that evidence was clearly sufficient to satisfy the Government's burden under--

Unknown Speaker: Mr. Estrada, in your view, is there any business enterprise in America that wouldn't be covered by RICO?

What are the limits?

Mr. Estrada: --As a factual matter, Justice O'Connor, I cannot think of any business in the country that could not be covered by RICO, given that what is at issue is the full constitutional authority of Congress.

I understand that the Commerce principle is a limited one, and we do agree with that.

However, the facts on which it operates are not limited, and in our economy on this day, I cannot think of anything that is likely to actually happen in the real world that would not be covered by this Court's cases construing the extent of Congress' power under the Commerce Clause.

Unknown Speaker: How do you distinguish the situation here from the situation which was argued recently here in the Lopez case?

Mr. Estrada: Well, this case is significantly different from Lopez.

As I understand the claim of the respondent in Lopez and the view that was followed by the Fifth Circuit in that case, Congress is required to make findings and to set forth some sort of an explanation as to why it views the activities that it is trying to reach as affecting commerce.

We do not think that that is the case, but even if it were in this case, I think Congress did that and more.

Congress in this case considered the statute very carefully.

It was dealing with a broad national problem that it thought the old laws, both State and Federal, had been entirely inadequate to deal with.

Unknown Speaker: Well, this case, I mean, Lopez involved a... this case involves a commercial enterprise--

Mr. Estrada: Well, that's right.

Unknown Speaker: --doesn't it?

The only question is whether it's interstate or not.

Mr. Estrada: Well, the--

Unknown Speaker: Lopez didn't involve a commercial enterprise at all.

It was a gun in a schoolyard.

Mr. Estrada: --Well, that is true, Justice Scalia.

I'm not sure that it makes a great deal of difference for purposes of the--

Unknown Speaker: Whether it's commerce doesn't make any difference for purposes of the Commerce Clause?

Mr. Estrada: --It does make a difference for purposes of the Commerce Clause, Justice Scalia.

It may not make a difference for purposes of whether, under the Necessary and Proper Clause, Congress can reach something that is not in itself commerce in order to safeguard--

Unknown Speaker: The Necessary and Proper Clause expands the Commerce Clause to cover things that the Commerce Clause wouldn't otherwise cover?

Mr. Estrada: --In effect, yes--

Unknown Speaker: That's wonderful.

Mr. Estrada: --Justice Scalia, but--

Unknown Speaker: When was the last time since McCulloch v. Maryland that we held to that effect?

Mr. Estrada: --Oh, Mr. Justice Rehnquist... I'm sorry, Mr. Chief Justice, I think my reading of Wickard v. Filburn would be to that effect.

Unknown Speaker: That case would you say relied on the Necessary and Proper Clause?

Mr. Estrada: That is my recollection.

I must say that I'm not entirely sure.

There are several cases which unfortunately I can't think of in the 1930's and '40's, and especially in the '40's, in which the Court restated the view of Gibbons v. Ogden and pointed out that that was merely an application of--

Unknown Speaker: I don't think Gibbons v. Ogden relied on the Necessary and Proper Clause the way McCulloch did.

Gibbons v. Ogden was just a broad definition of the commerce power.

Mr. Estrada: --That's right, although in later cases in the 1940's this Court expressed the view that... the broad view that Mr. Chief Justice Marshall had expounded in the Ogden case was in fact merely an exposition, even though he didn't himself say so, of the power of Congress because of the combination of the Necessary and Proper Clause--

Unknown Speaker: In the Darby case, which was the Fair Labor Standards Act, and in the Perez case, which was loan-sharking--

Mr. Estrada: --Mm-hmm.

Unknown Speaker: --I don't think we used the Necessary and Proper Clause, although I'll refresh my recollection on that to make sure.

Mr. Estrada: My understanding, Justice Kennedy, is that there are cases in the 1940's, and I'm fairly sure of it, because understand that we have read them recently, xx just can't cite you one.

Maybe when I rise again I will be able to.

Unknown Speaker: But you're not relying on Necessary and Proper here, are you, Mr. Estrada?

Mr. Estrada: Well, in effect... I will answer that question in two steps, Justice Ginsburg.

We don't need to in the sense that I think the evidence in this case, inasmuch as the enterprise engaged in interstate transactions, doesn't call upon us to do so.

Unknown Speaker: Doesn't our recent decision in the Allied Bruce case have some relevance to this problem of what affects commerce?

Mr. Estrada: Yes, I... but the only reason that it is necessary to point to the Necessary and Proper Clause, Justice Ginsburg, is that the Commerce Clause in itself, as Justice Scalia pointed out, authorizes Congress to regulate only commerce, and the so-called affectation doctrine that allows Congress to deal with other matters that are not in themselves commerce, but they have an effect on commerce, is usually justified by reference to the Necessary and Proper Clause even though the cases talk about it as the commerce power.

It is not in itself the commerce power in the sense that that term is used in the Constitution.

It is a statement of how far Congress can go when it combines the commerce power and the Necessary and Proper Clause.

Unknown Speaker: Well, you say the power is justified.

It's justified by whom?

Mr. Estrada: By... this Court's cases have made reference in explaining why Congress has been held to have authority to reach matters that are not in themselves commerce to the Necessary and Proper Clause.

Unknown Speaker: These are the cases that you can't remember from the thirties and forties?

Mr. Estrada: Yes, Mr. Chief Justice, but in fact, and the Court has explained on occasion, that even though the cases speak of Congress' power to reach anything that affects commerce, some of the more cases... some of the Court's cases have been more specific, and have pointed out that Congress under the Commerce Clause can reach only commerce in itself, but that under the Necessary and Proper Clause, Congress can then reach other things that are not in themselves commerce, but that affect commerce, and this Court's cases dealing with whether something affects commerce and saying that Congress has power to reach those matters are usually... are logically traceable to reasoning based ultimately on the Necessary and Proper Clause.

I was going to turn to the justifications given by the court of appeals.

The court of appeals though that despite all of the evidence of interstate conduct in this case, the fact that the enterprise hired employees and purchased equipment outside of Alaska, that a different result was warranted by its description of the effects on commerce as incidental rather than minimal.

And that was wrong, because this Court stated in Wickard v. Filburn that questions as to the constitutional power of Congress really should not be solved by reference to any formula that gives controlling weight to nomenclature, and that the real question is whether actual effects can be identified on commerce, and in this case, they surely could.

The second reason that the Ninth Circuit gave was based on the isolation of the State of Alaska, and we do not think that that isolation should count against our case.

It is certainly true that many of the businesses in Alaska have to obtain supplies and equipment from interstate commerce, but that State is hardly unique in that respect, and much the same could be said about Rhode Island or Wyoming.

No State of the Union is entirely self-sufficient, and in our view it makes little sense to say that the greater a State's dependence on interstate commerce, the less likely it will be that the activities within that State will be deemed to affect interstate commerce.

Unknown Speaker: Now, does the Sherman Antitrust Act have a lesser scope of coverage?

Mr. Estrada: No.

We think that the Sherman Act, the Hobbs Act, and RICO, all go to the limits of the Commerce Clause, and therefore if--

Unknown Speaker: But the language in each is somewhat different, is it not?

Mr. Estrada: --That is right.

The language in each of them is somewhat different.

Some of them use the word NLRB cases, particularly the Polish case versus the NLRB, all of those are terms of art that are used to invoke the full authority of Congress under the Commerce Clause, and therefore all of those terms have been interpreted by this Court, when Congress uses them, as going to the limits of the Commerce Clause.

Unknown Speaker: Do I have to agree with that to agree with the Government in this case?

Because I don't agree with it as to the Sherman Act, as you know.

Mr. Estrada: Yes, I do know, Justice Scalia.

In this case, no, because in our view the evidence in this case, and this is how we tried to prove most of these cases, was actually sufficient to show that the enterprise was engaged in interstate commerce.

It hired its employees outside of Alaska, and it purchased equipment and supplies--

Unknown Speaker: The Sherman Act doesn't use "affecting interstate commerce" at all, does it?

Mr. Estrada: --No, it does not.

It is--

Unknown Speaker: It's language is

"in restraint of trade between the States. "

isn't it?

Mr. Estrada: --That's right, and I know the view that you expressed in Summit Health.

As I understand your view in that case, the view was that the activity in that case could be reached by Congress, but that in passing the Sherman Act, Congress did not exercise its full authority.

In this case, it seems fairly plain to us at least that Congress in using the words, RICO was passed, Congress had been told again and again by this Court that if it wished to invoke its full power under the Commerce Clause, these were the words it had to use, and therefore, no, even if you continue to hold your view as to the Sherman Act, Justice Scalia, that should not keep you from sort of... from taking our view of this case under this statute.

Unknown Speaker: Mr. Estrada, your opponent relies, in part at least, on Gulf Oil v. Copp Paving.

How do you distinguish that case from this?

Mr. Estrada: That case stated that when Congress engages, or defines a class of activities, the Court's role in effect is significantly different, but from the examples that the Court cited in that footnote 12, especially the Perez case, it is evident that what the Court was getting at is that when Congress itself does what it did in the Perez case, that no further proof of interstate commerce at all is called for in any given case.

That doesn't really answer the question here, because Congress exercised its full power under the Commerce Clause, and that full power could be met by a class of activities analysis, or any other way in which Congress could lawfully exercise its power, and the significant difference that the Court was talking to in that case was the difference between having to prove the fact in every case and having to have no evidence whatsoever of the fact in any one case.

Unknown Speaker: In this case, Mr. Estrada, was there an argument before the jury that interstate commerce was not affected?

Mr. Estrada: No.

Unknown Speaker: And was there any objection to the instruction that the court gave?

Mr. Estrada: No.

The instruction given by the court is basically the Ninth Circuit pattern jury instruction.

I think it's 8.34, and it doesn't really go into detail as to interstate commerce.

The... that was not objected to, and as can be expected in most of these cases, when the case was tried to the jury, this wasn't really what the case was turning on.

I mean, the main contention on the other side was that he had not in fact been involved in drug trafficking.

Unknown Speaker: So the Ninth Circuit's view was that this case should not have been submitted to the jury as a matter of law, I take it?

Mr. Estrada: That's right.

That's right, and we think that that's clearly wrong under this Court's cases.

The Ninth Circuit's view is that the evidence in this case was so insufficient that the respondent was entitled to a judgment of acquittal on the RICO count, and that that's the end of that count.

Obviously, we cannot go back to the jury and try it again.

Unknown Speaker: Would it have been improper for the trial court to tell the jury, if you find that there were trips between Arizona and Alaska, and if you find that any of the gold over a 3-year period was sold in interstate commerce, then I instruct you as a matter of law that interstate commerce was involved?

Would that--

Mr. Estrada: Yes.

Unknown Speaker: --have been--

Mr. Estrada: Yes, because--

Unknown Speaker: --an appropriate instruction?

Mr. Estrada: --Yes.

That would be an instruction that is tailored to the facts, and it is all right for a court to instruct the jury on the legal significance of facts so long as it makes clear that the question as to whether the facts exist is for the jury.

Unknown Speaker: Mr. Estrada, would the following argument be sound?

It would go like this, that if Congress wanted to make it unequivocally clear that it was legislating to the fullest extent of its powers, it would have described the activity of the enterprise in this way: it would have spoken of an enterprise which engages in activities that affect interstate commerce.

That would have made it clear that the enterprise was simply one participant in a broader activity, or congeries of activities that have, in the aggregate, this substantial effect, but that what Congress in fact did was to speak of an enterprise, the activities of which affect commerce, which suggests that we are speaking or looking not to an aggregate, but to the particular activities of that enterprise, and to them alone.

Is that sort of contrast in language the basis for a sound argument that Congress was taking a narrower view here?

Mr. Estrada: I don't think so, Justice Souter.

Congress usually will write the words, "affect commerce" at the end of the language that otherwise makes conduct a crime on the understanding that that goes to the full power of its commerce--

Unknown Speaker: So that whenever you see it, it's basically a signal for the shorthand, whatever we can do we're doing?

Mr. Estrada: --Yes, and I would give as an example to you the Scarborough case, which dealt with coming into possession of a firearm in commerce, or in affecting commerce.

This Court held in that case, in the Scarborough case, that even though the language said, possession affecting commerce, that that requirement would be satisfied by proof that the firearm had traveled in interstate commerce at some point in human history, even if it had nothing whatsoever to do with the conduct of the defendant, and if that had happened before the defendant came to have the firearm, and I think cases like that properly give Congress an understanding--

Unknown Speaker: Well, that argument in effect I guess is... and I'm not saying it's an illegitimate argument, but I guess that argument in effect is that wherever Congress uses the term, "affecting commerce", by using the broadest, most umbrella kind of term, it therefore is including any of the kind of more restrictive tests, like involving the instrumentalities, or involving goods that have moved, and so on.

Mr. Estrada: --That is exactly our argument, Justice Souter, and I think that that's--

Unknown Speaker: No matter how the rest of the sentence reads, so long as the word "affecting" is in it, that's it, it's sort of a... it does everything.

Mr. Estrada: --Well, yes, and I understand that--

Unknown Speaker: Yes.

Mr. Estrada: --Yes, and I understand that that may not be the best way to write the statute, but if the Court's cases--

Unknown Speaker: Not the best way to read it either, I don't think.

Mr. Estrada: --Well, I would respectfully disagree, Justice Scalia, because once phrases have acquired the status of terms of art, and Congress has been told that it can go to the very limit by using them, they--

Unknown Speaker: How would it have expressed the thought that a normal, English-speaking person would express by saying, any enterprise the activities of which affect interstate or foreign commerce?

Suppose I wanted to really require that the activities of that enterprise affect interstate commerce, rather than the activities that that enterprise engages in when engaged in by others in the aggregate affect commerce?

Mr. Estrada: --You could say--

Unknown Speaker: How would I express the thought that I would normally express by saying, any enterprise, the activities of which affect interstate commerce?

Mr. Estrada: --Well, you could say--

Unknown Speaker: We cannot say it any more in English?

Mr. Estrada: --Well, if that is what one means, one could say, the activities of which considered in isolation affect interstate commerce.

I mean, all we're talking about is how do we determine congressional intent, and in a world in which the Court's cases have told Congress that these words have independent legal significance, while it may make more sense in an alternative world to sort of write the statute differently, Congress in effect--

Unknown Speaker: And you really think that that's what our cases now, that whenever Congress uses the word "affecting" the rest of the sentence doesn't matter?

Mr. Estrada: --Well, I think that it matters in the sense that the activities of the enterprise of course have to affect commerce, but one of the tests that may make that true under this Court's cases, and especially the NLRB cases, is that they may affect commerce because, considered with other like activities throughout the country, the effect on commerce is substantial.

Unknown Speaker: If that's what we've said, maybe we should unsay it, because it certainly is a trap for the unwary legislator who thinks that he's speaking English, and it turns out that if he uses the word "affecting" all sorts of unreal things happen.

Mr. Estrada: But it isn't, because one of the canons of this Court's cases is that Congress is presumed to know what this Court's cases say and, in effect, if you had a case that told Congress that--

Unknown Speaker: Because our cases are presumed to say reasonable things.

Mr. Estrada: --Well, but even--

Unknown Speaker: And maybe we should adhere to that presumption.

Mr. Estrada: --Justice Scalia, if you had a case that told Congress that it could reach to the full limits of the Commerce Clause by affixing to the statute the score of "Suwannee River", and Congress did that, it should be taken to have reached to the limits of the Commerce Clause, and that's basically all that we're arguing here.

Unknown Speaker: Of course, what we've come with in your answers to me and to Justice Scalia are a kind of three variants, one of which would make it expressly clear that we were talking about an enterprise whose activities, when aggregated with others, affected.

At the other end of the spectrum, the answer that you gave to Justice Scalia, something to the effect like, the activities of which alone affect interstate commerce, and what we've got in the statute is something in between.

And I suppose you could, simply on the basis of these answers, argue that we have an ambiguous statute here, even though each of those three variants uses the word "affect", and I suppose if we get to that point, the thing to do is to look to legislative history.

You don't want to say that to Justice Scalia, but you could say that to me.

[Laughter]

Mr. Estrada: I have said it to Justice Scalia before, Justice Souter, and it didn't do me much good at the time, but yes, if that were necessary to ascertain the meaning of Congress, our view is that the use of the term of art itself makes it clear.

Unknown Speaker: Of course, the Government's view is so expansive, it really doesn't even matter if you use "affecting" does it, because it's not used in the Sherman Act, and you take the same "it covers everything" view of the Sherman Act, right?

Mr. Estrada: There are several--

Unknown Speaker: So if you use "affecting", or, alternatively, do not use "affecting", it covers everything.

[Laughter]

Mr. Estrada: --If you use "affecting" or "obstructing", or several of the other words that this Court has identified--

Unknown Speaker: Well, is that really true that the Government's position is that if two pizza parlors in downtown Anchorage fix their prices, the Sherman Act applies?

Mr. Estrada: --Yes, it is, and I see that my time is running low--

Unknown Speaker: If you didn't accept that, would it be--

[Laughter]

Just in case one didn't go that far, is this distinguishable?

Mr. Estrada: --Yes.

Unknown Speaker: I mean, is it possible?

Because--

Mr. Estrada: Yes, because as Justice Scalia pointed out, it is possible to make good arguments, as he did in Summit Health, that the Sherman Act, because of its different language, doesn't go so far, that would not really be there for RICO, which has much more expansive language.

Unknown Speaker: --You mean, one could look to see whether or not Congress intended each individual farmer, the class of which affects the price of wheat, also to fall within the statute, and sometimes the answer would be yes, and sometimes no, depending on what the statute's about?

Mr. Estrada: We would... no.

We would look to see whether the language uses... used by Congress reaches to the full limit of the Commerce Clause, and if it does, then that class-of-activities analysis would be available in every case.

If I may reserve the remainder of my time--

Unknown Speaker: Very well, Mr. Estrada.

Mr. Estrada: --Thank you.

Unknown Speaker: Mr. Warren, we'll hear from you.

Argument of Glenn S. Warren

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

The question before the Court is whether the Commerce Clause has any limitations.

Does the term, "interstate commerce" mean anything, or is it a jurisdictional fiction?

This Court's precedents require that the phrase, RICO statute, require that there be a substantial effect on interstate commerce.

The Government effectively urges upon this Court a standard of identifiable and perceptible.

That is, if there is an activity, whether it be a pizza parlor or the buying of tissue paper, that activity is identifiable, it has a potential effect on interstate commerce, and under the Government's theory would be cognizable under the RICO statute.

Unknown Speaker: Is it open for you to argue this when you did not object to the instruction?

The instruction referred to activities of financial institutions that have an effect, however small, on interstate or foreign commerce.

That was what the--

Mr. Warren: Justice Kennedy, that instruction was applied to section 1956, which was one of the racketeering acts which was a part of count 6, which was the general RICO count.

The general RICO count used the language, "affects interstate commerce".

It did not use the language,

"in any way affects interstate commerce. "

It would be our position that this is a jurisdictional question which was not waived, in any event, by the failure to object.

Furthermore, there was a request by trial counsel to submit a special instruction on the RICO count.

That request was denied by the trial court.

Unknown Speaker: --Mr. Warren, you use the word, has to have a substantial effect, so does it turn on the success of the mine?

That is, we look to the reality and not the expectation?

Mr. Warren: The RICO statute talks about, and the statute that Mr. Robertson, the respondent, was prosecuted under, talks about actual effects.

It does not, as in the Sherman Act, talk about an agreement which has potential consequences.

Unknown Speaker: So if Mr. Robinson's dream had come true, then he would be covered, but it's just because his mine was not successful that he's not.

Is that--

Mr. Warren: That is my position, because I believe that the clear language of the statute talks about effects of the enterprise on interstate commerce and not potential effects.

Unknown Speaker: --Now--

--So if--

--counsel, are you arguing that this gold mine operation doesn't even come within Congress' power to regulate, or is it your position that Congress had intended to exercise less than its full power under the RICO statute?

It wasn't clear to me.

Mr. Warren: I believe that Congress does have the power in different ways to regulate gold mines such as the one that existed in this case.

Unknown Speaker: Even ones that aren't successful?

Mr. Warren: Even ones that are not successful under Congress' different powers that Congress has, but it's my position that RICO statute, which refers to the gold mine as the enterprise, does not cover the gold mine in this particular case.

Unknown Speaker: Not the different powers that Congress has, the commerce power.

Does it have power to regulate even this mine under the commerce power if it wanted to?

Mr. Warren: I believe that it would have that power if it wanted to, but I do not believe that the RICO statute in this instance reached this gold mine.

Unknown Speaker: So if you invest and strike it rich, you're covered by RICO, but if you invest and it turns out to be a bust, you're not covered?

Mr. Warren: That may be the possible consequence of the statute the way it is written.

Unknown Speaker: I suppose that a lemonade stand that doesn't go anywhere doesn't affect interstate commerce, and if it turns into McDonald's, it does.

Mr. Warren: Well, under the Government's theory, I believe that the lemonade stand would affect interstate commerce, because any activity has some effect on interstate commerce.

My position is that there must be a substantial effect on interstate commerce, and therefore the lemonade stand would not, but a McDonald's franchise might, depending on the particular activities.

The--

Unknown Speaker: Mr. Warren what do you have to say about the Russell case?

Mr. Warren: --The Russell case is... the Russell case looked at title VIII of the Organized Crime Control Act of 1970, and uses language which is different than the RICO statute.

Russell, or section 844(i) of title XVIII, talks about buildings, vehicles, and property that are used in activities which affect interstate commerce.

The RICO statute, on the other hand, talks about enterprises which affect interstate commerce.

The RICO statute does not address enterprises which are used in activities which affect interstate commerce.

Therefore, I believe that there is a significant difference, and that Congress was aware of that difference when it passed both of those statutes, since they were both parts of the Organized Crime Control Act of 1970.

Furthermore, in the Organized Crime Control Act of 1970, Congress in... I'm sorry, the arson statute is title XI.

Title VIII was the gambling statute, which says that if certain requirements are met, a certain number of people gamble and so on, then there is a per se effect on interstate commerce, so I believe that in passing the Organized Crime Control Act Congress was well aware of the different approaches it could take to interstate commerce.

With the arson statute, it used language, buildings and so on engaged in activities which affect interstate commerce, RICO it used language, enterprises which affect interstate commerce, and in the gambling statute, it defined a class of activities.

Unknown Speaker: If Congress has the power to regulate the output of gold mines, or gold mines, even local mines, because like wheat they affect, what reason is there in this statute to believe that Congress would not have wanted to bring within the statute every single enterprise that is a member of this class?

Here, the reason... the language is jurisdictional, I take it, in the statute.

In the Sherman Act, for example, they're interested in going after only certain kinds of price-fixing agreements, but here the language is jurisdictional.

They'd like every pizza parlor to fall within it if they could, wouldn't they?

Mr. Warren: I agree, Justice Breyer, Congress may have wanted to bring every enterprise under its jurisdiction, but I would submit that is beyond the commerce power of Congress.

Unknown Speaker: Is this now beyond the power of commerce... Congress to say, this gold... in other words, you're saying now, Congress doesn't have the constitutional power to penalize investment in this kind of gold mind, this kind of investment?

Mr. Warren: That is my position with the approach that Congress used in this particular case.

It has defined--

Unknown Speaker: Well, I just asked you that same question.

You said, no, Congress could reach it, but it didn't.

Now, what is your position?

It has just shifted dramatically.

Mr. Warren: --With all respect, Justice O'Connor, I believe that if Congress had defined a class of gold mines that it wished to regulate, then the individual mines within that class could be aggregated to establish a substantial effect on interstate commerce, but when Congress uses the generic term, "enterprise", which covers virtually every activity within the United States, it's a class that is so broad that it is tantamount to trying to exercise the commerce power itself over every activity.

The rationale, I would submit, of the class analysis, is that classes are subsets of the whole, and that Congress can properly pick out particular classes and regulate those classes.

Unknown Speaker: Well, it can, but why does it follow from that that Congress may not do it otherwise?

In other words, why does it have to make that subclass identification?

I don't see your basis for assuming that.

Mr. Warren: If Congress did not make the subclass classification, then effectively it would be regulating every enterprise from the lemonade stand to General Motors.

Unknown Speaker: Well, I mean, that doesn't follow.

I mean, there still are the substantially affecting commerce tests.

It doesn't mean that it takes over every activity in the country.

It simply means it goes as far as it can go, and what reason is there to assume, textually or constitutionally, that it can only go as far as it can go if it does it by the specific identification of what you call subclasses to be regulated?

Mr. Warren: Well, the statute itself, in addition the two... the class which would be enterprises which have elicit funds invested in them, has words of limitation, which--

Unknown Speaker: That's a different argument.

I mean, you're now making a textual argument, and I understood you before to be saying that if Congress wants to legislate to its limit, it must do so as a constitutional matter, I suppose, by identifying each so-called subclass which it wishes to regulate to the extent of its power, and I didn't understand that to be an argument based on the text of this statute.

I understood that to be an argument based on the way Congress has to exercise its constitutional power.

Maybe I misunderstood you.

Mr. Warren: --I would agree with that position, that it's not a textual question.

Unknown Speaker: Okay.

If it's not a textual question, what, then, is the constitutional basis for your imposition of this, identify the subclass requirement, before Congress can legislate to the extent of its powers?

Where do you get that?

Mr. Warren: Well, I believe as a matter of logic, if nothing else, that if Congress can define a class as including all enterprises in the United States, then effectively the commerce power has no limitation, and as even the Government concedes--

Unknown Speaker: Well, it has no limitation beyond the substantially affecting commerce limitation, and Congress would say, that's absolutely right.

That's just what we intend to do.

Mr. Warren: --Well, I think the Government's position is that Congress could legislate over all enterprises in the United States, and then could use those, could aggregate those and declare, or ask the court to interpret that aggregation as having the substantial effect on commerce, and therefore there would be no distinction between interstate and intrastate commerce.

Every type of commerce would be subject to congressional legislation.

Unknown Speaker: I thought that was your position, too.

I thought you were just saying Congress could do that, but didn't do it here.

I thought it was essentially an interpretive argument you were making, rather than a constitutional argument.

Mr. Warren: I'm making two arguments, Justice Scalia.

I do not believe, as a matter of constitutional law, that Congress can with this kind of class approach exercise jurisdiction over every class.

I am also making a statutory argument that it did not do so in this case.

Unknown Speaker: But your constitutional argument is based on the assumption they define everything that go into the class, but how does that respond to the argument that here the only class is gold mines?

Mr. Warren: Well, gold mines are not defined either by Congress in the statute or in the legislative history.

Unlike the Russell case, for example, where the legislative history reflected that there was a congressional concern about buildings, and this Court was then able to interpret the class of activities as being commercial real estate, there's nothing in this statute or its legislative history to indicate any concern about gold mines, so--

Unknown Speaker: No, but may I go back to Russell for a second?

Your distinction, if I understand it, is that there it talked about the whole class of activities, and here it talks about the activities of the particular enterprise, in this statute.

Mr. Warren: --Right, the... and--

Unknown Speaker: So that if this statute had read... instead of, any enterprise which is engaged in or the activities of which affect interstate commerce, if it had said, any enterprise which is engaged in activities which affect interstate commerce, then you would agree you would lose.

Mr. Warren: --Yes.

Unknown Speaker: Yes.

Mr. Warren: I disagree with the position of the Government that the words, "affect interstate commerce" have a general meaning which we can look at and take into every statute.

I believe that those words have been used in different ways, and that we have to take a close look at the way the words are used in a particular statute, and it's my position that those words reflect an intent that only substantial effects on interstate commerce be cognizable under the RICO statute.

Unknown Speaker: To what extent do you rely on the Ninth Circuit point about the distance of Alaska?

Wouldn't the same thing apply to two States that are very close to each other, just as--

Mr. Warren: I agree with you, Justice Ginsburg.

I do not rely on the Ninth Circuit to that extent, because I think that almost any activity in the United States or in any given State draws supplies and purchases supplies from another State, whether we're talking about Alaska, or California, or New York, or Wyoming, so I do not rely on the Ninth Circuit distinction in that regard.

As far as the activities of the enterprise, the Government would lump anything that happened in connection with the gold mine and call it interstate commerce.

The activities of the gold mine, in our view, were those activities which were ongoing and which were unique to this particular mine, and that would be the extraction of minerals from the ground, and the sale of minerals in Alaska.

Unknown Speaker: --How about hiring employees to come to Alaska from somewhere else?

Mr. Warren: Well, that is, I would argue first, Chief Justice Rehnquist, is not technically an activity of the mine.

It's--

Unknown Speaker: You don't think finding people to run the operation is an activity of the mine?

Mr. Warren: --Well, to the extent that it is an activity, and can be viewed as an activity, I would argue that it did not constitute any kind of substantial effect in this case.

It's a... it's the type of activity, if you will, that is a part of every business.

There are probably few businesses that do not have people who come from other States to work at one time or another.

It's not a significant part of the activity of the mine, if it is considered an activity of the mine.

Unknown Speaker: Mr. Warren, what's your best case?

What case displays an interpretation by this Court of the word, "affecting" that would make you win this case?

Mr. Warren: I believe the analogy to the Sherman Act, some of the Sherman Act cases.

Unknown Speaker: It doesn't involve the word, "affecting".

I mean, I agree, that's a wonderful line of cases.

Unfortunately, it doesn't have anything to do with this.

It's--

Mr. Warren: Well, I don't know that I agree that the Sherman Act doesn't have anything to do with RICO, because the Sherman Act does talk about the... about effects on interstate commerce, or at least the Court's interpretation of the Sherman Act in various cases talks about that.

Unknown Speaker: --Restraint of trade between the States is what you're talking about, and the Court said, you know, that that seems to focus on the individual activity, or at least we used to say that, but you don't have a single case in which "affecting" has been interpreted by this Court as you urge us to interpret it here.

Mr. Warren: "Affecting" has been interpreted by this Court in class of activities cases, and the Court has indicated that when there is a class, there must be a substantial effect on interstate commerce.

I do not have a case which discusses this issue in terms of a nonclass analysis and addresses an individual activity, but it's my position that the jurisprudence of this Court requires that there be a substantial effect on interstate commerce, otherwise the distinction between interstate and intrastate commerce is lost, and there is no limit to the commerce power.

Unknown Speaker: Mr. Warren, in connection with employees, perhaps the Alaska distance doesn't make a distinction that cuts against you.

There was a whole line of cases about people who go up to Alaska to work and then come back to California sick and lame and are a burden on the California Workers Compensation system, so wouldn't the effect of getting employees to come to Alaska, wouldn't that have an amplified effect on interstate commerce--

Mr. Warren: Looking--

Unknown Speaker: --than the distance between, say, New York and New Jersey?

Mr. Warren: --Looking at any particular activity, there might be a heightened effect if there are a number of employees coming from one State to another.

I would point out that in this case there were a total of only five or six employees who worked at this particular mine over the span of 3 years, so even if these employees did travel in interstate commerce, it was... as the Ninth Circuit pointed out, it was certainly not of any importance.

In fact, I would almost refer to some of these incidents such as the travel of employees, the driving of a Cadillac, which the Government refers to, as incidental effects, a term which this Court used in Oregon State Medical Society to describe sporadic and few contacts with interstate commerce, and I would submit that the same is true in this situation.

Unknown Speaker: May I ask another question?

Just looking at the general purpose of the statute to reach competitive... the use of, in competitive markets, of funds that are the product of income derived from a pattern of racketeering activity, basically organized crime, and I understand it's been given broader construction than perhaps Congress intended, but looking at the heart of the statute and wanting to police investments of this kind of money, why would Congress want to do anything less than its full power to reach all of the use of proceeds of this kind of activity?

What would the reason be for the... I mean, what sense does your distinction make in terms of the overall purpose of the statute?

Mr. Warren: There could be some concern about the Federal-State balance.

That could be one reason why Congress would not want to cover every single enterprise.

Unknown Speaker: No, but the threshold inquiry has to be... there's no doubt about the threshold of, you're regulating the proceeds of activities that are clearly subject to the power of Congress to regulate, the organized crimes... you know, getting the money in the first place.

Mr. Warren: Yes.

Unknown Speaker: And then we're talking about, what can they do with it.

Mr. Warren: Yes.

Unknown Speaker: And basically a full power answer would say, they can't do anything with i, we want to get it all, and you say that... why wouldn't that be the more normal reading of the statute?

Mr. Warren: Well, even if it were the more normal reading of the statute, and I don't know the answer to your question, Justice Stevens, but there may be certain types of activities that Congress wants to reach, and it wants to use its full powers to reach those activities, but the commerce power just does not allow it to reach those activities.

Unknown Speaker: Or I guess you could say the same reason we think, or used to think that the Sherman Act doesn't cover small businesses that don't substantially, individually substantially affect interstate commerce, that the Federal Government left it to State Valentine acts to do that job with respect to smaller enterprises.

Mr. Warren: That would--

Unknown Speaker: Or the National Labor Relations Act.

A lot of acts have been inter... or have been limited by either the statute or the regulations that implement them to major interstate activities, leaving the States to do the rest.

Mr. Warren: --I would agree with that.

I would again refer the Court to the Sherman Act, because even though the language of the Sherman Act does not talk about affecting interstate commerce, I believe it provides a useful analog to an analysis.

This Court's Sherman Act cases have historically talked about a substantial effect on interstate commerce, and I would submit that is what the RICO statute talks about.

The gold mine in Alaska sold gold intrastate to refiners in Alaska.

There's no evidence, although there is an inference, that that gold was subsequently sold outside of Alaska, but in the scheme of what probably is a multitrillion-dollar market, as the court below pointed out, $200,000 over a period of 3 years is not a significant amount of activity.

Unknown Speaker: They also took out $30,000, didn't they?

Mr. Warren: I'm sorry?

Unknown Speaker: Didn't they take out some nuggets or something?

Mr. Warren: There was approximately $30,000--

Unknown Speaker: So 15 percent of the output was taken out of State?

Mr. Warren: --That's correct, but that... that was not an activity of the mine.

If anything, that was a... that could be looked at as one of the participants in the mine, Mr. Robertson, the respondent, just taking the money out of Alaska.

This was not an activity of the mine where it sold mine... sold gold in Alaska, or sold gold outside of Alaska.

This was somebody just taking the gold.

If that were to provide a jurisdictional basis, the fact that somebody could take something from an enterprise and travel to another State, then again, almost any activity could have some effect on interstate commerce.

Unknown Speaker: Mr. Warren, the Ninth Circuit was obviously concerned about the sweep of this provision, and there was an issue left over.

I think the... what was the issue that was left over about sentencing under this count?

Mr. Warren: Well, this count, the RICO count brings the... brings Mr. Robertson's sentence within the Sentencing Guidelines, and without the RICO count, then all other counts that he was convicted on would not be within the Sentencing Guidelines, because they occurred prior to November 1, 1987.

The Government acknowledges in principle that the Commerce Clause has limits.

Its approach, however, is to abandon what I would submit is the longstanding substantial effect test of this Court, and would give Congress an unbridled power to punish any kind of criminal conduct.

This could result in the punishment of criminal conduct which has really nothing to do with interstate commerce.

It can result in overburdening of the Federal courts, an expansive use of the RICO statute in both the criminal and the civil context and, I would submit, it could act, will act to significantly affect the Federal-State balance.

By upholding the language of the RICO statute in this particular case, which is to view "affects interstate commerce" as giving Congress the power to legislate over any type of effect, Congress can simply pass a statute, indicate that it is exercising its Commerce Clause jurisdiction over an activity or activities which affect interstate commerce, and there basically is no check.

I would urge the Court to affirm the ruling of the court below.

Unknown Speaker: Thank you, Mr. Warren.

Mr. Estrada, you have 1 minute remaining.

Rebuttal of Miguel A. Estrada

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

I have one case in response to the question you asked earlier.

It is not cited in our brief.

The name is U.S. v. Ferger, F-e-r-g-e-r, 250 U.S. 199, and the citation is at page 203, in which, after stating the substance of the affectation doctrine the Court stated,

"It would be superfluous to refer to the authorities which, from the foundation of the Government, have measured the exertion by Congress of its power to regulate commerce by the principle just stated, since the doctrine is elementary, and is but an expression of the text of the Constitution. "

citing the Necessary and Proper clause.

I have nothing further.

Chief Justice Rehnquist: Very well.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Posters 'N' Things, Ltd. v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:53 +0000

Case:

Posters 'N' Things, Ltd. v. United States

Media File:

92-903_19931005-argument.mp3

Related Transcript:

1993_92_903_argument.xml

Transcript:

Argument of Alfredo Parrish

Chief Justice Rehnquist: We'll hear argument first this morning in No. 92-903, Posters 'N' Things, Limited v. the United States.

Mr. Parrish.

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

We're here today discussing 21 U.S.C. 857, which is referred to and I will refer to it as the drug paraphernalia statute.

The question is whether or not it contains a subjective scienter, and when the trial judge applied 857 without a subjective scienter in his instructions 37 and 39, did he deny the petitioner her due process rights?

The court, we believe, erroneously applied 857, because when it instructed the jury it instructed the jury without any intent requirement.

On the other hand, if this statute does not contain any intent requirement, as the trial judge found and the Eighth Circuit affirmed, then the statute is unconstitutional and the conviction cannot stand.

Unknown Speaker: What is your authority for that latter proposition, Mr. Parrish?

Mr. Parrish: That is cannot stand?

Unknown Speaker: That it's unconstitutional.

Mr. Parrish: If it's un... it's based upon the concept that a mens rea requirement is read into a statute.

If it's not read into a statute, then you have to look at the legislative history to try to find it.

Unknown Speaker: But I thought you said if there's no mens rea requirement it's unconstitutional, and I asked you what your authority is for that proposition.

Mr. Parrish: The authority that we have for that proposition is the Morissette v.... the Morissette case is what we use for that.

Unknown Speaker: I reread the Morissette case because you cite it in your brief, and I didn't read that as saying anything about a lack of intent making a statute unconstitutional.

Mr. Parrish: Well, the Morissette case dealt with the fact of whether or not you should look to other instances to determine whether or not a statute should be declared unconstitutional.

If no mens rea statute is in it, if no mens rea requirement is in it, then we believe you have to look at the intent of the legislature.

Unknown Speaker: Well, how does that get you to any constitutional proposition?

Mr. Parrish: We don't believe you have to reach the constitutional proposition in order to remand this case to the Eighth Circuit.

Unknown Speaker: Well, then your principal... the principal authority on which you rely for the proposition that if the statute does not have an intent requirement, it is unconstitutional, is Morissette.

Mr. Parrish: The Morissette case.

Also it seems to be indicated in the Hoffman's Estates case also, because in that decision the Court indicates that... in their questioning to counsel and also in the decision, that some intent must be found in the statute to save its vagueness.

So we talk about that over and over again in the line of cases that follow the Hoffman Estates case.

You look for some intent.

However, those were preenforcement cases and in preenforcement challenges to the facial constitutionality of the statute, the Court seems to save it solely because there is some intent requirement in the statute.

Unknown Speaker: Are you referring to this Court or other courts?

Mr. Parrish: This Court.

Unknown Speaker: You take the position that the instructions didn't require proof of any mental element.

What do you make of the language of the charge that the jury must find that the Government had proven that the defendants understood they... or knew the nature and character of the items?

Mr. Parrish: Well, in their approach on that issue, that's not the case that was tried by the district court judge.

The judge tried a purely objective--

Unknown Speaker: You mean he didn't give the... excuse me.

Mr. Parrish: --I'm sorry.

Unknown Speaker: That he didn't give the instruction that the Government says he gave?

Mr. Parrish: He did not give the exact instruction.

I will refer you to page 19 of--

Unknown Speaker: Well, Mr. Parrish, if you look at page 22 on the Joint Appendix, the charge is:

"That the defendant whose case you are considering knew the nature and character of the items. "

Mr. Parrish: --Then you go to instruction on page 31 of the Joint Appendix, to instruction 39, where the term "primarily intended"... which is the vehicle that most of the courts have used to determine where the intent is in this case... as used in these instructions does not relate--

Unknown Speaker: Well, but the point--

Mr. Parrish: --To the knowledge of the--

Unknown Speaker: --The point is you're saying that there was no scienter required.

Mr. Parrish: --That's correct.

Unknown Speaker: And instruction 21, subparagraph 2, says you have you find that the defendant knew the nature and character of the item.

Now that's a mens rea component, is it not?

Mr. Parrish: It is a mens rea component.

Unknown Speaker: And so the defendant had to know the nature and character of the item.

Now, it's true that in the later instructions they said that there's no intent of any person that's required, but that simply means that the item itself is what the court and the jury should focus on.

Mr. Parrish: But that's the flaw in the instruction.

The jury was never given an opportunity to determine the primary intent of the person who was, in fact, selling the item, the petitioner in this case.

The jury could have gone back and deliberated anything.

Unknown Speaker: Well, Mr. Parrish, I... the statute seems to speak in terms of drug paraphernalia, and that term is defined as items either designed for or intended for us in connection with drug use.

Now, is it not possible that the statute makes unlawful the sale of certain items that are designed for drug use and that have little other purpose?

And if they're designed for that and someone knows what the object is, as the instructions require, that that's sufficient.

Mr. Parrish: It's not sufficient because these statutes have... these items have dual purposes.

Unknown Speaker: Well, I thought there were an array of items here, some of them being such things as are defined by the statute itself as being designed for drug use.

I don't know the names for all these things, but bongs and other items that apparently have little other purpose.

Mr. Parrish: Well, designed for use goes to the intent of the manufacturer.

If you're talking about primarily intended, it goes to the person who uses the item.

The seller, in this case, has nothing.

Unknown Speaker: Well, we may have two separate categories of items here.

Mr. Parrish: That's correct.

Unknown Speaker: Is that possible?

Mr. Parrish: You can have two separate categories of items.

Unknown Speaker: Okay.

Mr. Parrish: However in this case you have--

Unknown Speaker: Well, as far as items designed for use as drug paraphernalia is concerned, how are the instructions deficient?

Mr. Parrish: --In designed for use it goes to the manufacturer.

She was not the designer, so consequently she can't be held liable or the jury find her intent based upon who designed it.

If you go to primary intent--

Unknown Speaker: Well if the item is designed for that use and no other and the statute says if you sell such items you're guilty of this offense, why isn't that sufficient?

Mr. Parrish: --You're convicting the item.

It would be insufficient because the jury has no idea on dual-purpose items unless you tell them that it goes to the intent of the person who does, in fact, use the item.

Unknown Speaker: Well I'm not going to belabor it, but it seems to me there are two types of items.

Some are not dual purpose at all.

Mr. Parrish: Some are not, that is correct.

Unknown Speaker: Maybe some are.

Mr. Parrish: But you can't tell by the way the court instructed the jury in 37 and 39.

You can't tell that because he tells them, per se, these list of 15 items are in fact, per se, drug paraphernalia.

Then he gave the jury no option.

He gave them a directed verdict.

And giving a jury... the jury a directed verdict, the Government had the benefit and the defendant had no opportunity at all to make any determination as to whether or not the jury could determine whether or not they were dual-purpose items.

And that's the problem with statutes like this, because you have dual-purpose items and you don't tell the jury--

Unknown Speaker: Mr. Parrish, the judge in his charge three times told the jury that the defendant whose case the jury was considering had to know the nature and character of the items.

So you say even though that was repeated in instruction 21, 22, and was it 18?

Mr. Parrish: --That's correct.

Unknown Speaker: You say that although he repeated that the defendant must know the nature and character of the items, that that's wiped out?

Mr. Parrish: Well, your understanding the... in this case the jury was, in fact, instructed that her intent was not related to any knowledge.

So the jury was confused.

You don't know why a jury reached a particular decision on a matter.

Clearly enough, they did give the knowledge instructions on some other factors.

But the drug paraphernalia case was only a predicate offense for the money laundering charge and the aiding and abetting charge, so clearly the jury could be confused on this point and the jury never knew that the subjective scienter had to apply to the defendant in this case.

It was clearly an objective law of the case that was given in this... by this trial court.

Unknown Speaker: You're not disputing, are you, that the Government did prove that the defendant knew the nature and character of the items that were sold in her shop, that she knew that they were primarily designed for use... that their primary use was in connection with illegal drugs?

Mr. Parrish: If you consider proof what the jury reached a verdict on without proper instructions, you would have to say yes, they did prove it.

Unknown Speaker: Proof is what is adequate to go to the jury, not what the jury finds.

Was there sufficient proof for the jury to find that the defendant knew that the primary use of these items was in connection with illegal drugs?

Mr. Parrish: We don't agree with that.

We think the evidence was conflicting.

All of the expert witnesses who testified in the record on this case all indicated that all of these items had dual purposes.

So consequently when they had dual purposes, the court had to direct the jury someplace to find the subjective intent of the person.

So where did they direct them?

They have to direct them to primarily intended.

As a matter of fact, Congressman Levine, the principal author of this statute, indicated--

Unknown Speaker: I'm not sure I understand your question... your response.

Some of these items were specifically enumerated in the statute.

Mr. Parrish: --That's correct.

Unknown Speaker: Justice O'Connor mentioned those.

Are you saying that the Government did not prove, so that a jury could not find the defendant knew the primary use of bongs and roach clips was in connection with illegal drugs?

Mr. Parrish: We believe that the Government did not prove that; that there was not substantial evidence, due to the conflicting nature of it without some indication to this jury that the subjective intent, what Ms. Acty intended that these items go for, was given to the jury.

The jury had no direction with regard to that.

Sure enough, the Government now wants to come back and claim a knowledge standard, but that's after the fact, the knowledge standard.

In their knowledge standard argument to the Court... we believe a fatal flaw exists in their argument, if you'll turn to page 19 of their brief.

In their argument they say:

"Consistent with this view, the district court instructed the jury that the term primarily intended was not limited to the intent of the defendant or any particular person or persons. "

If they had given that instruction, we wouldn't be here today.

They didn't give that instruction.

They didn't say it was not limited to.

If you go to the actual instruction that was given, the court said on page 31 of the Joint Appendix:

"The term primarily intended, as used in these instructions, does not relate to the knowledge or intent of any particular person or persons. "

So consequently--

Unknown Speaker: Well, if that is correct do you lose the case?

Mr. Parrish: --If that is correct it has to be remanded.

Unknown Speaker: I'm saying if that was a correct statement of law, do you lose?

Mr. Parrish: Which one, that the Government argued in its brief?

Unknown Speaker: That primarily intended does not go to the state of mind of the seller who was, in fact, the defendant or the defendants in this case.

Mr. Parrish: Maybe I'm not understanding.

If the--

Unknown Speaker: Well, I thought you had just told me that the judge's instruction was that the so-called element of primarily intended for use was not a... was not meant to refer to the state of mind of the seller of the paraphernalia.

Is that correct?

Mr. Parrish: --The state of mind of the defendant, the petitioner in this case.

Unknown Speaker: The defendant, yes.

Mr. Parrish: That's correct.

Unknown Speaker: And the petitioners were sellers.

Mr. Parrish: That's correct.

Unknown Speaker: Corporate individuals.

If that statement, contrary to what you say, is correct, that primarily intended does not go to the state of mind of the seller, do you lose this case?

Mr. Parrish: We win.

Unknown Speaker: You win if you are incorrect in--

Mr. Parrish: Because the court did not give that instruction.

Unknown Speaker: --Let me approach it from a different direction.

Your position, as I understand it, is that the Government must prove that the seller in this case primarily intended the items sold to be used in the manufacture and/or ingestion of drugs.

Is that correct?

Mr. Parrish: That's correct.

Unknown Speaker: All right.

All right.

If you're wrong on that, do you lose the case?

Mr. Parrish: Well, we don't lose the case because the Government argues a knowledge instruction.

However, the court never gave a sufficient knowledge instruction to alert the jury to the difficulty that existed when they went back into the jury room to deliberate.

Unknown Speaker: Well, you don't deny, as Justice Ginsburg pointed out, do you, that on three separate occasions the judge gave this understanding of nature and character instruction?

You don't deny that.

Mr. Parrish: But nature and character--

Unknown Speaker: Well, do you?

Mr. Parrish: --I don't deny that.

Unknown Speaker: Okay.

So that your argument is, I take it, that the jury instruction was confusing and that even though there was a mens rea element required, in the context of the whole instruction the jury wouldn't have understood it.

Is that your argument?

Mr. Parrish: That's correct.

But also our argument is that when you're talking about... we're maybe arguing over general and specific intent.

We're talking about a punishment here where an individual is going to prison up to 20 years and facing a $500,000 fine.

So when you're talking about that, you don't talk about using the same standards as we've used here for public welfare-type crimes or the crimes where knowledge has just been the type of thing that we allow people to be convicted on.

Unknown Speaker: You--

Mr. Parrish: We're talking about sending people away for a long time.

Unknown Speaker: --You then are... and I didn't get this from your brief, but are you arguing that instead of knowledge, which the Government concedes must... knowledge in the sense the Government described it must be proven, that this must be a purposeful crime?

Mr. Parrish: It should be purposeful, based upon... and getting back to Mr. Chief Justice Rehnquist's question of the standard that has been utilized, this Court has never actually confronted the mens rea standard at the constitutional level.

Unknown Speaker: Is that true with respect to both kinds of items?

We have here the listed items, the items set forth in the statute, and then the catchall classification of items.

Mr. Parrish: Well--

Unknown Speaker: And is your answer the same with respect to both aspects of this case?

Let's assume for the moment that the only thing before us were a prosection based on listed items, bongs and things like that.

Would your argument be precisely the same as you've been making to us?

Mr. Parrish: --It would be precisely the same because in applying the objective standard or the strict liability standard, the other items, Mannitol, Procaine, and Inositol, were items that were included.

But the court told the jury they to had, again, look at the objective standard.

Unknown Speaker: No, no.

I want you to assume that the only thing before us--

Mr. Parrish: Okay.

Unknown Speaker: --Are the listed items and the jury was instructed, as they were here, that you have to know the nature of the item.

Would your argument still be precisely the same as you've made to us?

Mr. Parrish: It would be precisely the same with one caveat, that we still would want to know which item did the jury find only had one purpose and which items had dual purposes.

They were never told.

Unknown Speaker: Even as to the statutory items?

Mr. Parrish: Even as to the--

Unknown Speaker: Even as to the statutorily described items.

Mr. Parrish: --Of course.

Because even in the legislative history of the items, they talk about these items having dual purposes.

And every Federal district court and appellate court that has confronted this issue, they constantly talk about the dual purpose of these items.

And consequently they've ended up with tests all over the place on this question.

Unknown Speaker: Mr. Parrish, there are all sorts of items that have dual purposes but the Government can nevertheless prohibit their sale.

Say switchblade knives, for example.

You could say dual purpose, but couldn't they say it's illegal to sell switchblade knives?

Mr. Parrish: If they say it's... they can.

And if they say it's illegal, make it illegal per se, put it in the statute, and then you have the Morissette tight fact situation that you have to confront it in.

Unknown Speaker: Is it your position that the Government must prove that the retailer knew what his customer was going to do with the item?

Mr. Parrish: A must by some standard higher than just a simple knowledge or a low threshold knowledge standard, no, that's correct, Your Honor.

Unknown Speaker: He has to know what his customer knew.

What other statute requires that kind of knowledge, where you make it illegal to sell things such as drugs themselves, you don't have to--

Mr. Parrish: Well, drugs themselves.

Cocaine, possession with intent to deliver cocaine, or having a weapon.

Unknown Speaker: --But you don't have to know what... you don't have to know what your customer is going to do with it if you're indicted for selling cocaine.

Mr. Parrish: You do not know--

Unknown Speaker: Maybe he's just going to, you know, put it in his cake or something.

Maybe he's a physician and he's going to use it to treat somebody.

Mr. Parrish: --But then he has to get a license for it, and if you have to get a license for it you create a whole new standard.

So you can't compare it to that type of situation.

We're talking about a situation where a citizen has a dual-purpose item that's available at Walgreen's, any other store.

Unknown Speaker: Well, it's a dual-purpose item but the statute requires that it's... that it was designed primarily for use with illegal drugs.

Mr. Parrish: If you're talking about design, Your Honor, you have to go the manufacturer.

That's what they... that's what they indicated.

Unknown Speaker: That's right.

And the... but the retailer has to know that that's what this item is primarily used for.

Mr. Parrish: And you establish a standard that's acceptable for high-threshold punishment.

And a high-threshold punishment is a punishment where a person is going to spend a substantial number of years in prison.

Unknown Speaker: Mr. Parrish, are you saying that if we had no confusion in the charge whatever, the charge is very clear that the Government must prove this defendant knew that the primary use... not the exclusive use, the primary use of this substance is in connection with illegal drugs, that that would be unconstitutional as a construction of the statute?

The statute... now we have... we're eliminating entirely the element of confusion.

The charge says jury, the requirement is that the defendant must know that the primary use of this item is in connection with unlawful drugs.

No confusion, is that permissible, is that constitutional?

Mr. Parrish: We believe it's constitutional if you set the standard as to how you establish the knowing.

If that was the case and if the judge had given that instruction, we wouldn't be here today, Justice Ginsburg.

Unknown Speaker: How you establish the knowing is, for one thing, you look at the list that Justice Kennedy mentioned.

Mr. Parrish: That's correct.

Unknown Speaker: That's clear notice that these items constitute drug paraphernalia, their principal use is in connection with unlawful drugs.

So you have the statutory list and the clear instruction and that would meet the constitutional requirement?

Mr. Parrish: It would.

However, the statutory list admits the fact that these items have other purposes.

But the judge, in giving these instructions, said this list constitute drug paraphernalia, and over the objection of trial counsel in this case the judge proceeded to give this instruction, because it was an all-inclusive list and the items had dual purposes.

Some of these items you can go to a hardware store and buy.

And that's the problem with the statute.

You are enforcing and not giving the jury any options once they get into a jury room.

Unknown Speaker: They can... even though they have dual purpose, they can still be drug paraphernalia, can't they?

Mr. Parrish: Of course they can be.

That's why--

Unknown Speaker: Okay.

Mr. Parrish: --I'm sorry.

Unknown Speaker: And didn't the instruction require that the defendant know the nature of these items?

Mr. Parrish: It said it did not know the nature.

And if you go again to instruction 31, it says

"primarily intended, as used in these instructions. "

--on page 31 of the Joint Appendix...

"as used in these instructions does not relate to the knowledge or intent of any particular person or persons. "

Contrary to what the Government argued that it was primarily... it was not limited to the intent.

If it had not been limited to her intent, there were other factors that this jury could have considered.

Unknown Speaker: You're assuming that that is the intent provision of the statute, but that is not the intent provision of the statute.

Mr. Parrish: That is correct.

I am assuming that based upon--

Unknown Speaker: It isn't the intent in the design that's crucial, it's the intent in the sale that's crucial.

That's the mens rea that you insist upon--

Mr. Parrish: --But there--

Unknown Speaker: --Not the mens rea of the designer, but of the seller.

And don't the instructions clearly require that the seller know the nature and purpose of the items?

Mr. Parrish: --The instructions do not.

Unknown Speaker: Dual or not.

Mr. Parrish: The instructions do not.

They do not come close to outlining that to a jury.

When you're down trying cases, a jury has no idea.

They want to follow the judge's instructions, and in this case this jury had to be confused when they had per se instructions on the items themselves.

They had to be confused because there's no clear direction and no consistency with the instructions.

Unknown Speaker: You... the instructions clearly say, ladies and gentlemen you have to find, one, that the items in question constitute drug paraphernalia; two, that the defendant, whose case you are considering, the seller here, knew the nature and character of the items.

I don't see how you can be much clearer than that?

Mr. Parrish: But they go back again to 39 and it says it does not relate to the knowledge and intent of that person.

Unknown Speaker: 39 relates to something else, to the designer, and that's not the intent we're concerned about here.

Mr. Parrish: But the problem... the Federal courts have confronted this issue.

They've come up with several tests.

They've come up with an objective test.

They've come up with a subjective objective test.

Unknown Speaker: You're not saying... that's what I wanted to clarify.

You're not arguing that the only constitutional standard is this subjective one.

That is, that the defendant must want the purchaser to use it in connection with drugs.

Mr. Parrish: That's correct.

Unknown Speaker: So you're saying that there can be a knowledge standard.

Mr. Parrish: Oh, it can be a knowledge standard.

We will accept a knowledge standard.

We don't accept--

Unknown Speaker: And that there is under this statute.

Not just that there can constitutionally be, but you acknowledge that that would be enough knowledge under this statute.

Mr. Parrish: --We would acknowledge it's not enough knowledge as proposed in the instruction by the Solicitor General.

Unknown Speaker: I don't want to get into that.

Mr. Parrish: Within the statute... okay.

Unknown Speaker: But you agree that if it had been made clear.

Mr. Parrish: Absolutely.

Unknown Speaker: If it had been made clear that all this seller has to know is that these are drug paraphernalia... which is to say they are primarily intended primarily for uses as drug paraphernalia, even though they may have other uses.

If that had been made clear, that would comply with the Constitution and with the statute.

Mr. Parrish: Absolutely.

Unknown Speaker: Okay.

Well, Mr. Parrish, none of the four questions presented in your petition for certiorari deal with the instructions given by the trial court.

We don't ordinarily sit here to debate whether a particular instruction was confusing or not.

Mr. Parrish: We did address that, Judge... Your Honor, when we outlined that all of the particular items whereof, including instruction 37 and 39.

That's addressed in our petition and also addressed in our petition in our brief.

Unknown Speaker: Well what's... under what question is that question presented, is that subsumed?

Mr. Parrish: On the subjective scienter question, as to whether or not the judge accepted a fully objective standard in this case--

Unknown Speaker: Well--

Mr. Parrish: --And a strict liability standard.

Unknown Speaker: --Your question two deals with the standard imposed by the statute, not what instruction was given.

Mr. Parrish: That's the standard that the judge adopted in this case, Mr. Chief Justice Rehnquist, and that was the one that was not in the statute.

It was the primarily intended which was, in fact, in the statute.

And that's the way the courts have been finding the vehicle for intent.

As a matter of fact, it's based upon the legislative history of--

Unknown Speaker: I suggest that you don't devote any more of your argument to the particular instructions given in this case, because I don't think... and I think that probably the bench agrees with me, that that's fairly raised in the petition.

Mr. Parrish: --I'm sorry.

Oh, I thought you said something else.

Unknown Speaker: Incidentally, Mr. Parrish, you and this case and I come from the Eighth Circuit.

Who was the district judge?

Mr. Parrish: Judge Rawley was the district judge in this case.

However, I didn't try it in the lower court, but he was the district court judge.

In determining how to find legislative intent, as I was indicating, several of the district courts and appellate courts, when confronted with this issue, have been confused and have been in some conflict and have, to some extent, been inconsistent in their application of this standard.

Some have arrived at a standard of a subjective test.

Some have arrived, as the Sixth Circuit has found, at an objective subjective test.

And some have, in fact, found a purely subjective test with regard to this.

And I think the confusions in the circuits have come from the fact that they don't know where to find primarily intended and where it applies in this particular instance.

And we believe we have to look at what the Congressman Levine indicated when he was saying where in the statute is the intent.

He indicated in the statute the intent was found in primarily intended.

And we believe the court, by not addressing this issue and applying an objective standard as the law of the case, deprived Ms. Acty of her constitutional rights; did not, in fact, get into any issue with the jury as to these dual-purpose items and get into her intent.

And consequently, we believe this case ought to be remanded.

Thank you.

Unknown Speaker: Thank you, Mr. Parrish.

Mr. Bryson, we'll hear from you.

Argument of William C. Bryson

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

A great deal of the discussion this morning has been over the instructions.

And while I recognize that isn't the principal issue that the Court has before it, I would very briefly, just as a predicate to my argument, like to review the portions of the instructions that did specifically address the question.

Unknown Speaker: And, of course, I suppose you're doing it because the Government changed its theory while the case... after the case was granted, didn't it?

Mr. Bryson: Well, Your Honor, the... in the lower courts.

Unknown Speaker: There's nothing wrong with that, but--

Mr. Bryson: Well, I think we certainly changed our approach to the case in this respect, in that in the lower courts the thrust of the argument being made by the defendants was that a subjective intent was required.

That is... and this was the basis for the objections that were made in the district court... that the defendant herself had to have designed or intended the drug use.

And we said that was not so, and the district judge agreed with us.

So the question of where the intent, where the knowledge lay, and so forth, was really not the focus of the district court proceeding.

In the court of appeals, the argument was made... the principal argument made by the defendants was that this statute has no scienter requirement at all and therefore is unconstitutional.

So, again, as the court of appeals pointed out, they did not argue for a particular scienter requirement.

They didn't press the issue of knowledge.

They were looking for a constitutional ruling based on an assumption of no scienter.

So we are addressing the case as it now comes to the Court, and addressing in particular the question that's raised in the petition.

Unknown Speaker: --Didn't they also argue in the court of appeals that if one does not read into it the subjective intent requirement that they contend for, that... I mean that if it... it would be unconstitutional if you did not read it in, and therefore you should read it in, and therefore the proper instruction was not given and therefore there should be new trial.

Didn't they make that argument?

Mr. Bryson: They did.

That was their backup argument.

But, again, the instruction they were talking about was the instruction that they'd argued for in the district court.

Unknown Speaker: I understand.

Mr. Bryson: Which was the purely subjective intent instruction.

Which is the... again, the... this defendant has to have designed, or this defendant has to have intended that the drugs be used, not--

Unknown Speaker: Mr. Bryson, during the course of your review... and you're going to turn to the instructions, which I hope you do, can you clarify for me the Government's position as to whether or not instructions should be precisely the same in trial A, which consists just of a trial for having sold the listed items, and trial B, assuming that there are only unlisted items involved.

Are the instructions in each case to be precisely the same?

Mr. Bryson: --Well, I--

Unknown Speaker: If you could address that during the course of your argument, I'd appreciate it.

Mr. Bryson: --Well, certainly.

Well, let me address it right now.

I think that the instructions can be different because I think designed and intended are different terms.

Designed, I think, is a much simpler concept.

That simply means that the manufacturer made the thing in a way that makes it suitable only for a particular use, absent some kind of very bizarre use.

Intended for obviously is a more complicated concept.

But in both cases the idea of scienter would be the same, we submit, which is that the defendant has to know the primary use of the substance is for drugs.

Unknown Speaker: Well, but intended and designed applies both to the listed items and to all other items, does it not?

Mr. Bryson: Your Honor, we think the listed items are... with exception perhaps.

But we think that basically the listed items are all design items.

I mean the one exception is there's a reference to roach clips, which are items which, by virtue of the way they're intended, the way they're marketed and so forth, would be either drug paraphernalia or not drug paraphernalia.

Unknown Speaker: Well the statute doesn't make that distinction in its language.

The statute, in its listing of the 15 items, says that these items are intended and designed.

Mr. Bryson: They say... that's right.

But it's--

Unknown Speaker: So there's no distinction between the two classifications of cases.

Mr. Bryson: --That's clear.

But I think it would be our position that each of those items is, in fact, an item that is designed, because they are specifically identified because they have exclusively drug purposes.

Unknown Speaker: Mr. Bryson, to cut to the chase here, what is the Government's position as to the nature of the scienter?

Is it that the defendant must know either that the item was designed for that purpose or that the item was intended for that purpose by the manufacturer?

Mr. Bryson: Yes.

And what that--

Unknown Speaker: So he's--

Mr. Bryson: --Well, not necessarily intended by the manufacturer, but intended by the retailer--

Unknown Speaker: --Well, the intended provision--

Mr. Bryson: --Or someone in the chain of distribution who may use it.

Unknown Speaker: --Oh, okay, someone--

Mr. Bryson: Who may display it in a particular way.

In other words, that you may have a manufacturer making something.

Again, let's take roach clips.

Unknown Speaker: --Right.

Mr. Bryson: Which may not by their design necessarily commit themselves to drug use.

Unknown Speaker: Right.

Mr. Bryson: But... excuse me.

Unknown Speaker: So he has to know somebody else's state of mind, essentially.

Mr. Bryson: It isn't a state of mind.

He has to know what the goods are used for, what they--

Unknown Speaker: No, it doesn't say use, is says designed... designed.

Mr. Bryson: --That's right.

And designed, I think, means--

Unknown Speaker: You design something for a purpose if it's your intent to make them for that purpose, no?

Mr. Bryson: --Well, that is true.

But the... an item can be designed for a purpose... you can objectively view an item and say this item is designed... a car is designed for transportation.

Now, it is true that somebody back at the plant--

Unknown Speaker: Even if nobody designed it for that purpose?

I mean you--

Mr. Bryson: --Well, somebody obviously--

Unknown Speaker: --It seems to me you can say it seems to be designed for that purpose.

Mr. Bryson: --Somebody obviously will design it for that purpose.

But what you're really concerned with, and what this statute is designed or intended to reach is identification of an item.

It isn't intended to... a drug paraphernalia definition is not intended to reach a question of somebody else's intent, or for that matter the defendant's intent.

It's intended to identify something about the item.

Unknown Speaker: I really don't know how you can avoid that.

From the language, I don't know how you can... I don't know that it's such a terrible thing, either.

I mean, why is it so hard to tell whether it was, you know, designed for that purpose?

Mr. Bryson: Well, what--

Unknown Speaker: Do you think it's hard to tell whether a car was designed for transportation without talking to the fellow who built it?

Mr. Bryson: --No, it isn't hard to tell.

And if you would... if you like, you can say well, yes, we're looking at the question of the intent of the designer or the intent of the retailer.

But I think what... when a jury looks at this and they're told you are to try to ascertain what the design or intent of the... the intended use of this good is.

They can look at the good, they can look at the setting, they can look at the retail display of the good, and they can make a determination that that good is committed to... intended to be committed to use with drugs.

Unknown Speaker: Well, Mr. Bryson.

Mr. Bryson: Excuse me.

Unknown Speaker: Suppose the items are something like razor blades.

Mr. Bryson: Yes.

Unknown Speaker: Now, they're not on the list of things that apparently are to be considered design for use as drug paraphernalia.

Mr. Bryson: Uh-hum.

Unknown Speaker: What is the proper standard in instruction, then, for the jury for a retailer of razor blades?

Mr. Bryson: The standard would be if in the setting in which this particular item is being marketed it appears that it was intended to be used with drugs.

Unknown Speaker: Well--

Mr. Bryson: And let me give you an example that goes to exactly that case.

Unknown Speaker: --Yeah, I mean should... is it... must the jury be told and is the standard that the retailer must intend that they be used for drug use?

Mr. Bryson: Well, typically it will be the retailer in a dual-use item, but it doesn't have to be.

In other words, your wholesaler could package... and this is exactly a case that's presented by this case.

The wholesaler packages a little item called a cocaine executive kit which contains, among other things, a razor blade.

Now, when the wholesaler puts that kit together it contains a razor blade, a vial with a little spoon on it, and a mirror and a straw and a grinder.

This little kit, when the retailer... when the wholesaler sends it to the retailer, has a razor blade in it which is surely intended for use with cocaine.

Now, it wasn't designed that way.

It may have been made by Gillette and wholesaler may have put it into the kit and converted it into something which is intended for use with cocaine.

Now, the retailer may do nothing other than put it down on the counter, and therefore the retailer may not have either designed it or even specifically intended to create an item that is directed to this market.

But the retailer, we submit, has to know that this kit is being used for... primarily with drugs, and that satisfies the scienter requirement.

Now, let me turn--

Unknown Speaker: But how does that square with instruction 39, which says that the term primarily intended

"does not relate to the knowledge or intent of any particular person or persons? "

Mr. Bryson: --Well, that instruction is intended to answer the suggestion that the defendant has to be person who primarily intends that drugs be used with this product, or primarily has designed the product.

Unknown Speaker: Well, if I were a juror I would say that the knowledge of the drug... this in the case of the razor blade hypothetical... is irrelevant under instruction 39.

Would you submit instruction 39 in a case where a druggist is being sold for selling a razor blade, the proof being that the buyer said I need a razor blade to cut my cocaine?

Mr. Bryson: Well, instruction 39, we could have done without instruction 39.

Instruction 39 is really--

Unknown Speaker: Instruction 39 would be inappropriate in the case that I put, would it not?

Mr. Bryson: --I don't think so, because I think--

Unknown Speaker: Well, you've said that the intent of the seller is relevant.

Mr. Bryson: --Well, no, I don't think so, Your Honor.

I think it... in determining what is drug paraphernalia, you look at the item.

And the question of whether it happens to have been the druggist or it happens to have been the wholesaler or somebody else that put the item together and converted it into something that really one can judge objectively is intended for drug use, or is likely to be used with drugs, it's irrelevant whether that was the intent of the druggist or any particular person.

And that's the language of the instruction.

You don't... you're not concerned to say did the druggist intend to put this item together, intend to try to market it in this particular way, as long as you have knowledge on the part of the defendant that that is what the item is, that the item is being primarily used with drugs.

Unknown Speaker: But--

Mr. Bryson: In the knowledge--

Unknown Speaker: --You go ahead.

It's really not very accurately put.

I mean, you have to read it as does not relate to the knowledge of any particular... you really have to jump on particular.

You wouldn't have framed it that way, Mr. Bryson, I'm sure, if you were... if you had written it to begin with.

Mr. Bryson: --Well--

Unknown Speaker: I mean, what... obviously it has to relate to the intent of some particular person or persons.

You don't have an intent just floating around in the air, right?

Mr. Bryson: --Well I think you have to... Your Honor.

Unknown Speaker: So, I mean, it could be the intent of the seller, it could be the intent of the manufacturer.

It has to be the intent of some person, but no particular person.

Mr. Bryson: That's right.

Unknown Speaker: That's the meaning of it.

Mr. Bryson: I think that's the gist of it.

And in that--

Unknown Speaker: Do you think the jury understood it that way?

Mr. Bryson: --Well, I think so.

Because the jury was fully apprised of the fact that the goods had to be designed or intended for use with drugs, and that the defendant had to know that, had to know of the nature and character and use of the goods.

Unknown Speaker: You were candid in acknowledging in your brief that the formulas used by the circuits were not entirely satisfactory.

Mr. Bryson: That's correct.

Unknown Speaker: And that this charge wasn't entirely satisfactory.

If you were to put in words what the proper charge should be to convey your understanding of the state of mind requirement to convict, what would that... what would those words be?

Mr. Bryson: I think I would say, Your Honor, that the defendant must know that the goods are... the goods in question are primarily used with drugs.

Unknown Speaker: Mr. Bryson.

Mr. Bryson: And that the drugs must also be drug paraphernalia, as defined in section (d).

I think that's the most efficient way to express the thought.

One might be able to be more precise about it, but I think that that is the formula that would be most readily understood by a jury and would capture the essence of what the mens rea requirements are.

Unknown Speaker: Mr. Bryson, supposing someone went into a supermarket/hardware/drug store and said he wanted to buy a cocaine executive kit which would include a razor, a spoon, four or five items each of which is a dual-purpose item.

Went through the... with the salesman, went through the store and picked out the several items until he got the whole kit.

And they said what are you going to use it for?

I'm going to... I like to smoke cocaine.

Would the salesman be guilty of a crime?

Mr. Bryson: Well, Your Honor, I think that is the hardest case that's presented by the statute, because what you have there is an item that hasn't... or a series of items.

Let's just suppose, to make it even harder--

Unknown Speaker: Just stick with my example.

Mr. Bryson: --Okay, I'll stick with yours.

It is... I think it's a very hard case because, yes, when you put all the items together the... presumably... well, let's... let's assume knowledge on the part of the seller.

Unknown Speaker: The customer told him--

Mr. Bryson: The customer tells him.

Unknown Speaker: --What I'm going to do with it.

Mr. Bryson: By the time you get to that point, the salesman knows that he is selling something which, in the aggregate, is intended to be used with drugs.

So I would say I think that would satisfy the statute.

On the other hand, it doesn't fit within the... what is ordinarily understood under the statute to be something which is designed or intended for drug use, because it was not until he got to the counter--

Unknown Speaker: But it clearly was in this case.

Mr. Bryson: --That it became something that was intended for drug use.

So it was very late in the day that it became narcotics paraphernalia, when he walked up to the counter and had them all together or when he explained what the use was that he was going to make of them.

Unknown Speaker: He needed the salesman to help him find each of these items.

Mr. Bryson: Yes.

Unknown Speaker: To go through this big store.

Mr. Bryson: Yes, I would say... and you could take an example that... if I could just--

Unknown Speaker: Change the example.

Mr. Bryson: --Change the hypothetical.

But my answer to you is I think that would qualify.

Unknown Speaker: Well, I think it violates the statute under your interpretation.

Mr. Bryson: But I think it would be a very difficult case.

Unknown Speaker: Yeah.

Mr. Bryson: And it's close to the line.

Unknown Speaker: Yeah.

Mr. Bryson: And there is some fuzziness at the edge, I think, in the statute.

Unknown Speaker: But you don't want us to decide this case based on the instructions, do you?

Mr. Bryson: Your Honor, I--

Unknown Speaker: Didn't we take this case to decide what element the statute requires?

Mr. Bryson: --Yes.

Unknown Speaker: We didn't take this case to review the instructions.

Mr. Bryson: That's right.

But there's been, of course, a lot of concern expressed about the instructions, and I would like to reassure the Court--

Unknown Speaker: Oh, look, I'm one of the... I'm one of the culprits and I recognize that.

Mr. Bryson: --Well--

Unknown Speaker: But, I mean, when it comes down to deciding the case and writing the opinion, it's not the Government's position that we ought to affirm on the basis of the instructions.

I take it we can assume that?

Mr. Bryson: --That's correct.

It's not our position that that ought to be the Court's principal concern.

But it is also our position that these instructions are adequate under the Government's theory of this case.

And, now, let me go through the instructions to try to explain why it seems to me that these instructions do satisfy the mens rea requirement, which we find in section 857(a) of the statute.

And there are really not just three, but I think five different places in the instructions that the reference to nature and character or nature and character and use... nature, character, and use of the goods is explained as the basis for the knowledge requirement.

First in instruction 17, where the court is describing the use of a particular item.

The court... the use of, excuse me, particular evidence in the case.

The court explains that knowledge refers... knowledge is a necessary element, that you must find with respect to each of the charge offenses that knowledge has been proved as to each defendant during the time periods, and that knowledge... and then the court explains, and this is at Joint Appendix 18... refers to the

"nature, character, and use of the items being sold or offered for sale at the store. "

Again, instruction 18, where the court is discussing the evidence which has been offered on the good faith defense, the court says that you can consider the good faith if it's

"inconsistent with the elements in the charges of the indictment concerning the alleged knowledge of the defendants as to the nature, character, and use of the items being sold or offered for sale at the store. "

That's at page 20 of the Joint Appendix.

Then in the two instructions on counts 20... excuse me, on counts 1 and 2 at pages 21 and 22 of the Joint Appendix, the court not only instructs that the defendant whose case you are considering must know the nature and character of the items, but also adds that there must be proof that the use of the interstate conveyance was, quote, part of a scheme to sell drug paraphernalia.

Now, we think that the term 857(a), but also in informing the jury that this is something that they had to know was--

Unknown Speaker: Mr. Bryson, it was my understanding that in the revision the word "scheme" was dropped.

Mr. Bryson: --Yes.

Unknown Speaker: So you don't want to... even though it was in effect at the time of this trial, it seems by putting any heavy weight on that you're making this an extremely narrow case.

Mr. Bryson: Your Honor, we don't think the existence of the word 857... the prior statute is critical, but we think it's illuminating, particularly because there's no indication that when the 1990 change was made in the statute and the word (a), that there was any... there's no indication there was any intention to remove a mens rea requirement.

So what we make of the word 857(a) is that it reflects a congressional understanding that there would be a knowledge requirement, that there would be awareness on the part of the defendant that the defendant was doing something unlawful, and that there was no indication in 1990 that that fundamental change... excuse me... change in the statute was intended.

So, yes, we don't put principal weight on the word "scheme", but we certainly think it's illuminating in telling us what Congress had in mind.

Particularly in light of the fact that we're dealing here with what amounts to a presumption in the construction of Federal statutes that you find mens rea unless there's some clear indication to the contrary, or unless you're in an area involving particular kinds of products.

Now, in this area we think that assumption, that rule of construction applies.

And the word "scheme" is a further indication that that rule is applicable here.

Unknown Speaker: Mr. Bryson, can I just ask, is your acceptance of the view that there is some knowledge requirement in the statute based on your view that this is a strong canon of presumption under the canons of statutory construction, or are you of the view that if you didn't do that it might be a serious constitutional question?

Well, maybe that's also a presumption.

Why do you make the concession is what I'm asking you?

Mr. Bryson: Well, we make the concession because we think that... I would say it's the first, principally, of your... of the two options.

We think that if you read the Court's cases such as Gypsum, Bailey, Liparota, and Morissette, what you find is there is this canon of construction.

And in a sense it's just like the rule that this court has recognized, that you read into Federal statutes the defense of entrapment.

There's no statutory defense of entrapment, but we understand Congress to legislate against a background in which Federal criminal statutes all have, unless otherwise negated, a defense of entrapment or duress or necessity.

This is just one of the ingredients that is assumed to be present in Federal statutes, unless the statute falls into one of those rare cases in which it can be either assumed that there is no such requirement or in which Congress indicates to the contrary.

Now, one of the reasons for that, of course, is that there are constitutional concerns with statutes that have absolutely no mens rea except where certain kinds of items are at issue, and the International Minerals case discusses that concern.

But I think the basic point is... and my basic answer to you is it's the rule of construction.

Now, if I can just very quickly get back to the--

Unknown Speaker: Right, give us the last couple and then I have a question for you.

Just tell us quickly where they are so I can mark them.

Mr. Bryson: --Okay.

The last one is really... is the least, also, which is that in the course of the monetary crimes instruction on money laundering, the court instructed that the defendant had to know that the money... the monetary instruments represented the proceeds of an unlawful activity.

Unknown Speaker: Where is that, which instruction?

Mr. Bryson: That's on page 28 of the Joint Appendix.

And that the defendant intended the financial transactions to promote the sale of drug paraphernalia.

Again, clearly indicating to the jury... and the jury convicted on the count.

Clearly the jury concluded that the defendant did know that these defendants... the defendant did know that these items were drug paraphernalia.

Unknown Speaker: Mr. Bryson, this may be just repeating what Justice Stevens was asking, but I take it it is your position that the statute is covered if all that the seller knows is that the individual to whom he's selling the dual-purpose item in fact intends to use it for one of the prohibited purposes?

So that if... you know, if I'm a clerk in a drug store and I have a friend who I know is a drug addict and he comes in... and I know that he doesn't use this type of razor when he shaves, and he comes in and asks for a pack of razors and I just give him a pack over the counter.

I know very well what he's going to use them for.

That would violate the statute.

Mr. Bryson: Your Honor, I have to give you the same answer I gave to Justice Stevens.

Both that I think that is right at the edge of what the statute covers and that, yes, I think it probably would cover that.

Unknown Speaker: And that's why we have prosecutorial discretion, is what you're saying.

Mr. Bryson: Well, Your Honor, I'm always worried to give the answer trust us, we won't prosecute those kinds of cases, because I find that those cases show up in my office when I get back.

Unknown Speaker: Well, Mr. Bryson, I don't mean to--

[Laughter]

My example was the kit where you don't assemble all the items except for that purpose.

But I'm not sure if you have a dual-purpose item, the primary intent of which is taking it and shaving yourself, the fact that a particular individual uses it for a drug purpose would make it covered by the statute.

Mr. Bryson: It might not, Your Honor.

But my argument... my analysis of that point would be as follows, that if you have a primary use for razor blades, being to use them to shave as you obviously do, but in your particular store you put a display out on the counter which says these razor blades are really well suited for cocaine use... let's just make it easy.

And there's... let's assume there isn't even anything all that special about these, but you've advertised them for cocaine use and you say these are great cocaine razors, and you put a little picture on them, on the display to indicate that that's what they're intended for, then I think you have defined a little subgroup of the market of razor blades--

Unknown Speaker: No, but if I come in and say I'm sure they are, indeed, suitable for that purpose, but I want to be clean shaven, please sell me a package, there's no violation of the statute in that sale, is there?

Mr. Bryson: --Well, actually, I think there would be, Your Honor.

Because what you would be doing... I would be doing as a clerk is that I would be selling something which is intended for... primarily intended for use with cocaine--

Unknown Speaker: Intended by whom?

Mr. Bryson: --To somebody who just happens not to have intended to use it for that purpose.

Unknown Speaker: Not by me, not by me?

Mr. Bryson: But that doesn't exonerate me.

And let me give you the example that seems to me to demonstrate that.

Suppose you're an undercover officer and you come in... and I know you're not going to use this for drug purposes, I happen to know you're an undercover officer.

If I sell you a bong or even something that I've advertised as a roach clip, I'm guilty even though you personally may not be intending to use it for that purpose.

Unknown Speaker: Then, your... and I... this is implicit in what you said before... your reference to the... to the intent in primarily intended must be primarily intended by the customer to whom you address your offer.

Mr. Bryson: No, no, Your Honor.

It's the--

Unknown Speaker: I mean to the class of customers to whom you address your offer.

Mr. Bryson: --Yes, that's correct.

That, in other words, the intent may be reflected in the way the product is marketed.

Unknown Speaker: Uh-hum.

Mr. Bryson: That's right.

Unknown Speaker: I thought you said... I thought you agreed with the instruction that it doesn't have to be the intent of any particular person.

It seems to me it can be the manufacturer's intent, it can be the seller's intent, it can be the purchaser's intent.

Mr. Bryson: Exactly.

Unknown Speaker: So that if I come... that's why you had trouble with my hypothetical.

I come up to somebody who's just a druggist and I say sell me a... sell me some razor blades because I want to use it to cut drugs.

And that would be the necessary intent, wouldn't it, on the part of the purchaser?

Mr. Bryson: Well, the argument you would have to make to bring that example within the coverage of the statute, I think, is that the good becomes intended to be used with drugs at the point at which you walk in, pick it up, and announce that you intend to use it for that purpose.

I think that's stretching what the statute was designed to reach, but I think it does come within the plain language of the statute.

If there are no further questions, I have nothing further.

Unknown Speaker: Thank you, Mr. Bryson.

Mr. Parrish, you have 4 minutes remaining.

Rebuttal of Alfredo Parrish

Mr. Parrish: I don't intend to take my 4 minutes.

I have some specific points I want to rebut.

Unknown Speaker: What do you mean by intent, Mr. Parrish?

[Laughter]

Mr. Parrish: As defined in the statute, Justice Scalia.

But my point would be that the proposed instructions that were proposed by the Government would have been acceptable, and it would be an instruction that we would, in fact, have accepted in this trial.

Unfortunately, it was not the instruction that was given.

Now, I realize... with all due respect to Mr. Chief Justice, he indicates that we shouldn't get tied up in instructions.

However, when you are facing 20 years in prison and a half million dollar fine, and it is, in fact, imposed and you are deprived of your constitutional rights simply because the court did not apply the proper instruction on the statute, that is a serious constitutional problem to Ms. Acty, and in this case Ms. Acty did not receive her constitutional rights when the statute was applied in this case.

The--

Unknown Speaker: Mr. Parrish, I just want to confirm my understanding of what you just said.

Mr. Bryson told us that his model charge would be that it must be drug paraphernalia as defined in subsection (d), that's (1).

And that the defendant must know that the goods are primarily used... not necessarily this customer, but primarily used with drugs, period.

If that's what had been said, as simple as that, the defendant must know these goods are primarily used with drugs, you would have no objection.

Mr. Parrish: --And instruction 39 was taken out, where it says that it does not relate to any... the knowledge or intent of any particular person or persons, that's correct.

Unknown Speaker: I know that's your... your view is that that confuses things, but I just wanted to know that you are in agreement with Mr. Bryson that the model charge would be that the defendant knows the goods are primarily used with drugs.

Mr. Parrish: That's correct, Your Honor.

Thank you, Justice.

Chief Justice Rehnquist: Thank you, Mr. Parrish.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

United States v. A Parcel Of Land, Buildings, Appurtenances, And Improvements, Known As 92 Buena Vista Avenue, Rumson, New Jersey - Oral Argument

Fri, 09 Jan 2009 14:49:24 +0000

Case:

United States v. A Parcel Of Land, Buildings, Appurtenances, And Improvements, Known As 92 Buena Vista Avenue, Rumson, New Jersey

Media File:

91-781_19921013-argument.mp3

Related Transcript:

1992_91_781_argument.xml

Transcript:

Argument of Amy L. Wax

Chief Justice Rehnquist: We'll hear argument next in No. 91-781, United States v. A Parcel of Land.

Ms. Wax, you may proceed.

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

This case concerns the scope of the statutory innocent owner defense to a forfeiture of property under 21 U.S.C. 881(a)(6), the statute authorizing civil in rem forfeiture of proceeds of illegal drug transactions.

The Government's position in this case is that someone like Respondent Beth Ann Goodwin who receives a gift of drug profits and uses that money to purchase real property cannot assert a defense to forfeiture that is only available to innocent owners because that person does not own the property.

Under Federal forfeiture statutes, title to property vests irreversibly in the Government when the act giving rise to forfeiture is committed.

The United States owns the property from that point forward, and its interests cuts off all rights, including ownership rights, for anyone who subsequently acquires the property.

Unknown Speaker: Then the innocent owner defense is available only to someone in the chain of title before the forfeiture occurs?

Mr. Wax: Precisely, Your Honor.

Someone has to have a preexisting, valid ownership interest before the acts giving rise to forfeiture occur so that someone like Ms. Goodwin is really in no better position, someone who receives the gift of drug profits, than someone who receives stolen money, a gift of stolen property.

That person has no right to the property as against its true owner however innocently it was acquired.

So, in this case Respondent Beth Ann Goodwin is not the owner of the $200,000 in drug profits that she received from her companion, Mr. Brenna, nor does she own the residence that she purchased with that money.

Unknown Speaker: May I ask there?

What about the person who sold her the residence and has the purchase price?

Who owns the purchase price?

Mr. Wax: Well, Your Honor, our position... that is a... really an entirely different question.

Unknown Speaker: Well, I don't know.

It's the same money.

The money went to buy the house, and that's... used Government money, and then the person who sold the house received that money.

It would seem to me that person is receiving Government property.

Mr. Wax: Your Honor, the answer to that question lies we believe not in construction of the innocent owner defense, but in what the word "proceeds" means.

If there is a bilateral transaction, such as her buying the house from somebody and that person receiving the money, the question is does the word "proceeds" cover both sides of that bilateral, full-value transaction, or does it only cover one side.

We think that a reasonable construction of the word "proceeds" would cover just the house that she received and not necessarily the money that the particular seller received.

Unknown Speaker: Well, what if the drug dealer bought a house--

Mr. Wax: Yes.

Unknown Speaker: --then sold it, and gave the proceeds to his companion who then bought another house?

Mr. Wax: Okay.

Unknown Speaker: Would that be a different case?

Mr. Wax: No.

In that case, when the drug dealer bought the house, he got a house which, in effect, was substituted for his original profits.

Unknown Speaker: Right.

Mr. Wax: That's proceeds as far as we're concerned.

That's derivative assets, and that is proceeds--

Unknown Speaker: So, the house is proceeds, and what about the money that the seller of that house got?

Mr. Wax: --That... we think a fair construction of proceeds is that that's not proceeds.

In light of... in the civil statute, in light of the narrow innocent owner defense, we think that the word "proceeds" arguably does not cover the money that goes to a seller if it's a bona fide transaction, there's no collusion, it's in good faith, and there's full value.

So, Your Honor, what I'm trying to say is that if there's help for bona fide purchasers in this statute, we don't think the help lies in twisting the innocent owner defense to apply to after-acquirers of property or persons who acquire their interest after the offense takes place.

Unknown Speaker: Well, Ms. Wax, would your... how does your theory play out in terms of any mortgage that has been put on the house?

Mr. Wax: Right.

Unknown Speaker: Does the Government take the property subject to the mortgage or not?

Mr. Wax: Well, Your Honor, I think that if the mortgage... the answer would be, under the theory I just stated, probably no in the sense that if the mortgage is a true business-like mortgage by just any old bank or--

Unknown Speaker: Yes.

It's a... it's an ordinary lending institution that had no way of knowing--

Mr. Wax: --Right.

Unknown Speaker: --that the proceeds used to make the down payment were those of a drug transaction.

Mr. Wax: Right.

Well, there are three answers to that mortgagee.

The first answer, as reflected in my answer to Justice Stevens is, it may well be that the lien or the lien interest that mortgagee holds is not really proceeds if he gave cash to the person who owned the house.

I mean, that would seem to follow.

So, what in effect I'm saying, Justice O'Connor, is that to the extent that mortgagees and lienors and other true bona fide purchasers are concerned about what our position is in this case, they may well be fighting the battle on the wrong front.

They're trying--

Unknown Speaker: But do I take it that you submit the case to us on the theory that the Government concedes that a bona fide purchaser exception is read into the statute insofar as the definition of proceeds is concerned?

Mr. Wax: --We certainly think that's possible, Your Honor, that that... the issue of a comprehensive theory of proceeds is not directly presented by this situation because Ms. Goodwin's house is proceeds under a narrow theory, under a broad theory, under any plausible theory.

Unknown Speaker: Ms. Wax, let me understand what the Government's position is now.

If I get money in an illegal transaction and buy a house with that money--

Mr. Wax: Right.

Unknown Speaker: --the house is covered.

Right?

Mr. Wax: Definitely.

Unknown Speaker: But if the house is then sold for cash, that cash is not covered.

Mr. Wax: No.

The cash is covered.

Unknown Speaker: The house continues to be covered all the way down the line.

Right?

Mr. Wax: Well, I think what we're... the cash is covered because I originally bought the house with my drug profits.

Unknown Speaker: Yes.

Mr. Wax: That house is covered.

Unknown Speaker: Right.

Then the house is--

Mr. Wax: The house is proceeds.

Unknown Speaker: --The house is proceeds.

Right.

Mr. Wax: Right.

Unknown Speaker: Then the house is sold and it's converted back into cash.

Mr. Wax: Right.

I sell the house and I receive for that house cash.

Unknown Speaker: Right.

Mr. Wax: Okay?

That cash is proceeds because it is what I'm receiving, in effect, in exchange for my drug profits down the line.

Unknown Speaker: Sure.

Mr. Wax: I am benefitted--

Unknown Speaker: The same would be true of the person that I sold the house to, though.

Suppose I sell the house, instead of keeping it.

I get... from the transaction I get cash.

Mr. Wax: --Right.

Unknown Speaker: I buy a house with the cash.

Mr. Wax: Right.

Unknown Speaker: I then sell the house to somebody.

You say the cash I get back would be proceeds to me.

Mr. Wax: Yes.

Unknown Speaker: The house is still covered.

Why isn't the sale of that house proceeds to the person who sells the house?

Mr. Wax: Okay.

Unknown Speaker: It isn't as I understand you.

Right?

Mr. Wax: Well, Your Honor, I think what's confusing people is that under conventional tenets of forfeiture law, once a thing becomes tainted, a res becomes tainted, it's tainted forever.

Okay?

And that's one of the predicates of our argument in this case.

What I'm saying is it's possible that through the definition of the word "proceeds", what proceeds means, in effect, Congress sort of negated that to the extent that if there's a full-value exchange... if the Government can go after one-half of that full-value exchange, in effect, the taint is purged from the other half.

I guess that's what I'm saying, but that's a matter of the meaning of the word "proceeds", not a wholesale suspension of the common law conventions of forfeiture.

And the reason why it's important that there not be a wholesale suspension in this case is that that convention is not suspended when assets migrate from the original drug dealer into the hands of a person who receives it as a gift.

Unknown Speaker: Have we ever applied the relation-back doctrine, relation-back forfeiture, to anything except physical property--

Mr. Wax: Well--

Unknown Speaker: --in contradistinction to cash?

Mr. Wax: --Well, Caplin & Drysdale concerns section 853(c), which is the criminal forfeiture provision that deals with proceeds, cash, and in that case, of course, the question was whether money that the drug dealer wanted to pay to his lawyer, whether the relation-back provision applied to that, and the Court said absolutely, positively it applies to that.

The minute the cash is generated through a drug transaction, it belongs to the United States, and you know, to quote the Court, there's no right to give someone else's money to a third party.

So, yes.

The answer is yes in Caplin & Drysdale.

Unknown Speaker: Is... oh, go ahead.

Excuse me.

But that... it was still in the hands of the dealer.

I'm talking about have we ever followed the money to a later person and said that the forfeiture of that money subsists?

Mr. Wax: Well, I'm not aware right off the top of my head of a case in which this Court has.

Certainly it has been common practice in the courts of appeals.

Unknown Speaker: I'm not aware that we've done it.

Have we ever followed that money to the purchase of real estate and then followed the real estate the rest of the way down the line when the real estate was not part of the initial proceeds?

Mr. Wax: Not in any case of this Court that I'm aware of.

But, Your Honor, to... you have to go back to the words of the statute to see that there's nothing unusual or disturbing about that.

The whole... the statute was designed... that was the whole purpose of the statute, to enable the Government to take assets that are substituted for the original drug profits.

That's the meaning of the proceeds traceable to an exchange language in 881(a)(6).

And the reason for that is if the Government couldn't do that, then someone, a drug dealer, could take his profits and essentially shelter them by just putting them through one transaction.

He'd just have to buy something with the profits, and then the Government couldn't touch it.

So, it must be the case that the Government can take the thing that the person who holds the profits buys with those profits, the Jaguar, the fur coat, the diamond ring, the house, whatever--

Unknown Speaker: In the hands of the wrongdoer, yes, but it's something else to follow it all the way down the chain from then on.

Mr. Wax: --Well, Your Honor--

Unknown Speaker: As I say, we've never... to my knowledge, we've never done that except in the case where the offending property itself is involved, not cash.

Mr. Wax: --But, Your Honor, we clearly... the statute clearly allows you to do that here because the statute says that all things of value furnished in exchange for drugs are forfeitable.

It doesn't say all things of value that are in the hands of a drug dealer.

It doesn't qualify it based on, you know, who's in possession, and certainly--

Unknown Speaker: Ms.--

Mr. Wax: --black letter forfeiture law is it doesn't matter who holds--

Unknown Speaker: --Ms. Wax, does that mean... I just want to be sure, and I think that it really doesn't matter in this case that the woman is a donee.

It would be the same case if she had been a physician who had performed an operation on this man and got paid in the same sum of money and then used the proceeds.

Mr. Wax: --The answer to that is no.

Those people--

Unknown Speaker: Well, why not?

Mr. Wax: --are in different positions.

Unknown Speaker: But why isn't that precisely the same proceeds that went to the doctor?

Because if you... is it you have to be a donee and not a purchaser?

Is that the difference?

Mr. Wax: Okay, well, I guess we're saying yes to that, Your Honor.

We're saying that if we construe the word "proceeds" so that it doesn't keep propagating endlessly--

Unknown Speaker: Proceeds are only proceeds that are received by way of gift?

Mr. Wax: --In this case we're dealing with profits--

Unknown Speaker: Well, is that... am I right or not on that?

I don't now why that--

Mr. Wax: --No.

Unknown Speaker: --Well, your lawyer case--

Mr. Wax: The answer is no.

Unknown Speaker: --seemed to be a categorical answer that if it's a third party that is an innocent... has no knowledge of the taint on the money, that you can trace it.

Mr. Wax: Proceeds can be two sorts of things, Your Honor.

They can be something that's tainted and then is given by gift where there's no full-value bilateral exchange.

Unknown Speaker: But I don't understand why the full value matters if the criminal has transferred Government property to the doctor in payment of a debt.

I don't know why that's different than giving the property to his sister or brother or companion.

Mr. Wax: It's different for the following reason.

If you give the profits to someone else or the proceeds to someone else and that means that the Government can no longer... the fact that you're giving it to someone else means the Government can no longer take it, that would undermine the whole purpose of the statute simply by giving--

Unknown Speaker: But why not on the sale too?

I don't understand.

If you give it to the church, you can trace it, but if you... but if it... but if it's a... I don't understand--

Mr. Wax: --Okay.

Unknown Speaker: --in terms of the language of the statute.

I understand the distinction, of course, but--

Mr. Wax: Right.

Unknown Speaker: --May I make a suggestion?

Mr. Wax: Yes, Your Honor.

Unknown Speaker: Aren't you implicitly saying that at least... excuse me... at least one set of identifiable proceeds has got to survive?

Mr. Wax: Precisely.

Unknown Speaker: You said in the case of the BFP example of the sale of the house that you recognize the transaction as, in effect, converting the house back into money.

The proceeds become the money again in the hands of the drug dealer who sells it because you've got one set of proceeds there.

But when you get into a bona fide purveyor of services, you can't take the services.

And you, in effect, are saying there's got to be something that we can get our hands on, and therefore, when the doctor performs the surgery, you can't take the surgery and sell it on the market.

So, therefore, you still go after the money.

But if the doctor, in fact, had been the purchaser of the house, you would say, okay, the doctor gets the house free and clear and the proceeds become the money that he paid for the house again in the hands of the drug dealer.

But your overriding interpretive criterion seems to be there's got to be something left that we can get our hands on.

If there is, we will not claim multiple... a multiplicity of proceeds.

If there isn't, we'll claim a physical proceeds no matter what the bona fides of the transaction is.

Mr. Wax: Your Honor, I couldn't have said it better myself.

[Laughter]

The point is there has got to--

Unknown Speaker: Well, do you really want to say that, though?

Mr. Wax: --We think that that is a fair reading of the word... we're not talking about the innocent owner defense here, which is the subject of this case.

I'm interpreting the word "proceeds", and I'm giving what I think might be a reasonable construction of the word "proceeds" in light of an innocent owner defense that cuts off the rights of after-acquirers of property.

And we... the Government is not standing here claiming both sides of every transaction that involves proceeds, so that proceeds propagates endlessly throughout the whole economy.

We think that what Congress probably meant by proceeds was that body of assets that's the surrogate for the original profits no matter how many exchanges it goes through.

Unknown Speaker: Well, suppose a legitimate businessman goes in debt to a bank, and he has never been in the drug business before, but he's really squeezed.

And so, he... he's going to get into an illegal enterprise and pay off his debts, and he gets in the drug business.

And he makes a lot of money, and he takes that money, which I take it belongs to the Government, and pays off the bank.

Can the... is it the Government's position that the... you can get the money back from the bank?

Completely legitimate debt at the outset.

He... they weren't financing his drug business.

Mr. Wax: That's a hard one.

Unknown Speaker: They were financing his manufacturing concern.

Mr. Wax: That's a really difficult case there.

It's sort of like I think the case--

Unknown Speaker: It's... if... the money is surely the proceeds of the drug business, and they... and it's traceable right to the bank.

Mr. Wax: --Right, right.

Well, in that case, there isn't a body of assets that the Government can go after.

So--

Unknown Speaker: Well, what about with the doctor?

Mr. Wax: --I mean, in the hands of the person who originally--

Unknown Speaker: Well, what about the doctor?

The money is in the hands of the doctor, just like the money is in the hands of the bank.

Mr. Wax: --Right.

That's the hard case, Your Honor, and I think we might have to answer it by saying it's a little bit like when the drug dealer smokes his marijuana.

I mean, it has gone up in smoke and--

Unknown Speaker: So, what's your answer to the hard case, the bank?

Mr. Wax: --Well, I think on the... I think to be consistent, we might have to say that since the bank... I mean, it gave value in the sense that it gave him a discharge of his debts, maybe not in the form that we could take, but it did give the full value if it was a bona fide... you know, course of business exchange--

Unknown Speaker: Well, certainly--

Mr. Wax: --that the bank would have a good argument that we couldn't take the money from them.

Unknown Speaker: --It... certainly it had an interest.

It certainly acquired the debt long before the fellow ever got in the drug business, but they didn't acquire any lien on the money.

Mr. Wax: I think, Your Honor, that we would try and get the money.

The drug dealer got benefit when he paid off his debts, and we would try and get the money from him if we could because he received value.

That would be our policy not just as a matter of statutory construction--

Unknown Speaker: Well, but the money was paid to the bank.

And would you go back again to the bank that puts a mortgage on a house that somehow was acquired with some drug proceeds?

Mr. Wax: --Okay.

Let's take a case where a... cash was paid for a house.

The cash was drug profits, in fact, as in this case.

And then the person who owns the house takes out a mortgage as a home equity loan on the house.

Actually that did happen in this case.

The bank gives her cash and it takes back a security interest.

I think that on our theory, the proceeds would attach to one-half of the transaction.

We could go after the cash or, you know, the value of the house that represents it if she put it into the house, and then the bank wouldn't be holding an interest that's proceeds.

So, once again, I'm saying that--

Unknown Speaker: Well, you would take the position that the house belongs to the Government.

Mr. Wax: --Yes.

Unknown Speaker: But does it take just the equity, and is it free and clear of the mortgage, or is it not?

Mr. Wax: It would take that part of the equity--

Unknown Speaker: What happens to the mortgage?

Mr. Wax: --that was not represented by the mortgage.

Unknown Speaker: You do not take the position that it takes it free and clear of the mortgage.

Mr. Wax: In that case, if we were to apply proceeds... well, let me back up.

The mortgagee would have to establish a few things in order to get out from under the word "proceeds".

I think they'd have to establish that they gave, you know, full value, that the loan was legitimate, that kind of thing.

And then they'd have a good argument that their interest wasn't proceeds, or in any event, they would get remission under the remission and mitigation regulations.

Unknown Speaker: You're assuming--

--If it did that, then the Government would get only the drug dealer's down payment out of the house, so to speak, and the purchase money mortgage would not go to the Government.

Mr. Wax: Well, no.

The money that the person who took the mortgage, the mortgagor, the money that they received in cash in exchange for the security interest, the Government would go after that.

Unknown Speaker: Some of these examples have been perhaps repetitive, but they do have little factual variations.

Suppose that a drug dealer puts a $10,000 down payment on a house--

Mr. Wax: Right.

Unknown Speaker: --with money that is the proceeds of drug operations.

Mr. Wax: Right.

Unknown Speaker: But in order to finance the full purchase of the house, he gets a purchase money mortgage from an innocent bank, say, in the amount of $250,000.

Mr. Wax: Right.

Unknown Speaker: Now, in a forfeiture proceeding, what's the outcome there?

Mr. Wax: Okay, that's a different case from the one Justice O'Connor presented.

That's a case where we have clean money and dirty money mixed together--

Unknown Speaker: Okay.

Mr. Wax: --to purchase an asset.

Unknown Speaker: What's the outcome?

Mr. Wax: And the Government's position is that we get the value of the house to the extent of the dirty money and not of the clean money, and the mortgagee gets... you know, when we sell the house, they get back their clean money as long as the drug dealer didn't make his mortgage payments with dirty money.

Unknown Speaker: Supposing the house doesn't sell for the full amount of the down payment plus the purchase money mortgage.

Who gets priority?

Mr. Wax: I believe that the answer is that each entity, the Government to the extent they have an interest, the mortgage... the mortgagee to the extent they do, take the loss proportionately on that decline in the equity of the house.

Unknown Speaker: Ms. Wax, could I come back to Justice O'Connor's hypothetical?

It seems to me you made the answer easy by assuming that the woman, when she sold the... when she mortgaged the house, put the money into the house or put the money in the bank.

And, therefore, you say, we'd go after the money, and the bank would still have its mortgage in the real estate.

But that isn't really what happens normally, of course.

She didn't put the money in the house or in the bank.

She spent it on men, women, and song... or men... wine, men, and song.

[Laughter]

And it's all gone.

Then what does the Government do?

Mr. Wax: Well--

Unknown Speaker: Then the Government goes after the bank's interest in the house, doesn't it?

Mr. Wax: --The Government... what we're essentially saying here is that as a matter of... first of all, when a bona fide mortgagee comes in and claims their interest in a house, as a routine matter, as a matter of policy, we pay them off.

Unknown Speaker: I'm talking law, not policy.

I know you're very generous and you wouldn't do it.

[Laughter]

But your contention is, is it not, that you would have the power to do it under your reading of this statute?

Mr. Wax: Well, I think that the reading... the construction we've given you of the word "proceeds"... under that construction, I think that the bank could well claim that we don't have the power because they've given full value for their interest back to the original owner of the profits.

Unknown Speaker: Well, that--

Mr. Wax: And we have to go after that.

Unknown Speaker: --That's a new position then.

It doesn't matter whether there are any proceeds that can be substituted for the real estate at all.

You're saying a BFP always prevails.

Mr. Wax: No.

Unknown Speaker: And the BFP doesn't prevail when the BFP is a doctor.

Mr. Wax: No, we're not saying that.

Let me give you an example why we're not saying that.

Unknown Speaker: Well, I don't understand what you are saying then.

Mr. Wax: We retain the right to trace proceeds into third party hands sometimes when there has been an exchange.

For example, suppose Mr. Brenna in this case took his $200,000 and gave it to his brother-in-law for a Jaguar that was only worth $30,000.

We would reserve the right to trace the $170,000 that represents the difference, the difference between that amount and the value of the Jaguar, into his brother-in-law's hands because essentially it's a gift just like here it's a gift to Ms. Brenna.

The drug profits were a gift to her.

We can follow them into her hands.

There's nothing in the statute that prevents us from doing that, Your Honor.

Unknown Speaker: Isn't it a lot easier simply to read the word "owner" to mean the person who would be the owner but for this provision?

Mr. Wax: Your Honor, we can't read--

Unknown Speaker: All these problems disappear, and I must say I'm... I just don't understand what the Government's position is at this point.

I'm very confused about when you get it, when you follow it, when you don't follow it.

Mr. Wax: --Your Honor, you do not follow assets into the hands of a donee, okay, because it's the same assets.

They haven't changed.

They've just moved.

So, when she received that money, she had profits.

When she bought the house, she had proceeds.

She was not the owner of either one of those because the Government took title to them when the forfeitable acts were committed, and that is our position.

So, she is cut off.

Unknown Speaker: xxx applies even if she was the doctor who performed the services xxx.

The language of the statute doesn't draw this distinction.

Mr. Wax: Well, not in the innocent owner defense, Your Honor.

We agree with that.

The innocent owner defense does not draw--

Unknown Speaker: 0 xxx.

What statutory language do you rely on to differentiate between the doctor who was paid for an operation on the one hand and a donee on the other?

Mr. Wax: --Well, we think that the word... we have to construe the word "proceeds".

What does the word "proceeds" mean?

That's what we--

Unknown Speaker: If the proceeds... if it's without consideration, but it's not if there was consideration?

Mr. Wax: --Well, the point is proceeds is the body of assets equivalent in value to the original profits.

Okay?

The question is--

Unknown Speaker: They belong to the Government under your... what you say in your brief anyway.

Mr. Wax: --Well, all--

Unknown Speaker: They belong to the Government at the time they pay the doctor's bill or they pay off the preexisting debt.

Mr. Wax: --We're only suggesting, Your Honor, that every transaction doesn't necessarily double, quadruple.

Unknown Speaker: Well, I'm not saying it doubles, but it certainly singles under your... the doctor is paid for an operation he performed 10 years ago with drug proceeds, honest debt.

Are those proceeds or aren't they?

Mr. Wax: Well, he gave good value.

He gave it in services.

Unknown Speaker: I understand, but are they proceeds or aren't they?

Mr. Wax: I think under the theory that we've advanced of the word "proceeds", they may not be.

They probably wouldn't be.

Unknown Speaker: That's certainly not what your brief says.

Mr. Wax: No, Your Honor.

We don't say anything that contradicts this position in our briefs.

Unknown Speaker: You do.

You say that it's the Government's property at the time it came... if they caught them right at the time when they're handing in the check, you'd definitely say that's Government money.

You can't pay that bill.

But if you catch the doctor two days later, after he has deposited it in the bank, it's no longer Government money.

Mr. Wax: We only say that with regard to recipients of gifts, Your Honor, and if you look at our brief, that's what we say.

We don't say anything about bona fide purchasers.

Unknown Speaker: Yes, but your theory fitting into the language of the statute doesn't draw a distinction as I understand it.

Mr. Wax: We're only saying that the word "proceeds" may draw a distinction, but the innocent owner defense doesn't draw a distinction between the two.

That's... we discuss the innocent owner defense.

We say that with respect to recipients of gifts, that it remains proceeds, and we don't say anything about bona fide purchasers except for that in that case--

Unknown Speaker: The reason you say it's proceeds is because you say it became Government property at the time of the drug transaction.

Mr. Wax: --Exactly, and that's... but what we're saying is that the word "proceeds"--

Unknown Speaker: You're saying you can use Government property to pay off debts, but you can't give it away.

That's your position.

Mr. Wax: --If what you get back is something that... because what you get back is something that the Government can take.

You can use the--

Unknown Speaker: No, but in the doctor position, you don't get something back.

The Government can't take the appendix scar.

[Laughter]

Mr. Wax: --Well, that's true and that's the case that is the hard case.

And we have to reconcile that with the proceeds language.

I admit that's the hard case, but when... but the bona fide purchasers who actually give value back to a drug dealer, there's something that we can take, as you yourself said, Justice Souter.

I'd like to reserve the rest of my time.

Unknown Speaker: Very well, Ms. Wax.

Mr. Plaisted.

Argument of James A. Plaisted

Mr. Plaisted: Yes, Your Honor.

Mr. Chief Justice, may it please the Court:

My name is Jim Plaisted, and I represent the respondent, Beth Ann Goodwin.

If I may, I don't believe any of the many older cases that this Court has rendered decision in has ever construed an innocent owner provision nor proceeds.

In fact, I mean, it is fascinating, if I may for a moment.

If you go back to Chief Justice Marshall's opinion in Grundy and Thornburgh, you find that in that case, he talks about proceeds.

He talks about many of the things that have come up here.

And what he says in his efforts to protect an innocent owner, a bona fide purchaser, in that case, which he did, which he says, look, this statute which was... it's different because it doesn't say proceeds, but it says the ship, which was falsely registered, is forfeit or its value is forfeit.

And then they sued the purchaser for the proceeds that he had transferred the ship for, and Justice Marshall said the statute doesn't have "proceeds" in it.

And we don't have a statute that has proceeds in it for another 160 years or so, until we start to get these most recent criminal statutes.

He... and civil statutes or quasi-criminal statutes, as this Court often calls them.

What he also says is that in such a statute... and the way he protected the innocent owner there, despite the fact that none of these older statutes ever have innocent owner provisions either... he protected the innocent owner, the bona fide purchaser, by saying, well, the Government had an election in this case.

And that's... I thought I detected a fair shift in the Government's positions from the brief, but at the least they leave themselves with an election.

And they leave themselves with an election to go after proceeds in different people's hands.

That concept threatens house transactions where there is a person who is involved in drugs in the chain of title for later purchasers.

It threatens resales of cars that also are sometimes and often involved in the drug trade and then later are resold.

And so, Congress, when it adopted this provision about traceability in this particular statute... and I presume in the others... it adopted as well a protective device so that we didn't have unfair takings from people who were innocent.

And what they said... and it's a... it's not statement simply from somebody on the floor.

It's not a... just one of the House reports.

In the joint statement... because this was a bill that was passed in the House, and then the Senate's words were put into it in this particular pertinent provisions, that is, with respect to the innocent owner provision and I believe with respect to proceeds as well when it was adopted in 1978.

They said a couple things that reflect what is the intent of Congress.

And if I can read it.

It does appear in the U.S. Code and Congressional Administrative Reports at 9522.

They said due to the penal nature of forfeiture statutes, it's the intent of these provisions that the property will be forfeit only if there's a substantial connection between the property and the criminal activity.

And then they went on and, more pointedly for our purposes here, said finally, it should be pointed out that no property would be forfeited under the Senate amendment to the extent of the interest of any innocent owner of the property.

And then they said the term "owner" should be broadly construed and interpreted to include any person with a cognizable or legal equitable interest in the property, and then, as if to add a final sentence that addresses our issues here, said specifically the property would not be subject to forfeiture unless the owner of such property knew or consented to the fact that... and the second thing is... that the property was proceeds traceable to an illegal exchange, in essence, saying the person has to know.

Unknown Speaker: Well, none of that makes a donee an innocent owner.

Mr. Plaisted: It makes them innocent, Your Honor.

The question is are they covered, isn't it?

Unknown Speaker: You have to do some interpolation.

Mr. Plaisted: Okay.

You have to say are they and should they be covered by that innocent owner provision.

Should a donee be covered?

And if I may, I thought... one example about a donation... and we think that is the basis this case should be decided on, that is, the interpretation of this statute and that phrase.

And we submit donees, mere donees, although I don't agree she is one... but we submit that mere donees do fall within that protection and that Congress intended them to.

For example--

Unknown Speaker: If she isn't a donee, what is she?

Mr. Plaisted: --I'm sorry, Your Honor.

Unknown Speaker: If she's not a donee, what--

Mr. Plaisted: Well, Your Honor, I mean, it is a complicated relationship.

She had a long-term relationship with this man.

Unknown Speaker: --Yes, indeed.

Mr. Plaisted: He lived with her.

She cooked for him.

She cleaned for him.

Unknown Speaker: And the determination of innocence is yet to come, isn't it, even if you prevail here?

Mr. Plaisted: That's true.

There... I mean, the remand was a remand back to the district court for further proceedings.

So, yes, we... the statute puts the burden on the innocent owner to demonstrate their innocence, and so that is true.

But in terms of donees, for example, if Brenna had taken the money, the $200,000, that was used to buy the... buy it and given it to the church or a charity, I submit it wouldn't serve the other purpose of this statute which the Government cited in its cert petition and is in a Senate report one iota.

The other purpose of this statute is as... and they quote a Senate report... today few in Congress or the law enforcement community fail to recognize that the traditional criminal sanctions of fine and imprisonment are inadequate to deter and punish the enormously profitable and dangerous trade in drugs.

To forfeit that money from the church or the charity, although they are even more clearly a mere donee, would not further deterrence, would not further... would not punish a drug offender one iota or one whit.

It wouldn't advance the only other real purpose of this statute at all.

If, for example... it becomes even clearer... let's say Brenna had bought--

Unknown Speaker: What if the drug dealer gave the money to his brother?

Now, you can say forfeiting it from his brother isn't going to advance the purpose of the statute, and yet, clearly if this statute means anything, it means that... at least to me, that if he gives it to his brother, it's subject to forfeiture.

Mr. Plaisted: --Your Honor, the test that Congress chose to couple with what was a very broad forfeiture provision, this traceable concept, was to focus on innocence.

With respect to a brother or someone else who perhaps participated with the individual in the bad acts, probably the result would be it would be forfeited.

But that is... would be determined at a trial on the question that is often at a trial.

Is he innocent?

Unknown Speaker: Well, where are you getting this congressional intent that you're talking about?

From the statute?

Mr. Plaisted: From the... what I referenced was, one, the Senate report saying it was deter crime and then, secondly, from the... I'm sorry.

Unknown Speaker: Yes.

Where do you get it out of the statute?

Mr. Plaisted: The statute says... it uses the words that you won't forfeit property from one... from an owner by reason of an act committed... that the owner... established by the owner to have been committed without his knowledge, meaning without his knowledge, and that's why it's called innocent owner.

Unknown Speaker: To have been committed.

So, if I commit the fraudulent act and I take the proceeds and I give it to my brother and I say, brother of mine, I've committed a fraudulent act, these are the proceeds, take them and run, he is an innocent owner under this provision.

Right?

Mr. Plaisted: No.

Unknown Speaker: Because my act was committed... he can establish that the act to have been committed without his knowledge or consent.

Mr. Plaisted: No, I don't believe he would be under those circumstances.

I think--

Unknown Speaker: Read the language again, would you?

Mr. Plaisted: --Yes, Your Honor.

Unknown Speaker: To the extent of the interest of an owner by reason of any act or omission... that would be the crime--

Mr. Plaisted: Right.

Unknown Speaker: --established by that owner to have been committed or omitted without the knowledge or consent of that owner.

The brother in that case could say this act was committed without my knowledge or consent.

I didn't know anything about it when it was committed.

Mr. Plaisted: When... what I would take issue with is applying the concept of when it was committed as opposed to when he receives the proceeds.

And so--

Unknown Speaker: But it says to have been committed without his consent, not that he was not aware of the fact of its commission.

It said it was... he has to establish that it was committed without his knowledge or consent.

That's a very strange innocent owner.

I suppose the question is whether those words modify "establish" or modify "committed".

Established?

If they establish that he didn't have the knowledge at the time xxx established it.

Mr. Plaisted: --I--

Unknown Speaker: I think there's an argument as to what you mean as to xxx.

Mr. Plaisted: --I think, Your Honor, the logical test would be, especially when you're dealing with proceeds because proceeds... this house... for example, at the time the illegal act was committed in 1981, this house was a stranger to that transaction.

No one, the people who owned it or the people who are not of record here who sold it to Ms. Goodwin sometime thereafter, the people who... it had nothing to do with it.

Unknown Speaker: Let me just ask you.

What's your position as... on the meaning of the statute?

Do you think in the hypothetical case of an act performed without the knowledge of the ultimate owner, the woman here, but she found out about the act before the time of the gift, would she be able to plead innocent ownership in your view?

Mr. Plaisted: In my view, no, Your Honor.

I mean, I think the logical time to apply it is the time of the gift, the time of the receipt.

Unknown Speaker: Well, that's very logical, but we have... so, you're arguing logic the same way the United States is.

I wish somebody would try to apply the language of the statute.

Mr. Plaisted: But, Your Honor, if I may, in terms of when you're talking about proceeds, proceeds like something like this... it necessarily... I mean, the house didn't have anything to do with the transaction at all at the time the illegal acts were committed.

It wasn't involved.

It later becomes arguably tainted by the purchase with funds.

And so when you are applying that concept, which is the full scope of this particular statute... it's a statute designed to cover items exchanged for drugs and proceeds traceable thereto... the only time that it would seem logical to assess the knowledge test would be at the time of the gift.

Proceeds necessarily, as they transmute, are afterwards.

The knowledge would have to... would seem to be tested and logically tested at that time, not at the earlier time when they have nothing to do with it.

And so, that's where and why I contend that.

Your Honor, with respect to, for example, this particular property, if... let me... the reason I say and submit to this Court that there is no difference between donees and bona fide purchasers... and the United States seems to have conceded that some purchasers qualify as innocent owners under this statute... is there's no distinction in the statute at all between bona fide purchasers and innocent owners.

The test that Congress chose to enunciate was a lack of knowledge test, not a test of bona fide purchase.

I submit they chose that test for a reason.

They were drafting a very broad, very far-reaching forfeiture statute, and to make sure there were not unlawful takings, to make sure there were not unfair takings, they drafted a test that focused on innocence.

And that is what the joint statement seems to indicate.

Unknown Speaker: You can also say that the test they drafted, Mr. Plaisted, tends to be a retrospective one by the use of the language "to have been committed" or "committed".

Mr. Plaisted: Yes, Your Honor, and with respect to proceeds, then that would often make sense.

In terms of... as I had understood the Government's argument previously, I thought they were saying they did have the right to elect to go after even bona fide purchasers in some instance, and even if it is only in limited instances, it creates an anomaly and a problem when you construe the criminal statute which protects bona fide purchasers specifically.

Congress knew how to protect bona fide purchasers alone when they wanted to, and they said so.

And when you put next to it the civil statute... and the reason I say that is because the civil statute is a statute addressed to in rem actions.

It is a statute that if a person who is under indictment and has made a bona fide sale... if the Government can no longer reach that asset under the criminal statute, under the civil statute, if the Government elects to do so, and if their construction of the innocent owner provision stands, and if they do have the right to go after those things, they can impact, detract from, and I had thought completely override the bona fide purchaser provision in the criminal statute.

And so, the only way to make sense of both together is to understand that the civil statute has been drafted to be much more far-reaching and the protection is more far-reaching.

With respect to--

Unknown Speaker: If we interpreted the word "owner" in that last provision, to the extent of the interest of an owner, to mean someone who has somehow cancelled out the United States' claim by having paid money for it so that all... the United States could go and reclaim any gifts at all, you'd have to show that some value was given.

Mr. Plaisted: --You--

Unknown Speaker: I don't see anything terrible about that.

Why should the brother who, even if he didn't know about the illegal transaction... why should he keep the ship that was ill-gotten?

Mr. Plaisted: --There are two parts to that, Judge, and... Justice.

I'm sorry.

Unknown Speaker: No problem.

Mr. Plaisted: There are two parts to that.

First, the question about the brother.

Normally what is going to happen with the brother is he's going to know, and that's not a real problem.

But with respect to the construction--

Unknown Speaker: Let's assume he doesn't.

Let's assume he doesn't know.

Why shouldn't the United States still be able to take the house back?

Mr. Plaisted: --Because we're construing--

Unknown Speaker: Easy come, easy go.

He didn't pay anything for it.

What's the harm?

Mr. Plaisted: --I would submit, Your Honor, that the legislature when they drafted it, said the term "owner"... and in the joint statement... what I would point to is the joint statement of Congress where they said construe "owner" broadly, give it meaning to include any person with any cognizable, legal, or equitable interest in the property seized.

Unknown Speaker: Well, I say he has no cognizable, legal, or equitable interest if he takes something that would otherwise belong to the United States without him paying any value for it.

A bank who mortgaged it could recover or somebody who bought it could recover, but he's not an owner if he got as a gift.

Mr. Plaisted: Your Honor, can... you can take that position.

I don't think that's what Congress intended.

Unknown Speaker: xxx.

Suppose the defendant has set up an irrevocable trust for his minor children, age 2 and 3, and it's irrevocable and it's a gift to the children, but it just happens to be in trust.

And you say that that is protected by the innocent owner.

Mr. Plaisted: It may be.

I'm confident the Government would attack it on a number of grounds and would have a trial on the issues.

Is it a sham?

Did he retain any control?

Is there any way he gets any benefit from it?

Unknown Speaker: No.

Any lawyer would say that he has no control over that trust.

Mr. Plaisted: Your Honor, I--

Unknown Speaker: Let's just assume that.

Mr. Plaisted: --If you assume that it was found as a matter of fact that he did, indeed, have no control over it, it was totally irrevocable--

Unknown Speaker: As a matter of law.

Mr. Plaisted: --and there was no way he could reach it or--

Unknown Speaker: That's right.

Mr. Plaisted: --influence the trustees or any of those other factual questions, then I would have to concede that he could probably do that under this statute.

Unknown Speaker: He could do it.

Mr. Plaisted: He could do it.

Unknown Speaker: And the Government could not recover the funds that are in trust.

Mr. Plaisted: See, where I take issue with--

Unknown Speaker: Is that right?

Mr. Plaisted: --I agree that if all those things are conceded, that would have to be the answer.

But what would happen practically is the Government would not agree with that, and they probably would have a great plethora of facts to show he had some control.

He was getting some benefit.

It was something that--

Unknown Speaker: Well, if the guy has enough money to set up this trust, he's got enough money to buy a... hire a good lawyer and take very substantial advantage or make sure that he has no control over it, and thereby he supports his little children with the proceeds from drug money.

Mr. Plaisted: --That may be the very answer there, Your Honor, in that if he is escaping another obligation, the Government would attempt to seize the value that he was... of the obligation he was escaping, as I think we heard from the Government.

They would say he has an obligation to support his children.

He no longer has to do that.

Unknown Speaker: Well, he gave this house away to avoid a palimony suit.

[Laughter]

Mr. Plaisted: That may be an obligation too, and again, it is something that... that's what trials are about, and that is what one would decide at a hearing--

Unknown Speaker: But he has got no obligation--

Mr. Plaisted: --as to whether or not he had gotten the benefit.

Unknown Speaker: --He has got no obligation to make either his pal or his children millionaires, and that's still the consequence of the Chief's example, isn't it?

Mr. Plaisted: Yes.

And to the extent that the example asks you to assume that it is absolute, it's irrevocable, there's no benefits to him as to the excess over and above things, I concede that that under this statute, the way Congress drafted it, would be something that could happen.

Unknown Speaker: Safely.

Could happen... he could safely set it up.

Mr. Plaisted: I... Your Honor, I have grave doubts that the Government would accept it or that it would be safe, but it could happen.

But I don't... I think what happened when Congress adopted the test they adopted was they opted for a very far-reaching test, one that gives them the right to attack all such transactions as traceable and then enunciated a test which was innocence of knowledge as to those facts that one would have a trial over on those very issues.

And so, to the extent Congress chose the test and chose the parameters, I think you... yes, it could happen, but by the same token, I think the Government would contest it, and if they had any facts that suggested it was anything otherwise, they would prevail.

And so, while it is a possibility, I don't think it is of such consequence that it warrants overriding what does appear in the joint statement a fairly clear expression of intent to protect innocent recipients which can include very, very admirable recipients.

You could have an example where if Brenna had, for example, purchased this house and had given it to the United Way and they used it to help rehabilitate drug addicts, the forfeiture of that property would do... would undercut the other purpose of this program.

They are certainly innocent, and if you read the statute--

Unknown Speaker: Well, I--

Mr. Plaisted: --I'm sorry, Your Honor.

Unknown Speaker: --I suppose that if... even if you took the bona fide purchaser for value approach in defining an owner, I suppose that you could make an argument that this... the lady involved in this case gave some value.

Mr. Plaisted: You could.

Unknown Speaker: And in most States, you would say... or in a lot of States, it would be jointly held property.

Mr. Plaisted: That's true.

It would... in normal... if she was married in New Jersey, it would have been jointly held if it had been held in both their names, for example.

Unknown Speaker: May I ask one question here?

This section 6 of 881 does include in part instrumentalities, as well as proceeds, as I understand it.

Securities used are intended to be to facilitate any violation of the chapter.

Does that... is there another section also dealing with instrumentalities?

Mr. Plaisted: I believe 7 does, Your Honor.

I don't have the statute--

Unknown Speaker: Part of 6 seems to deal with... securities used as instrumentalities.

Mr. Plaisted: --Yes, and 4... section... and 4... there's another section as well that deals with conveyances, for example, specifically, and they too have separate protections for innocent owners.

But to the extent this statute is and does create the proceeds concept, which is where the majority of the cases under this section are litigated, the conveyances and the other sections cover other aspects of it.

Unknown Speaker: 7 deals I guess generally with the problem of property owned by someone other than the criminal enterprise before the transactions that gave rise to the justification for forfeiture.

In other words, if you own a boat and you lend it to somebody and they engage in a drug transaction, the boat would be forfeitable, but not if the owner of the boat had no idea what was being done with it.

That's what that--

Mr. Plaisted: That's one of the other sections, yes.

Unknown Speaker: --But the proceeds has a whole different problem.

Mr. Plaisted: Your Honor, I would... as I had understood the Government's brief, they were taking the position... if you look at footnote 8, they had suggested in footnote 8 that the innocent owner provision had meaning only for people who took before the illegal transaction not for anybody after.

And so, if one reads 8, the Government's brief suggested that they were, in fact, reserving the right to attack bona fide purchasers for value.

If that was or if they are even reserving the right to opt for that, then there is no meaning to the innocent owner clause.

I mean, it becomes meaningless.

The example in 8 where they posit, well, it's... and it starts midway down through footnote 8 where they posit it is possible for funds to be entrusted to a person and that person subsequently uses them to engage in a drug transaction without the owner's knowledge.

The sum of money might be turned over to a friend for investment.

So, A turns it over to B, a banker or a broker.

The banker or the broker uses it instead for drugs, and then the Government later seizes proceeds.

The Government posited in that case that that gave meaning to innocent owner because the ownership was before the illegal acts, and from that at least we drew that they were attacking all bona fide purchasers or at least reserving the right to.

If they are doing that, that particular section provides... when you read it, you never find an example like that in any case cited to this Court.

And we suggested that in our brief and challenged the Government to provide one, and they did not.

But if you think about that, the example they proffer, it has no meaning either.

If A gives the money to B, B uses it, and the Government seizes it, A going to the Government and saying, well, B owes me money that I entrusted him to and you happened to have seized proceeds from this fellow, turn them over to me, a private citizen has no right of tracing.

He has a debt owed from B, but he can't go claim that against the Government, and I would submit that's why there are no cases.

It is... if not meaningless, it's virtually meaningless.

And I would ask this Court not to give that construction to this clause.

Congress chose the words when they know... when they wanted to express bona fide purchaser, they said so, and they said it in the criminal statute.

In this particular statute, they made a very broad statute, a statute that is far broader than the criminal statute.

And they said innocent owners are protected.

Unknown Speaker: I don't know how that problem of an individual having no right to trace funds just exists with respect to the Government... Government's example and doesn't exist later down the line where you would apply the same clause to funds that have been taken by the Government.

Why doesn't the same problem exist for you?

I don't see why that's the Government's problem.

Mr. Plaisted: I'm not sure I understand, Your Honor.

Unknown Speaker: Well, you say that the private owner of funds cannot trace funds.

Only the Government can trace funds for some reason.

Right?

That's how you shoot down the Government's argument, assuming this only applies to funds.

Of course, it applies to other things of value as well, ships and so forth.

But just speaking of funds, why doesn't the same problem exist under your theory later on?

Funds are--

Mr. Plaisted: What they were saying was that later on innocent owners could not take because if they're taking after the date of the criminal act, they take nothing.

And so, if this example doesn't have meaning, innocent owner has no meaning.

Unknown Speaker: --Your client takes the funds, puts them... takes them over to the bank, gives them to the bank.

Mr. Plaisted: Right.

Unknown Speaker: The Government seizes them from the bank.

Mr. Plaisted: Right.

Unknown Speaker: How can she get them back?

She can't because you say private individuals can't trace funds.

Only the Government can trace funds.

Mr. Plaisted: What I'm saying is she can't enforce against the Government--

Unknown Speaker: Right.

Mr. Plaisted: --a third party, her debt from B, and I agree.

And so all I was saying was that this example breathes no meaning into innocent owner at all because it is meaningless.

Thank you very much.

Unknown Speaker: Thank you, Mr. Plaisted.

Ms. Wax, you have a minute remaining.

Rebuttal of Amy L. Wax

Mr. Wax: Your Honor, Justice Scalia was right, that we haven't focused very much on the language of the statute.

So, it's that to which I'd like to turn right now.

The term Ms. Ann... Ms. Goodwin's house in this case.

There can be no question about that.

Now, since it applies, this house and the money used to buy that house, I should say, belonged to the United States at the time that it was generated through an illegal transaction, and that follows from section 881(h) of the statute vesting title in the United States in all assets described in Subsection (a)(6), all things of value, all proceeds traceable to such an exchange, including the subcategory of assets that is ultimately exempted from forfeiture because it belongs to an innocent owner.

Now, since the United States gets title to that property upon commission of illegal acts, she cannot be owner.

Chief Justice Rehnquist: Thank you, Ms. Wax.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Touby v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:41 +0000

Case:

Touby v. United States

Media File:

90-6282_19910417-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Joel I. Klein

Chief Justice Rehnquist: We'll hear argument this morning first in No. 90-6282, Daniel Touby v. the United States.

Mr. Klein.

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

The statute that we challenge... the temporary scheduling provision of the Controlled Substances Act gives the Attorney General unchecked power to adopt and then to enforce criminal prohibitions against previously lawful behavior.

We think the statute raises two important structural issues concerning Congress' power to delegate criminal rulemaking authority.

First, may Congress combined in one government official two core separated functions... the power to create a crime and the power to prosecute individual violators?

And second, may Congress bar judicial review of criminal rulemaking determinations, either completely as we read the statute, or at least until after someone is indicted, as the Government reads the statute?

Our argument is that neither practice... neither practice, much less both in the same statute is consistent with a government of properly separated powers.

Now, before addressing each of these issues individually, I'd like to emphasize at the outset how unprecedented this statute truly is.

This Court of course has never approved either practice.

And that's not surprising, because for all intents and purposes Congress has never adopted these kind of practices in any previous statute.

So far as we can tell no statute gives the Attorney General or any other official the power to make and enforce a criminal sanction against purely private conduct.

The example that the Government gives... the only example I presume that they were able to find... is regulations controlling prison access.

But we think that's so entirely distinguishable, because the Government there and the Attorney General is responsible for the operation of that building much as any department would be for the operation of its own buildings.

But that's very different from purely private conduct.

Unknown Speaker: What about the President?

Mr. Klein: The President?

I'm not sure I understand.

Unknown Speaker: There are a lot of statutes that give many Federal officials the right to define crimes... the Secretary of HHS, for example.

And the President can tell the Secretary of HHS, no, I don't want it defined this way, I want it defined another way.

Now, that crime would be prosecuted after it's defined by HHS by the Attorney General.

But the President can also tell the Attorney General, yes, I want it prosecuted, no, I don't want it prosecuted.

Mr. Klein: Yes, Justice Scalia, but I think... I think there are two distinctions there.

First of all, in both instances, that is first as you say the President has to tell them... the HHS Secretary... how he wants the crime defined.

Now, in that regard the HHS Secretary doesn't have to follow the President.

And if he doesn't in that respect, of course he's removable by Congress.

So--

Unknown Speaker: Did the Attorney General personally prosecute this case?

Mr. Klein: --No, he didn't, but he got--

Unknown Speaker: So it's the same situation, isn't it?

Mr. Klein: --I don't think so.

Unknown Speaker: I mean it isn't that the Attorney General both... in fact did the Attorney General personally do you think define the drug offense or do you think... he delegated that to DEA, didn't he?

Mr. Klein: He did.

Unknown Speaker: So you had two different Federal officials, one making the determination of what's a crime, and another one, a United States attorney presumably, making the prosecution which is the same thing you have with HHS.

Mr. Klein: I don't think it is in a structural sense, Justice Scalia.

And I think the distinction is important.

I understand as the statute worked out there were two judgments here.

This statute, however, uniquely I suggest, gives one department both functions.

Now, I think there were both practical as well as structural considerations when you say HHS passes the statute, and then the Government... the Justice Department... enforces it.

And let me suggest to you that's not an argument that's unique to me.

That's an argument the Government makes when it says that the Department of... of EPA should not have criminal enforcement powers.

The Justice Department opposes that same look.

There should be two separated judgments here.

One is to define the crime and the other is to prosecute the violator.

Unknown Speaker: You know I expect the Justice Department as a whole today is larger than the entire Federal Government was oh, perhaps, certainly when... in the first century of... of the republic.

So that, you know, the diversity of personnel that you have would be DEA making the... one decision, the United States attorney making the other, is exactly the diversity you would have had in the entire Federal Government had two different departments done this... the work.

Mr. Klein: I... with respect, I don't think that's an accurate perception, and let me suggest I think the legislative history suggests otherwise as well.

And that is to say I think the Justice Department, at least, and the DEA... its unique perspective is a law enforcement perspective.

And I think that's not true of other regulatory agencies or departments.

And I--

Unknown Speaker: What is your constitutional point, Mr. Klein?

Is it that these two functions cannot both be given within the executive branch?

Mr. Klein: --Not... not to the same department.

Unknown Speaker: Well, what authority is there for that in our cases to say that there's some sort of internal separation of powers' principle within the executive branch?

I never heard of that.

Mr. Klein: Well, I think--

Unknown Speaker: I mean, what authority is there in our cases for that?

Mr. Klein: --Let me say the only authority that I've uncovered I think are cases like Gagnon and Morrissey which say the same person in the... in the executive cannot prosecute a parole violation as well as sit on it.

That is it separates the adjudicatory and the prosecutorial function.

Unknown Speaker: Yes, but we don't have any adjudicatory function here.

Mr. Klein: I agree, but, Chief Justice Rehnquist, I think it's fair to say the reason there's no authority... there's no contrary authority either.

And that's because it... Congress has never done this before.

Now, let me suggest to you why I think it's an important part of the delegation doctrine.

I think we have to take a step back.

I think we'd all agree defining crimes and prosecuting crimes, those are core separated functions.

There's no dispute about that.

That's why we have a Congress to begin with and an executive.

Now, what's happened--

Unknown Speaker: Except that Congress has always been able to delegate some of those functions to the executive.

Mr. Klein: --Absolutely.

Unknown Speaker: Including filling in the blanks in criminal statutes.

Mr. Klein: And... and I agree.

And the reason as I think you've pointed out in the American Petroleum cases as well as the Court, Chief Justice [inaudible], that's a product of practical necessity.

In other words, look, we realize society is too complex and too technical for Congress to be making every single decision.

So it delegates the power to fill in the blanks.

Now, having done that much as a product of practical necessity, I don't see why it follows that automatically the concern for two separated judgments is eliminated.

And up until now it's always been respected.

In other words--

Unknown Speaker: But where in... where in our cases or in what provision of the Constitution do you find a requirement of two separated judgments like you're talking about?

Mr. Klein: --I believe that's inherent in separation of powers.

I think that that is... I think that is the understructure.

That's why we have a legislative department.

Unknown Speaker: But you have no case supporting that.

Mr. Klein: Well, the only case I say is Gagnon.

I mean, why must there be a separation of the prosecutorial and adjudicatory functions?

That's within the executive branch.

If--

Unknown Speaker: Well, you don't... you don't attack the standard by which... under which Congress delegated this power, do you?

Mr. Klein: --No, sir, I don't.

I think the standard--

Unknown Speaker: So, it's delegating executive powers, not legislative powers?

Mr. Klein: --I think--

Unknown Speaker: Is that right?

Mr. Klein: --I don't agree with that.

Unknown Speaker: Well, you--

Mr. Klein: It can't.

Unknown Speaker: --Well, then you must be saying... challenge the standard.

The delegation... you think the delegation is too vague or something.

Mr. Klein: Justice White, if I can... I don't want to... I don't want to debate words... but I think by definition Congress doesn't delegate executive functions.

If it delegates, it's delegates legislative functions.

That's its role.

That's why I think the Court said, look, we need an intelligible standard.

You can't tell the Attorney General go make criminal--

Unknown Speaker: Well, if it's an intelligible standard, what authority does... what kind of a power does the executive exercise when it... when it responds to that delegation?

Mr. Klein: --I believe the executive exercises executive power.

However, I think the question of whether its executive power in the sense that it's not law-making power is just not accurate.

There's no question today that the Attorney General--

Unknown Speaker: That's true.

Agencies and the executive are constantly making regulations, the violation of which are criminal.

Mr. Klein: --Absolutely.

And this Court has said time and again that's a product of practical necessity.

We can't expect Congress to do the fine details.

But why does it follow... and the fact that there's no precedent I suggest isn't instructive because the issue is one of first impression... why would it follow if you need executive expertise to define a standard that therefore you can merge would have to be two classically core-separated functions?

I mean, I can't understand... when we start out we have a legislator and an executive.

I would suggest if you go back to... to Locke and to Montesquieu and so forth, the basic function in those two different departments is on the one hand, one makes the criminal law and the other enforces it.

Now, we have said that--

Unknown Speaker: And you say this is a separation of powers case?

I thought you... it isn't a due process case or something like that?

Mr. Klein: --I believe that... I believe it's a separation of powers, but I think... I think a part of separation of powers is due process.

It's the process by which we govern ourselves.

And I think that's what separation is.

I don't think there's any substantive difference.

In Gagnon the Court found it to be a due process violation.

Unknown Speaker: You've cited, Mr. Klein, Gagnon a couple of times.

What's the full name of that case?

I haven't been able to run it down yet.

Is it Gagnon against Scarpelli?

Mr. Klein: Gagnon v. Scarpelli and Morrissey v. Brewer, Your Honor.

Unknown Speaker: And is it cited in your brief?

Mr. Klein: Yes, it is.

It's cited in our reply brief.

Unknown Speaker: It's not cited in your opening brief I guess.

Mr. Klein: No, it's not.

It's cited in our reply brief.

Unknown Speaker: Mr. Klein, the scheme adopted by Congress also provides for some permanent regulations of schedule 1 drugs; does it not?

Mr. Klein: Yes, it does.

Unknown Speaker: And the Attorney General plays a role in that as well?

Mr. Klein: Yes, he does.

Unknown Speaker: And can also prosecute for those.

Now, are those... do you make the same argument with respect to the permanent--

Mr. Klein: No, I don't--

Unknown Speaker: --regulations?

Mr. Klein: --and I think there's a critical distinction.

Unknown Speaker: And why not?

It seems to me that undercuts the position you take with regard to the temporary regulations.

Mr. Klein: I... let me say what I think the critical distinction is, Justice O'Connor.

And that is in the permanent statute, before the Attorney General can do anything, the Secretary of Health and Human Services has to approve the schedule.

That is, the matter goes first to HHS.

HHS makes a determination on the scientific factors and has absolute discretion to veto any proposed schedule.

So you have two clear, separated judgments there.

Unknown Speaker: And that gets back I suppose to the problem Justice Scalia asked you about.

Both of these are executive functions, and normally I don't think we think of separation of powers as distinguishing between executive functions.

It's all the executive branch whether one, two, or three different officials are involved.

Mr. Klein: I agree that we normally don't think of it that way, but that's because I don't think this issue, which I think is unique in our history, has been raised before.

I don't think there's any problem.

For example, I wouldn't be here saying, you can give power to OSHA but not to EPA or to any other agency.

What I'm suggesting is there's an underlying core principle which I think we share, and that is criminal laws should be made by Congress or, to the extent that they have to be delegated as a matter of necessity, we should make sure there are two separated judgments.

It's not a perfect separation.

Unknown Speaker: But there aren't separate... you either have to make it depend upon the executive, in which case the President has everything, or else your objection is that it's the same person that's doing both.

And it isn't the same person doing both.

It's the Administrator of DEA in one case and the United States Attorney in the other.

Now, they both happen to be in the Justice Department.

But it's the same thing if it's the Secretary of HHS and the Justice Department.

They both happen to be in the executive branch, but they're different people.

Mr. Klein: But, Justice Scalia, with respect, the statute says the Attorney General has the power.

I'm tackling the statute.

I understand he subdelegated it.

We question that, too.

The statute says the Attorney General, he can make this drug a crime.

Unknown Speaker: And the Constitution says that the President can make the drug a crime, because any power that's delegated to the Attorney General belongs to the President.

The President can tell the Attorney General to change it.

Even if it's given to HHS, you have it technically in one person: the President of the United States.

So if the image of it... if it's somehow not the practicality of the matter, but the theory that troubles you, that theoretical problem exists in every case.

It is theoretically the President of the United States who's making both decisions.

Mr. Klein: But I think... I think the theory is even... is even questionable in the following sense.

If the attorney... if the President tells the Attorney General to make something a crime, I don't think the Attorney General is required to do that.

I think the... that's happened before where the President has instructed a Cabinet officer and the Cabinet officer has declined.

So I think it's a structural matter.

It's not the same--

Unknown Speaker: And the Cabinet... in Jackson's administration... the Cabinet officer was removed by Andrew Jackson for refusing to remove the funds from the bank.

Mr. Klein: --That's still a different consideration, Mr. Chief Justice, than making something a crime.

The President cannot make it a crime.

The President can fire the Attorney General, presumably.

The President can take other actions.

Unknown Speaker: Well, and he can get a... get a new Attorney General, just like Andrew Jackson did, who will make it a crime.

Mr. Klein: Ultimately, I suppose, that's right, but I think that's a significant check.

Unknown Speaker: Well--

Mr. Klein: But I think to say that that is some... somehow no different from having on the one hand Health and Human Services promulgating a criminal enforcement regulation, and on the other hand, the Attorney General being in power to enforce it, that seems to me to be a very big difference structurally.

Unknown Speaker: --Gagnon is not a separation of powers case at all.

Mr. Klein: It's a due process case.

Unknown Speaker: It's a due process case.

Mr. Klein: I agree with that.

But I... I think that due process has an underlying core of separated powers.

Unknown Speaker: Well, that really just sounds very, very mushy to me to say that due process has an underlying core of separation of powers.

That's not just your melding together somehow about 200 years of constitutional law.

Mr. Klein: But I... I don't mean it to be mushy.

I just think that both due process and separation of powers go to the way in which we govern ourselves vis-a-vis the individual and--

Unknown Speaker: Well, so do all eight provisions of the... of the first eight amendments.

So does every provision in the Constitution.

Mr. Klein: --Okay.

But I... but I think from our point of view if this were... I don't think there's any substantive difference if this were a due process violation than if it's a separation of powers.

I think it's more properly categorized here as a separation of powers, because of what I view as two separate judgments.

Now, the second point in this statue which is equally novel, and I think equally troubling, is the elimination or curtailment of judicial review.

Now, I want to say at this point we're starting from a provision where there is no check.

That is, the two checks, even if they're not required, they're eliminated, and the Attorney General now has the power to make a crime and to enforce it.

And the question is can Congress then eliminate or severely restrict judicial review.

There's some dispute about the language which I want to come to.

But the Government agrees that this statute says there could be no pre-enforcement review.

In other words, the Attorney General can take any drug and he can make it a crime... or the DEA administrator... for 18 months, during which period... no matter whether that appears to be arbitrary, inconsistent with the intelligible principle that Congress set down or what have you.

During that 18 month period, no citizen can seek judicial review unless he's willing to first of all violate the statute.

Second of all, subject himself to investigation and prosecution.

And then third of all, take the risk that if his challenge turns out not to be correct, he can be convicted for 10 or more years for having violated it.

Now, we think that is a phenomenal amount of power in and of itself, even if you couldn't back it up with the enforcement power that the Attorney General can.

Let me give you an example.

Suppose we had a reg at the Department of Transportation, and that reg said that the Secretary could determine for a period of 18 months which cars are unsafe and that should be done in accordance with the kind of criteria here, dangerous to the public and so forth.

And if that statute said, for 18 months nobody could judicially challenge it except after prosecution, I think we would see clearly that that is a tremendous amount of power that's unwarranted, that shouldn't be granted, and that the fundamental structural check of judicial review should be preserved here.

Unknown Speaker: Well, I don't understand why.

I mean that happens every time Congress passes a law certainly.

You... you don't... a criminal statute, you... if you want to challenge it, you violate it.

It may be unconstitutional, but you have to wait until you're prosecuted, and then you challenge it at that point.

Mr. Klein: I don't think that's correct.

I think there are two avenues that this Court has widely recognized.

And one of course Congress provides for immediate judicial review of regulations in terms of the courts of appeals.

And that's a customary practice.

And second of all, this Court time and again has upheld district court challenges, pre-enforcement challenges to the constitutionality of a statute.

You don't have to wait until you violate it.

Unknown Speaker: Oh, you certainly do unless you've been... unless you're affected by its mere existence... unless your business is affected by its mere existence.

Mr. Klein: Well, but that's the key distinction.

Here if you're affected... if I... if I take... if I am manufacturing this drug, and I am affected by this regulation, according to the Government, the only thing I can do is violate it and test it.

If I am driving an automobile, under the hypothetical I gave you, Justice Scalia, and I'm driving that car and this regulation comes into effect and says you can no longer drive it.

According to the Government, I've got to violate the law and take the risk of penalty.

That's not happened before.

In fact the only case that came close in the Abbott Labs in the Toilet case, Justice Harlan for the court read it exactly the opposite--

Unknown Speaker: You're saying Abbott Labs is a constitutional decision?

Mr. Klein: --I say the only time it happened the statute was read the other way.

That is Justice Harlan read the statute not to bar preliminary review.

And the... and the Justice Department... I mean, the Attorney... pardon me... the Government gives no example--

Unknown Speaker: I thought Abbott Labs was considered quite a novelty when it was pronounced, that you're entitled to pre-enforcement review of a regulation.

I never thought that it was regarded as a constitutional decision, that you are absolutely entitled under the Constitution to pre-enforcement review of a regulation.

Mr. Klein: --There is... it's not a constitutional decision, although I suggest that a year later in Oestereich, Justice Harlan at least suggested that pre-enforcement review is a constitutional necessity.

But Abbott Laboratories, I think its novelty is what is the standard in terms of equitable discretion as to when a court will hear it.

That seems very different from a congressional bar.

Here Congress is saying, this is the law of the land... for 18 months nobody can go into court and challenge it.

Unknown Speaker: Well, Estep pretty much involved the same thing under the Selective Services Regulations, didn't it?

Mr. Klein: But Estep the court read into the Selective Service Regulations a post-induction... you don't have to be indicted.

You go into the military--

Unknown Speaker: Yes, but you couldn't challenge it before you were inducted.

Mr. Klein: --You could challenge it if you went into the military.

In other words, you could--

Unknown Speaker: Well, but--

Mr. Klein: --seek habeas corpus.

But--

Unknown Speaker: --Being inducted means going into the military, I think.

Mr. Klein: --Yes, oh, I'm sorry.

I thought you said indicted.

Unknown Speaker: No, inducted.

[Laughter]

Mr. Klein: But you could there be... you could challenge it prior to any indictment.

And the other thing I would say is those are adjudicatory determinations.

They're not generic rules, which is exactly the point the Court relied on in interpreting Oestereich, or Justice Harlan relied on... that in the one instance we're talking about thousands of individual classification decisions.

Even there you can get judicial review.

And in the other instance we're talking about a generic criminal rule.

Unknown Speaker: Well, you can get judicial review here, too, of your... of your... you can get the thing reviewed in your criminal prosecution.

Mr. Klein: Well, I think that's constitutionally inadequate for the reasons I've given.

But let me suggest I don't think that's clear from the statute either, Mr. Chief Justice.

That is, I think the Government is making that concession for the first time in this Court, because they can't defend the statute as it's written.

The statute as it's written... the words are absolutely clear... say that the scheduling order under the temporary statute is not subject to judicial review, period.

It doesn't say anything about pre-enforcement or post-enforcement or timing or anything.

That's what the statute says, and I think if you take those words for what they must mean, they mean that even after you're indicted and even after you're convicted, you cannot test whether or not this regulation complies with the underlying statute, with the standards.

That's what it says and I think that's a blanket prohibition.

And I don't think the Government should be allowed to re-write the statute to say that.

Unknown Speaker: Well, the court of appeals read it that way, didn't it?

Mr. Klein: The court of appeals even read it more curiously, Justice White, that if it didn't--

Unknown Speaker: Well, I thought it said that they anticipated that they would allow... they would allow judicial review in the course of a prosecution.

Mr. Klein: --They said we don't foreclose that.

They didn't say they'd allow it.

And second of all, I think frankly they are misreading the statute, too.

Unknown Speaker: Well, they obviously didn't read the statute the way you did if they didn't foreclose it.

Mr. Klein: Well, I... I think they didn't read it the way I did.

The district court read it exactly the way I did.

The court of appeals--

Unknown Speaker: Well, that's the judgment we're reviewing.

Mr. Klein: --said... that's correct.

But I think that the statute, Justice White, speaks for itself.

That is, I don't think there's a question of law.

I don't think the court of appeals reading is entitled to any deference.

And as I say, the words, it seems to me, are absolutely clear on this issue.

And then the Government says, well, those words mean you can't have pre-enforcement review, you can have post-prosecution review.

Well, do they get that?

You know, up until now, with Congress' limited judicial review, it virtually always limits it to pre-prosecution review.

And there's a reason for that... that is, cases like Yakus or Adamo Wrecking or so forth.

Congress says, look, you're not going to be able to challenge this into prosecution because we want to get the standards settled.

There's a sort of finality interest that Congress has.

For the first time in this statute, it's basically saying, according to the Government without the words, you can challenge it only in an... after you're indicted in a criminal prosecution.

And we don't think the words bear that.

The final point I'd like to make is simply with respect to subdelegation and the issue of assigning this to the DEA.

Our argument is just a straightforward one, and that is the power at issue here is certainly unique.

Even if the Court should find that unconstitutional, it's unique.

And we think that relying on subdelegation statutes that go back 10, 15 years before this power was ever contemplated, that reliance on that is really unwarranted here, that a contemporary expression with this kind of power of the authority to subdelegate.

After all, a subdelegation clause provides the power to give this to any, quote, "employee" of the Justice Department.

And we think, as the Tenth Circuit said in the Widdowson case, the analogue for this one, that that's just too broad a power to allow under a general delegation.

Unknown Speaker: Mr. Klein, may I ask you to comment on a problem that I haven't quite been able to figure out.

You've described this as a case in which the Attorney General is given the power to define a new crime, in effect.

Mr. Klein: Yes, sir.

Unknown Speaker: But as I understand the Food and Drug Act, if this were a new drug, and it's not approved by the Food and Drug Administration, it is already a crime to distribute it.

So that really what he's able to do is not define a new crime but increase the penalties for an existing crime.

Mr. Klein: I think that's not accurate.

Let me explain why if I might, Justice Stevens.

And that is to say, under the Food and Drug Act, if I produce this drug in my house, which is what my client was convicted of, that's not a crime.

He was convicted of manufacturing and conspiracy to manufacture.

Under the Food and Drug Act, if I had sold this drug in interstate commerce, that would be a crime.

But the act for which my client was convicted would not have been a crime, but for the Attorney General's... or the DEA's determination.

Unknown Speaker: I see, because that only... the Food and Drug prohibition only attaches the act of selling--

Mr. Klein: In interstate commerce.

Unknown Speaker: --introducing in the... into commerce.

Mr. Klein: That's correct, sir.

And that would be true as well for possession, not just manufacture, but possession as well.

I'd like to reserve the balance, Mr. Chief Justice.

Unknown Speaker: Very well, Mr. Klein.

Mr. Minear, we'll hear from you.

Argument of Jeffrey P. Minear

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

I'd like to begin with clarifying the point that you just discussed with Mr. Klein, Justice Stevens.

In fact, this... this activity would be illegal under section 360 for the Food, Drug and Cosmetic Act, because that requires any manufacturer to register with the FDA before engaging in any manufacture.

So in fact, there would be a violation.

This would be a violation of the law in any event.

Unknown Speaker: Well, then if that's true, let me ask you this further question.

Part of the Government's rationale for the whole program is the emergency that the... there must be prompt response to a new drug of this kind.

I'm a little puzzled as to what was the emergency if it was already illegal?

Mr. Minear: Well, part of the problem here... it's perhaps best, Your Honor, to explain exactly how these situations arise.

What normally happens is a drug enforcement investigation leads to the seizure of a drug laboratory.

Upon examination of the materials in the drug laboratory, they find that the person is selling particular drugs.

That person might be selling these drugs as amphetamines or speed or some other drugs that are controlled.

In fact, a further review reveals that these drugs are in fact a... they mimic the dangerous effects of that drug, that they are not in fact controlled.

At that point, the DEA makes a determination whether they should seek to further control those drugs, to place them on the list.

And at that... in that manner be able to apply the full force of the criminal law against this--

Unknown Speaker: In other words, it's really a matter of just increasing the penalties for what is already illegal.

Mr. Minear: --Largely that is what the effect of this is.

Unknown Speaker: And that's the emergency, that you've got to have the stiffer penalty immediately.

Mr. Minear: Yes, because otherwise the misdemeanor penalty is simply not sufficient material for--

Unknown Speaker: Well, you're in jail... you can go to jail for a year... isn't it that 1 year in jail is the punishment?

Mr. Minear: --Yes, that's right.

That's simply not enough to deter this type of activity, which can be very, very remunerative in terms of the amount of money that can be made on those types of sales.

Congress enacted section 201(h) of the Controlled Substances Act to deal with the serious health problem.

Illicit drug dealers attempt to avoid laws prohibiting the Controlled Substances Act or to attempt to avoid laws prohibiting the sale of controlled substances by producing and selling drugs such as euphoria involved in this case.

It mimics the dangerous effects of a controlled substance, but is not listed as such.

Section 201(h) authorizes the Attorney General to take prompt action to protect the public with the dangers associated with the misdirected creativity of these underground chemists.

If the Attorney General finds that the unlisted drug poses an imminent hazard to the public safety, it has no approved medical use, he may list that drug as a schedule 1 controlled substance for as long as 18 months while he completes the permanent listing process.

Now, petitioners acknowledge that Congress has authority to protect the public health through some mechanism allowing the executive branch to list eight dangerous drugs on an emergency basis.

They argue, however, that Congress' use of the Attorney General to effect that result is an unlawful delegation of legislative power.

Petitioners concede that section 201(h) lays down intelligible principles that guide the Attorney General's exercise of emergency listing discretion.

That concession, we submit, should resolve the delegation issue.

This Court has repeatedly held that Congress does not delegate legislative power as the Constitution uses that term.

Or it gives an executive branch official discretion to define unlawful conduct and also lays down guidelines that channel the executive branch officials exercise of that discretion.

The reason for this is clear.

Congress can enact laws whose application depends on the satisfaction of certain conditions, and then give the executive branch official the task of determining whether those conditions have been satisfied.

The executive branch official does not in that situation exercise legislative power.

He's not making law subject only to constitutional limits in electoral accountability.

Rather he's executing Congress' will.

The task of determining whether a law should apply to particular facts is simply one aspect of executing that law.

Congress must of course give the executive branch intelligible direction to ensure the executive is executing Congress' will rather than exercising de facto legislative power.

Unknown Speaker: You're saying there's no such thing as a constitutional delegation?

Mr. Minear: That is... I think that is right.

Unknown Speaker: The term delegation is really a... a misusage.

There's either a delegation in which case it's unconstitutional or there's no delegation.

Mr. Minear: I believe that's absolutely right, Your Honor.

Unknown Speaker: Now, as you have heard, petitioners concede that section 201(h) amply satisfies the intelligible principle test.

They nevertheless argue that section 201(h) is unconstitutional delegation of legislative power, because Congress has given the Attorney General rather than some other executive branch official the power to list dangerous drugs.

You would make that usage more common if you wouldn't refer to it as an unconstitutional delegation of legislative power.

If you just said it's a delegation of legislative power.

Mr. Minear: Certainly.

Unknown Speaker: And therefore unconstitutional.

When you say it the other way, people are inclined to refer to constitutional delegations of legislative power.

Mr. Minear: Yes, Your Honor.

Unknown Speaker: Has the Court's opinions been as pristine as Justice Scalia would like?

Mr. Minear: I'm afraid that it's not.

Unknown Speaker: So you have... you're in good company at least.

Mr. Minear: As this Court has repeatedly emphasized, the Constitution divides government power into three co-equal branches of Government.

It does not dictate how Congress might assign responsibilities within the executive branch.

Rather Congress' broad authority under the necessary and proper clause to select the President or one of his subordinates to perform an executive function.

There's no constitutional requirement that Congress vulcanize the executive branch's regulatory and prosecutory functions.

In this instance, Congress gave the Attorney General responsibility for temporarily listing dangerous drugs, because it determined that he's best situated to respond promptly and effectively to the public health threat.

Certainly Congress entitled... is entitled to make that determination.

As I explained before, these enforcement... the listing is usually preceded by enforcement action that leads to the discovery of these drugs.

Now, Congress' decision to give the Attorney General both regulatory and prosecutive functions is not, as petitioners suggested in their opening brief, entirely unprecedented.

Congress has given the Attorney General criminal enforcement power in all three of the basic areas where the Attorney General has regulatory responsibilities.

In the case of controlled substances, the Attorney General plays the principal role in the permanent listing decision... even in the case of drugs that have medical uses.

In the case of prisons, the Attorney General has authority to regulate the introduction of anything whatsoever into prison and to punish violations, including violations by people who are not prisoners and not subject to the Attorney General's custodial responsibilities.

Now, the Attorney General has exercised that authority since at least 1948, and it has withstood repeated delegation challenges.

In the case of immigration, it's a crime to bring aliens into this country at locations other than designated ports of entry.

Now, the Attorney General has authority to designate ports of entry under 8 U.S.C. 1229.

He has delegated that authority to the Commissioner of the INS.

What we see here really is that in any case where the Attorney General has regulatory responsibilities, he also has prosecutorial responsibilities as well.

Indeed, what is unprecedented in here is petitioners' extraordinary approach to what constitutes an unlawful delegation.

Under petitioners' view, the question would turn not on the proper relationship between the Congress and the executive branch, but rather on whether a given executive branch official, in this case the Attorney General, is the appropriate person to administer prisons, to determine lawful ports of entry for aliens, or to designate dangerous drugs.

Petitioners also contend that section 201(h) violates separation of powers, because the section does not provide for judicial review of the Attorney General's temporary listing decisions.

That argument however is incorrect.

Section 507, the Controlled Substances Act, contains special provisions for judicial review which may be invoked upon permanent listing of the substance.

Section 201(h)(6) prevents and individual from invoking those provisions until completion of the permanent listing decision.

But even then it does not prevent an individual who is prosecuted in the interim from obtaining judicial oversight of the Attorney General's action in the enforcement proceeding.

In this case, petitioners challenged only the constitutionality of section 201(h)--

Unknown Speaker: May I ask about your theory of how you read the statute?

How would the defendant go about challenging?

Would he file a motion... a pretrial motion, or during the course of the trial--

Mr. Minear: --That is correct, Your Honor.

You would file a pretrial motion to dismiss the indictment.

In this case, they filed a pretrial motion to dismiss the indictment on the ground that the section 201(h) was unconstitutional.

Unknown Speaker: --And would they be entitled to put in evidence in support of that motion?

Is that your view?

Mr. Minear: Yes, they would.

Unknown Speaker: They could put the whole record in, get into arguments about the procedures that were followed in the... by the Attorney General and the likely kind of thing you might--

Mr. Minear: Excuse me, I didn't mean to interrupt.

Unknown Speaker: --It occurs to me that perhaps you're inviting some protracted proceedings in advance of trial in a lot of criminal cases in these things.

Mr. Minear: I think not, Your Honor, because I think what would happen in these cases is that we would rely on the administrative record that was compiled for the emergency listing.

The review of that would be a question of whether the listing of this drug was arbitrary and capricious.

We'd apply the same APA standard in that case.

We are quite confident that our record is such that we would have little difficulty in winning this... these... this--

Unknown Speaker: And if the judge should dismiss an indictment, I gather you can appeal that, can't you?

Mr. Minear: --Yes, we would appeal.

Unknown Speaker: You can appeal an order dismissing the indictment.

Mr. Minear: Now, as I said in this case the petitioners could have challenged the listing of euphoria in this particular case, but they chose simply not to do that.

They say--

Unknown Speaker: Why can they do that in light of the words in the statute?

Mr. Minear: --Our construction of the statute is as follows.

It precludes... section 201(h)(6) says... states that there shall be no judicial review of any order of the Attorney General.

That reference to judicial review we believe applies to the specific judicial review provisions of the act containing section 507.

In other words, it prevents a party from seeking review under section 507 of the Controlled Substances Act.

But it does not prevent a party from raising a challenge as a defense to their prosecution.

Now, it might be... you find in cases that raising the challenge in the enforcement proceeding is sometimes referred to as judicial review.

But normally judicial review is conceived of as an action that's initiated to challenge agency action rather than a defense to a prosecution.

Unknown Speaker: You're saying it really means it's not subject to judicial review under the provisions of this statute.

Mr. Minear: It says there shall be no judicial review.

Unknown Speaker: Is not subject to judicial review... an order issued under paragraph 1 is not subject to judicial review.

Mr. Minear: That is correct, Your Honor.

Unknown Speaker: And you say except in a criminal proceeding.

Mr. Minear: Yes, we would say that in a case of criminal proceeding it's a different situation where you're allowed to raise that as a defense.

Unknown Speaker: Where is judicial review provided for?

Mr. Minear: It is section 507, which is--

Unknown Speaker: What's that?

Mr. Minear: --21 U.S.C. 877 is the statutory--

Unknown Speaker: That's not... that's not in your brief.

Mr. Minear: --No, I believe it is summarized in a footnote in our brief, however.

Unknown Speaker: 21 U.S.C.?

Mr. Minear: 21 U.S.C. 877.

I'm afraid I'm not able to find it.

Unknown Speaker: I'll get it.

It's all right.

Mr. Minear: Now, there's nothing unusual in challenging agency action in a criminal enforcement proceeding.

And indeed, prior to the enactment of the Administrative Procedure Act, one could often challenge administrative determination only in the course of an administrative... or in the course of a criminal prosecution.

The bridge cases that we cite, cases like Union Bridge and the Monongahela Bridge accompanied.

Both involve that situation where there's a administrative determination that was challenged in the criminal enforcement action.

Unknown Speaker: Well, if somebody is prosecuted for violating a regulation, the violation of which is made a crime, I would suppose he could plainly defend the... his prosecution on the... on the basis that regulation is inconsistent with the statute.

Mr. Minear: Yes, and in fact, the APA recognizes that.

And section 703 of the APA states that unless the specific provision provided precludes that type of challenge, it is permissible.

Unknown Speaker: Yes, but of course the Yakus case holds that if there is a provision that precludes judicial review, he cannot do that.

Mr. Minear: That's right.

And if in fact this was... if section 201(h)(6) were interpreted to preclude and it review... even in an enforcement proceeding... then this case would be very much like Yakus.

Now, in Yakus--

Unknown Speaker: The difference would be that there they at least allow judicial review for a stated period of time.

Mr. Minear: --Yes, at some point after the criminal enforcement proceeding, as in here.

If you look to Yakus at... I believe it would be at 321 U.S., page 436, there's a discussion of this.

The same discussion is made in Bowles v. Willingham, which is... also appears in that volume of U.S. reports.

Unknown Speaker: Do you agree that this statute would be unconstitutional if you read section 6 to preclude judicial review entirely?

Mr. Minear: No, no.

This would not be unconstitutional.

Unknown Speaker: It wouldn't.

Mr. Minear: It would not be unconstitutional in this--

Unknown Speaker: Well, then why should I read it that way?

Mr. Minear: --We believe this is the best reading of the statute in light of the guidance this Court has given it in interpreting judicial review provisions.

This Court is hesitant to conclude that judicial review has been completely precluded.

Unknown Speaker: It doesn't say here under it.

It just says no judicial review.

Mr. Minear: That's correct, and if the Court wished to read the statute like this--

Unknown Speaker: I mean, if you told me... you know... there's a real constitutional problem otherwise, I... you know... I'd stretch a point.

And I'd say in order to avoid unconstitutionality, you interpret it that way.

But you're telling me it wouldn't be... it would be perfectly constitutional.

Mr. Minear: --We believe it would still be constitutional, and for this reason.

The activity that these parties are engaged in is illegal already.

There is no real due process limitation, or no liberty interest that's being... that needs to be protected here under the due process--

Unknown Speaker: As applied you say at least it's constitutional.

Mr. Minear: --Yes.

Unknown Speaker: It won't always be the case that a drug he defines is necessarily already a crime under the Food and Drug Act.

Mr. Minear: Well, I think we can presume that it... that we're entitled to that presumption in determining the constitution... constitutionality of the statute that they... that he would act properly under the statute.

Now, in fact, in Yakus, I should point out--

Unknown Speaker: Let me just go back for a second.

Mr. Minear: --Yes.

Unknown Speaker: What is your authority for the proposition that if you read the statute the way your opponent does, it clearly would be constitutional?

Mr. Minear: First would be the... the Yakus.

Unknown Speaker: The Yakus is the closest you get.

Mr. Minear: The Yakus is the closest situation.

Unknown Speaker: Right.

Mr. Minear: It's worth pointing out though, however, that in some cases there certainly can be delegations of executive power for which there is no judicial review.

The APA recognizes that.

Some cases have in fact recognized that as well.

Unknown Speaker: I understand, but your position is just as novel as your opponents in this particular issue.

Mr. Minear: No, I do... with all respect, Your Honor, I think it is... I think that we have... certainly have much stronger case support than they do.

Unknown Speaker: I'm not saying that, but you don't have the case on the nose and neither does he.

Mr. Minear: That is correct.

In sum, petitioners had more than ample opportunity to obtain judicial review of the Government's decision to list euphoria as a schedule 1 controlled substance.

Their failure to challenge the Government's decision, either after completion of the administrative proceeding or in the enforcement proceeding, simply underscores the lawfulness of the Government's action.

I'd like to respond to a couple of the points that were raised in the opening argument.

One, petitioners note that there have been suggestions in the executive branch that there should be some division of executive and prosecutive and regulatory powers.

We've made those suggestions as a policy matter and not as a constitutional matter.

This is a constitutional issue that's posed here.

With respect to Gagnon v. Scarpelli, I think the more... the more compelling precedent would be Withrow v. Larkin.

In that case, this Court noted that, as a general matter, there is not facially violative of due process to combine both a prosecutorial and an adjudicative function.

It indicated it might be unconstitutional in certain factual situations and explained cases like Gagnon on that basis.

Here we do not have a combination of the prosecution in adjudicatory function.

Instead, it's simply the regulatory and prosecutive function instead.

Also, I'd like to reemphasize the point that was made in argument that the petitioners' reliance on the Abbott Lab case is really misplaced here.

That was a statutory... in case of statutory interpretation.

The due process principles that were applicable in this area were set forth in the Ewing case that was decided before that time.

And then finally I think it's... I should mention the subdelegation issue.

Petitioners also contend that the Attorney General lacks statutory authority to delegate his section 201 responsibilities to the Administrator of the Drug Enforcement Agency.

Congress, however, is authorized that subdelegation in two separate statutes.

As we explain in our brief, there is no indication in either of those statutes that Congress intended to exempt section 201(h) from subdelegation.

The Attorney General accordingly has ample statutory authority to delegate his temporary listing responsibilities to the Administrator of DEA.

Unknown Speaker: May I ask on that question, how far down the line could he delegate?

If you read the statute literally, could he give the power to an assistant United States attorney or to a secretary or to a research assistant or somebody like that?

Mr. Minear: We... we think under Buckley v. Valeo this would have to be exercised by an officer of the United States.

Now the Administrator of the DEA is obviously an officer of the United States and that would dispose of the--

Unknown Speaker: You say it would have to be an officer of the United States?

The statute doesn't say that.

Mr. Minear: --No, the statute does not say that.

But again the delegation provision here is a general delegation provision covering the statute at large.

Unknown Speaker: I understand.

Mr. Minear: So there certainly could be responsibilities that could be delegated to employees.

Unknown Speaker: But you think there's an implied limit on what the statute seems to say on its face?

Mr. Minear: We think there might be a constitutional limit on that, yes.

Unknown Speaker: Is the theory of the Federal Enclaves Act, in which the Federal Government for its properties incorporates the existing criminal law of the State, has that ever been challenged under delegation principles?

Mr. Minear: I'm not aware of any challenge to that.

I would also point out that in... for instance in 36 C.F.R., the Department of Interior has created an entire criminal code for the national parks, where various... all sorts of infractions violate the law.

And there's never been any challenge to my knowledge to that.

Unknown Speaker: Could the Congress delegate to the Attorney General the authority to declare any common law crime applicable on any Federal territory?

Mr. Minear: I think that that would depend on a question of whether there's an intelligible principle that has been stated there.

Unknown Speaker: If it's necessary for the public safety?

Mr. Minear: I think that we might... well, the broader the delegation I think the more insistent we are that there be a clear... a clear indication of an intelligible principle.

Here the intelligible principles are very precise.

There's no challenge to them whatsoever in this case.

However, in some... in the extreme case I think we can demand more from Congress in terms of intelligible principles the broader the... the delegation authority might be.

If there are no further questions... thank you.

Unknown Speaker: Very well, Mr. Minear.

Mr. Klein, you have 4 minutes remaining.

Rebuttal of Joel I. Klein

Mr. Klein: Yes, very briefly, Mr. Chief Justice.

A couple of points.

First of all, on this issue of whether prior behavior was already criminal, Justice Stevens, to begin with even under the Government's view, if I've registered, which lots of people do, then it is no crime for me to manufacture this drug in my home.

But once the Attorney General passes this regulation, it then becomes a crime.

So something that was noncriminal is now a crime.

By the same token, I could possess this drug.

There is no requirement there.

And that becomes a crime once it's scheduled.

The second point I want to make is on judicial review.

And the Justice Department says what the statute really refers to is 877, which is the general judicial review statute.

That statute only says there shall be judicial review in the courts of appeals.

It doesn't say anything at all about judicial review in district courts.

So the... the Government's argument doesn't even fit its own theory.

In other words, if all that Congress meant to do was take out 877, which the words don't support.

But if that's all that it meant to do, there still could be pre-enforcement actions, injunctive and declaratory, in the district courts, because this statute doesn't mention it and that is a common and typical way.

So I suggest to you that the Government's forcing the words doesn't even go with its theory.

Finally, the issue of whether it would be constitutional, Justice Scalia, to eliminate judicial review here altogether seems to me at least the Court has said twice that it would be impermissible.

That is in Skinner v. Mid-America, which is a delegation case.

I realize... the terminology is the Court's not mine.

In that case, the Court said that a delegation of power was valid so long as, quote,

"a court could ascertain whether the will of Congress has been obeyed. "

That point was made as well in Chada.

So I suggest to you if this was a blanket preclusion, that in fact it would not comport with these... with this Court's principles and that's exactly why the Government is trying to fiddle with the language.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Klein.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Chapman v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:42 +0000

Case:

Chapman v. United States

Media File:

90-5744_19910326-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of T. Christopher Kelly

Chief Justice Rehnquist: We'll hear argument first this morning in No. 90-5744, Richard L. Chapman and Others v. the United States.

Mr. Kelly.

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

The petitioners asked this Court to restore rationality to what Judge Posner termed the bizarre the schedule of punishments in LSD cases that no one is able to justify.

The issues before this Court are whether an LSD carrier, in this case blotter paper, is a mixture or substance containing LSD within the meaning of 21 U.S.C., section 841.

And if so, whether the sentencing scheme at issue here violates a defendant's due process right to be free from arbitrarily determined sentences.

The Government stipulated that LSD is sold by the dose, not by weight.

A dose of LSD is very small.

In fact, it's infinitesimal in size.

It weighs about 50 millionths of a gram.

Because it is so small, individual dosages are generally distributed on a carrier.

The petitioners in this case distributed 1,000 dosages of LSD on blotter paper.

The combined weight of the blotter paper and the LSD was about 5.7 grams.

The Government stipulated that the actual weight of the LSD apart from the blotter paper was less than 1 gram.

In fact, it was about 50 milligrams or less than 1 percent of the combined weight of the LSD and the blotter paper.

Unknown Speaker: What's the relation of a gram to an ounce or a pound, Mr. Kelly?

Mr. Kelly: There are 28 or about 28 grams in an ounce.

Unknown Speaker: 28 grams in an ounce.

Mr. Kelly: Uh-huh.

Unknown Speaker: Well, when the LSD is put on the paper, does it remain a microdot or does it... it spread to the boundaries of the paper if the paper is big enough, and how big is the paper?

Mr. Kelly: There are actually two different ways of placing LSD on blotter paper.

One is to mix the LSD with a solution of alcohol and spray it across the paper.

The other way is to place a dot of LSD onto the center of a square of blotter paper with a pipette.

Blotter paper generally comes in sheets that are about 10 inches square and they're perforated into 100 squares.

Each square would represent one dose of LSD.

Unknown Speaker: How... how big is a square?

Mr. Kelly: A square is about 1-inch square.

Unknown Speaker: About an inch square.

Mr. Kelly: Yes, Justice Kennedy.

Unknown Speaker: I have one other technical question.

Mr. Kelly: Sure.

Unknown Speaker: When LSD is transported to this person who is going to put it on the blotter paper, I take it it's not pure, is it?

Do you have a pure vial of LSD that's commonly distributed or is it cut when it's delivered to the dealer?

Mr. Kelly: It's not cut in the sense that cocaine, for instance, is cut by mixing it with mannitol.

Unknown Speaker: Perhaps I should have said mixed.

Mr. Kelly: Generally if LSD is being distributed in liquid form in a vial, Justice Kennedy, it would be done in a fairly high point in the distribution chain.

If it's being distributed to the average consumer, it will be distributed on blotter paper or on another carrier such as a sugar cube or gelatin capsules.

Those are the carriers most commonly used.

Unknown Speaker: Well, as it goes to the person who's going to put it on the blotter paper, what kind of container is it in and is it mixed with anything else?

Mr. Kelly: It's probably going to be in something like a vial.

And if it's mixed with anything else, it would only be, again, if it had been in a solution of alcohol to facilitate spraying it.

Unknown Speaker: Before you end with the so-called technical questions, I didn't understand your response to Justice Kennedy to explain what happens when the substance hits the blotter paper.

Does it penetrate into the fibers of the blotter paper?

Mr. Kelly: It does penetrate into the fibers.

It, in essence, soaks through.

Unknown Speaker: So, in a sense, one could say it is mixed with the fibers of the blotter paper?

Mr. Kelly: It depends, Justice O'Connor, in what sense one is using the term mixture as to whether that would constitute a mixture.

If one--

Unknown Speaker: Well, in some sense one could say that.

Mr. Kelly: --In some sense one could say that.

It fair to say that the word can be interpreted broadly enough to include that.

I should also... to clarify my response to Justice Kennedy's question... indicate that when we're talking about the 1-inch square blotter paper, I'm talking about what's probably an average size and that in fact the size and thickness of blotter paper does vary from case to case.

In the cases that were cited in our brief, individual squares of blotter paper, for instance, ranged in weight from 5.5 micro... or milligrams to 15.4 milligrams.

Unknown Speaker: I still didn't understand that one half of your answer... one that's... when is a dot is put on a square, does the dot expand to the full area of the square?

Mr. Kelly: No, it will probably expand somewhat, but it won't cover the entire square.

Unknown Speaker: But it doesn't cover the entire square, so the square would be partly just blotter paper and then it would get increasingly concentrated as it gets to the middle.

Mr. Kelly: That's correct, Your Honor.

Unknown Speaker: But if it's sprayed on, it extends to the full extent of the square?

Mr. Kelly: That's correct, because generally it's going to sprayed across the entire sheet.

Unknown Speaker: It doesn't really matter whether it's a mixture.

I mean, when it penetrates the fiber, the statute and the sentencing guidelines both say it has to be either a mixture or a substance containing a detectable amount of heroin.

And it seems to me the blotter is either a mixture or a substance.

You've got to say the blotter is a substance, isn't it?

Mr. Kelly: Certainly there is a sense in which blotter paper is a substance, as is any material thing.

Unknown Speaker: Yes.

Mr. Kelly: Interestingly the majority in the case below suggested that blotter paper is probably not a substance in that sense and found that it was a mixture.

The courts of appeals have been divided as to whether it's a mixture or whether it's a substance.

I don't think that it's a substance in the sense that Congress intended that term.

Because if the term if read that broadly, then anything that carries the LSD could viewed as a substance.

And whether that's a vial or whether that's blotter paper or a syringe or a Boeing 747, a suitcase... sure, one can think of all kinds of example.

I don't think that that's the sense of substance in which Congress intended the word to be used.

I think what Congress was getting at when it used the phrase, mixture or substance, are those things which multiply the value of the drug by weight which multiply the amount of the product which can ultimately distribute... be distributed to the ultimate consumer.

And that's the sense in which it's used when we're talking about a cutting agent.

If one mixes cocaine with mannitol for instance, one creates a larger amount of product which can be distributed to the ultimate consumer.

And that's what Congress was getting at, because Congress wanted to impose more severe punishments upon distributors who are causing greater social harm by multiplying the amount of the product that's available for sale.

Unknown Speaker: Well, why isn't that the case... I don't see why that's not the case with respect to the blotter as well.

I mean, every time you take a fixed quantity and mix it with a larger... with a larger substance you dilute it more and more... the greater the substance you mix it with, right?

And it's the same with the blotter.

The... if you use a little blotter which is of a light weight, you're not able to distribute it to as many people.

If you use a larger blotter, it will be more diluted but you can distribute it more widely.

Mr. Kelly: That's really not the case with LSD, Justice Scalia.

One dose of LSD is one dose of LSD.

If it's... if one dose is placed on one square of blotter paper, that can be distributed for the use of one consumer.

If it's... if 100 doses are placed on 100 doses of blotter paper, those can be distributed to 100 consumers.

It's not diluting the LSD to place it on the blotter paper.

Essentially what a... what a consumer can do after receiving a square of blotter paper with LSD on it is either swallow the blotter paper whole or place the blotter paper in his mouth.

The saliva in his mouth will create a wash which will separate out the LSD from the blotter paper.

After that's done, he can take the blotter paper out and throw it away.

The LSD is just as pure as it was before it was placed on the blotter paper.

It hasn't been diluted at all.

Unknown Speaker: Well, why is there a dose of LSD and there is not a dose of cocaine?

Mr. Kelly: LS--

Unknown Speaker: I mean you speak as though it doesn't matter how strong it is.

Is that so?

Mr. Kelly: --LSD is distributed in relatively standardized doses that tend to be, as I indicated, about 50 millionths of a gram.

A--

Unknown Speaker: It is or it must be?

Mr. Kelly: --It is.

I don't think that there's any reason other than practical reasons that it must be.

Unknown Speaker: Well, but unless it must be, then I am correct that the more blotter paper you use, the more distribution you can make, just as the more... whatever you mix cocaine with... you use the more distribution you can make.

Mr. Kelly: Well, the... it's correct, Justice Scalia, that if you have more LSD, you need more blotter paper in order to distribute it to the market.

But it's also true that if you have more cocaine, you need more bottles to put the cocaine in to distribute it in the market... to the marketplace.

But nobody's weighing the bottle.

The bottle is just a carrier for the cocaine or the envelope or paper bindles or whatever is being used to carry cocaine.

But nobody weighs those bindles or those envelopes.

It's no more logical to weigh the blotter paper which is just being used as a carrier or a delivery vehicle for the LSD.

Unknown Speaker: Are you saying there's a standard dose of LSD, but there's not a standard dose of cocaine?

Mr. Kelly: Cocaine is sold in--

Unknown Speaker: I mean so far as the person who is going to ingest it?

Mr. Kelly: --Justice Kennedy, cocaine is sold by weight.

So the only standard dose is in terms of a user going out and deciding for himself how much cocaine he's going to buy.

Unknown Speaker: But he can vary that.

If he wants to have a lot of cocaine or a small amount of cocaine, he has a choice of a range of... we might call doses.

But that's not true in LSD, or am I incorrect?

Mr. Kelly: I guess the difference is that if a user goes out and buys a quarter gram of cocaine, the user has a choice of how much cocaine he's going to consume at one time.

A user of LSD generally is not going to take more than one dose of LSD, because taking additional doses isn't going to give any particular additional benefit to that user.

Unknown Speaker: Well, some people would say taking the first dose didn't give him much benefit.

[Laughter]

Mr. Kelly: I would certainly agree with that, Chief... Mr. Chief Justice.

Unknown Speaker: Isn't... I guess I have two questions about your argument.

The first is, when the LSD is placed on the blotter paper, it bears the same relationship to the blotter paper that the cocaine does to the cutting agent, doesn't it?

Because it's no longer possible at least without sophisticated chemical reductions to distinguish between the drug and the substance that it is associated with, whereas when you're dealing with bottles or suitcases or automobiles, that is not true.

So that in that respect, the analogy between the blotter paper and the cutting agent for cocaine is in fact a legitimate analogy, isn't it?

Mr. Kelly: It's not in the sense that the purpose of the cutting agent or the diluent is to multiply the amount of the drug that's available for sale.

Unknown Speaker: Well, that... I guess that gets to the second question I wanted to ask, and it's something that you came close to in responding to one of Justice Scalia's questions.

It is the... it is true, isn't it, that without the combination of the LSD and the blotter paper or the sugar cube... whatever it may be... as a practical matter you could not distribute the LSD in commercial or at least in... in consumable form, because as I understand it, the amount of LSD that is necessary, and indeed I guess even possible for the effect that the users want to get out of it, is so tiny that if you sold them tubes or jars of LSD, they simply could not use the LSD in that form.

So that if you've got tubes and jars of it, you've got something which in that form simply cannot be commercially used.

And the only way you can commercially use it is to combine it with blotter paper or sugar cubes.

And in that sense, by making that combination, you do make it more broadly distributable than it would be without the combination.

And that is exactly the same thing that goes on when the cocaine is cut with whatever it's combined with.

Isn't that true?

Mr. Kelly: It's true that as a practical matter, it's generally necessary to have some sort of a carrier in order to deliver the LSD conveniently to a consumer.

Unknown Speaker: Well, you... as a practical matter you couldn't sell it on the street without doing that, could you?

Mr. Kelly: Well, there have been cases and there's one cited in my reply brief in which an individual ingested liquid LSD directly into his eyeball, apparently from a pipette or a... something akin to an eye dropper, but that's not--

Unknown Speaker: But if that were the only way you could sell LSD, the market for LSD would... would be considerably less, wouldn't it?

[Laughter]

Mr. Kelly: --It would probably diminish greatly, Your Honor, yes.

Unknown Speaker: Okay.

Mr. Kelly: I think my point is that it's certainly a... probably a unique property of LSD that it is so infinitesimal in size that it requires a carrier.

But I don't think that Congress intended to weigh the carrier simply because of the fact that a carrier is needed to carry this drug.

It's... nobody carries cocaine in their pocket.

You have to have a carrier to transport cocaine to the user as well, and that's generally a paper bindle, an envelop.

Unknown Speaker: Well, no... no one is saying here that if you put the blotter paper in a paper bindle or an envelop that you're going to weigh the envelop.

I mean that's the analogy to the... to the cocaine, isn't it?

Mr. Kelly: I think the more apt analogy, Justice Souter, is that if you took a piece of blotter paper and folded it into a bindle and used it to carry cocaine, nobody would weigh the blotter paper.

But if you used the same piece of blotter paper to carry LSD, courts are weighing it.

It's no less--

Unknown Speaker: For the... for the simple reason that you can easily distinguish in your analogy... in your example you can easily distinguish between the cocaine and the blotter paper.

And you can't easily distinguish between the LSD and the blotter paper.

And by the same token, the blotter paper is used as a means of ingestion in the LSD case.

It is not used as a means of ingestion in your example.

Mr. Kelly: --I don't think that Congress had in mind, Justice Souter, that the ingestability was the factor that would count something as a mixture or substance.

Again, it appears from the legislative history of section 841 that what Congress wanted to do was visit more severe sentences upon high-volume dealers.

The ingestability of the carrier has nothing to do with the volume of the LSD that can be distributed.

Unknown Speaker: But... but there is a correlation between the means used to prepare something for ingestion and the breadth of its potential distribution.

And that is what Congress was getting at.

And that seems to me just as true in the LSD in relation to the blotter paper as it is of the cocaine in relation to whatever substance it is mixed with.

Mr. Kelly: Again, the fact that LSD requires a carrier, Justice Souter, does not to me to suggest that Congress intended to weigh that carrier when Congress isn't weighing any other kinds of drug carriers.

Once we start weighing the carriers, we see the absurd results that I've discussed in our briefs.

Unknown Speaker: How do you... are you using the term carrier as a word of art?

Mr. Kelly: I'm using carrier as a generic term for something that transports a drug.

Unknown Speaker: Some... something that... a suitcase would likewise be a carrier?

Mr. Kelly: I would say a suitcase would be a carrier, Mr. Chief Justice.

Unknown Speaker: Well, this is a fairly unique carrier then, because it's... the drug is actually mixed in with it, isn't it?

Mr. Kelly: Yes, the drug is... the... I don't know if mixed in with it is a correct term in practice.

Unknown Speaker: Well, I thought, in answering one of the previous questions, you said that it did mix?

Mr. Kelly: I think that the term can be read that broadly, sure.

Unknown Speaker: So that would distinguish this carrier at any rate from carriers which are, you know, like... like a suitcase, a box, a bottle, something like that, where there... where there isn't any combination.

Mr. Kelly: I think that's a distinguishing feature, but again I don't see that as a feature that would motivate Congress to want to weigh that carrier.

I don't know why Congress would want somebody to receive a sentence that's almost 20 times longer if he uses a sugar cube as a carrier than if he uses blotter paper as a carrier.

Unknown Speaker: Well, [inaudible] dealt particularly with LSD, and it used those words, LSD?

So--

Mr. Kelly: Congress used--

Unknown Speaker: --What do you think it meant?

Mr. Kelly: --Congress used those words with regard to every drug in section 841.

Unknown Speaker: Yes, but it also did it with LSD.

Mr. Kelly: Correct.

What I--

Unknown Speaker: Well, what did it mean... what did it mean then?

Mr. Kelly: --I think what Congress--

Unknown Speaker: Suppose... suppose the LSD was... you put a little drop of LSD in a... in some orange juice, would that be a mixture?

Mr. Kelly: --LS... if... a single--

Unknown Speaker: Well, would it... would it be a mixture?

Mr. Kelly: --Again, I think that the word can be certainly be read broadly enough that it could be.

Unknown Speaker: Well--

Mr. Kelly: But I don't think that Congress intended it to be within the meaning of the statute.

Unknown Speaker: --Well, what did it mean with respect to LSD?

Mr. Kelly: I believe that--

Unknown Speaker: They apparently believed that LSD could be mixed with something.

Mr. Kelly: --Sure, it could be mixed for instance--

Unknown Speaker: And if it... if it was mixed with something, you weighed the mixture.

Mr. Kelly: --I think when it's mixed--

Unknown Speaker: Is that right?

Mr. Kelly: --When it's mixed with alcohol in order to... which does to some degree increase the volume when it's being sprayed... I think it's very appropriate to weigh that.

I think when it's placed on another controlled substance or mixed with another controlled substance, it's very appropriate to weigh the entire mixture.

For instance when it's mixed with methamphetamines.

Those are cases that are clearly covered by the statute.

But something that's simply being used to facilitate transportation of the drug isn't what Congress was getting at, because that's not something that adds to the value of the drug by weight.

There's no rational relationship between--

Unknown Speaker: I take it then you suggest that we should just forget about the words mixture or substance, when LSD is involved, because LSD is always... when it's sold, it's always being carried in something else.

Mr. Kelly: --No, as... as I indicated I think there are situations when these words are very meaningful in the context of LSD.

When--

Unknown Speaker: Tell me again.

Mr. Kelly: --When it's being mixed with alcohol in order to spray it.

I think that's a mixture or substance.

When it's being mixed with another controlled substance which is methamphetamines.

That's certainly a mixture or substance.

Possibly Congress was also attempting to get at things like LSD tartrate or isomers or salts... things like that.

Unknown Speaker: So at least you say that you ought to weigh not just the LSD in a dose, but the alcohol it's been mixed with?

Mr. Kelly: Correct.

That's--

Unknown Speaker: So you're... you... you're saying that for purposes of the statute that... there cannot be a mixture unless the medium of mixing can be varied in such a way as to dilute the drug itself more or less.

And you're saying the blotter paper does not dilute it more or less.

There's the same amount on a given piece of blotter paper.

And the same amount on a given piece of sugar.

Is that the argument?

Mr. Kelly: --That's essentially true, Justice Souter.

Unknown Speaker: But your argument rests then I think on the assumption that there cannot be a mixture within congressional purpose unless the mixture gives a means of varying concentration, whereas it seems to me that the purpose of Congress was to deal with mixture as a means of varying the ease of distribution.

And if the latter is the real characteristic of mixture, then you've got a mixture when you combine the LSD with the blotter paper in the same way that you have a mixture when you combine the cocaine with its cutting agent.

Mr. Kelly: I think we have to keep in mind that section 841(b) is not a statute that prohibits the use of blotter paper.

There is a separate statute in the Federal code that prohibits the use of any drug paraphernalia that certainly encompasses blotter paper.

841(b) is a punishment statute.

841(a) prohibits the distribution of LSD in any form.

So in construing a punishment statute and a punishment statute that's based on weight, I think we have to wonder whether Congress thought that there was some relationship between the weight of blotter paper and the sentence that should be imposed.

And I can't imagine that Congress could have contemplated such a relationship, because there isn't one.

The dealer who is selling LSD on a heavy blotter paper is certainly no more culpable than the dealer who is selling LSD on a lighter blotter paper.

Unknown Speaker: When he's selling it on blotter paper as opposed to selling in it a jar or a tube, he is selling it in a way which makes it more likely to reach more people.

And therefore, it seems to me that implicates the notion of mixture.

It's an entirely different argument to say... and I realize that you... that you're going to get onto this... it's a very different argument to say that the various means of mixtures of LSD raise equal protection or due process problems.

But that's... that's not it seems to me the question for the statutory interpretation, which is whether there's a mixture there at all.

Mr. Kelly: I think, Justice Souter, that in order to interpret the statute, one has to divine what Congress meant by the term mixture or substance.

And one has to ask whether Congress would have intended these dramatically varying results based on something that has absolutely nothing to do with culpability.

Certainly that has implications for the due process and equal protection argument as well.

Unknown Speaker: Are you going to address your constitutional argument, because assuming we disagree with you on the statutory question, I suppose that's what you're left with?

Mr. Kelly: I would be happy to do that, Justice O'Connor.

It's a--

Unknown Speaker: Before you do that, can I ask you one more question?

Mr. Kelly: --Sure.

Unknown Speaker: There have been an awful lot of factual discussion in the opinion below and in the briefs and in the argument.

Nobody seems to disagree about the facts, but are they verifiable for us if we didn't understand how you... you know, some of the factual... is anything in the record that tells us all this that you've told us about drug distribution?

Mr. Kelly: In the record in the Chapman case, there is very little.

In the record in the Marshall case, which was joined with Chapman case at the Seventh Circuit, there's a transcript that has testimony of a couple of chemists.

There are also a number of pharmacological texts and--

Unknown Speaker: Are they also experts on the methods of distribution in the illegal drug trade and all?

I mean do they describe how it is in fact done when it's done illegally?

Mr. Kelly: --There are a number cited in the briefs.

Licit and Illicit Drugs is one of the texts that's available that does discuss LSD.

Unknown Speaker: There doesn't seem to be any controversy, but I'm just a little concerned about the... okay.

Mr. Kelly: With regard to the constitutional question, if the Government's interpretation of the law is correct, the question becomes whether basing sentences on what amounts to a completely arbitrary factor violates the right to due process of law.

Unknown Speaker: Now, what line of cases are you relying on for that proposition?

Mr. Kelly: Essentially we're relying on a number of cases that, in a variety of contexts, have held that due process prohibits the Government from being arbitrary.

Unknown Speaker: What's... what's your... what do you think is the best case you have going for you?

Mr. Kelly: I guess it's hard to pick out which one is the best.

The evidentiary presumption cases such as Tot, the Eastlake case that deals with zoning.

There are a number of cases that--

Unknown Speaker: Well, those are really quite far afield from this subject.

Mr. Kelly: --They're far afield, but the principle, the underlying principle, is the same.

And that is that Government cannot be arbitrary.

Unknown Speaker: But has this Court ever thrown out a legislative sentence on the grounds that you're urging here?

Is there any case in which we've done that?

Mr. Kelly: I'm not aware of one in which sentencing scheme has been thrown out, but I'm not aware of any sentencing scheme that has based sentences on a factor that is completely... as completely arbitrary as the one that exists in this case.

Unknown Speaker: What about Weems and Solem?

We have... we have several cases that are thought by... one that clearly requires that sentences be proportionate.

Mr. Kelly: I--

Unknown Speaker: Isn't it a disproportion... disproportionateness of sentencing that you're mainly complaining about?

Mr. Kelly: --Disproportionateness of sentences is one aspect of it, and that's an aspect that respondent Marshall raised in his brief and that was the focus of his argument.

I certainly think that that's a valid criticism of this sentencing law, yes.

Unknown Speaker: Well, I thought it... I thought it's your only criticism.

I mean I assume that--

Mr. Kelly: It's... disproportionality is certainly part and parcel of our argument.

It's actually the arbitrariness of the factor that drives the sentence that is what we've been focusing on.

The fact that two equally situated offenders who commit exactly the same crime get radically different sentences based on whether they use their sugar cube or whether they use their piece of blotter paper... piece of heavy blotter paper or piece of light blotter paper... or gelatin capsule or didn't use anything at all to distribute the same amount of LSD.

Unknown Speaker: --They have it within their own power to remedy those disparities, don't they?

I mean, they can adjust their means of distribution.

Mr. Kelly: They could, although I think it's doubtful that any LSD dealer who was ever aware that something like this could happen, and in any event whether they can choose their own poison or not, I think the Constitution still requires that sentences not be meted out in an entirely arbitrary way.

And that's what's happening here.

Unknown Speaker: Why do you seize on the due process clause?

Didn't Judge Posner say equal protection was involved?

Mr. Kelly: I... that's correct.

And because we're dealing with a Fifth Amendment phrase, I guess I'm talking about due process because we have to talk about equal protection as being incorporated into due process.

They're again part and parcel of the same argument.

If I may, Mr. Chief Justice, I'd like to reserve the balance of my time.

Unknown Speaker: Very well, Mr. Kelly.

We'll hear now from you, Mr. Larkin.

Argument of Paul J. Larkin, Jr.

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

LSD infused blotter paper is a mixture or substance containing detectable amount of LSD.

There are certain matters in this regard that unfortunately were not in the record, because petitioners did not make this an evidentiary matter in the district court.

But the court has shown some interest in the technical side of it, and so let me explain some of the facts behind the conclusion I just stated.

As petitioners--

Unknown Speaker: Well, where are you getting these facts?

Mr. Larkin: --The facts that are not in the record I will clearly identify to you as being told to me by chemists at the DEA.

There are other facts that are... some of which are in the literature that has been cited in the briefs.

And a goodly number of it is in the opinions of the Sixth Circuit courts that have addressed this issue.

Those courts, for example, have looked at LSD infused blotter paper and have treated them as a mixture or a substance.

For example, in this case the Seventh Circuit said that LSD infused blotter paper is a mixture and that is an accurate characterization, because what happens when you make LSD is as follows.

You can take the blotter paper and use an atomizer and spray the LSD on it.

That, for example, is how respondent Marshall prepared the blotter paper.

And that fact is at paragraph 27 of the presentence report in Marshall's case.

You can take the atomizer and spray the paper, and that will distribute the LSD solution, that is, LSD in alcohol or water over the paper.

Unknown Speaker: Does that make it a... which does it make it... a mixture or a substance?

Mr. Larkin: You can I think accurately describe it either way.

The Seventh Circuit in this case used the term--

Unknown Speaker: Well, supposing he... he sprayed furniture polish on the top of a table.

Do you have a mixture or substance composed of the table and the furniture polish?

Mr. Larkin: --I don't think so.

The furniture polish and the top of the table don't mix together in any way.

It's--

Unknown Speaker: Well, they're stuck together... aren't they stuck together in precisely the same way the--

Mr. Larkin: --Well, I mean if you polished them in and... so that the... it becomes absorbed into the wood, then what you have is a mixture of the wood with the polish.

The polish is now part of the wood.

And something similar happens in this case.

For example, you can take tongs and take blotter paper and dip the blotter paper into the solution.

And that is one easy way of making sure the solution spreads out entirely over the entire paper.

For example, the Tenth Circuit in one of the cases we cited used the word "absorbs" to describe the inner action between the solution and the paper.

The paper will absorb the solution.

In that sense you can have a mixture, and that satisfied both the dictionary and even in fact the scientific definitions given to that term.

The two units are... the two items are mixed together.

And in fact in the scientific definition, they're mixed together because you can take them apart.

There is no chemical bond between the LSD solution and the paper.

So the Seventh Circuit was correct in describing it as a mixture.

Unknown Speaker: --And you think that that's all that's needed to comply with it?

Mr. Larkin: Correct.

Correct.

Unknown Speaker: So suppose I'm a... I'm not a distributor of LSD at all.

I buy one of these postage stamp size squares of blotter paper, and I don't like sucking on blotter paper so I drop it in a glass of orange juice which I... must weigh... you know, must be more than 10 grams.

And all of a sudden I get a 10-year minimum sentence?

Mr. Larkin: Correct, if you distribute it.

If you only have it for personal use, the mandatory minimums in 841 do not apply, because that is for the manufacture or distribution.

Unknown Speaker: Oh, okay, it does not apply to users?

Mr. Larkin: Users are punished under a different statute if you only have it for personal use.

So--

Unknown Speaker: Okay, so if I buy two squares, however--

Mr. Larkin: --And you distribute it, then yes.

Unknown Speaker: --And I make one orange juice for me and one for my friend and hand the orange juice to... for my friend, I'm a big time distributor?

Mr. Larkin: You are, under the statute in that case, eligible for a 10-year sentence and I might--

Unknown Speaker: Because you could... you could invite ten friends to drink the orange juice, couldn't you?

Mr. Larkin: --You could or as many as--

Unknown Speaker: You couldn't do that with a little piece of blotter paper?

Mr. Larkin: --Correct.

And it's not always a postage stamp size.

Just another little fact to clarify.

In the case of... of petitioner Chapman, they were 1-inch square, but they can vary anywhere from one-eighth of an inch to a quarter of an inch on a sheet of paper, which can be cut up into normally between 100 and... or a thousand squares.

Unknown Speaker: You say one-eighth or one-quarter.

You mean one-eighth square?

Mr. Larkin: Yes.

Unknown Speaker: Or one-eighth inch square... a square with... with a size of one-eighth inch--

Mr. Larkin: Correct.

That small... I think... as I've been told by the DEA the industry standard so to speak is probably a quarter of an inch, the reason being one-eighth of an inch is more difficult to break off if you're trying to distribute it to someone in a small quantity.

So you can have it broken down into a sheet that contains anywhere from a hundred to a thousand different doses.

Unknown Speaker: --May I go back just to the orange juice example for a minute?

Is it correct that if one of these doses... whatever the normal dose is dumped in an 8-ounce glass of orange juice and then 10 people drink it, each of the ten would get the same effect as if blotter paper had been swallowed?

Mr. Larkin: I think not, because what you would have probably is a dilution factor.

Unknown Speaker: Is... can this stuff be diluted so much that it's no longer effective?

Mr. Larkin: Yes, it can.

The minimum dosage that is likely to lead to hallucinogenic effect is 25 micrograms.

Unknown Speaker: So if 25 micrograms were dumped in an 8-ounce glass of orange juice, it would not have... it really would only be useful to sell to one person?

Mr. Larkin: Effectively.

If you had the minimum amount I believe the rest would probably be diluted.

Unknown Speaker: Yes.

Mr. Larkin: But I think petitioner has pointed out that there is some sort of uniform amount that is distributed in this regard, and according to the DEA they've told me that that's not necessarily the case.

For example, the sentence--

Unknown Speaker: But it is true... it is true if whatever that normal minimum amount is is consumed on a blotter paper in the one case, sugar cube in another, and a glass of orange juice on the other, there will be dramatic differences in the sentence to which the distributor would be exposed?

Mr. Larkin: --Correct.

If you increase the total quantity in that respect, you will increase the weight and it can potentially affect the mandatory minimum [inaudible]--

Unknown Speaker: And even though it doesn't increase the number of likely purchasers of the substance?

Mr. Larkin: --Well, if you were only taking one at a time--

Unknown Speaker: That's right.

Mr. Larkin: --then that might be true.

Unknown Speaker: Yes.

Mr. Larkin: But respondent... but petitioners for example are accused also of being irrational, but they themselves subject... are subject to some of the same irrationalities.

For example, petitioner said he would count LS... he would count the 10 ounces of alcohol if LSD was an alcohol, but he wouldn't count ounces of the orange juice.

In our view, what Congress did in 1986 was pass a statute that was designed to strike at drug trafficking in whatever form it was found, whether a drug was found pure or impure, cut or uncut, ready for distribution at the wholesale level or the retail level, or ready for consumption by the consumer.

Now, there is no doubt that adding different cutting agents... carrier mediums, if you will... will increase the exposure a person has under the statute, and that's because Congress clearly picked a weight-based approach.

But the percentage--

Unknown Speaker: Well, that would be true for cocaine or something else, would it not?

I mean, if it... if as you increase the cutting agent and decrease the strength of the pure cocaine, you're increasing the range of sentence that might be applied here.

Mr. Larkin: --Precisely.

And the figures in the case of LSD don't differ by several orders of magnitude from the figures that you can see in the case of heroin.

For example, in this case the LSD that was distributed by Chapman had a percentage value of.877.

That distributed by Marshall was.59.

That's less than 1 percent.

But that's not off by degrees of magnitude from the type of heroin you can see on the street.

We've cited in our brief different cases and in those cases they have identified the percentage amount of heroin in some of the drugs that were seized.

And that some of that percentage amount of heroin was as small as 1.2 percent.

The DEA also engaged in what is called their domestic monitor program to see what the purity of different drugs is, and they purchase them on the street as a result.

And in the domestic monitor program that we pointed... cited to... the study we cited to in our brief, the purity in some cases was as low as.6 percent.

And then it varied dramatically, sometimes from city to city.

In Baltimore, for example, 3.1 percent was the average amount of heroin found in some samples, whereas in New York it can vary up to perhaps as much as 40 percent.

Plus some of the studies that were cited in the... in the books, in the amicus brief for example, said that the average amount of THC which is the active ingredient in marijuana in an average marijuana cigarette can be 1 to 5 percent.

The average amount of THC which is the active ingredient in hashish, found in street-level hashish, can be 4 to 10 percent.

So the dilution factor that you see in the case of LSD is not markedly different from the dilution factor you see in the case of other drugs.

Now, it's also doubtless the case that there will be people who deal in quantities of cocaine that are much purer... people who are further up the chain.

And the statute allows a court to take that into account.

After all, the phrase mixture or substance is responsible for two things under 841(b).

It can trigger a mandatory minimum, and it can set a range.

But it's within that range that a district court can sentence.

It's not irrational, therefore, for Congress to legislate in this manner, because what Congress decided to do was change the drug sentencing system around.

In 1970, Congress took its first step at this problem.

It passed the Comprehensive Drug Abuse and Prevention and Control Act.

That act classified controlled substances according to schedules and set penalties based on the type of schedule involved.

Congress changed the system in 1984.

As part of the Comprehensive Crime Control Act, Congress introduced the principle that the sentence should vary according to the purity of the drug involved.

And then in 1986, Congress once again revised the system and adopted the one we now have today.

In the Anti-Drug Abuse Act of 1986, Congress introduced the principle that the mixture or substance containing a detectable amount of a drug should be used as the basis for calculating the sentence.

The statute is quite clear in that regard.

This was not a careless way of drafting.

What's clear is that you cannot simply look to the amount of pure drug.

Certainly when you're dealing with drugs like cocaine or heroin, and also when you're dealing with the... drugs like LSD.

And the reason... one of the reasons you know that from the text of the statute itself is that the pure quantity of methamphetamine or PCP can sometimes serve as the basis for sentencing.

Congress, therefore, clearly knew how to distinguish between the quantity of pure drug involved and the quantity of the mixture or substance containing detectable amount of the pure drug involved, and it is the latter that we have here.

Unknown Speaker: Mr. Larkin, how do you distinguish... as I assume you do... the blotter from the suitcase or the glass or the bottle?

Do you... do you adopt Justice Souter's line whether it is readily extricable from whatever it is mixed or mixed with or contained in?

Mr. Larkin: Yes, that is a reasonable way of looking at it.

Keep in mind that this problem of unusual hypotheticals only arises when you're looking to the word "substance".

No one would say that a Buick containing a certain quantity of cocaine is mixed with the cocaine.

Unknown Speaker: That's right.

Mr. Larkin: It's only when you're using the word "substance".

Now, Congress in the word "substance" didn't use, we think, a technical term.

A chemist would probably have used the term "compound" to describe the fact that there was some chemical bonding going on.

But Congress used a different term, "substance".

And it may be because what they had in mind was something like a tablet, something that petitioners generally tend to overlook.

LSD on blotter paper is not materially different from LSD on a tablet.

In each case, you have an active ingredient and an inactive ingredient.

And you have more of the--

Unknown Speaker: LSD on... on a what?

On a?

Mr. Larkin: --Tablet.

A pill.

Unknown Speaker: Uh-huh.

Mr. Larkin: LSD can be distribute in pill form.

And according to the DEA, it is distributed in pill form in roughly 9 percent of the cases.

90 percent of the cases involved blotter paper, 9 percent with tablets, and 1 percent generally everything else.

But you can distribute LSD in a pill--

Unknown Speaker: The tablets being originally some other drug than LSA... LSD I take it?

Mr. Larkin: --Well, I wouldn't necessarily call them a drug, Your Honor.

What I've been told... you can make a tablet of--

Unknown Speaker: Sugar or sucrose or--

Mr. Larkin: --Matters like that.

You can actually make it from rather simple ingredients that don't have a very complex composition.

And that it can be done with basically a pill press so that you can manufacture LSD for distribution in tablet form as well as in blotter paper form.

And if it's in a tablet form, we think that is a mixture or a substance.

You count the weight of the entire tablet.

In this respect we disagree with Judge Cummings who wrote in the dissent.

What Judge Cummings cited for his contrary review... view... were two cases that were decided under the Harrison Narcotics Act, was the predecessor to the 1970 drug act, and which did not take into account the weight of the mix... of the entire unit, because it didn't matter.

In fact, if you looked at a particular page reference in the cases he cites, all that was cited and mentioned at those pages was the fact that a capsule had a certain weight with and without the heroin that was inside.

The courts in those cases didn't draw any legal significance from that.

Unknown Speaker: --Just once again, Mr. Larkin, what does the Government contend is the test for whether it's a substance containing?

Mr. Larkin: I think the way Justice Souter put it, and the way you tried to summarize it, is a... is a reasonable way of looking at it.

Can you easily distinguish between the two?

But there's also I think perhaps another way of looking at it that I could offer to you at... as another way of distinguishing among them.

There are four ways drugs can be taken into the human body.

And after all, unless these types of drugs are taken into the human body, they are not going to have the desired effect.

You can take it orally.

You can inhale it, in which case it goes into the lungs.

It can pass through a mucus membrane in the nose or under the tongue.

Or it can be injected.

So, if you have a situation where you have something that is going to be actually consumed, taken into the body, it is a reasonable way of looking at that as being a substance.

Nobody therefore is going to have any difficulty I think distinguishing an automobile and a suitcase from a tablet or blotter paper.

Like I say, a tablet that you take that has LSD enters the body and the body breaks it down, and the drug is then dispersed throughout.

That's a relatively easy way I think of looking at it.

And that's the way in fact some... several of the courts of appeals have looked at it.

The Sixth... excuse me... the Fourth, Sixth, and Eighth Circuits have all said that the blotter paper becomes impregnated with the LSD and is then ingested.

And they have all said, therefore, the question is whether this is a--

Unknown Speaker: Would that definition of... would that definition apply if they put the blotter paper in your mouth, say, and sucked it like a tablet, and then... once you got the LSD off you spit out the blotter paper?

Mr. Larkin: --It would, because that's taking a substance in through a mucus membrane in the mouth.

For example, if you put it on gum, you would count the weight of the gum.

If--

Unknown Speaker: Yes, but the blotter... the blotter paper isn't going through the mucus membrane.

Mr. Larkin: --If... the blotter--

Unknown Speaker: I thought you were defining mixture as that which could be ingested in any one of these four ways in combination with the drug.

If that's going to be the definition, then it's not going to work for the blotter paper.

Mr. Larkin: --Well, I was... I was focusing not on mixture, Your Honor, but more on substance.

The blotter paper--

Unknown Speaker: I misunderstood.

Mr. Larkin: --can readily be said to be the mixture.

Unknown Speaker: Well, I don't think that's the confusion.

I think the confusion is you think it's enough if you... if the blotter paper is or is often, if not ordinarily, placed within the body.

You don't insist that it be swallowed?

Mr. Larkin: No, I think if--

Unknown Speaker: What... what you mean by ingested is place it within the body, even if you spit it out later.

Mr. Larkin: --Yes, in a... in a broad sense right.

Like that.

Unknown Speaker: Right.

In a consumable form.

Mr. Larkin: Correct.

So that... and that I think is a way of eliminating most of the absurd hypotheticals that--

Unknown Speaker: I just... maybe this is another absurd hypothetical, but if the blotter paper were dipped in the glass of orange juice and left there long enough for the stuff to... I take it it would leave the blotter paper and become associated with the orange juice.

Then... I'm just suggesting that maybe the blotter paper is not necessarily ingested in order to ingest the substance.

Mr. Larkin: --Oh, it doesn't necessarily have to be.

Unknown Speaker: Yes.

Mr. Larkin: If you put the blotter paper in the glass of orange that Justice White hypothesized, you would count we think the weight of the orange juice.

And in that circumstance you would be exposed to a very stiff penalty.

Unknown Speaker: No, but at the time it's sold, it's carried by the blotter paper.

At the time it's ingested, it's ingested in the orange juice form.

And I take it then... I'm trying to get an example where the blotter paper would not enter the human body the way you say it.

And I'm just suggesting it may not necessarily enter the blotter... the body if it's merely a carrier and it's used in that rather perhaps unusual--

Mr. Larkin: Yes, if you went about it that way, it would not necessarily enter the body.

Unknown Speaker: --It doesn't have to be necessarily.

I think it's... it's enough to define what is a "substance containing" if it is something that is commonly... at least commonly used that way.

That will distinguish this from the bottle and the suitcase I assume.

Mr. Larkin: I think so, and I think... I think that was the way you originally put it, which is why I tried to answer it that way.

Unknown Speaker: Do the briefs indicate the percentage of times that blotter paper is used for distribution?

Is it used half the time?

Mr. Larkin: The briefs do not, Your Honor.

And the record in the Chapman case does not.

And unfortunately, nor does the record in the Marshall case.

In the Chapman case what happened... the one that the Court has now granted review... is that Chapman and his confederates filed a motion to have 841(b) declared unconstitutional but did not attach any type of factual material in support of it and didn't seek to my knowledge an evidentiary hearing.

So it wasn't presented as an evidentiary hearing.

They were essentially taking the position that the statute was irrational, unconstitutional on its face.

Unknown Speaker: Does the literature or anything that we can rely on tell us that blotter paper is used 40 percent of the time by distributors or 20 percent?

Mr. Larkin: I can't... I do not know a particular source, but what I can point to you is this.

If you take a look at the recent circuit court decisions, and there are six of them including... actually more than six of them.

There are several of them that are being held pending this case.

Those cases tend to involve blotter paper.

And I've been told by the DEA why that is so, and can explain it to you if you'd like.

Unknown Speaker: I think we'll leave it at that.

You say they tend to involve blotter paper.

Is what you mean if you were layman, would you say they do involve blotter paper?

Mr. Larkin: Well, Your Honor, the reason I used... I used tend is... I made a mistake.

They do... these cases do involve blotter paper.

What I was trying to say basically was an answer that gave me some information that Justice Kennedy didn't want me to give.

Unknown Speaker: Let me give you another absurd hypothetical.

What if the dealer labelled his product with a warning label that said that blotter paper is not to be swallowed.

Instructions for use are dip it in a glass of water and drink the water after... after leaving it there for a minute or whatever.

Mr. Larkin: I'm sure it would make it easier to apprehend them.

I hope they would do more of that.

But they don't see it that often.

Unknown Speaker: Well, they don't sign these.

They just instruct the... the customer to do it that way.

[Laughter]

And they'd say... they'd say, warning: blotter paper is merely a carrier.

Ingest in the following way, and they give instructions that will avoid the swallowing of the blotter paper.

I take it you'd still say it was a mixture?

Mr. Larkin: I think we'd say it's a nice try but didn't work.

Unknown Speaker: Okay.

Even if they say regard this blotter paper like a suitcase.

[Laughter]

Mr. Larkin: Petitioners have also leveled the constitutional challenges to the statute, and we think the challenges have to fail.

What Congress did was try to strike a drug trafficking, as I said, in whatever form it was found.

It used weight as the medium for trying to do that.

It could have used just the type of drug that was involved, as it did in 1970.

It could have used the purity of the drug involved.

And it could even have used the dosage numbers, which is what petitioners say Congress should have done in the case of LSD.

But we don't think Congress had to.

The dilution rate that shows up in these sorts of cases is similar to the dilution rate that shows up in the case of heroin.

Therefore, it's not bizarre to see these types of results.

What you have here is a situation also in which there's no First Amendment, no conceivable First Amendment claim, that can be made.

The result is Congress is entitled to require people to stay a long way from the line.

And Congress is entitled to regulate with, generally speaking, a very blunt instrument.

Congress doesn't have to make the types of refinements that the petitioners would like.

And the best proof of that I guess is that this Court's decisions would allow Congress to pass a flat determinant sentencing law.

Whether you distribute one dose of LSD or a thousand doses of LSD, you get 20 years in prison.

That, too, is a rather blunt instrument for regulating the narcotics traffick, but it is one that Congress has the power to adopt.

As I said at the outset, LSD infused... infused blotter paper is a mixture or substance containing a detectable amount of LSD.

That is a reasonable construction of the statute in light of the market-oriented approach that Congress adopted, and the market-oriented approach is a reasonable way of striking at the drug trade.

Thank you very much.

Unknown Speaker: Thank you, Mr. Larkin.

Mr. Kelly, do you have rebuttal?

You have 2 minutes remaining.

Rebuttal of T. Christopher Kelly

Mr. Kelly: Thank you, Your Honor.

It's our position that basing sentences in LSD cases in the weight of the carrier would be about as sensible as deciding this case on the weight of the briefs.

There's simply no rational relationship between that weight and the culpability of the offender.

The Government still has not explained why Congress would want to impose longer sentences upon a distributor who sells LSD on a heavier carrier than the same offender who sells the same amount of LSD on a lighter carrier.

There's no reason Congress would want to do that.

And that can't be what Congress meant.

Unknown Speaker: It's convenient.

I mean, if you pass a prohibition law, do you have to provide different sentences for... for bringing in a gallon of wine from bringing in a gallon of... of whiskey even though the amount of alcohol is vastly different?

It's convenient.

Mr. Kelly: No, in those cases, you certainly don't.

And Judge Posner pointed that out in his dissent.

But the difference between that situation and this situation is that it's not just a question of convenience.

It's a question of rationality.

And there's no rational relationship here between what the offender is doing when he's selling it on a... on a heavier paper and getting a longer sentence for doing that, because it has nothing to do with culpability.

I've been waiting throughout two arguments in the... in the Seventh Circuit and this argument for the Government to suggest some rational reason for sentencing two identically situated offenders differently when they've committed exactly the same conduct.

And the Government has yet to do that.

I think that's why this Court is going to have to find, first, that that can't be what Congress intended by the phrase "mixture or substance".

And secondly, that if that's what Congress intended, the law has to be struck down, because it violates the right to equal protection of the law.

It's drawing distinctions between identically situated offenders.

And that distinction that it's drawing isn't based on a rational reason.

The Government's theory in this case just doesn't make any sense.

The law as interpreted by the Government just doesn't make any sense.

For that reason, we ask this Court to reverse the convictions of these defendants... reverse the judgments of the court of appeals--

Unknown Speaker: Thank you, Mr. Kelly.

Mr. Kelly: --Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The OYEZ Project

Featured:

Gozlon-Peretz v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:41 +0000

Case:

Gozlon-Peretz v. United States

Media File:

89-7370_19901030-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Peter Goldberger

Chief Justice Rehnquist: We'll hear argument now in No. 89-7370, Moshe Gozlon-Peretz v. United States.

Mr. Goldberger, you may proceed whenever you are... there will be silence in the Court, except from the advocate.

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

This case involves the interplay between two lines of Federal criminal statutes enacted over the past 6 years.

One line involves sentencing reform; the other group of laws reflects the desire of Congress to toughen drug penalties.

The judgment below required imposition of a term of supervised release for an offense committed before November 1987.

Only by reversing that judgment can all of the statutes involved here, which were certainly meant to work together, be reconciled.

In 1984, after lengthy and thorough deliberation, Congress enacted an scheme of Federal sentencing reform, a comprehensive scheme that included the abolition of parole, and also to be abolished was that special form of extended parole applicable only to certain controlled substances cases called special parole, which was... in 1984, the Sentencing Reform Act instead created a new kind of post-incarceration supervision, to be called supervised release, which was carefully defined and circumscribed in detailed provisions of that 1984 statute.

Congress realized at that time that to prepare the Federal criminal justice system to make the change to this entirely new sentencing system would take time, and that 1984 statute thus initially set a start-up period of 2 years, in fact over 2 years, for the new system before it would become effective.

Congress soon realized that it would... that 2 years would not be long enough and extended that period for another year, with the resulting effective date for supervised release and all other new aspects of the sentencing system of November 1, 1987.

Meanwhile, on October 27th, 1986, the President signed into law the Anti-Drug Abuse Act of 1986, which made a number of changes in Federal drug sentencing, especially in the higher-volume offenses.

This 1986 statute used the term, supervised release, without giving any definition for that term.

In some of its provisions, including section 1002 of that statute which is the statute involved in this case under which my client was sentenced.

Petitioner here was convicted for some of these higher-volume heroin offenses involving conduct with occurred in February 1987, which was of course after enactment of that '86 drug act on October 27th of '86 but before the effective date of the Sentencing Reform Act on November 1, '87.

Under the law... one more piece of background that's needed... under the law as existed from 1984 until the effective date of supervised release under the '86 Anti-Drug Act, persons convicted of the same offenses as the petitioner here would have been subject to ordinary parole but no other supplemental post-confinement supervision or monitoring.

For example, in this case, the petitioner has an aggregate sentence of 20 years, of which he is likely to serve about 10 in prison and then to serve the remaining 10 years on parole, ordinary pre-sentencing reform act parole.

If supervised release applies, this would be in addition to the petitioner's ordinary parole.

Unknown Speaker: And, of course, since he serves 10 years minimum, at the time that he is released all of the supervised-release provisions that Congress enacted in '84 and in '86 will be in effect.

Mr. Goldberger: In one sense--

Unknown Speaker: At the time that it is necessary to implement this scheme, the statute will be fully effective by its own terms.

Mr. Goldberger: --In one sense, Justice Kennedy, that's true, but in another it's not.

And that's because Congress provided in the effective date provisions of the '84 act which govern and control and include the supervised-release implementation and definitional provisions that not only would it have an effective date of November 1, 1987, but also that it should not apply to any offense committed before that date.

I think the language of the statute is shall only apply to offenses committed after the taking effect of the statute, so that section 35.83, which is the supervised release provision of the Sentencing Reform Act by its... by the terms of its own effective date provision, can never apply to my client's case or to the other people who committed offenses between October '86 and November 1, '87.

That was Congress' specific declaration on that subject.

So the suggestion that the case is not significant because, after all, by the time he finishes serving the 10 year imprisonment portion of his sentence we'll have a system in place.

It's true there will be a... system in place, but it won't be a system that applies to him by law.

Unknown Speaker: Well, it, it goes to the point of what Congress probably intended, and if you're saying that we can't know what supervised release means because it's an empty term without implementing provisions, there are couple answers.

One is that the implementing provisions are on the books.

They're not enforced yet.

The other is that the implementing provisions won't be needed so far as effecting the supervised release until they are fully effective.

Mr. Goldberger: Well, not only are they not applicable, and of course when we look for congressional intent, the first thing to look at is the language that specifically addresses the question.

The language which addresses that question is language which says that those implementing provisions do not apply to an offense committed at the time my client committed his offenses.

But there's another--

Unknown Speaker: Wasn't this just a mistake, as indicated by a later amendment that sought to plug the hole?

Mr. Goldberger: --Well, there have been contentions in this case that several aspects of what are involved here have been mistakes.

I... but--

Unknown Speaker: And it--

Mr. Goldberger: --it imposes intriguing problems of how--

Unknown Speaker: --You think it was all deliberate?

You don't think that there was some--

Mr. Goldberger: --Oh, in the subjective sense, do I think that Congress intended to put me in this position?

Unknown Speaker: --Right.

Mr. Goldberger: I... no.

Unknown Speaker: And us, too.

Mr. Goldberger: And especially you.

No, I don't think it was deliberate in that sense, but there are rules.

I don't think there was a member of Congress that knew at the moment that the vote was taken on the conference committee report that contained the language "supervised release"... I'd be surprised if there was a member of Congress that had fully thought through all of this.

But that's not where we look to... for the meaning of a statute.

We have rules to apply for this sort of situation, and the rule is we look to the language and if the language doesn't answer it, then to any number of other provisions.

Unknown Speaker: Well, I thought one rule was that statutes normally take effect on the date of their enactment, and section 1002 doesn't contain the language you point to.

Why didn't that become effective immediately?

Mr. Goldberger: If that... the require... the... excuse me, the axiom of construction that a statute is deemed to become effective immediately if it doesn't provide otherwise is not a rule.

Justice O'Connor, it's an axiom of construction like any other.

If it were a rule, then none of the other matters discussed in the briefs--

Unknown Speaker: Well, why don't we apply the axiom of construction then and say 1002 became effective immediately on enactment?

Mr. Goldberger: --Because there is such a wealth of other reasons not to.

And it takes something to overcome that axiom, but I would suggest that we prevent... presented those kinds of points, and they fall into basically into three categories.

First, that to put 1002 and especially its supervised-release provisions into effect immediately, is to create a set of some half-dozen inconsistencies, contradictions, and complete nullifications of related provisions of the statute that are not there if you... treat the statute as effective on November 1, '87.

The second areas of analysis that overcomes the, the presumptive axiom is the in pari materia approach, which says that we have to view the supervised-release phrase, otherwise underfined in 1002, in relation to all the other provisions dealing with supervised release, and all of them go into effect November 1, 1987.

And, third, finally, the rule of lenity.

If this is a question worth talking about, if it's a question intelligent people could answer in two ways and we can't come up with a clear, settled right answer, it's a criminal case.

So that whatever power that axiom has in civil cases perhaps to act as a trump doesn't exist in criminal cases because of the rule of lenity.

Unknown Speaker: Mr. Goldberger, are you suggesting in response to Justice O'Connor's question that there are some things we call rules of statutory construction, other things we call axioms of statutory construction... that the two are different?

Mr. Goldberger: No, I don't think so.

Well, perhaps the... to read the language and attempt to apply it as written, that's a rule.

But there's... I don't think it's fair... other than that and things of that category, I think it's fair to say that the rest of these doctrines, in pari materia and what to do with silence, what to--

Unknown Speaker: Rules... the rule of--

Mr. Goldberger: --rules that tell us what to do with silence and ambiguity.

Unknown Speaker: --And the rule of lenity.

Mr. Goldberger: And the rule of lenity are axioms, yes.

And we call them rules only using that word loosely.

That's right.

The ambiguities and contradictions which would exist here, some of them are irreconcilable and I think the Government concedes this, that if we do not adopt the November 1, 1987 effective date, which may have been gotten to originally inadvertently but which we now... is the resolution of the problem that works.

The resolution that works eliminates the problem of having several other statutory provisions, drug sentencing provisions, make cross references that don't exist.

It eliminate the problem of having... of Congress in November of '86 enacting a statute clarifying and correcting language in the drug-sentencing law which under the theory of the court below and advocated by the Government here would have been repealed some weeks earlier so that we would then have a nullity in the November '86 technical amendments act.

There are some half-dozen of those and they're all treated in the briefs and as... I don't think there, they fit well in an oral presentation but I think--

Unknown Speaker: Mr. Goldberger--

Mr. Goldberger: --Yes?

Unknown Speaker: --Judge Becker's opinion for the court of appeals mentioned problems that that court saw with going your way in the future, and Judge Becker has devoted a great deal of time of course to probation and parole.

Do you have any response to his criticisms of your approach as to the future?

What would... inconsistencies that would happen further down the line?

Mr. Goldberger: No.

Perhaps I'm remembering a different part of the opinion but I think what he was saying there, Mr. Chief Justice, is that the failure to have a uniform answer to this problem in all the circuits would create inconsistencies and problems down the line.

But I don't think he suggested that having one clear answer either way would create problems and inconsistencies.

And I would suggest that more problems and inconsistencies down the line are created by perpetuating parole and special parole for an additional year.

And indeed in the case of... as the Government seems to argue in its brief at one point and as some of the circuits have... have held to reintroduce it where it had not existed for 2 years earlier, would create far more problems down the line by having a parole system which there was no agency to administer.

I understand that just this weekend as Congress was wrapping up its business in the Judicial Improvements Act it may have extended the life of the parole commission by another 5 years.

Even to have extended it, if, if what I hear is right that if, if it has been extended from 1992 to 1997, that still doesn't cover many of these cases that have 10-year mandatory minimums or longer and then under the Government's view wind up with people... could wind up with people on parole rather than simply waiting a year until the system can be implemented in a coherent way where supervised release applies, that we have a system to understand it and a system to administer it.

In fact, there was a... an additional part of the answer I wanted to give to Justice Kennedy's question, if I could, and that was... that is that the Sentencing Reform Act provides, in that section which describes supervised release, that important judgments about supervised release are to be made by the sentencing judge at the time of sentencing.

In fact, these are one of the most... this is one of the critical ways in which supervised release is fundamentally different from parole is that it's to be decided on its length, its conditions, by the sentencing judge at the time of sentencing.

And that's not something that's going to occur 10 years in the future.

That's something that had to occur... might have had to occur as early as the early winter of 1986 and--

Unknown Speaker: Mr. Goldberger--

--Conditions were imposed at the time of sentence?

Mr. Goldberger: --Yes, sir, under 3583, subsection d.

Unknown Speaker: I thought that the period of supervised release for the category of offenders we're dealing with in this case was fixed by the statute.

Mr. Goldberger: No, Justice Stevens, that's not correct.

There is a minimum period fixed by the statute--

Unknown Speaker: Oh, I see.

Mr. Goldberger: --but the length above the minimum or... and the decision whether it's to be above the minimum is in the discretion of the judge and must be decided at the time of sentencing.

Unknown Speaker: I see.

Mr. Goldberger: I don't mean to mislead.

The are provisions both in terms of your question, Justice Kennedy, and yours, Justice Stevens, to amend and modify both the conditions and the length later.

But the initial decision is clearly imposed on the judge and by the judge at the time of sentencing.

Unknown Speaker: And there is a variety of conditions that can be imposed in supervising?

Mr. Goldberger: Yes, there are a few that are mandatory and the rest are in the judge's discretion.

In addition to these anomalies and mismatches that the theory of the lower court and of the Government just can't explain away, and in fact the Government's position is we'll worry about them in some other case.

And I hope that's not the answer.

I think that we have an opportunity here to answer the question in a way that doesn't require five more cases to resolve.

The pari materia argument tells us that when a term is used in a statute that... where no definition is given and that definition clearly refers to another statute where that term was invented, the Sentencing Reform Act invented the concept of supervised release.

It's not a term that criminal lawyers had a knowledge of before... that you have to look to that other statute and bring it in.

And then when that other statute--

Unknown Speaker: Indeed, you couldn't look to the other statute until the other statute is effective.

Mr. Goldberger: --That's correct.

Unknown Speaker: Probably improper to look to it xx it's effective.

Mr. Goldberger: That... I think that's right, Justice Scalia.

And not only that, you couldn't look to it in a case in which Congress had explicitly declared that it shall not apply.

The pari materia principle I think also goes to the internal interpretation of the '86 act, so that not only do we have to cross reference the... the special... the supervised release provisions of the Sentencing Reform Act but also the '86, November '86 technical act, but the other provisions internally of the '86 Anti-Drug Abuse Act, and that's where the pari materia argument runs into the contradiction argument.

You wind up just with so many provisions that don't work or wind up being utterly meaningless that it... you just can't have that way and have a statute that make sense.

And if the intent of Congress... if we have a presumption that the intent of Congress is to make sense and not to be absurd, you have to lead in that direction.

The legislative history doesn't help us on the intent of Congress in the sense of discussing the purpose of the change in language that occurred at that last moment of the amendment process from special parole to supervised release.

But it... and what it does tell us is Congress was in its usual end-of-October situation.

It wanted to pass a drug bill this year and get it finished, and that there's no indication that there was a considered decision to change the concept of special parole, which had been provided in the bill before that, to supervised release, but also no indication that it was doing so for this reason as opposed to that reason.

So we're in a pure analysis of the statutory language and structure which sends us to the solution that I'm suggesting.

Unknown Speaker: Is the definition of supervised release, plus all of the conditions upon it... is that in a section of the statute that does not take effect until after this?

Mr. Goldberger: That's exactly right, Justice Scalia.

That's section 3583--

Unknown Speaker: So you wouldn't even know... you wouldn't even know how to handle supervised release without consulting a portion of the statute that's not yet in effect?

Mr. Goldberger: --That's right.

The Government's position is that courts could and no doubt did look to the statute, which as I mentioned at the outset had been enacted in 1984 and was there waiting to go into effect.

But my response to that is that the statute not only by its terms wasn't effective but was inapplicable.

Unknown Speaker: Are there any cases where in the interpretation of statute we use the doctrine of incorporation of reference that we do in wills, say?

Mr. Goldberger: I think--

Unknown Speaker: Is this... there was a body of extant statutory provisions that you could look to.

They weren't in effect yet.

Mr. Goldberger: --I--

Unknown Speaker: You say these were just incorporated by reference?

Mr. Goldberger: --I suppose that's pari materia of a sort.

I'm not familiar with any other... any other concept different from that, that when Congress uses a term that has a meaning, has a definition and a meaning, it's... it's... must be understood to be incorporating that definition and meaning.

But in this case... and I don't mean that we have to blind ourselves to the existence on the books of this as yet ineffective statute.

What I mean is we do look to 3583 and we look to it and we find that Congress has told us not to use it.

And therefore, what we find is that we can't have the law, the '86 supervised-release provisions, at least going into effect before that other statute is available for the purpose of making reference to it.

As a final aid to statutory construction in the case, I do rely on the rule of lenity and I... this is not where we start.

It's not something that we use to avoid the rest of the problems and the issues, but it's a place that a defendant in a criminal case discussing a sentencing provision that is ambiguous... it's ambiguous by virtue of silence and by virtue of contradiction... is entitled to look.

The Court should not rely in making its decision in any way on an assumption that Congress intended to add new punishment, and that's what it would be in my client's case, new punishment of extended supervision, without a clear indication that intended to do so when there's another plausible interpretation.

Unknown Speaker: Mr. Goldberger--

--Do our cases extend the rule of lenity to the extent of punishment as well as to the denomination of the substantive offense?

Mr. Goldberger: Oh, yes, quite clearly so, Bifulco being the most important case and in many ways the most similar to this one.

There's a case in which the court was dealing with the antecedent of supervised release, that is special parole.

An ambiguity by virtue of silence was found, and the court, after careful analysis of the statutory language, cross references, and purpose, finally turned also to the rule of lenity and--

Unknown Speaker: But didn't the statutes presume to set a date and say that this shall take effect on October the 27th?

Mr. Goldberger: --No, there is no provision of that kind in the '86 act.

There is only... there are other... perhaps what you're thinking of is that there are other effective dates stated later than October '86 for certain specified provisions of the '86 act and silence with respect to this provision and that then... many but a minority of the lower courts upheld invokes that, that rule of presumption that Justice O'Connor referred to early on in the argument.

Unknown Speaker: Well, that does more than invoke that rule of presumption.

It calls... it calls into play another one of the, the maxims or rules, that is, inclusio unius est exclusio alterius.

Mr. Goldberger: Yes, that's right.

Unknown Speaker: By specifically specifying a date in some instances, you assume that where they don't specify it, the ordinary rule of today applies.

That... that's probably the hardest indication against your position, isn't it?

Mr. Goldberger: Well, I... it's... it's an important argument that the other side has and it would be surprising to me though if there were a difficult problem of statutory construction like this one in which you couldn't invoke some maxim in Latin on each side.

My favorite one in this case is in pari materia.

Theirs is--

[Laughter]

--expressio unius.

Unknown Speaker: Mr. Goldberger--

Mr. Goldberger: But there's more to say about it than that, which is that if the bill which provided for special parole had remained in that form and had been enacted saying special parole rather than supervised release, I think expessio unius would have won the day if someone had tried to make, in that situation, the argument that I'm making.

It was by virtue of the substitution of terminology to supervised release to a term which... which necessarily makes reference to another statute and which is meaningless without that other statute, which would in effect be telling a judge, you may impose a sentence... you shall impose a sentence of something called supervise release but... of which we will not tell you the meaning.

You can impose a sentence of your own design in this case I think that's very problematic.

Unknown Speaker: --Let me just... may I ask you one question to make sure I've got this sorted out?

Mr. Goldberger: Of course.

Unknown Speaker: I mean I don't begin to have it sorted out, but the thrust in your argument is always focusing on supervised release.

But if you are correct, are you also arguing that section 1002 and section 1003 simply did not go into effect at all until November 1st?

Mr. Goldberger: There are arguments to be made and which we have made in our brief, and I'm not retreating from them but they're not the arguments that I've make so far this morning.

Unknown Speaker: I understand, but it seems to me that, that if you carry the day on the supervised release you must be saying that section 1002 is not... was not effective until November 1, 1987?

Mr. Goldberger: No, not necessarily.

There are... not all of the arguments I make are applicable to the rest of the section.

There is not that pari... the pari materia argument of incorporating the Sentencing Reform Act does not come into play for the argument against the mandatory minimums and against the non-parolability.

They are similar to and do evoke the new Sentencing Reform Act, but they are not utterly dependent on the Sentencing Reform Act in [inaudible].

Unknown Speaker: I understand, but earlier you made a... one of your arguments was that if we decide in your favor in this case, we'll avoid a whole bunch of other cases.

It seems to me if we accept your view under... on supervised release, we're next have... going to have to decide what the rest of 1002 means and what 1003 means, whether that went into effect in November 1st or not.

I don't know what the answer to that--

Mr. Goldberger: Well, if you accept my argument you won't have to decide that, because you will decide, as argued in point a(2) of our brief that, that the whole of 1002 didn't go into effect November 1, '87.

But if you go--

Unknown Speaker: --That would also apply to 1003 I suppose, wouldn't it, insofar as to rely on 1004 as setting forth the date and the whole scheme fits together and so forth?

Mr. Goldberger: --And 1032 and 1866, there are a number of sections of the statute that follow the same pattern, but that's... it's not--

Unknown Speaker: We save those for another case.

Mr. Goldberger: --There's no split in the circuits on that... on that point.

I, of course, stand by the arguments we've made in the brief on that.

But they... the whole argument does not stand or fall on that provision.

I would like to reserve the rest of my time if I may.

Unknown Speaker: Thank you, Mr. Goldberger.

Ms. Wax.

Argument of Amy L. Wax

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

Let me try to summarize this case in four basic points.

It is virtually an unimpeachable principle of legislation and one on which Congress relies every time it enacts a statute that a statute goes into effect upon enactment unless it states otherwise.

Unknown Speaker: xxx axiom as suggested by your opposition?

Mr. Wax: Well, I don't want to get into a semantical battle, but what we mean by this perhaps is best explicated by what Chief Justice Rehnquist said in Albernez v. United States about the Blockberger Rule.

Silence on the Blockberger question and on the question of an effective date does not give rise to the kind of ambiguity that would license a broad-ranging foray into the statute looking for hints and clues that something else was intended, and it doesn't give rise to an occasion for application of the rule of lenity.

Unknown Speaker: Have we applied the rule of lenity to an effective date issue?

Mr. Wax: Never, Your Honor.

There has never been a case in this Court in which the Court has held that, with silence on an effective date, a delayed effective date was intended and in our... to our knowledge there's never been a court... a case in the court of appeals, and that should tell us something.

Congress relies on this rule.

When it enacts a statute it knows that putting in an express provision that the effective date is immediate is superfluous and therefore it doesn't have to do that.

And to question this axiom would invite statutory chaos because it would mean that every time Congress didn't stipulate an effective date we'd be free to go into a statute and look for little anomalies, little problems from which we might infer a contrary intent.

Unknown Speaker: This isn't a little anomaly.

It's the fact that you don't know what this term of art means.

It's a brand-new word that is utterly meaningless to anybody unless you consult another statute that isn't in effect yet.

Mr. Wax: That is correct.

The statute that describes what supervised release is, it gives it content, that gives content to the word is not in effect during the pertinent period because under the '84 sentencing act it was given in effective date.

But it's our view that this is not an obstacle to applying the plain terms of the revised penalty provisions, section 841, which clearly state that supervised release is the appropriate penalty.

Because the fact is that 3583 which describes what supervised release means does exist.

It's out there.

It's on the books, albeit it doesn't have the force of law and perhaps a judge couldn't be held to the letter of it.

But it does give content to the notion of supervised release.

And these supervised release penalties for this period from '86 to '87 are being applied daily in the Ninth Circuit, the Third Circuit, now the Sixth Circuit in the wake of a case that came down a couple of months ago, in the D.C. circuit in the wake of the United States v. Brundage.

Judges are not going off on, on crazy tangents when they, when they pass sentence on individuals who get supervised release.

They're pretty much being guided by 3583, and the system is working.

Unknown Speaker: Ms. Wax, if we go along with the Government's suggestion here, it does result in some anomalies and some problems in relation to other statues, does it not?

Mr. Wax: It does.

There are some inconsistencies in the statute as a result of the provision for supervised release beginning in October of 1986.

Unknown Speaker: And would those problems be avoided by the construction by the later effective date suggested by the petitioner?

Mr. Wax: Your Honor, that... it would avoid some of them, but it would create other problems and inconsistencies in its wake.

For every problem... it would avoid some of the little statutory inconsistencies but it would pervert what Congress did when they passed this statute.

First of all, the thesis that the whole of section 1002 was delayed for a year is a non-starter, because in the penalty provisions in 1986 Congress stipulated that there would be no parole under these penalty provisions.

They were mandatory prison terms, and there simply would be no reason for Congress to state that there's no parole if the effective was November 1st, 1987, because as of November 1st, 1987, parole was abolished.

So that in itself definitively refutes the thesis that there was a delayed effective date for the whole of 1002.

Unknown Speaker: Well, that's--

Mr. Wax: And if there is--

Unknown Speaker: --that's just saying one statute was totally superfluous.

That's not inconsistency.

Am I right?

And as they abolish... they abolished parole effective November 1, '87 in two different ways but totally consistent with one another.

Mr. Wax: --Right.

Unknown Speaker: Isn't that right?

Mr. Wax: It would be... because they abolish parole in '84 and the abolition of parole was going kick in in November of--

Unknown Speaker: Right.

They didn't need to do it again.

Mr. Wax: --They did need to do it again.

Unknown Speaker: But they didn't do anything inconsistent.

Mr. Wax: Well, we're only saying that it would be a surplusage.

Unknown Speaker: Right.

Mr. Wax: And we think that's an anomaly as much as the anomalies to which--

Unknown Speaker: Yeah, but it doesn't create any administrative anomalies or anything like that.

It just says they unnecessarily did something... they unnecessarily abolished parole in two different statutes at the precisely the same consequence.

Mr. Wax: --Well, as a sign--

Unknown Speaker: Which might be wise legislation in some circumstances to make a hundred percent sure their meaning is clear.

Mr. Wax: --But if we're... if we're looking at these anomalies as a sign of what Congress intended to do, okay... I mean, basically petitioner's argument is that by leaving these anomalies... by creating these anomalies, by allowing supervised release to kick in, Congress was sending us a message that it wanted to delay supervised release.

And we're saying, well, there's contrary evidence that Congress was sending the message that it wanted the whole of 1002 to go into effect immediately.

We're really making an argument about what Congress wanted... what Congress meant to have happen when it passed this statute.

Unknown Speaker: Well, they're not saying they wanted to delay it.

They're saying that they had previously delayed supervisory release in the earlier statute and all they've done is said that this statute shall take effect at the same time as other supervised-release provisions take... I don't see the inconsistency in it.

Surely they could have drafted it better, but--

Mr. Wax: Well, the other reason why we think that the way to solve whatever anomalies there are is not to delay supervised release is that Congress clearly passed a provision that had mandatory monitoring in it, and we have to go a little bit into the history of this enactment in order to understand why that's important.

Every... the petitioner and we both agree that up until the penultimate moment when the 1986 act was passed, the statute provided for mandatory monitoring in the form of special parole for all of the drug categories that apply to petitioner's offense.

So it was crystal clear that Congress wanted these individuals to get a mandatory term of monitoring.

The statute also provided that on November 1st, 1987 there was going to be a word substitution.

Every place that special parole appeared in the statute, supervised released would now appear and so people committing offenses after November 1st, 1987, would get supervised release.

But it... but in no way did that draft statute, the penultimate statute, create a gap whereby there would be a period that individuals committing these drug offenses would get nothing.

On the eve of enactment for reasons that we will never know, a substitution was made, a single-word substitution.

Every place that the term special parole appeared in the act, the word supervised released... it was crossed out and the word supervised release replaced it.

The effect of that word substitution was simply to roll back 1 year the seamless transition from one kind of monitoring to another.

The effect... it is... it's simply perverse to say that what Congress was doing when it substituted those words was opening up a year gap and sending the message that it wanted to delay the effective date of this statute either in whole or in part.

This is especially true as Justice Scalia pointed out because Congress knew how to delay the effective date of parts of this statute.

It did it in section 1004, 1006, 1007, and 1009 and for Congress to choose this coy, roundabout, ambiguous method to accomplish the same thing, it's just not a plausible account of what happened when Congress passed this statute.

What happened is this.

Someone decided that there was no reason to perpetuate what was soon to be an outmoded form of monitoring.

They might as well initiate supervised release a year early.

But Congress forgot to make the little... the collateral changes that would have created a completely harmonious statute.

But the fact that Congress forgot to do a few little things over here doesn't mean that what they did in the core penalty provisions, what they did at the center, wasn't intentional.

And--

Unknown Speaker: --It still... it still isn't a badly drafted statute, isn't it?

Not the first one we had.

Mr. Wax: --Well, there are a few oversights which result in some inconsistencies.

That... we concede that.

But we don't think it follows from that either that Congress intended to delay the effective date or that this Court should square the circle by delaying the effective date of the statute.

Now, we point out in our brief that if the penultimate change had never been made and the statute was passed saying special parole instead of supervised release in all the places where the replacement was made, this would be a completely internally consistent and coherent statute.

So the question arises, you know, why not just rewrite the statute and put special parole back where supervised release is, which by the way is very different from saying that the effective date of the whole or part of the statute is delayed, which has very different consequences in particular that petitioner won't get any monitoring.

That would be the consequence of delaying it.

But why not just substitute terms?

Well, we think that the reason not to do that is that the statute says supervised release and not special parole.

And--

Unknown Speaker: Why couldn't I say that term has no meaning until the other statute takes effect, and since it doesn't have any meaning I'll assume it seems... it means the same thing as parole, special parole?

Mr. Wax: --Well, Your Honor, once again while it's true that the definitional provision that gives meaning to supervised release or tells us what Congress meant by supervised released isn't in force, it still does exist.

I mean, it is there for guidance.

And it's... it's a little bit like the situation that would obtain if Congress had never enacted 3583 of the definitional provision but simply had explained in a House report or something what it meant by that.

I mean, it's... there is information out there.

It's not as if we have nothing and judges have not acted as if we have nothing.

That's the other point.

Unknown Speaker: It seems to me you... you're presenting the case, as you ought to I suppose, you know, on the assumption it's our function to figure out what Congress intended.

I don't think there were more than 20 people who adverted to this refinement, this scrivener's change from special parole to the new terminology.

It seems to me our job is to make sense out of... as best we can out of a statute that it's... it's a, you know, Chinese puzzle.

We're trying to fit it together.

And a very sensible way to fit it all together that doesn't produce any inconsistencies anyway is to, as we've sometimes done, not deem the effective to be immediate.

It's a sensible solution of... for someone whose job is to try to make sense out of the law.

It does make sense out of it, doesn't it?

Mr. Wax: Your Honor, we think not, because of what Congress did when it passed the statute.

It passed a statute that in all its incarnations, in all its versions provided for a mandatory term of post-confinement monitoring of some form.

There was never a version of this statute that didn't provide for mandatory monitoring.

The statute was designed to up the penalties that had existed, to plug gaps that were perceived in the previous law, to compensate for the inadequacies of previous law.

And it just... it just doesn't make sense to say that having gone to all of this trouble they really meant to let whole... all or part of this statute lie fallow for a year.

It's simply perverse to solve the problem by delaying the effective date, especially since, as you suggest, another way to solve the problem which is equally good and avoids the problems I've just talked about is just to scratch out the change and put another word in its place.

But, you know, both are equally intrusive.

Both are equally activist.

And it's our view that the least... the solution that does the least violence to what Congress wrote and what it did is simply to allow judges to turn to the appropriate page in the United States code and read off the penalty and pass sentence using that penalty.

There really is no practical or legal obstacle to doing that.

This is not a case where a judge sits down and is completely stymied by what he sees in front of him.

And once again, judges have been doing it.

They are doing it.

Unknown Speaker: Ms. Wax, will you... I should know this, but what sentence did this man get?

Mr. Wax: Um--

Unknown Speaker: Assume you win, what... how long will he be in prison?

Mr. Wax: --He's going to be in prison for 15 years I believe.

Unknown Speaker: 15 years plus a 10... 4 or 5 years.

Mr. Wax: Well, petitioner's correct that the mandatory good-time provisions under section 4163 and 4164 will apply to him, so he'll have some time deducted from his mandatory term of imprisonment.

Unknown Speaker: If it's good time.

If it's good.

Mr. Wax: If it's... right, if it's good time.

Unknown Speaker: Yes.

Mr. Wax: But he'll be in prison for at least 10 years is my understanding.

Unknown Speaker: I see.

Mr. Wax: Yeah.

So it will be at least 10 years before he'll actually be out and be supervised.

My final... the point... one more point I want to make about this question of delaying the supervised release penalty, which of course would mean that petitioner would get nothing.

It's important to note that the conflict in the courts below has not really been about whether individuals who are... to commit their offenses during this period get nothing or get supervised release.

Almost virtually every court that's wrestled with this problem has ruled that... or the result of every decision has been that these offenders get something, either supervised release or special parole.

But petitioner is asking to be let... to get nothing.

And although the courts below have come out in different ways and they've said different things and some have concluded that the '86 act is delayed and some have concluded that they're not, there's virtually unanimous agreement that it simply would not comport with what Congress did when it passed this act and what Congress intended to open up, to create this opening for individuals committing these offenses.

The second point about delaying supervised release is that it really can't be squared with the text and structure of the 841 penalty revisions.

If you actually look at section 1002 and the changes that it made to section 841 to the penalties, you'll see that the terms of imprisonment, the fines, and the post-confinement monitoring supervised-release requirements are all put together in one paragraph.

They're part of the same... they're part of an organic whole.

They're meant to function together.

What petitioner is saying is that we're going to apply these statutes piecemeal.

We're going to use the mandatory prison sentence from the 1986 act.

We're going to go back I suppose to the 1984 act and use whatever post-confinement monitoring requirement there is in the 1984 act.

We're going to slap together this patchwork which creates its own set of anomalies and contradictions, especially for cocaine offenses.

And in fact if you sit down and look at how it works to use part of the '84 act and part of '86 act you come up with blatant contradictions.

And that's apparent if you look at the cocaine offenses which... the result of slapping together these two acts would be that more serious cocaine offenses would get a less harsh sentence than less serious cocaine offenses, and I won't bore the Court with the details of explaining that.

But that is the result of this patchwork solution.

Unknown Speaker: We haven't found this boring.

It's been exciting stuff.

[Laughter]

Mr. Wax: Well, it's important to us, Justice Scalia.

In sum, we believe that the plain language of this statute should be applied, that this Court should respect the unimpeachable and vital legislative principle that statutes go into effect immediately unless Congress says otherwise and uphold the judgment of the court of appeals in this case.

Unknown Speaker: I can't help but enjoy the difference between an axiom, a rule, and a vital legislative principle.

[Laughter]

Thank you, Ms. Wax.

Mr. Goldberger, do you have rebuttal?

Rebuttal of Peter Goldberger

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

We're not asking in this case for a delay in the implementation of supervised release.

The Government is asking for an acceleration of the effective date of supervised release by more than an entire year ahead of the date that Congress decided it would take for the system to gear up and be ready to implement this entirely new form of sentencing.

Unknown Speaker: There is an anomaly created by your proposal which is that your client would get nothing, neither, neither special parole nor supervised release.

Mr. Goldberger: He hardly gets a nothing.

He gets nothing in addition to--

Unknown Speaker: To his sentence.

Right.

Mr. Goldberger: --10 years in prison and 10 years of post-incarceration supervision, because and precisely because he's a pre-November 1, '87, offender.

He receives both mandatory release supervision by virtue of the good-time laws which go out of effect for post-November 1, '87, cases and he receives parole on his conspiracy sentence for 10 years which wouldn't exist had it been a post-November '87 sentence.

So the anomaly that the Government offers really doesn't exist.

In fact it cuts in our favor by showing the rationality of... or... let's... the lack of irrationality I think is more fair, yes, of saying that Congress was willing to tolerate a year's delay in the reinstitution of extra supervision for this small category of offenders to avoid upsetting a very complicated transition to a whole new sentencing system.

It's true that there's never been a case in this Court resolving a controversy about an effective date by finding that it was delayed.

That's because in 200 and more years there's never been a case in this Court resulting in controversy about an effective date, so that doesn't tell us anything.

And it's certainly not true that the courts of appeals have never found a delayed effective date.

The majority of the courts of appeals in the cases underlying the conflict that you're here to resolve now have ruled in our favor by finding that there was a delay.

This is because... the reason the majority of the circuits have gone this way is because that it is not fair to say that there are just a few little problems created by an immediate effective date.

There are massive and irreconcilable problems in interpreting this and other drug sentencing statutes.

The problems are irreconcilable--

Unknown Speaker: Well, does the... does the legislative history show any... give any reason for the substitution of special release for--

Mr. Goldberger: --There is... there's absolutely no legislative history explaining this precise change.

It occurred after a bill can... saying special parole had passed both houses.

The change occurred only in the reconciliation process.

Unknown Speaker: --Well, what if the--

Mr. Goldberger: We don't know by whom or why.

Unknown Speaker: --What if the... what if the statute hadn't been... or the bill hadn't been amended in that way and it retained the special parole provision?

Mr. Goldberger: I don't think there would have been sufficient argument against the presumption axiom--

Unknown Speaker: Of immediate... of immediate effectiveness?

Mr. Goldberger: --That's right.

That's right.

Unknown Speaker: It's just the... it's just... it's just this... this new term being included in the statute which seems to be tied to the statute that becomes effective in '87 that gives you this argument?

Mr. Goldberger: This and all of those other contradictions where certain other provisions in the 845 series of drug statutes incorporate by reference and refer to sections of 841(b), the basic drug-sentencing law, and say, and this person shall receive twice the term of special parole as someone sentenced under 841(b) and here Congress said there is no special parole under 841(b).

It's something else.

So it's both the contradictions and the pari materia use of a term defined else where.

Unknown Speaker: Would all of those be eliminated?

Suppose we just interpreted this to be a scrivener's error and to be special parole instead, would that eliminate all--

Mr. Goldberger: It absolutely would eliminate it, but we agree with the Government that that is the first impermissible answer to the problem.

Unknown Speaker: --Yes, right.

Mr. Goldberger: And that's because it's the only one that's directly contrary to the language deliberately chosen by Congress.

Unknown Speaker: Deliberately chosen by Congress.

Mr. Goldberger: Well, we know that Congress changed the words "special parole term" to the words "term of supervised release".

And we know that that didn't happen by computer error.

We know that it happened by human act.

Now it may have happened by human error, but it happened by human action and it was then voted on in those terms by both houses.

And when Congress has voted for certain words which it knows or ought to know are different from other words, then that is... it would be a deviation from the judicial function to solve the problem by rewriting the statute.

Chief Justice Rehnquist: Thank you, Mr. Goldberger.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

United States v. Turkette - Oral Argument

Wed, 18 Feb 2009 06:13:12 +0000

Case:

United States v. Turkette

Media File:

80-808_19810427-argument.mp3

Related Transcript:

80-808_19810427-argument_transcript.xml

Transcript:

ORAL ARGUMENT OF MARK I. LEVY, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We'll hear arguments next in United States v. Turkette.

Mr. Levy, you may proceed when you are ready.

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

This case is here on writ of certiorari to the United States Court of Appeals for the First Circuit.

Respondent was convicted by a jury on eight counts of substantive drug and mail fraud offenses and on one count of conspiracy under the Racketeer Influenced and Corrupt Organizations Act.

In brief, the evidence at trial, the sufficiency of which was not challenged, showed the Respondent organized and headed a criminal association that engaged in a continuing course of illegal activities for profit.

The Turkette group was in existence for more than a two year period and was involved in numerous offenses, including the theft and distribution of drugs, the commission and facilitation of mail fraud by arson and other means, and the bribery of police officers and witnesses to protect these illegal activities.

The group operated in a highly structured and sophisticated manner, in which different individuals performed specific assigned roles to further the group's venture.

The questions presented by our petition are whether the Racketeer Influenced and Corrupt Organizations Act excludes wholly illegitimate enterprises like Respondent's from the scope of its coverage, and if so, whether automatic reversal of Respondent's otherwise valid, non RICO convictions required on grounds of misjoinder.

Unidentified Justice: Well the First Circuit theory really was that these people were so totally illegal that they had to be acquitted, wasn't it?

Mr. Levy: I think that's correct.

And the Court below stands alone in reaching that anomalous result.

Unidentified Justice: Or was it that they were so well organized in their enterprise that--

Mr. Levy: I believe the holding of the Court below was that enterprises that are entirely and completely illegal are not within the scope of the principal anti racketeering statute in the federal criminal code.

That strikes us as an anomalous result, and every other Court of Appeals to consider the issue has concluded that RICO is not restricted to legitimate enterprises, but applies to illegitimate enterprises as well.

Nothing in the language of the statute distinguishes between legitimate and illegitimate enterprises.

On the contrary, the definition of enterprise states without qualification that enterprise includes any group of individuals associated in fact.

Similarly, the substantive provisions of RICO draw no distinction between legitimate and illegitimate enterprises, but refer broadly to any enterprise.

And Congress specifically reinforced the sweep of the statute by providing that the provisions of RICO shall be liberally construed to effectuate its remedial purposes.

In addition, despite the existence of an extensive definitional section for the key terms used in RICO, the statute offers no guidance whatever for defining the words legitimate and illegitimate the Respondent and amici seek to insert into the statute.

Unidentified Justice: --Under the First Circuit theory, on which side of the line would fall an enterprise that had an apparently legitimate front, that is, a truck line, or whatever, but was--

Mr. Levy: Well, I think that's difficult to--

Unidentified Justice: --was engaged 75 percent or 90 percent in shooting for hire, killing for hire, arson for hire and extortion and loan sharking.

Where would the First Circuit case take us?

Mr. Levy: --I don't think one knows with certainty, because the meaning of the terms legitimate and illegitimate are by no means self evident, and neither the statute nor the legislative history offer any guidance on the meaning of those terms.

Simply because Congress didn't have that concept in mind.

In your hypothetical, for example, as I understand it, it's impossible to know what are the salient considerations or the proportion of legal and illegal activities--

Unidentified Justice: You think that's irrelevant?

What the proportion is?

Mr. Levy: --We do, because we think both "legitimate" and "illegitimate" are within the statute.

And we think that the introduction of such an indefinite term as legitimate enterprise would complicate and protract RICO trials, and would lead to distinctions according to degree of legitimacy that are entirely unrelated to Congress' purpose to eradicate organized crime.

Unidentified Justice: In any event, it's common ground there has to be an enterprise.

Mr. Levy: It is common ground that there has to be an enterprise.

Unidentified Justice: And enterprise is defined in the statute how, where is it?

Mr. Levy: Relevant here, enterprise is defined as an entity consisting of a group of individuals associated in fact.

That's the statutory definition of enterprise under which this prosecution was brought.

Unidentified Justice: A corporation would be an enterprise.

Mr. Levy: A corporation would also be an enterprise.

Unidentified Justice: Or a corporate association.

Mr. Levy: A labor union would.

A partnership.

Unidentified Justice: Where is the statutory definition?

Mr. Levy: It's in Section 1961(4) which is reprinted in our Appendix to the petition.

Unidentified Justice: Thank you.

Well Mr. Levy, is there a difference between an illegal enterprise and the coverage under the Act of a group of persons who commit a pattern of racketeering activities, that is two predicate acts, is there a difference between the two?

Mr. Levy: Well, if I understand the question correctly I believe there is.

An enterprise is an entity as in this case, a group of individuals associated in fact.

Unidentified Justice: Well no, what I'm trying to get at is what distinguishes a group of persons who commit a pattern of racketeering activities, that is, two predicate acts from an illegal enterprise?

Mr. Levy: The enterprise is an entity looking to the common meaning of the word associate, and Congress used the word associate in the definition of entity, we think that means that the group of individuals had to join together to form a confederacy or a union for some common purpose or overall objective.

We think that's what the word associate means.

Therefore, if there were simply two predicate acts, that were unrelated to an enterprise, or simply isolated or sporadic criminal activities, then they would not violate the statute because there would be no enterprise.

Congress went on to--

Unidentified Justice: What do you think the statute means when it says enterprise includes any individual?

Mr. Levy: --I believe what that means is that an individual may be an enterprise, and--

Unidentified Justice: So one person could be prosecuted under RICO?

Mr. Levy: --I think that is conceivable.

Unidentified Justice: If he were carrying on an illegitimate... the illegitimate business of bank robbery?

Mr. Levy: Let me say that is not at issue in this case, and as far as I know, the government has never brought a case--

Unidentified Justice: Under the statutory definition do you submit that he could?

Mr. Levy: --I believe he could; if the person were engaged in a sole proprietorship of crime rather than a partnership in crime, it seems to me--

Unidentified Justice: If he were an individual entrepreneur bank robber he could be prosecuted under RICO?

Could he?

Mr. Levy: --In some circumstances, for example--

Unidentified Justice: Well what circumstances?

Mr. Levy: --if he held himself out as being engaged in the business--

Unidentified Justice: No, he's not holding himself out.

That's just his way of life, he robs banks.

Mr. Levy: --And he does it repeatedly, using a similar plan.

If there were two people--

Unidentified Justice: What's this got to do with a similar plan?

If he is an individual--

Mr. Levy: --If two people--

Unidentified Justice: --enterprise includes any individual this says.

Mr. Levy: --That's correct.

Unidentified Justice: And that means that any person who is a repetitive offender can be prosecuted under RICO, does it?

Mr. Levy: Well, I think not necessarily.

It says that it might be but that it's not necessarily so.

If somebody commits two isolated--

Unidentified Justice: When I say can be prosecuted under RICO, I mean not necessarily.

Mr. Levy: --Yes.

I think that a single individual in some circumstances can be prosecuted under RICO, that's correct.

If the individual engaged in conduct that if it were done by two people, a partnership in crime, would be within the statute, we don't think Congress intended an immunity simply because one person did it.

Unidentified Justice: So any professional criminal in the sense that this is his business--

Mr. Levy: This is an organized criminal enterprise.

Unidentified Justice: --is a criminal enterprise for purposes of RICO.

Well how can you organize one person?

Mr. Levy: You can organize in the sense that you engage in a conduct in an organized ant recurring--

Unidentified Justice: Well an individual operates individually--

Mr. Levy: --That's right.

Unidentified Justice: --not through an organization.

Mr. Levy: That is correct in some circumstances.

Unidentified Justice: Well in every circumstance, isn't it?

Mr. Levy: If the individual is acting alone, that's right.

Unidentified Justice: Well, an enterprise includes any individual this says.

Mr. Levy: That's correct.

An individual is not excluded from the scope of the statute but--

Unidentified Justice: He's included.

Mr. Levy: --That is correct.

Unidentified Justice: But he violates 1962(c) when he commits two bank robberies.

Mr. Levy: No, I think that if he commits two bank robberies that are in the language used in the legislative history, sporadic or isolated, he commits the one year and five years later, bearing no relationship.

Unidentified Justice: And in the meantime he's a bank clerk.

Mr. Levy: For example.

I would doubt that that would fall under RICO.

Unidentified Justice: Where does the statute exempt?

Mr. Levy: That's a different problem.

Unidentified Justice: Say he commits two bank robberies, one on February 1st, one on March 1st.

Why doesn't that violate the statute?

Mr. Levy: It might well violate--

Unidentified Justice: Under 1962(c), isn't that directly covered?

Mr. Levy: --It might well violate the statute.

But as I say, it's a little hard to know since the government has never brought a prosecution against a single individual, to the best of my knowledge, and the provision simply hasn't been construed.

Unidentified Justice: Well I just wonder then, upon... your argument rests upon the statutory definition of enterprise, and enterprise includes any individual.

Mr. Levy: It does, and it also includes a group of individuals associating--

Unidentified Justice: Well it includes any individual, and--

Mr. Levy: --The statute does provide that.

Unidentified Justice: --And therefore, and yet the government has never utilized that against an individual?

Mr. Levy: To the best of my knowledge, they have not--

Unidentified Justice: Well the statute does define an enterprise as any individual, doesn't it?

Mr. Levy: --It does.

And a prosecution could be brought--

Unidentified Justice: Well then certainly you could, I suppose, one person could infiltrate another individual, I mean, if you couldn't be prosecuted for your own activities you could subvert an individual proprietorship of another.

Mr. Levy: --You might be able to, and that might fall within either subsections (a) or (b), depending on the method of infiltration.

Unidentified Justice: Kind of like the aliens?

Mr. Levy: I'm sorry?

Unidentified Justice: After your answers to my colleagues' questions, I get back to the question I asked you, Mr. Levy.

If an individual may be an enterprise and a group of persons who commit a pattern of activities, that is, two predicate acts, may also be an enterprise, then how... what is the difference between them and an illegal enterprise?

Mr. Levy: The fact that a group of individuals commit two illegal acts does not ipso facto establish a violation of the statute.

The two illegal acts, the pattern of racketeering activity have to occur in a conduct of an enterprise.

The word 1961(4)--

Unidentified Justice: Well I know, but you've already told us an individual may be an enterprise, a group of persons committing two predicate acts may be an enterprise.

Mr. Levy: --They may be, but they are not necessarily.

Unidentified Justice: Well then I still ask you what... how are either of those distinguished from "an illegal enterprise"?

Aren't they illegal enterprises?

Mr. Levy: Perhaps I didn't understand the question.

If the association in fact is formed solely to commit illegal acts and I think that's what the Court of Appeals had in mind when it spoke of an illegal or an illegitimate enterprise.

It's hard to know how that would be applied in a particular case to conclude--

Unidentified Justice: Well of course, what I'm getting at is, the First Circuit as I read their opinion, had the idea that to include an illegal enterprise within 1962(c) would make that section internally redundant.

Mr. Levy: --That was the suggestion of the First Circuit, that's correct.

Unidentified Justice: What I'm just trying to find out is is that idea wholly without merit?

Mr. Levy: We believe it is without merit; that there is nothing that makes the provisions redundant or internally inconsistent.

There is still the requirement that there be an enterprise or an entity and there is still the requirement that there be certain criminal acts.

It may well be true, and this may have been what the Court of Appeals had in mind, that the government's proof in a particular case will be much the same to show the pattern element of the offense and to show the enterprise element of the offense; the fact that people commit a series of offenses together may be a grounds for the jury to infer that they had joined together to form an association in fact that would satisfy the requirement of an enterprise.

But the fact that the government's proof may be the same on those two issues does not make them any less separate and distinct issues.

Unidentified Justice: Incidentally, while I have you interrupted, Mr. Levy, looking at 1961(4), what's the meaning of

"union or group of individuals associated in fact although not a legal entity. "

What's that supposed to mean?

Mr. Levy: Well I think the second clause of 1961(4) was designed to expand the reach of the word enterprise to include entities that are not in contemplation of law a separate and definable--

Unidentified Justice: Can you illustrate that?

Mr. Levy: --Well a union would be one example, I think.

Unidentified Justice: Well, no, they say... expressly a union... what's

"group of individuals associated in fact, although not a legal entity? "

Mr. Levy: Well I think if you had some informal group of individuals who formed a civic association or a bridge club or something like that, there would be no entity in the legal sense.

Unidentified Justice: This even reaches bridge clubs, RICO?

Mr. Levy: Excuse me?

Unidentified Justice: This even reaches bridge clubs, does it?

Mr. Levy: Not necessarily; they would still have to commit a pattern of racketeering activities and I assume most bridge players would not do that.

But they might well be an enterprise--

Unidentified Justice: But even as my brother White just suggested what if they play for money?

Mr. Levy: --And that were a violation of state law?

Unidentified Justice: Yes.

Mr. Levy: It's conceivable that the statute--

Unidentified Justice: The bridge club might be prosecuted, under RICO?

Mr. Levy: --Just as a large scale gambling syndicate would be.

I don't think--

Unidentified Justice: Just like it might be prosecuted now, under state law?

Mr. Levy: --It might be, or under the travel act, or the--

Unidentified Justice: Playing for money.

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

Unidentified Justice: Well, I suppose what is commonly called the Mafia is not a corporation or an association, but it would be covered here?

Mr. Levy: I think that's absolutely correct, and I think that's... certainly incongruous to think that Congress in passing the Racketeer Influenced and Corrupt Organizations Act didn't mean to take into account the Cosa Nostra or the Mafia in the prohibitions of the Act.

The reading of RICO I've just suggested to encompass illegitimate as well as legitimate enterprises, is fully consistent with and supported by the legislative history of the statute and the statute's purpose.

The legislative history nowhere indicates that Congress intended to limit the statute exclusively to the infiltration and corruption of organized or legitimate businesses... and to exclude racketeering activities pertaining to thoroughly unlawful operations as Respondent and amici urge.

Indeed, we can conceive of no reason and the Respondent and amici have offered none, why Congress would have wished entirely illegal businesses to be immune from the provisions of RICO.

Unidentified Justice: Well, it's not that they wished them to be immune from prosecution, but they... Congress might rationally have thought entirely illegitimate businesses are already prohibited by other criminal laws.

Mr. Levy: I don't doubt that Congress could have drafted the statute in many ways, but I think there's--

Unidentified Justice: It wouldn't have been totally irrational for Congress to say well, since those are covered by existing laws, the new law will try to reach something else.

Mr. Levy: --By definition, any prosecution under RICO has to involve the violation of some other statutes.

Congress passed RICO to supplement those existing statutes because of what it found to be inadequacies--

Unidentified Justice: And because of its primary concern, and the legislative history is certainly replete with this, that the primary concern of Congress... this doesn't totally undercut your argument at all... was, the infiltration of legitimate business by organized crime.

Mr. Levy: --Nobody doubts that that was a principal concern of Congress.

But it was by no means the exclusive concern, and the legislative history doesn't indicate it was.

Unidentified Justice: But your point is, the Mafia which is, does not purport to be a legitimate business, would be covered if their whole objective and stated purpose was illegal?

Mr. Levy: That's right, that would not be covered under the decision of the court below.

Unidentified Justice: That is, arson for hire, murder for hire, or kidnapping for hire?

Mr. Levy: That's correct.

As we read the statute and the legislative history, Congress intended RICO to be a broad gauged weapon in a full scale attack on racketeering to the end that organized crime in this country would be eradicated.

And it was not designed for some narrow and technical statute in the manner that Respondent suggests.

Unidentified Justice: Mr. Levy, there are a number of kind of ambiguous phrases in the briefs and so on, yet as you pointed out illegitimate and legitimate... pose questions in the brief of what is organized crime as opposed to unorganized crime?

Mr. Levy: Or perhaps disorganized crime?

Unidentified Justice: Or disorganized crime.

Mr. Levy: The statute and the legislative history don't define that.

We think in general, Congress used that term in a rather broad sense, as you've suggested, to mean organized criminal activities as well as in the narrower sense to mean the mob or the Cosa Nostra, organized crime in the vernacular sense.

I think they were concerned about racketeering, about organized criminal--

Unidentified Justice: Well, what's racketeering?

Mr. Levy: --The statute offers the definition of what Congress meant by racketeering, and those are the enumerated statutes found in 1961 Subsection 1.

In discussing it, I think Congress was relying to some extent on the common sense view, and on the--

Unidentified Justice: For buying protection, and that sort of thing?

Mr. Levy: --Well I think it had in mind those things, but it didn't by any means limit itself to that.

And the statute, if I may point out, does not require that the defendant need be a member of an organized crime or organized, criminal activity, much as in Culbert, the Court held that the Hobbs Act was not limited in that way.

The statutory statement of findings in the legislative history of RICO plainly revealed Congress' awareness of and concern over organized crime's wholly illegal activities, and nothing suggests that Congress intended these activities to be left outside the scope of the statute by confining the term enterprise to legitimate enterprises.

Moreover on several occasions, Congress indicated that RICO would apply to illegitimate enterprises.

For example, in the Senate Report, in discussing the civil provisions of RICO, Congress referred to state cases in which civil remedies had been used against illegal gambling and prostitution businesses.

Similarly, Senator McClellan, the principal sponsor of the legislation, explained that RICO would apply to the counterfeit phonograph record business, to the illicit prescription drug industry and to stolen and counterfeit credit card schemes, all those being wholly illegal operations.

In the same vein, Congressman Poff, the sponsor of the bill in the House observed that truck hijacking operations would be subject to RICO; again an indication that Congress understood the breadth of the provisions it enacted.

Congress also recognized that illegal activities constitute the economic foundation of organized crime and provide the money and power used to used to infiltrate and corrupt legitimate businesses, labor unions and government offices.

Thus even if the sole purpose of the statute were to prevent the infiltration of legitimate organizations, that purpose would be well served by applying RICO to entirely illegal ventures in order to eliminate the economic base of organized crime--

Unidentified Justice: Tell me, Mr. Levy, does that go this far... say two men robbed a bakery today--

Mr. Levy: --Excuse me?

Unidentified Justice: --Two men robbed a bakery.

Mr. Levy: A bakery, yes sir.

Unidentified Justice: They never see one another for another eight years and then they run into one another and they decide, let's go ahead and rob another one.

So they rob a second bakery eight years later.

Are they vulnerable to a RICO prosecution?

Mr. Levy: I think not.

In that case, there was no association over that period of time to which the two predicate acts of racketeering were related to, that would simply be in contrast sporadic or isolated criminal activity and that's the very reason why the Court of Appeals was incorrect in suggesting that our interpretation of the statute rendered the statutory element enterprise redundant to the term pattern they think that is--

Unidentified Justice: But how about 1961 Subsection 5, where it defines pattern of racketeering activity as at least two acts of racketeering activity, one of which occurred after the effective date of this Chapter and the last of which occurred within ten years, including any period of imprisonment.

Wouldn't my brother Brennan's example come under that?

No, but your answer to my brother Brennan I understood, was to underline your argument that there first of all has to be an enterprise, in which the test is different.

Mr. Levy: --Exactly so.

In the hypothetical, the pattern element would be satisfied,--

Unidentified Justice: But the enterprise element would not be.

Mr. Levy: --That's exactly right.

Unidentified Justice: What would have to be, I gather, the two would... on the occasion of the first robbery, let's go into the business of robbery.

Is that it?

Mr. Levy: That--

Unidentified Justice: That then would be an enterprise.

Mr. Levy: --That's right.

Now, it's--

Unidentified Justice: But the hypothetical I gave you, they were just isolated acts with no agreement between them to make this a regular pattern of living.

Mr. Levy: --That's correct.

Unidentified Justice: Let's take another one.

A single individual who talks to no one, but simply goes around to a series of pharmacies and says to the proprietor, I want to buy x number of certain drugs, cocaine and some others, without a prescription and you either give them to me or your windows will be broken as fast as you can replace them.

And he goes around to ten establishments and gets the cocaine and sells it.

Is that an enterprise?

Mr. Levy: I think it would be, yes.

I think it would be.

Unidentified Justice: Whether there's one, two or ten, it's an enterprise, is that right?

Mr. Levy: I think that's correct.

If two people did it, I don't think there would be any doubt about it.

I don't think there's any immunity provided in the statute for the fact that a person exists as a sole proprietorship... rather than a partnership--

Unidentified Justice: Well then in that bridge example we were talking about earlier.

The ladies would have to agree on the pattern of gambling, would they, over the years?

Mr. Levy: --I think they would, although I don't mean to suggest that bridge clubs would be--

Unidentified Justice: Well if you could win your case without conceding that the individual could be, himself, prosecuted?

Mr. Levy: --That's correct.

I repeat that our case doesn't involve a single individual,--

Unidentified Justice: But your argument does.

Even if you put the individual aside on the grounds that it was silly, then it would be--

--Your argument involves that statute, that part of the statutory definition or more accurately, your opponent's argument, because that implies that the individual has to be... is engaged in a legitimate enterprise, and he has to be infiltrated by criminal activity.

Mr. Levy: --I don't believe this case would be any different if the word individual in the definition of enterprise had been omitted.

Unidentified Justice: I think your case would be a little easier.

Mr. Levy: Excuse me?

Unidentified Justice: Well, it's a difference of opinion... don't you think your case might be a little easier?

Mr. Levy: I don't believe our case would since it involved a group of individuals and more than 50 drug store burglaries, for example, and by no means the single individual or a sporadic and isolated pattern of crime.

The Court of Appeals was also concerned with respect to the redundancy of the statute about applying the criminal provisions of Sections 1962(a) and (b) and the civil provisions of Section 1964 to illegitimate enterprises.

We have discussed that in the brief, and we don't think there is any inconsistency or redundancy in applying the statute that way, and indeed the application of those provisions could well serve Congress' purpose to eradicate organized crime by enabling the government to prosecute a defendant who used racketeering income, for example, to establish an illegal narcotics business or who, in the words of amici, muscled into an existing illegal operation.

Similarly in the civil provisions, we think that the Congressional intent would be fully effectuated if any person injured by a violation of the statute, including an illegitimate enterprise, would be able to seek compensation under Section 1964(c) from the wrongdoer for the injury he suffered to his business or property.

I'd like to reserve the balance of my time for rebuttal.

Chief Justice Burger: Very well, Mr. Levy.

Mr. Wall.

ORAL ARGUMENT OF JOHN WALL, ESQ., ON BEHALF OF THE RESPONDENT

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

This case presents the opportunity for this Court to reaffirm its decision in Kotteakos, and repair the damage done to that decision and to rule 8, by such circuit court decisions as Elliott.

And I'd like to mention, in that regard, what RICO does not do and was not intended by Congress to do.

The RICO statute neither by its terms nor in its legislative history, ever did purport to allow a single prosecution of a defendant for all his disparate and unrelated and otherwise non joinable crimes.

Also, in enacting RICO, Congress did not intend to extend vicarious liability beyond the limits of traditional conspiracy law to permit mass trials.

What RICO does do and what it was intended to do, I suggest, by Congress, was to protect the integrity of interstate businesses by 1962, thus 1962(a) prohibits people with dirty money from buying into the businesses.

1962(b) prevents the takeover of interstate businesses through criminal activity such as extortion and whatnot.

And (c) prevents the corruption or spoiling of legitimate businesses when one of its employees or associates goes bad.

Unidentified Justice: Well let's accept that it does all those things, what do you say it can't do?

Mr. Wall: Sir?

Unidentified Justice: What do you say that it can't do?

This statute.

Mr. Wall: What I say, Mr. Chief Justice, is what RICO was designed to do was to be used like a scalpel, rather than a meat cleaver.

RICO was an integrated statute in itself, part of an integrated whole, the Organized Crime Act.

True, the Organized Crime Act was designed to eradicate organized crime.

Unidentified Justice: Well are you saying there must be a legitimate business involved, and then there is some illegitimate penetration of that, is that it?

Mr. Wall: Yes sir.

What I'm saying is,--

Unidentified Justice: It would have to be totally illegitimate from the outset?

Mr. Wall: --No sir, not under, the definition, and under the precise restricted purpose that Congress had in enacting this one section.

And I can perhaps best underline that, Mr. Chief Justice Burger, if we think of the enterprise that we're protecting as the victim, not the criminal, at the heart of the split in the circuit is the distinction between the enterprise as victim and enterprise as criminal.

Only the First and Eighth Circuits have squarely and correctly looked at the statute as a whole in the symmetry of the RICO title together within the larger symmetry of the Organized Crime Act, and made it clear that Congress' purpose was to treat the enterprise as a victim.

And this satisfies the plain meaning, so called plain meaning rule; look at the statute as a whole and to make every element within the statute have significance and not be redundant, we consider--

Unidentified Justice: Mr. Wall, why does your distinction between victim and criminal enterprise itself necessarily answer our problem?

Because is it not conceivable that you might have say, a neighborhood numbers game, or a neighborhood prostitution business, something like that.

And a larger criminal element comes in and by racketeering activities takes over that more or less local enterprise.

Why doesn't the statute apply there and there the one taken over would be the victim?

Mr. Wall: --There are other titles within the Organized Crime Act, and other specific statutes that take care of that particular problem.

Unidentified Justice: What takes care of the takeover problem other than 1962(b)?

Isn't that just exactly what that's directed at?

Mr. Wall: What I'm suggesting, sir, is that that is a simple extortion that could be handled under another statute.

Unidentified Justice: Well maybe it wasn't an extortion, maybe it was just a... using whatever these racketeering activities as defined in the statute are, just to take over an illegal enterprise?

And I don't understand why your distinction between victim and criminal helps us at all in our analysis, because it seems to me you can have an illegal enterprise, that would also be a victim of a takeover by a larger illegal enterprise.

Mr. Wall: Well, the reason that analogy is helpful is that if we follow the Elliott definition and say that all illegal enterprises are included, then we have no cohesive thought to apply the conspiracy concept to.

According to Elliott, the essential nature of the plan was to associate for the purpose of making money.

And rather than the wheels and the chains, we have an amoeba like infrastructure that controls the secret criminal network.

Until Elliott, defining RICO to include so called illegal enterprises, that is, to include an individual who does two separate crimes that come under the definition of criminal racketeering, or a group of individuals who do strictly illegal activities,... excuse me, I lost my train of thought.

Unidentified Justice: Well, as long as you've lost your train of thought for a moment, the word enterprise as contained in the definitional section of the statute doesn't make any distinction between legal and illegal entities, does it?

Mr. Wall: It does, Your Honor, I suggest... Mr. Justice, if you look at the statute--

Unidentified Justice: I'm talking about 1961(4) where it says enterprise includes any individual, partnership, corporation, association or other legal entity and any union or group of individuals associated in fact, although not a legal entity.

Mr. Wall: --Yes sir, it does make a distinction as the First Circuit and other courts in dissenting opinions have pointed out.

Under the rule of ejusdem generis, that... in interpreting the statute, you apply that canon of construction.

Also, when considered with the other elements in the statute, to give enterprise independent meaning it would have to only refer to legitimate business rather than illegitimate.

Unidentified Justice: In the hypothetical I put to your friend about the individual, just one man, who goes around to the... a dozen pharmacies and says you sell me 500 units of cocaine every week, or your windows will be broken.

You say that would not be covered because that's one person, and it's totally illegal from the start, it has no legal front.

What do you say about that?

Mr. Wall: I say that that, the RICO statute, this section, was not directed at that activity, and that has been the problem of many a--

Unidentified Justice: How do you get away from the word... the first category under subsection (4) is any individual, partnership, and then the whole array, seriatim.

Why weren't they trying to get at this one strong armed extortionist?

Mr. Wall: --They weren't because... because they stated that with this particular title they were directing the protection to the victims of... interstate businesses that were victims of organized criminal activity.

Unidentified Justice: And an individual could be a victim, if he were an individual entrepreneur.

Mr. Wall: He could be a victim, yes sir, if he's involved in legitimate--

Unidentified Justice: An individual wrongdoer, obviously, it would be... your argument is, it would be silly to apply RICO to an individual wrongdoer.

Mr. Wall: --It was not designed to protect him, no.

That's correct.

The Anderson Court makes the distinction that it has to be a separate economic entity, it doesn't say legitimate or illegitimate, and under the Anderson definition the wrongdoer might be protected.

Unidentified Justice: Mr. Wall, would you say the loners who engage in this activity are not covered by RICO?

They must have at least one other colleague helping them.

Mr. Wall: In what activity, now?

Unidentified Justice: Extortion of the druggist.

Well I had understood your argument to be that whether he be a loner, whether it be an association of two or 100, it's not covered.

Mr. Wall: That's absolutely correct.

Unidentified Justice: It's illegal activity.

Mr. Wall: It's illegal activity, there has to be--

Unidentified Justice: I was just starting with the first category, I was going to take you through the rest of them.

Mr. Wall: --The loner--

Unidentified Justice: Is it not covered if it's illegal from its inception?

Mr. Wall: --If the loner in the first instance, by robbing the drug store intends only to rob the drugstore, he's not covered.

If he intends by robbing the drugstore two separate times, to make the drugstore owner give him a piece of the business, then I suggest the victim is the drugstore and he is covered by RICO, because he's done precisely what Congress was attempting to prevent from happening to the legitimate victim business by--

Unidentified Justice: Then the enterprise is the drugstore, it's not the individual?

Mr. Wall: --That's correct.

In this instance, and I suggest that it helps us clarify who we're trying to protect if we realize that in every instance in the legislative history and the purpose of the statute was to protect legitimate businesses.

So we have to think of the enterprise as the victim.

Unidentified Justice: In your ejusdem argument, or argument under the definition, you assume as I understand it, the first listed things like partnership, corporation, association, would necessarily be legitimate.

But is it not possible that a corporation could be organized and do nothing but deal in stolen goods or stolen securities or something like that, and be wholly illegitimate.

Would you say that even a corporate, a corporation, so organized and totally illegitimate would not be an enterprise within the meaning of the statute?

Mr. Wall: That, sir, was precisely the reason that liberal construction provision was submitted, I suggest.

904(a).

And that, I suggest that Congress intended to mean that you liberally construe who are the victims.

Congress wanted to protect as many forms of legitimate endeavors as possible, so to effectuate the remedial purposes of 904(a) you don't limit the Rule of Lenity, but you broadly construe the term enterprise when enterprise is the victim.

Unidentified Justice: But not if it's a wholly illegal business, you don't broadly construe it then?

Mr. Wall: No sir.

Unidentified Justice: Even though it's a victim?

Mr. Wall: Anderson says that they would.

I suggest that under Anderson or the First Circuit, understanding of the purpose of the Act and the legislative history, it doesn't matter in the long run.

Unidentified Justice: I don't see, personally, I don't see how urging us to apply broad principles and broad construction to criminal statutes helps a defendant.

You kind of lose me on that one.

Mr. Wall: Well, Mr. Justice, I'm not suggesting that.

I was suggesting that the liberal construction provision of 904(a) should be applied only to the definition liberally construe who are the victims.

So that, when you have the definition statute--

Unidentified Justice: You apply one part of it liberally and the other part--

Mr. Wall: --One part liberal to the definition as to who is an enterprise, who is a legal enterprise, because as somewhere in the legislative history was mentioned, organized crime may form all kinds of different ways to get around this.

Well that's precisely why the broad term of enterprise is applied, when you are construing it to protect the victim.

When it comes to the criminal, the actor, rather than the one or the individual or the enterprise acted upon, the Rule of Lenity applies.

And by adopting our understanding of the statute, you are protecting the Rule of Lenity regarding the penal provisions.

Unidentified Justice: --But you're not observing Congress' admonition that organized crime may find all sorts of ways to get around these definitions.

Mr. Wall: I am, Your Honor, Mr. Justice.

In this regard, that I'm applying the broad construction to the remedial purpose of protecting the legitimate enterprise which we define broadly.

But when it comes to the Rule of Lenity, when that's applied to a wrongdoer, the criminal, the one acting rather than the one acted upon, no.

And by the approach that we take, you protect the Rule of Lenity, and you avoid the due process implications mentioned in Dunn v. the United States, where Mr. Justice Marshall said, writing for the majority of this Court, as a matter of fact for the unanimous court, this practice, that is the Rule of Lenity, is not merely a convenient maxim of statutory construction, rather, it is rooted in fundamental principles of due process.

Related to that argument, and particularly related to what we consider probably the most important case to be considered in this matter, is that Dunn's observation... or, rather Dunn, Dunn has significance with regard to the Justice Department's observation is, well, theoretically, this thing may be overbroad, but trust our discretion to apply it properly.

I suggest to you there are two problems with that.

One, the Justice Department, instead of Congress, then defines the crime.

A bigger problem, as pointed out by Dunn and relevant in this case too, is it defines the crime differently when it signs the indictments than it does at the legislative hearings.

In Dunn, that precise point was brought out by the Court.

In our view, the Justice Department's contemporaneous rather than current interpretation offers the more plausible reading of the subcommittee's intent.

At the legislative hearings on RICO, the Attorney General, the chief of the criminal division, everybody, said that the purpose of RICO... again, applying the scalpel as part of an overall plan, is to cut out the cancer of racketeering activity on legitimate interstate businesses.

Unidentified Justice: Mr. Wall, I gather from what you said much earlier, you read 1962(c) as addressed to a situation in which some employee or somebody associated with a legitimate enterprise, sets about conducting that legitimate enterprise in business through a pattern of racketeering activity or collection of unlawful debt.

And that that's as far as that section goes, is that right?

Mr. Wall: Yes sir.

Unidentified Justice: Is there anything in the legislative history to support that very narrow reading?

Mr. Wall: Yes sir.

The whole, everything in the legislative history.

As a matter of fact--

Unidentified Justice: This is all part of your basic argument that Congress was more interested in protecting a victim from--

Mr. Wall: --Than getting the wrongdoer--

Unidentified Justice: --infiltration or otherwise--

Mr. Wall: --Title 10.

They specifically went after the repeat offender, and Title 8, they specially went after another aspect of organized crime, that's precisely the point I'm making, Mr. Justice.

Unidentified Justice: --What's collection of unlawful debt?

Mr. Wall: A gambling debt, I assume.

Unidentified Justice: Or usurious debts?

Mr. Wall: Or usurious, yes sir.

Unidentified Justice: Certainly in 1962... goes after some variety of criminal behavior?

I mean, this whole part that we're talking about isn't for the benefit of the victims.

It was to create criminal offenses.

Mr. Wall: It's to create a criminal... a... to focus in on the protection of the victim; that's precisely the purpose of 1962.

Unidentified Justice: But 1962 also makes criminal some conduct, does it not?

Mr. Wall: It certainly does.

And it said, this particular type of activity, this depredation that's taking place on legitimate businesses, is serious enough that we're making this drastic criminal penalties.

Unidentified Justice: So it isn't as if it were just kind of a reparation statute or a victim of crime statute.

It in itself makes certain acts criminal that weren't otherwise made criminal.

Mr. Wall: Right.

That's a fact, Mr. Justice.

Unidentified Justice: I mean, how do you square your previous statement--

Mr. Wall: Well, excuse me.

I didn't mean to interrupt you, Mr. Chief Justice.

It doesn't... the acts themselves were criminal previously, and they are otherwise criminal, however; when they are committed in this pattern... two separate acts, to do this act, attack the victim that we want to protect, it's a--

Unidentified Justice: --Traditionally?

Mr. Wall: --Yes sir.

Unidentified Justice: Previously, I understood you to say that the term enterprise was just a one way street, applied only to one of the two, that is, victim or criminal actor, you said it couldn't apply to the criminal actor?

Doesn't 1962(c) explicitly apply to the criminal actor and the victim; or neither one?

Mr. Wall: Well, 1962(c) applies, I suggest, to protect the victim; it prevents corruption or spoiling of a legitimate business or a front business, as was suggested by one of the questions, supposing there's an apparently legitimate front truck line.

Who is the victim?

It's the truck line.

Unidentified Justice: Let's suppose something less.

Let's suppose that if some group, one or 21 people, set up a specialty of collecting illegal debts.

That is, usurious debts, gambling debts, any other kind, and that's all they do.

You say they are not covered?

Mr. Wall: I say they are not covered--

Unidentified Justice: You mean, they can't be prosecuted under this statute?

Mr. Wall: --Under this particular statute, RICO, it was not designed, it's... it was not designed, and doesn't make internal sense, and it destroys the traditional conspiracy and joinder rules if it is applied to that--

Unidentified Justice: Destroys them or supplements them?

Mr. Wall: --I suggest, Mr. Chief Justice Burger, most respectfully, it destroys them.

And it changes--

Unidentified Justice: Isn't this one of the broadest nets that Congress has ever thrown out to catch criminal activity?

Mr. Wall: --It is probably... well, I suggest, it may... it is, the Organized Crime Control Act is a very broad net.

However, Congress did not set up RICO to get all possible criminal activity, and they did not intend this body of lawyers as Mr. Justice Rehnquist said in Alvarez, this body of lawyers did not intend, when they passed RICO, to change the rules of conspiracy, to change Kotteakos, and to change the rules of Joinder.

And if they did intend to do it, which they didn't, but if they tried to, I suggest it would be unconstitutional and this Court would have much to say about that.

Members of the Court, it has been suggested that even if this Court does agree with our view of the scope of RICO, that my client should nevertheless have the First Circuit reversal, the change, because there was harmless error.

And our argument is, of course, that there was not harmless error, that he was joined with other defendants he should not have been, and that he was joined in a number of criminal charges against him, that without the RICO expansion of conspiracy vehicle he could never have been tried together for.

Unidentified Justice: Did you ever seek a severance?

Mr. Wall: Yes sir.

Unidentified Justice: In the trial court?

Mr. Wall: Yes sir.

I represented Vargas at the trial court, Your Honor, but as the First Circuit points out, severances were sought by this defendant as well as Vargas, and there were many written and oral requests, every few days in this almost seven week trial.

Unidentified Justice: Was the denial of severance appealed?

Mr. Wall: Well, you mean, an interlocutory appeal?

No sir.

It was appealed, the denial of severance, was appealed.

Unidentified Justice: After conviction?

Mr. Wall: Yes sir.

Unidentified Justice: What about the sentences?

On the substantive counts, didn't he not get sentences concurrent with the sentence under the RICO count?

Mr. Wall: He did, Mr. Justice.

Unidentified Justice: But he had... how was he prejudiced?

The sentences under the substantive counts stand, don't they?

Mr. Wall: They do, except for this.

The First Circuit reversed because once the legally improper conspiracy count is out, there is no basis, no legal basis for having joined all these crimes.

And they cited McElroy v. The United States--

Unidentified Justice: The reversal gave them a new trial, does it?

Mr. Wall: --It would get them a new trial.

Unidentified Justice: Gave them a new trial.

Mr. Wall: Yes sir.

Unidentified Justice: Just on the substantive counts, I gather?

Mr. Wall: That's correct.

I suggest finally to this Court, that the principles of severance enunciated in McElroy and the language in Kotteakos which supports it, suggests that he was damaged by going to trial in all these cases.

For instance, Vargas was found not guilty by the jury on three of the mail fraud counts.

Another defendant was found not guilty of bribery in the police bribing count.

I'm suggesting that to have gone to trial with all these crimes confounds the defendant.

I'm suggesting he may well have had a good defense, say, to one or more of the arson or bribery counts, and might have wanted to testify but was not able to because of the drug charge.

Unidentified Justice: Did the United States urge harmless error in the Court of Appeals?

Mr. Wall: Yes sir.

Unidentified Justice: And decided it against them?

Mr. Wall: Absolutely.

Unidentified Justice: But they held as a matter of law that reversal was required, regardless of whether it was harmless error or not, didn't they?

Mr. Wall: Except for this: I suggest the intimation is, and the fact is, that in these circumstances there's certain error that is not harmless and never can be with this illegal theory, never can be harmless.

And if I might take a moment just to remind all of us that in Kotteakos, the Court of Appeals had said that there was no prejudice, especially since guilt was manifest and to reverse the conviction would be a miscarriage of justice.

But this Court, speaking in Kotteakos, said technical, my foot, they said, what may be technical for one is substantial for another.

What minor and unimportant in one setting, crucial in another.

Moreover, lawyers know if others do not, that what may seem technical may embody a great tradition of justice or a necessity for drawing lines somewhere between great areas of law, that in other words, one cannot always segregate the technique from the substance, or the form from the reality.

I'm suggesting also, members of this Court, that in your decision in Dunn that living, wonderful principle of our law was again upheld where the Court of Appeals in the Tenth Circuit said, it's obvious there was a variant, sure, but the guy lied under oath, even if it was in the lawyer's office, so let the conviction stand.

Oh no, this Court, in a unanimous opinion written by Chief Justice... or rather, I'm sorry, by Mr. Justice Marshall, stated: the jury well... may well have reached the same verdict had the prosecution built its case properly.

But the offense was not so defined, and appellate courts are not free to revise the basis on which a Defendant is convicted simply because the same result would likely obtain on retrial.

I suggest to the Court that in conjunction with the principles enunciated in Kotteakos, and in Dunn, and in McElroy and in King in the First Circuit, that the First Circuit decision should stand.

Thank you.

Chief Justice Burger: Do you have anything further, Mr. Levy?

Mr. Levy: I only have two brief points, Mr. Chief Justice.

First, Mr. Wall has argued that under the statute, the enterprise must be the victim rather than the means of the commission of the pattern of racketeering activity.

Nothing in the statute suggests or requires that, and indeed the fallacy may be shown by the Ninth Circuit's decision in the Zemek case cited in our reply brief, where the owner of a tavern advanced his tavern business through extortion and murder of his competitors.

In that case, the enterprise was a tavern and that was advanced rather than being the victim of the racketeering activity.

Second, in this case, there were legitimate businesses that were harmed by Respondent's conduct.

Particularly the drugstores that were burglarized and the insurance companies that were defrauded were clearly harmed and that illustrates how the application of RICO to an entirely illegitimate enterprise can serve to protect legitimate businesses from the ill effects of racketeering.

Thank you.

ORAL REBUTTAL ARGUMENT OF MARK I. LEVY, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at ten o'clock [= 10:00].

Attribution:

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Featured:

Bifulco v. United States - Oral Argument

Thu, 13 Sep 2012 22:04:03 +0000

Case:

Bifulco v. United States

Media File:

79-5010_19800227-argument

Related Transcript:

79-5010_19800227-argument

Transcript:

Argument of Steven Lloyd Barrett

Chief Justice Warren E. Burger: We'll hear argument first this morning in Bifulco against the United States.

Mr. Barrett you may proceed whenever you're ready.

Mr. Steven Lloyd Barrett: Mr. Chief Justice and may it please the Court.

This case comes to the Court upon writ of certiorari to the United States Court of Appeals for the Second Circuit.

The petitioner was convicted of violating the Federal Drug Conspiracy Law 21 U.S.C., Section 846.

He was sentenced to four years imprisonment, and $1,000 fine, and five years special parole.

The petitioner subsequently filed per se a collateral attack on his sentence alleging that the inclusion of special parole for the crime of conspiracy was not authorized and Second Circuit held that special parole was a lawful component of sentence of conspiracy and affirmed the denial of petitioner's application.

The issue in this case which is currently the subject of disagreement among the circuits is whether as the Second Circuit held Section 846 includes special parole or whether as we assert the statute specification of imprisonment and fine precludes special parole.

The statutory language of Section 846 is set forth in our brief, at page 3, and it's states, “Any person who attempts or conspires to commit any offense defined in this Subchapter is punishable by imprisonment, or fine, or both which may not exceed the maximum of punishment prescribed for the offense the commission of which was the object of the attempt or conspiracy.”

We submit that the penalties intended to conspiracy are stated plainly on the face of the statute, imprisonment and fine.

In our argument this morning, it will be shown that Congress used the precise specification of penalties for the very purpose of providing imprisonment without special parole for the crime of conspiracy and I'll be looking at four issues bearing on this matter.

First, I will examine the statutory scheme and Section 846's place in that scheme, to show that throughout the statute, special parole maybe imposed only when it is separately authorized from imprisonment and fine.

Second, I will look at the legislative history to elucidate Congress's intent that a specification of imprisonment of fine in a statutory section cannot alone authorize the inclusion of special parole.

Third, I will discuss the Government's analysis of Congress's intent and show that that position cannot be sustained.

And finally, I will consider the appropriate disposition of this case under the doctrine of lenity.

Justice William H. Rehnquist: Mr. Barrett I think it's -- in your legislative history discussion you will also take up the time sequence at which the statute was drafted and the time at which special parole was introduced as a concept under the statute.

Mr. Steven Lloyd Barrett: Yes I will Mr. Justice Rehnquist.

Turning first to the statutory scheme, special parole exists as a punishment quite distinct from the punishment of imprisonment.

It's provided as an additional and separate penalty to be served after full service of a prison term.

Now, special parole is subject to no maximum limit so that it can and often does exceed the prison term in length.

This is important because of the -- revocation -- revocation rule which is then upon revocation special parole a new and additional prison term is substituted in the amount of the entire special parole term without credit for time served.

Now, it's therefore a substantial penalty and Congress authorized its inclusion selectively by a separate provision in each statutory paragraph to finding a crime to which special parole would be applied.

Now, quite a number and indeed the majority of the drug crimes provide for imprisonment without specification or without mention of any special parole and significantly the crime of the continuing criminal enterprise which is the most serious trafficking offense in the Federal Drug Law does not specify a special parole term.

And similarly there is no specification of special parole in the offenses involving trafficking by persons who are registered under the drug law.

Generally the parole -- special parole authorizations occur in the distribution and possession offenses to find in Section 841, but even here there is selectivity.

Two of the six -- two of the six punishment sections in Section 841 do not provide for special parole.

Now, in practice, there is never been any question that a drug section which does not make any mention of special parole is not entitled to include as sentenced special parole with one exception, and that of course the Section 846 which is the issue that's presently before the Court.

From the standpoint to the statutory scheme, we -- we feel at this unique treatment quoted in Section 846 which some -- which some circuits at least have given Section 846 makes no sense like the other sections throughout the drug law which do not make -- mention of special parole and which special parole does not apply, Section 846 describes it's punishments in terms of imprisonment and fine exclusively.

Unlike these other section, Section 846 is a separate criminal section under which sentences are imposed.

The purported distinction for it's -- Section 846 which the Government offers to justify the inclusion of Section -- of special parole in Section 846 notwithstanding the absence of special parole authorization is that the conspiracy section refers to the statutory section of the object offense to set the limits of punishment applicable to the particular conspiracy.

And the Government contends that this reference results in the incorporation into Section 846 of any special parole that would be required in the object defense section where sentence is imposed under that section.

We feel this argument by the Government misperceives the significance and the function of Section 846 specification of imprisonment and fine.

Section 846 refers to the object offense sections to set the amount, but not the type of the punishment authorized, Section 846 itself sets the type of punishment.

The accuracy of this reading is supported by the House Report which accompanied the bill which is ultimately enacted by the Congress and -- and in that report, in a description of the operation of the conspiracy section and the -- and the penalty for conspiracy, the House Committee I believe it's the Interstate and Foreign Commerce, stated -- described the punishment as imprisonment and/or fine which may not exceed the maximum amount set for the object offense and -- and as this statement indicates the imprisonment and fine close of Section 846 defines the type of punishment which is to be imposed for that section.

A proof that Section 846 is -- referencing structure which is again the basis of the Government's distinction, a proof that it is referencing structure does not justify any special treatment is clear from another section of the drug law.

Now, that's the section that's numerically proceeds Section 846 -- Section 845.

It's set forth in Footnote 25 of our brief at page 20 and that's the distribution to minor section.

Now, Section 845 like Section 846, uses reference to another sections sentencing limits but there's a very significant distinction of the face of the two statutes.

Whereas Section 846 as I've indicated specifies, in one clause, imprisonment or fine or both, Section 845 has two clauses.

The first clause specifies a reference for imprisonment and fine, and that in that sense reassembles Section 846, but there is a separate second clause which provides for the incorporation of special parole.

I have more to say that Section 845 in my legislative history discussion but for the present it bears noting that Section 845 shows that the characteristic that I've identified in the drug law, and that is -- that before special parole is included in the section, there must be a specific -- special parole authorization in the individual section.

That Section 845 shows that that -- that characteristic or that rule applies to sections which used referencing and that therefore Section 846 should not be treated unusually, it should be treated like all the other sections throughout the drug law which do not makes specific reference to special parole, it should be in other words no special parole should be authorized.

And looking out the legislative history, the legislative history confirms that's the specification of imprisonment and fine in Section 846 was intended to define a punishment which would not include special parole.

In particular, two points are established in legislative history.

First, as the sections which like this conspiracy section used referencing to another section to establish the amount of penalty available, Congress recognized the need for a separate special parole authorization in a section employing the reference if that section was to include special parole.

And the second thing that the legislative history demonstrates is that Congress added special parole clauses to other sections which employed this referencing, but it did not so add a special parole clause to Section 846.

Justice William H. Rehnquist: Well, is it fair to infer from your argument that before Congress introduced the concept to the special parole into this rewriting of the drug law, 846 clearly manifested the intent that one who was -- attempted or conspired to violate the law should be punished in the same manner as the one who committed the substantive offense.

Mr. Steven Lloyd Barrett: I don't think so.

I -- I think that that is happenstance of the way the -- the initial bills were drafted, but I think that there are -- are two important reasons why we should not find that the original formulation of the bills before the inclusion of special parole indicates an intent to have -- if I could use the Government's word in this congruence between the two sections, the conspiracy section and the operative section.

The -- the first reason why has to do with the -- the structure of the new drug law.

In the former law, conspiracy was within the -- the specific substantive sections and in every bill considers for the new law, conspiracy was withdrawn from the substantive section and established in its own section.

Now, we feel that -- if you look trough other penal sections throughout the United States Code, you find that when conspiracy is separated from the substantive offense, generally the sentences provided are disparate rather than congruent.

And that you find congruence in a sense in -- in cases in which the conspiracy section is allowed to remain within the substantive offense section.

Now, I'm not suggesting that when Congress, the 91st Congress removed conspiracy from the substantive offense section.

In this case, it was intending to create this word -- sentences or necessitates the finding of these current sentences.

What I'm saying, is that it was originally in a situation where congruence was necessitated and it was thereafter placed in a situation were traditionally congruence was not found and I think to that sort of refutes the thought that Congress was thinking specifically in terms of establishing congruence.

Justice William H. Rehnquist: Well, it could have just dropped 846 and punished on the general conspiracy statute if it wanted to do that in the --

Mr. Steven Lloyd Barrett: The general conspiracy statute would have required a specific term of five years.

No, it's -- the general conspiracy section would not have allowed any flexibility or differentiation between of various conspiracy sections.

I don't think that that would have accomplished their purpose.

I think that there's one of the -- there's one point I wanted to make in response to your question Mr. Justice Rehnquist and that is that as to this -- this question of whether the -- the initial bill intended to have the similar treatment and that is to use to the language in every bill which the 91st Congress considered in Section 846 or in -- in the predecessor to the Section 846 and in no bill that Congress specify that punishment for conspiracy was subject to punishment equal to that of the substantive section.

It always used the term which may not exceed.

Now to be sure, using a term which may not exceed allows for the possibility that the sentences will be the same, but Congress is free also to use their equal to and equal to connotes something quite different than which may not exceed.

And -- and my point again in this, is that I think that reflects that Congress was not thinking specifically of setting up this equality.

Equalization was not on there mind when they drew this section.

Justice William H. Rehnquist: But of course you have to prove more than just the Congress didn't mandate equality.

You have to prove that it didn't authorize equality?

Mr. Steven Lloyd Barrett: Well, let me -- let me say this, the -- the suggestion that you've made is that in the initial bills the -- before special parole is added there happened to be this relationship say that -- that the same kind of term was specified.

The basis of -- of a conclusion from that fact that Congress intended just to be the case was specifically the language and a structure of these two sections.

Why not if you use that same standard of an analysis, say that after special parole was added, and after the one section had special parole and another one didn't, since your -- your analysis is based on the construction of the statutes as they exist or after special parole existed taking the statute as on their face, there was not this congruence any longer.

Justice William H. Rehnquist: Well, why -- why couldn't you equally well say that Congress had thought in 1840s -- in 846, it had made attempt or conspiracy punishable in the same -- up to the same manner as it had the substantive offenses and there was simply no need to tinker with it.

Mr. Steven Lloyd Barrett: I'm -- I'm not sure I'm following the thrust of your question.

Justice William H. Rehnquist: Well that 8 -- 846 was already in -- in existence saying that an attempt or conspiracy could be punished in a manner not to exceed that which could have -- substantive offense could be punished for.

Mr. Steven Lloyd Barrett: Right.

Justice William H. Rehnquist: And after -- then came the special parole terms.

Mr. Steven Lloyd Barrett: Right.

Justice William H. Rehnquist: And wouldn't it be a permissible inference that Congress simply thought, well, we've already said in 846 that attempt and conspiracy are punishable in the same way 846 is, why fool around with it?

Mr. Steven Lloyd Barrett: Okay.

I -- I think that -- that would not be a permissible inference in this case.

First of all, they did not only say in Section 846 that attempt and conspiracy are punishable the same way as substantive offenses.

They said two things, they said it's punishable -- they said primarily, that it's punishable by imprisonment and fine.

In order words, if you're taking a section, if you take Section 846 and cross out the provision that it's punishable by imprisonment and fine, and just have the -- you just what's left being the person who violates the conspiracy section is punishable not to exceed -- is subject to punishment not to exceed the etcetera, you'd have your result and it would -- and -- and you'd be perfectly correct in -- in make the inference that this section would trace the substantive section, but that's not what Section 846 did.

846 specified imprisonment and fine.

Now, the -- the key reason, the reason why that's of such this significance is because of the way Congress dealt with Section 845.

Now, Section 845 in the -- in the initial bills -- Section 845 and 846 reassembled each other before special parole that is, in that both of them specified imprisonment and fine.

Both of them had referencing, and both of them specified that the reference applied to imprisonment and fine.

In that sense then, both of them were subject to a very similar consequence, and that is that, they did not specify special parole, but the sections to which of both of them could refer might specify special parole because special parole had been -- had been entered into the bills at the time when both Section 845, the distribution to minors and 846 the conspiracy section still did not have those sections.

Now what Congress did in H.R. 18583, was that it added a separate -- separate clause to the distribution to minor section whereas originally it specified only that Section 845 is punishable by a term of imprisonment or fine, or both up to the twice that authorizing this - the substantive offense section, now it had a separate section that said at least twice any special parole term authorized by the substantive section.

And this indicates that Congress felt that the imprisonment and fine specification was not adequate to bring in special parole.

Justice William H. Rehnquist: But 845 was a substantive offense, wasn't it?

Mr. Steven Lloyd Barrett: Yes, but I -- I -- I'm not sure that that really makes much distinction -- difference in that the -- the key similarity between 845 and 846 is they both use reference.

That I think is what's key -- the -- the analysis that we've offered, and I -- I think that the question of substantive and conspiratorial distinction is not as important as the fact.

That both these crimes are structured -- both these sections are structured identically.

They both use reference and --

Justice John Paul Stevens: Mr. Barrett isn't there this difference?

In 845, they were not merely incorporating by reference but they were changing the -- what was incorporated, namely they were authorizing twice the special parole term that the other statue would offer.

Mr. Steven Lloyd Barrett: I don't think --

Justice John Paul Stevens: So they had to refer to it specifically.

Do I not -- do I not correctly understand that, that 845 --

Mr. Steven Lloyd Barrett: (Voice Overlap) I -- I --

Justice John Paul Stevens: -- said that when you sell to a young person well you get twice as long a special parole term, so how could they have done without --

Mr. Steven Lloyd Barrett: Well, the -- the statute has provided -- Section 845 has provided, would very well easily have been interpreted twice the special parole because of the fact that it originally provided for a term of imprisonment or fine or both up to twice that authorized.

As that providing --

Justice John Paul Stevens: Well but --

Mr. Steven Lloyd Barrett: -- if they were going to double the special parole term.

If you -- if you're going to assume that the imprisonment clause of Section 840 -- I'm sorry.

Justice John Paul Stevens: I was going to say, I'm a little puzzled by it anyway, because I thought -- I didn't think there was a maximum limit on the special parole term anyway.

Mr. Steven Lloyd Barrett: That's right.

Justice John Paul Stevens: And, so one short of -- I wonder of what they really -- what the really means is that the minimum special parole term should be twice as long.

Otherwise (Voice Overlap) --

Mr. Steven Lloyd Barrett: There is a mandatory minimum.

Justice John Paul Stevens: -- make any sense.

Mr. Steven Lloyd Barrett: No there is a mandatory minimum of special parole.

Justice John Paul Stevens: So doesn't -- isn't the effect of this to double the mandatory minimum?

Mr. Steven Lloyd Barrett: Yes.

But that's -- that's -- the effect to that would -- would automatically occur if you double the punishment.

In other words --

Justice John Paul Stevens: I'm trying to remember, is there in substantive offenses, is there a mandatory minimum term of imprisonment?

Mr. Steven Lloyd Barrett: Yes.

A mandatory minimum term imprisonment, no.

Justice John Paul Stevens: Well then see -- then you did have to deal separately with the special parole term.

Mr. Steven Lloyd Barrett: Not really, if you said that the -- a person who was subject -- who had violated the distribution to minor section is subject to twice the punishment applicable in the object defense.

Justice John Paul Stevens: But in the object defense, there's no ceiling anyway, was there?

Was there max -- is there maximum (Voice Overlap) --

Mr. Steven Lloyd Barrett: But twice this -- twice the punishment.

In other words, when twice the punishment of -- when -- when simply say twice the punishment of imprisonment, what you mean in context of the statute is that if a person is subject of 10 years, twice means he's subject to 20 years, but there is no requirement as far as the minimum.

He may still get the same minimum.

When you say twice as far as special parole however, because there's mandatory minimum and no maximum, what you mean is twice the mandatory minimum --

Justice John Paul Stevens: Right.

Mr. Steven Lloyd Barrett: -- and still no maximum.

Justice John Paul Stevens: It would seem to me in drafting there would be more occasions to spell it out in 845 than there is in 846.

I'm not saying you're necessarily wrong but --

Mr. Steven Lloyd Barrett: Yes.

I -- I understand the point.

I -- I think that if the same --

Justice John Paul Stevens: May I ask you another related question, because the -- the text of the -- the entire text to the statute isn't in front of me which I can't find it.

In the terms of imprisonment under the substantive offense, there is a mandatory -- is there a mandatory minimum?

Mr. Steven Lloyd Barrett: No.

Justice John Paul Stevens: There is not I see, okay.

Mr. Steven Lloyd Barrett: Okay.

I want to just add one of a -- one other point to your earlier question and -- and that is that if you look at the language of Section 846, which is again at page 3 of our brief.

It speaks of final imprisonment or both which may not exceed the maximum punishment prescribed for the offense.

Now, maximum punishment prescribed for offense really doesn't mean anything when you're talking about special parole.

It only means something when you're talking about fine or imprisonment, because those terms are established as maximum terms.

In other words, if -- if Congress is going about -- when it -- when it changed Section 845, if it was making the change so that -- for artistic reasons, let's say, so that it was clearer that what you're talking about is doubling -- mandatory doubling the special parole and permissibly doubling the authorized term of imprisonment, they should've made a similar change in attempt and conspiracy because really on its face, speaking of a maximum punishment, does not make very much sense in Section 846 when you're referring to special parole which of course has no maximum punishment.

Justice Potter Stewart: Well, then perhaps you explained it, and I just didn't get.

What's the meaning Section 845 which imposes upon the sentencing judge, the duty of imposing a special parole term of at least twice the term authorized by Section 841 (d) and if there is no maximum what is -- what is twice that?

Mr. Steven Lloyd Barrett: Twice the mandatory minimum in which special parole is always provided as a mandatory minimum term, always.

In other words, the statute always says, that you shall receive at least two years, or three years, or four years, special parole.

It never specifies the maximum term.

So in other words, any term from two years to life is always a legal or in fact is a mandated special parole term.

Justice Potter Stewart: Special parole?

Mr. Steven Lloyd Barrett: Right.

Justice Potter Stewart: And so it's twice than the minimum under 845?

Mr. Steven Lloyd Barrett: Right.

Justice Potter Stewart: I see.

Mr. Steven Lloyd Barrett: I -- I (Voice Overlap) --

Justice John Paul Stevens: May ask you another question just to help me --

Mr. Steven Lloyd Barrett: Sure.

Justice John Paul Stevens: -- sort this thing out.

In either the substantive offense or the conspiracy offense in your view could a judge put a first offender on parole right away or probation right away?

Mr. Steven Lloyd Barrett: Yes.

I -- I believe so.

Justice John Paul Stevens: Then in other words that authority would be encompassed under 846 and in other word, that would be just generally included (Voice Overlap) --

Mr. Steven Lloyd Barrett: I would think that -- it's in first (Voice Overlap) --

Justice John Paul Stevens: -- imprisonment -- fine -- imprisonment or fine that would include prohibition in (Voice Overlap) --

Mr. Steven Lloyd Barrett: Yes.

Yes.

Justice John Paul Stevens: Why would it include prohibition but not parole, special parole?

Mr. Steven Lloyd Barrett: Because I think that that is at 18 U.S.C. 3651 the probation statute provides that a term imprisonment may be probated, but parole is a -- is a different thing in probation.

Justice John Paul Stevens: I see.

Mr. Steven Lloyd Barrett: And my -- my special (Voice Overlap) -- that's the really three concepts here, the probation, there's parole, and the special parole.

And they really are very, very different.

Justice Potter Stewart: And special parole is peculiar to this legislation isn't it?

Mr. Steven Lloyd Barrett: Yes.

Unique to this legislation -- it's never been found -- we didn't find it in any other state legislation, any of the federal legislation.

And -- and I think that -- that perhaps you should be thinking in terms, that even though it's called special parole, you could call it anything want, it -- it really does not have that close relationship to parole.

Parole is -- served as part of the present sentence it's a -- you -- you have the fixed term imprisonment.

You serve part in jail and part in parole.

Special parole waits until that parole term is finish.

Now, in fact Mr. Bifulco right now is serving parole.

He has been released from jail, he is on parole.

Once he successfully completes his parole term, in other words he maxes out on the -- the original prison term then he has to start the five years special parole on top of it.

There is no concurrence that --

Justice William H. Rehnquist: Could you call it imprisonment?

Mr. Steven Lloyd Barrett: You could call it as potential imprisonment in that -- in that if it's revoked it's imprisonment, but you can't call it imprisonment, no certainly not.

I would be factious, certainly not.

It's certainly a very distinct punishment form imprisonment because to the fact that the way it is served, because of the fact that unlike imprisonment which is -- which in only one case has a mandatory minimum, special parole always has a mandatory minimum and because it -- it's subject to hold different kind of revocation, it's quite to distinct punishment.

Justice Thurgood Marshall: What's the difference between special parole and regular parole?

Mr. Steven Lloyd Barrett: Okay.

You get a five year term of imprisonment and the parole board initially they -- they look at the parole guidelines and they set your -- how much time you have to spend in jail of that five years and -- and when your consideration for parole is.

Let say the parole board says that you have to serve three years in jail and after that your eligible parole.

Justice Thurgood Marshall: I know that as a matter of the term and I'm talking about does he report to his parole officer (Voice Overlap) --

Mr. Steven Lloyd Barrett: Oh, (Voice Overlap) The -- the statute doesn't specific, my -- my understanding is that -- yes.

You -- you are under the control of the parole officers just as you would be.

Justice Thurgood Marshall: Well, that's why I want to know, what the difference?

Does he report twice a week instead of once a week or --

Mr. Steven Lloyd Barrett: I don't -- I don't -- I don't -- well, it's not specified in the -- the statute -- my understanding is that not subject to the way the parole officer wants set it up.

I -- I don't think that in that sense there's a distinction in terms of what you have to do to serve, in other words is think special (Voice Overlap) --

Justice Thurgood Marshall: So the word, “special” means what?

Mr. Steven Lloyd Barrett: Special means different --

Justice Thurgood Marshall: I -- [Attempt to Laughter]

Mr. Steven Lloyd Barrett: -- what extra.

I was speaking about the legislative history and I think I've covered really most of the points that I wanted to.

The -- the main point I wanted speak of course was that that Section 845 made this change, and 846 did not make this change.

And I think that that indicates Congress's intentions, and I think that in fact if you look at H.R. 18583 which is the bill that was enacted by Congress, the intent of Congress with respect to these two sections is very, very clear in that -- in that bill they amended the parole revo -- in a parole revocation section there is a reference prior to H.R. 18583.

There is a reference to special parole imposed under this act.

Now, in conjunction with changing 845, by adding the second -- special parole clause, Congress changed the term imposed under this act to special parole imposed under Section 841 or 845.

No mention of Section 846 there.

So 845 is included and 846 is excluded in terms of -- of this particular reference.

Now, that's in Section 841 (c) which is at page 3 of our brief.

We show that in light of Congress's act -- activity as to other sections it cannot be maintained that Congress' failure to add special parole as anything but intentional and it was -- the very purpose of keeping special parole out of a Section 846 sentence.

If I could try to paraphrase Mr. Justice Frankfurter in the Youngstown Sheet and Tube versus Sawyer case, it's one thing to say that Congress intended special parole to apply to conspiracy despite not having so specified where Congress did not address itself to the need for separate special parole authorization.

But it's quite impossible when Congress didn't specifically address itself to the need for specific and specials -- to specific special parole authorization to find in Section 846 the grant of special parole authorization which Congress consciously withheld.

We feel therefore, that the legislative history teaches the same lesson that statutory scheme does.

And that is that Congress retain in Section 845's precise specification of penalties, imprisonment and fine for the purpose of providing for imprisonment without a special parole term for the crime of conspiracy.

My time is almost up, I -- I'm -- I just did want to say -- speak very briefly on the doctrine of lenity, because we feel that -- we feel in this case that the statutory language and legislative materials lead to an inescapable conclusion as the Congress' intent, but should this Court remain unconvinced and fine some merit in the Government's position, we feel that there are nonetheless sound reasons for disclosing this case by excluding special parole from this convict's sentence.

The absence of special parole in Section 846 and -- and Congress's addition of special parole to other sections which was structured like Section 846, provokes to the very least some doubt in our favor and the most that the Government can prove we feel is -- is that there is ambiguity in this case.

That it -- it cannot -- it cannot erase the express terms of the statute.

Where Congress' unwavering retention trough all these bills of the expression of imprisonment and fine or both, and therefore in -- in accordance with this Courts long preference for the resolution of ambiguity in criminal statutes in favor of lenity and particular in term of -- in light of this Court's determinations that lenity applies in sentencing cases.

Chief Justice Warren E. Burger: Do you think the doctrine of lenity applies with the monolithic uniform sense to drug crimes and all other crimes or do you think there is a difference?

Mr. Steven Lloyd Barrett: I don't there's difference Mr. Chief Justice on the basis of the crime.

But I --

Chief Justice Warren E. Burger: (Inaudible)

Mr. Steven Lloyd Barrett: No, I don't -- I -- I think it's with in this Court discretion.

And I would submit that, that lenity should be used in this case but in this Court's discretion.

I -- I think so that the key to the operation of lenity is not the question of the crime committed, but the question of the ambiguity in a statute.

And I think that the statute -- well I -- I definitely think the statute is clear, but I think at the very, very least our -- our points show that there's some ambiguity here.

Justice John Paul Stevens: Mr. Barrett before you sit down, could you tell me this, it's your view that the special parole term is not authorized at all.

Now, the contract of you could either be that it's authorized but not mandated, or that it's mandated and entered the substantive offense it's mandated.

Now, do you know in the cases that have gone against to you, which view have they taken for that?

Mr. Steven Lloyd Barrett: I've never seen expressed the view that special parole is anything but mandatory.

Justice John Paul Stevens: It would -- if it applies (Voice Overlap) --

Mr. Steven Lloyd Barrett: If it applies, it applies only mandatorily as -- with -- with imprisonment.

I -- I've never seen any suggestion that it can be in this (Inaudible).

Thank you very much Mr. Chief Justice.

Chief Justice Warren E. Burger: Very well.

Mr. Dalton.

Argument of Harlon L. Dalton

Mr. Harlon L. Dalton: Mr. Chief Justice may it please the Court.

Like petitioner we began by focusing on the statute itself and in particular on the statute as whole and determine what can be -- what -- what guidance can be drawn from the structure of the statute.

Sections 841 through 845 of Title XXI define various drug related substantive offenses and fits penalties for committing them.

Section 846, the attempt and conspiracy section, makes unlawful an attempt or conspiracy to commit one of those substantive offenses and -- however, Section 846 does not itself define the conduct which if attempted or planned with constitute in offense nor does it create sound penalty or sentencing scheme.

Instead Section 846 looks to the substantive offenses and takes from them, borrows from them, draws from them the penalty schemes that are included in those substantive offenses.

Thus, whether the one looks at Section 846 as active or passive as a referencing statute or as a conduit, the language doesn't matter.

The reality is that Section 846 derives its meaning, its very meaning and derives its penalty structure from the substantive offenses, and imposes the same penalties in the same combinations as would apply to a substantive offense that was the object of a particular conspiracy.

The fact that Section 846 refers to punishments “not to exceed” the maximum punishments set in the substantive offenses does not detract from this view.

True, Congress could have in -- could have stated that conspiracy sentences must be equal to sentences imposed for substantive offenses, but as a practical matter the difference between equal to and not to exceed the maximum -- the -- the difference doesn't exist, those -- those phrases are as a practical matter is synonymous because the Drug Abuse Act does not create fixed sentences or determine sentences rather fixes maximums, maximum terms of imprisonment, maximum fines and in the case of special parole, minimum -- minimum term, so that the talk in terms of equality really is to talk strange language because there is no fixed sentence that must be imposed even for substantive offenses.

In other words, if Section 846 says, upper limits that same statement can be said of the substantive offenses which create upper limits for the -- for the imprisonment and fine that can be imposed under them.

Now, the legislative history of -- of the Drug Abuse Act, we believe underscores this -- this congruence between sentencing for conspiracy and sentencing for underlying object offenses.

The -- as Mr. -- well, the predecessor statutes -- the statutes that preceded the Drug Abuse Act, all provided for (Inaudible) for congruence between sentences imposed for conspiracy and sentences imposed for substantive offenses.

In 1969, the administration introduced a comprehensive bill which was designed to make many changes in existing law, to consolidate existing law, to change the penalty scheme.

However, and indeed that bill in every one of its incarnations, they'd create a separate sections for conspiracy which should not in the case prior to 1970 or 1969.

But at no point the Congress change the basic congruity between sentencing for conspiracy in substantive offenses.

In fact in response to your question Mr. Justice Rehnquist, petitioners in their reply brief I believe at page 7 conceive that this initial draft, the initial bill that was introduced in Congress in 1969, created punishments for conspiracy that would “identical quoting from their brief to sentences that would be imposed for related substantive offenses”.

Now, at no point during Congress's consideration of -- of that bill, was there any indication that Congress desired to alter that identity between -- the sentencing identity.

Indeed, the spokespersons for the administration who spoke to the bill both before the passive to special patrol -- special parole introduced and after indicated that the concept of co-terminus sentencing was to be retained.

Turning to Section 845, that's the distribution to minors provisional statute, it's quite correct as -- as to Mr. Justice Rehnquist pointed out I believe that Section 845 is a substantive provision and to that extent it is different and kind in Section 846.

It's also correct as Mr. Justice Stevens pointed out that Section 845 is not a simple referencing statute, it changes the nature what it is referenced.

It provides for at -- for up to twice imprisonment and fine and at least twice the special parole.

And in for that reason, there is some sense that -- that there is greater need for specificity in drafting.

But beyond that, the history of Section 845 is radically different from the history Section 846.

During the course of -- of -- of the passage of the -- the comprehensive bill on route to becoming the Drug Abuse Act, Congress rewrote virtually every word of Section 845.

Congress altered its language and indeed its -- its substance and during the course of that those alternations took the opportunity to effect to conformity changes to which petitioner refers.

Specific with the first after Section 845, specified that the purchaser must be eight -- under the age of 18.

It specifies that there must be a three-year deferential between the ages of purchaser and seller.

In other words, the -- the seller must be at least three years older than the purchaser.

That initial draft tried to differentiate between narcotics distribution and other kind -- distribution of other kinds of controlled substances.

Most importantly that that initial draft provided for an enhanced -- enhanced imprisonment that is twice the imprisonment but did not provide for an enhanced fine.

Now, the second draft of -- of section -- of what became Section 845 occurred after the concept of special parole was introduced, after a series of hearings were held in both houses of Congress.

That second draft however, did not plug in the concept of special parole.

It -- it tinkered a little bit with -- with that distinction that I mentioned between narcotics and other kinds of drug distribution offenses.

In the third and final draft of the -- of the statute, the narcotics are the controlled substances distinction was dropped.

The age of -- that purchasers must be to come within the statute was raise to 21.

The disparity between purchaser and seller was removed.

Fines -- the fine that would be impose if a distribution were to an adult was enhanced along with imprisonment, and at that time Congress effected a conformity change with respect to -- to special parole.

Similarly, the history of the second offender provisions which petitioner comments on in -- in his brief are radically different from -- it is radically different from the history of Section 845.

The second effective provisions under went major rewrites by Congress.

They were revised not only in terms of their language and content, but their structure as well and during the of course of those provisions the -- the conforming change was made in the repeat offenders sections as well.

In contrast Section 846, as it appears in Title XXI today, reads the same, line for line, word for word, coma for coma, as the section that was introduced in the initial Government bill back in 1969.

There was an aborted effort at some point to change the word “attempt” to “endeavor,” but that was the single, the sole effort to change even one (Inaudible) of title of that section.

As result, Congress -- the conspiracy and attempt section became law without Congress have a really focusing on it's -- on its precise language.

Nevertheless, there is -- there -- there can be no question of the intent of Congress to maintain the traditional congruence coterminous between sentences for conspiracy and underlying substantive offenses.

I've already discussed the -- the structure -- the very structure of statute and the legislative history.

In addition, simply logic dictates that conclusion.

It's inconceivable that Congress considers special parole a needed and appropriate penalty or response to substantive offenses which can -- in fact involve isolated transactions by single individuals, and yet discarded that same remedy for those who act in consort to achieve the same end.

Congress fashioned the -- the remedy of the special parole in order to impose -- post incarceration -- in order to maintain control over the post incarceration conduct persons who -- who engage in drug distribution and in order to serve as a deterrent to repetition of criminal misconduct and it defines common sense to -- to assume, or to believe, or conclude absent some evidence that Congress sought to achieve those -- those objectives only with reference to completed drug distribution offenses.

Indeed petitioner cited no -- no reason, policy and no reason in logic, why Congress would have wanted to -- would have a purpose to -- propose to treat conspiracy differently than substantive offenses.

Now, petitioner suggests and I should I understand the argument, but that if one looks at the -- the pattern of -- of substantive offenses to which Congress has assigned the penalty of special parole one can conclude that Congress could not have intended to assign that same penalty to conspiracy.

I think this a non sequitur.

First of it -- the question isn't whether given the fact that Congress has a assigned special parole to one substantive offense it sure logically would have assigned it to another substantive offense.

The question is whether given the fact that Congress has assigned special parole to particular substantive offense it intended for conspiracy to engage in that precise offense to be similarly punished.

But in any event, there is a clear and logical sensible pattern to the -- the man in which Congress assigned special parole even among the substantive offenses.

Of the nine offense defined in Sections 841 through 844, the four most serious -- most serious that is in terms -- in the sense that they involve trafficking in narcotics and in other easily abusable drugs, those four most se -- the serious offenses mandate in petitioner special parole term.

Now, it's true that the continued criminal enterprise section which is Section 848 does not impose a special parole term, but that's section has a 10-year mandatory minimum term of imprisonment.

It authorizes to a maximum of life imprisonment.

It authorizes fines up to $100,000 and it provides for forfeiture of -- of profits from any continual criminal enterprise and of any property that is somehow associated with the enterprise.

And so in view of that clearly severe set of penalties that the fact that special parole is not among them is valid at the moment.

Petitioner points to two other sections alluded to them in his argument today that petitioner deems equally serious to the ones for which Congress imposed special parole and yet which you don't.

One of those sections, Section 841 (d) I believe was not even part of the Drug Abuse Act as passed in 1970.

It was added less than two years ago, less than 15 months ago.

And it -- by the way, it penalizes possession of piperidine with intent to manufacture phencyclidine which is I guess a more commonly known as angel dust.

That Section 841 (d) was part of an experimental statute as I say passed to some less than two years ago, that was designed to experiment with ways to deter abuse of piperidine and the section includes both criminal and non-criminal ways of trying to deal with this problem and that statute including Section 841 (d) on which the petitioner relies will expire in -- in 1981 by its own terms absent further implementing legislation.

The other section on which petitioner relies to suggest that that there is little rhyme or reason to the -- the pattern in which the Congress impose special parole is Section 843 which again is different in kind than the sections to which special parole applies.

It's a reporting section that has to do with -- parties who are -- are licensed or authorized to dispense narcotics or drugs rather in do so in a flagellant fashion.

And Congress could quite logically chose to treat those kinds of offenses differently than kinds of offenses that are -- which the Court is concerned.

Justice John Paul Stevens: Mr. Dalton --

Mr. Harlon L. Dalton: Yes.

Justice John Paul Stevens: -- do you agree that the -- in a conspiracy case the -- the special parole term must be imposed?

Mr. Harlon L. Dalton: Yes.

Yes, I'm not sure that that the way that we framed our question was necessary -- to the question presented in our petition would necessary indicate that, but yes we do.

Justice Potter Stewart: And it's a -- do you agree with your brother that that's been a view of a every court that has agreed with your position?

Mr. Harlon L. Dalton: Yes, it has.

All five of the Sixth Circuits have agreed with our position.

Justice Potter Stewart: And your position has been unanimously endorsed in the circuits, hasn't it?

Mr. Harlon L. Dalton: With exception of the -- the Third Circuit --

Justice Potter Stewart: (Inaudible)

Mr. Harlon L. Dalton: -- no the Third Circuit in fact in that case --

Justice Potter Stewart: And then as the District Court --

Mr. Harlon L. Dalton: -- in California which --

Justice Potter Stewart: -- of California (Inaudible)

Mr. Harlon L. Dalton: Exactly which did not go to Ninth Circuit --

Justice Potter Stewart: It is not, and the Ninth Circuit has rule (Voice Overlap) --

Mr. Harlon L. Dalton: That's correct.

In sum logic and common sense combine with the structure in the history of the Drug Abuse Act to dictate that special parole must be imposed as part of offense for conspiracy whenever that penalty would be imposed for the substantive offense which is the object of the conspiracy.

That's clearly Congress's intent, and this Court can give effect to that intent by concluding that the phrase imprisonment or fine or both is merely illustrative and does not limit the penalties incorporated by Section 846.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

United States v. Moore - Oral Argument

Thu, 23 Aug 2012 18:29:43 +0000

Case:

United States v. Moore

Media File:

74-759_19751007-argument.mp3

Related Transcript:

74-759_19751007-argument

Transcript:

Argument of Paul L. Friedman

Chief Justice Warren E. Burger: We will hear arguments next in number 74-759, United States against Moore.

Mr. Friedman, you may proceed whenever you are ready.

Mr. Paul L. Friedman: Mr. Chief Justice and may it please the Court.

This case is here in a writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.

The question is whether a physician, and it also applies to other practitioners including pharmacist, registered under the Controlled Substances Act to prescribe and dispense drugs for legitimate medical purposes is immune merely because he is so registered from prosecution under the Section of the Act which prohibits the unlawful distribution of controlled substances.

The evidence at trial was overwhelming that respondent was really no different from any street-corner drug pusher and that he engaged in the indiscriminant sale of prescriptions for profit without really providing any type of medical treatment for his so-called patients.

And yet the Court of Appeals concluded that Congress intended to exempt someone like respondent because he was a doctor from penalties applicable to other traffickers in narcotic drugs.

In reaching this conclusion, the District of Columbia Circuit stands alone, because of this, the First Circuit, the Fifth Circuit, the Seventh Circuit, the Ninth Circuit and the Tenth Circuit, and we think by implication the Sixth Circuit had concluded that Congress intended that doctors, pharmacies, hospitals, veterinarians and other practitioners, who after all had the greatest access to drugs and the greatest opportunity to divert them, would be treated the same as any other persons when they traffic in narcotics.

Briefly, the facts, are that respondent was indicted at first in 639 counts, each involving a sale of a prescription, but he went to trial on 40 counts, 38 were presented to the jury and they have convicted in 22 counts.

The evidence at trial showed that methadone, which is the controlled substance involved in this case, is a synthetic narcotic drug, it is a morphine substitute and it can be as physically and psychologically addictive as heroin can.

In fact because it is cheaper and it is often more readily available than heroin, some heroin addicts use it as a substitute for heroin when they cannot get heroin.

But at the same time, under proper supervision and control, it can be very useful in the treatment of addicts either through “detoxification” or “maintenance.”

Detoxification, which is what respondent say he was involved in here, involves giving the addict a large of dose of methadone at first in order to keep him free from withdrawal symptoms and gradually reducing the dosage until he obtains -- attains abstinence from all drugs.

Maintenance on the other hand, really substitutes methadone addiction for heroin addiction, a fixed dosage is given for an indefinite period of time.

Now, respondent had run a detoxification program in the District of Columbia in 1969, but he was ultimately arrested for violating the Harrison Narcotics Act, an Act that this Court said maybe violated by physicians when they sell prescriptions or drugs indiscriminately and not for legitimate medical purpose.

He promised at that time that an exchange for the dismissal of charges, he promised the Grand Jury that he would change his ways in the manner in which he conducted his program.

That he would obtain medical histories from all of his patients, that he would conduct reasonably thorough physical examinations, that he would abide by the results of urinalysis, which can show whether or not there are narcotics in the bloodstream.

That he would record the times and the amounts of the dosages of methadone given and that he would either give the methadone at his clinic or he would prescribe only so much as necessary for daily dosage.

At trial in this case, he admitted that he did not follow these agreements.

In a five and one-half month period, which is the time involved in the indictment here, from September 1, 1971 to February 11, 1972, it is true that respondent was registered under the Controlled Substances Act to conduct the methadone detoxification program.

He did not give physical examinations to his so-called patients.

He did not take urine samples under supervision.

He ignored the results of his urine samples and he did not give the methadone at his clinic and he did not prescribe only a daily dosage.

Rather, he sold prescriptions and he charged as our brief indicates and as the record clearly shows, depending upon the amount of tablets prescribed.

If you got a 50-tablet prescription you pay $15.00, if you got a 75-tablet prescription you would pay $25.00, for a 100-tablet prescription you pay $35.00, you could come back as often as you wanted to.

Some of witnesses testified they came back every day or every other day, a few came back on occasion, more than once in a single day.

Justice William H. Rehnquist: Did he fill the prescriptions himself?

Mr. Paul L. Friedman: No, what did was he wrote out the prescription for whatever amounts you want it and you paid for the prescription, you then went to a drug store and had the prescription filled and paid again for the druggist's fee.

There were three particular drugstores involved here, none of which were charged with any criminal offenses, but the 11,000 prescriptions filled in this period were all filled at these particular drugstores.

Justice William H. Rehnquist: So his escalating rate for the difference in numbers in the prescription could not be attributed to the filling of the prescription by him?

Mr. Paul L. Friedman: That is right, it had nothing to do with the cost of the particular tablet.

It was the cost of him writing a hundred rather than fifty that was involved.

In five-and-half months, he sold prescriptions for 800,000 Dolophine tablets, which is a form of methadone and he took in over a quarter of a million dollars.

He gave no treatment.

Chief Justice Warren E. Burger: In what period?

Mr. Paul L. Friedman: Five-and-one-half month period from September ’71 to February of ’72 when he was closed down.

Chief Justice Warren E. Burger: How did that relate to the appearance before the Grand Jury?

Mr. Paul L. Friedman: The appearance before the Grand Jury was back in ’69 when he promised to make the change in his form of treatment and for a time he apparently did or at least was not detected, if he did not and he did have a registration to engage in detoxification.

But then in ’71 it came to the attention of the authorities that he was not following these promises and through the use of undercover agents and otherwise, they found that he was not doing any of the things that he promised that he would do and so he was arrested, closed down and indicted in these 639 counts indictment.

There was some feeling I gather that back in ’69 that because detoxification could be useful if properly run and supervised and controlled, that Dr. Moore should be given a chance to do it under proper conditions because he could make a contribution to the community in helping addicts.

But apparently as the evidence showed at trial that was not his desire or intention at all, because less than two-years later he was --

Justice Thurgood Marshall: Mr. Friedman, was not all that agreed to in the Court of Appeals?

Mr. Paul L. Friedman: All these facts, absolutely, Mr. Justice Marshall.

Justice Thurgood Marshall: There is one about the time he spent and all?

Mr. Paul L. Friedman: Well I think it is important to put this in a proper factual context and to show really how Congress could not possibly have intended, that people that engage in this kind of a egregious conduct should be exempt from felony prosecution for distributing or selling narcotics.

Congress was well aware of the potential for abuse, the dangers that treatment programs have, the fact that doctors are the largest source, doctors and pharmacies, of diversion of drugs into illicit channels.

And they could not possibly, in light of the opinions of this Court, have intended without ever saying so to have exempted physicians because the law was clear at the time they enacted the Controlled Substances Act that physicians were covered by the old Harrison Narcotic Act, and we do not think that given what Congress knew, they by their silence intended to exempt the physicians.

Unknown Speaker: Well, I gather in the Court of Appeals, the conclusion was, admitting all this things that you have say that Doctor did, that the, nevertheless he could not be prosecuted for violation of this statue, but if for any, it would have to be for non-compliance with the provisions governing his registration under 822, is it not that it?

Mr. Paul L. Friedman: Yes, well --

Unknown Speaker: I mean is that essentially what the Court --

Mr. Paul L. Friedman: Essentially, what the Court of Appeals said is that, that he could only be prosecuted under 842 or possibly 843 if he did things like -- they were covered by that statute.

842 (a) (1) is what the Court of Appeals particularly referred to which is a statute which prescribes someone, which makes it originally a civil penalty unless you do it knowingly, to distribute or dispense a controlled substance without the prescription of 829.

Now, Judge McKinnon (ph) in his dissent said that if you are not prescribing for legitimate medical purpose then it is not really a prescription, and therefore, you could be punished under 842 (a) (1).

We are not so sure that it is not the prescription.

It still looks like a prescription and a pharmacist sees it, he relies upon it and he prescribes.

But perhaps more importantly than that, the legislative history in the whole statutory scheme makes clear that 842, and to some extent 843, really intends to get at the kinds of technical violations of a registration scheme.

And the anomaly is that if he writes a prescription, as Dr. Moore did, he may be punishable under 842 (a) (1), but if he gives away drugs indiscriminately, the analogy or the contrast that Judge Lombard used in the Rosenberg case in the Ninth Circuit was, if he stands in a street corner giving out drugs or giving out prescriptions, he cannot be prosecuted at all.

But if he writes it in a piece of paper, which may or may not be for a legitimate medical purpose, he can be punished up to one year.

Now, that does not make any sense.

If he is really selling drugs, and by selling prescriptions he is selling drugs, he ought to be treated like any other trafficker like any narcotics pusher because he is really no better than that.

And we think that Congress intended that.

Now, very briefly, the way we read the statute and we think the more logical way to read the statute, is not to say that when 21 U.S.C. 841 (a) (1) says, except as authorized by this subject, they intend to wholly exempt a whole class of people, but they are talking about his conduct that maybe authorized by the subchapter because they say that it shall be unlawful for any person to distribute or dispense a controlled substance, except as authorized by the subchapter.

Now, the kind of conduct involved is then defined by other provisions of the subchapter, beginning with Section (a) (22) which requires a registration.

But the registration does not authorize a person so registered to do anything he wants to with the controlled substance, but rather he is permitted to dispense or distribute only to the extent authorized by his registration and in conformity with other provisions of the subchapter.

Now, the registration, which Dr. Moore had permitted him to dispense for detoxification, the evidence at trial showed that that is not what he was doing, he was not dispensing for any legitimate form of medical treatment.

But we do not rely solely on that, we rely on the -- in conformity with other provisions of this subchapter language, and the other provisions of the sub --

Justice Thurgood Marshall: Which statement, you have given up the regulations?

Mr. Paul L. Friedman: Well, we have not given up the regulations, the way we view the regulations --

Justice Thurgood Marshall: I can see it in your brief?

Mr. Paul L. Friedman: Well, it is in our reply brief because we do not think that he was prosecuted or convicted for violating a regulation.

We think that the regulation was used really as a helpful means for the prosecutor, on short notice without any request for bill of particulars, to explain to the Court exactly what its theory was because 306.404 (a) of the regulations defines in a little more fully what it is meant by in the course of professional practice, which is for a legitimate medical purpose.

Justice Thurgood Marshall: And you have not abandoned that?

Mr. Paul L. Friedman: We have not abandoned our reliance upon as a useful way of describing what he did in violating the statute.

We do not agree that it was used by the prosecutor to set out the criminal offense.

In other words Mr. Bergan argues that, that one of the problems in this case is that respondent was convicted of violating a regulation.

We say he was not convicted of violating a regulation.

He was convicted of violating a statute, which by its terms explain what was authorized.

Prosecutor used the regulation before the Court to explain more fully, what the statute meant to the extent that he referred to 306.04 (c) which referred to methadone maintenance; that described what Dr. Moore’s particular registration permitted him to do and not to do.

He was permitted to detoxify, not to maintain, but I am pointing a fact, the theory of trial, was that he did not engage in any bona fide medical practice.

The expert said he did not engage in practice which was acceptable either for detoxification or maintenance.

The lay testimony made clear to anybody listening to it that this was not legitimate medical practice for any purpose, and that we say is what the jury found, and that is a violation 841.

Chief Justice Warren E. Burger: Did he not rest whole his defense or largely on the idea that that is the way he did it under the statute --

Mr. Paul L. Friedman: That is exactly right.

Chief Justice Warren E. Burger: -- what is practiced, and he says that is the way he does things, even though no one else does?

Mr. Paul L. Friedman: That is exactly right, and he relied on two textbooks, one of which he had taken out from the library on the morning the first day of the trial to support this theory, which no else viewed as a legitimate form of medical practice.

He said at trial, and it is in appendix of page 113, that it was never his intention to maintain patients.

My intent was to detoxify patients and to get them completely off of all drugs.

I never wanted to maintain patients on methadone.

I want them to make them completely drug-free and so to the extent that we relied on the regulation, there was no inconsistency, no prejudice to respondent, and yet his testimony of trial was, what he did was he gave them as much as they wanted to go out, fill themselves up with methadone, and a new theory of blockading and then they would come back to him and say I am ready now to detoxify, that is the second stage, I cannot take anymore methadone, I cannot take anymore heroin.

But when asked about the second stage, which would obviously be the crucial stage in that kind of so-called “treatment” psychological counseling, there was none.

A typical visit lasted from 30 to 60 seconds, on one day he prescribed he wrote 271 prescriptions, and he was asked how he could do that in a single day, how he could, counsel he said, I either write very fast or I talk very fast and possibly both.

That is the kind of practice that was involved here and the statue we think by its terms, by its definition of dispensing limited to a practitioner, by its definition of practitioner, which allows dispensing solely in the course of professional practice which means for a legitimate medical purpose.

Congress intended that this kind of drug trafficker should be covered by the felony provision, which makes it unlawful to distribute or to sell.

Justice Potter Stewart: Are you not in a little -- are we not embarking on kind of dubious grounds when we impose criminal -- serious criminal liability based upon professional disagreements among physicians?

This defendant was a physician, was he not?

Mr. Paul L. Friedman: Yes, he was.

Justice Potter Stewart: And is it not true that historically most, if not all of the great breakthroughs and advances in medical science have been made by people who did not follow the conventional way of doing things.

They followed a new way, their way, and most of the conventional physicians of their day would have disagreed with them because this is not the way it has always been done.

And if that is the new -- it bothers me that this kind of evidence can send a person to prison for as long as this has been going, some many, many years, but in any event, that that is the sort of evidence that is the basis for criminal liability.

This man was a physician, he was not a fraud?

Mr. Paul L. Friedman: No question he was a physician, and no question he had --

Justice Potter Stewart: And he had his way of doing it and he testified as to what that way was and it may have been quite wrong, and it might ultimately turn out to be very -- a very good way, but the fact that other physicians said that that was not their way should hardly make a criminal out of this person?

Mr. Paul L. Friedman: Well, except that Congress when it wrote the Controlled Substances Act was aware of that very kind of problem.

There is some language in legislative history that originally appeared on the Prettyman Commission report said that one of the problems with the Harrison Act was that we are allowing federal prosecutors to make judgments as to what is a legitimate medical practice and what ought not to be.

And so with the Controlled Substances Act, what Congress said in writing the Controlled Substances Act is we agree that ought not to be, but on the other hand drug abuse is too significant a problem to allow this kind of experimentation by just any physician.

So what we are going to do is we are going to have a provision in the statute, which allows the Secretary of Health, Education and Welfare rather than the Attorney General to set out what kinds of things can be done.

If you want to try a new form of treatment -- a new form of treatment that you want to experiment with, well, go to the Secretary of H.E.W and he will give you a special registration to do it under the statute and he will run it by the Attorney General, but he will make the judgment.

Now, we do not like the idea, said Congress, of having any official in the Federal Government defining what is and is not permissible, but better it should be the Secretary of H.E.W than the Attorney General, but it has to be somebody.

It cannot be left to the individual practitioner because the potential for abuse is simply too great and so in 21 U.S.C. 823 (f), there were provision made -- there was provision made for new kinds of research.

If you went to the Secretary of H.E.W and said, I want to try this kind of method instead and in the new Act, the Narcotic Addict Treatment Act of 1974, Congress took it upon itself to put some specifics into the law by saying that you could never prescribe for detoxification or maintenance.

The implication of the regulation, which was passed after the Narcotic Addict Treatment Act of 1974, is that it can only be given out in clinics.

It cannot be prescribed to go to pharmacist.

So the Public Health Agency was given the authority under the Controlled Substances Act to set standards.

If one complies with those standards he obviously cannot be prosecuted.

That solves the problem of the Katzenbach Commission I mentioned -- I mean, said the Prettyman Commission -- I meant Katzenbach Commission, had noted --

Justice Potter Stewart: But that does not really solve.

That sort of approach, under that approach the world would still be flat, if Galileo had to go and get permission to --[Laughter]

Mr. Paul L. Friedman: It seems to us that the statute is talking about a problem of drug abuse and how to control it.

It recognized that doctors, pharmacies are the greatest sources of the illegitimate distribution of narcotics, It is amply supported in the legislative history.

How does it deal with it?

Does Congress set out what can and cannot be done?

Congress said in the course of professional practice for a legitimate medical purpose.

These are terms which this Court had no trouble with under the Harrison Act, and on the evidence of this case and in fact, if you compare the facts of some of the early Harrison cases, Jin Fuey Moy and Webb (ph), as opposed to Linder which was the latter case in which -- what was involved was four morphine tablets, we think that under a definition of good faith effort to treat, legitimate medical purpose in the course of professional practice, judges and juries can make those kinds of judgments and evidence before them.

And that the facts of this case are so blatant, so blatant that no one could honestly believe that this man was engaged in legitimate medical practice in the course of his professional practice.

And the fact that Congress has set up a mechanism to define what can and cannot be done, and there are ways to find out what you can and cannot do helps to solve the problem.

Now, to the extent that it does not -- it may not permit every single kind of experimentation in a clinic program as opposed to in a laboratory or on an experimental basis, we think it is legitimate for Congress to have made that judgment because of the tremendous potential for abuse and danger and because of what we see in this case, of the addicts, the methadone addicts who came into court and testified as to what Dr. Moore did to them, and how much more soft they were after they went into his program than when they started in his program.

And --

Justice William H. Rehnquist: Galileo went to jail, did he not?

Mr. Paul L. Friedman: I am afraid [Laughter] well, my history is not as good as it should be --

Justice William H. Rehnquist: But he did, you know, why should not this guy go to jail?

Justice Potter Stewart: Have you ever thought of, subsequent history had thought that it was such a great thing that Galileo had gone to jail, however that is --

Chief Justice Warren E. Burger: Galileo --

Justice Potter Stewart: Galileo is not in this case --

Chief Justice Warren E. Burger: Yes.

Justice Potter Stewart: He is not part of this.

Mr. Paul L. Friedman: [Laughter]

Chief Justice Warren E. Burger: Galileo did not issue 271 prescriptions for drugs in one day --

Mr. Paul L. Friedman: No, he did not.

Chief Justice Warren E. Burger: I do not think he helps us very much one way or the other.

Mr. Paul L. Friedman: Well, in any event, our position in brief is that Congress intended that people like respondent, who engaged in the kind of conduct that respondent has engaged in, are covered by 841.

That the technical provisions of the statue are really not enough and the anomaly of relying solely on the technical provisions, as opposed to the provision for a drug trafficker, makes clear that Congress really intended that as does the legislative history.

There is no indication in the legislative history despite an obvious awareness of some of the problems we have talked about, despite an awareness of what the law was under the Harrison Act, there is no indication that Congress intended to differentiate between practitioners on the one hand and other drug traffickers on the other hand.

If they had wanted to change the prior law, we think they would have been much more explicit in doing so.

Indeed, their awareness of physicians being the primary source of diversion of drugs indicates just the contrary.

They intended to give the drug pusher, the drug trafficker, no matter who he was and the statutory language, the scheme, and the legislative history all support that.

We think that the Court of Appeals for the District of Columbia Circuit ignored the plain language of the statute and the legislative history in concluding that as it did and we ask that its judgment be reversed and the case remanded to that Court for the sole purpose of considering the problem relating to the sentencing.

Thank you.

Chief Justice Warren E. Burger: Very well, Mr. Friedman.

Mr. Bergan.

Argument of Raymond W. Bergan

Mr. Raymond W. Bergan: Mr. Chief Justice and may it please the Court.

The Assistant Solicitor General’s essentially accurate if somewhat lured account of the record, which was conceded by the respondent in the Court of Appeals as it is conceded in this Court, cannot be permitted to deter us from the very narrow scope of the decision of the Court of Appeals for the District of Columbia Circuit.

I would like to focus on just what that narrow scope was for a moment and the reason given by the Court of Appeals for its decision.

At the very first page of the prevailing opinion in the Court below, Chief Judge Bazelon writing for the majority of that Court, after noting that they found Section 841 inapplicable to the appellant, Dr. Moore, and reversed his conviction, wrote as follows.

“Our conclusion is reached by forced of the established principle that when a choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate before we choose the harsher alternative to require that Congress should have spoken in language that is clear and definite, citing Universal CIT and United States versus Brown cases from this Court couple of decades ago.”

The Court then went on to hold --

Chief Justice Warren E. Burger: Are you suggesting that he may have not known that the statue was not clear enough --

Mr. Raymond W. Bergan: No, I am not suggesting --

Chief Justice Warren E. Burger: -- known he was violating it?

Mr. Raymond W. Bergan: I am suggesting that the statute itself is not only susceptible of and permits of the interpretation of the Court below, but I suggest requires it, Mr. Chief Justice.

The particular --

Chief Justice Warren E. Burger: Do you relate that to how he acted on it, I am trying to see whether you are relating that in some way --

Mr. Raymond W. Bergan: I am having difficulty with your word, he, you mean Judge Bazelon or Dr. Moore?

Chief Justice Warren E. Burger: No, no, Dr. Moore.

Mr. Raymond W. Bergan: First of all let me preface by saying that I think no one, either the counsel who represented Dr. Moore in the Trial Court or those of us who represented upon appeal, are going to seek to justify what Dr. Moore did.

The question is, what is --

Chief Justice Warren E. Burger: Was he misled by the statute, that is the only one, I am not concerned --

Mr. Raymond W. Bergan: Dr. Moore was not misled by the statute.

Chief Justice Warren E. Burger: That is all I am interested --

Mr. Raymond W. Bergan: No, I am not suggesting for a moment that Dr. Moore was misled by the statute.

What I am suggesting Mr. Chief Justice, is that the statute, particularly Section 841 and the other provisions of the subchapter, does not proscribe the conduct of which Dr. Moore was adjudged guilty as criminal under Section 841.

Now, it may proscribe it under Section 842 or possibly under Section 843, but it does not proscribe it under Section 841 and that is the narrow holding of the Court of Appeals for the District of Columbia Circuit --

Justice William J. Brennan: Mr. Bergan, I gather there are four other Circuits who reached the opposite conclusion, did they not?

Mr. Raymond W. Bergan: Mr. Justice Brennan, I think the number is six --

Justice William J. Brennan: Was it six, well, I know First, Fifth, Tenth and Ninth so the two --

Mr. Raymond W. Bergan: I believe the Seventh Circuit has recently so held and I am unclear about the Sixth, but I believe that is the other one, Mr. Justice Stewart.

Justice William J. Brennan: So that leaves the District Columbia Circuit standing alone --

Mr. Raymond W. Bergan: The District of Columbia Circuit stands alone with a dissenting opinion from Judge Eli in the Ninth Circuit recently in the Rosenberg case, which was decided, well, probably about the time that this Court granted certiorari in this case.

Justice William J. Brennan: I gather the question that you see it is, the one you just, before I asked my question, whether or not the prescription limits a registered physician to whatever may be the penalties for violation of this legislation?

Mr. Raymond W. Bergan: That is right, Mr. Justice Brennan, I think that is the precise issue.

What the Section 841 -- Section 841 (a) of the statute mean when it says, “except as provided by this subchapter, it shall be unlawful for any person, and then we skip down to subsection (1), to distribute a controlled substance.”

In a situation in which we have a licensed physician in the District of Columbia, who is registered by the Bureau of Narcotics and Dangerous Drugs, to prescribe controlled substances, in this instance Schedule II narcotic, dolophine, or methadone as it is commonly called.

Judge Bazelon wrote in the Court below and we believe it to be the correct analysis of what the legislative history in this case looks toward or leads to, that Congress in passing the Controlled Substances Act, aware of the Prettyman Commission and the Katzenbach Commission reports, aware of the difficulties suggested by some of the cases which this Court had in the 1920s and 1930s under the Harrison Act, the problems of physicians in allowing a lay prosecutor and a jury of laymen to determine what was in effect criminal or civil or proper medical practice divided the drug universe, if one may use that expression, into two sub-universes if you wish, those registered to deal in drugs and those not so registered.

And indeed the House Committee report precisely says that, and this is quoted at an early page of our brief in this Court, it is quoted at page 9; the bill, and that describes the bill which became the Controlled Substances Act, the bill provides for control by the Justice Department of problems related to drug abuse through registration of manufacturers, wholesalers, retailers and all others in the legitimate distribution chain as doctors, pharmacists, those authorized to deal in narcotics.

Justice William H. Rehnquist: Mr. Bergan.

Mr. Raymond W. Bergan: Yes sir.

Justice William H. Rehnquist: Before you get to the legislative history, how do you, in the statute itself, discern this division into two universes as you are speaking?

Mr. Raymond W. Bergan: Primarily, Mr. Justice Rehnquist, in the language of Section 841 --

Justice William H. Rehnquist: That is 401 in US code?

Mr. Raymond W. Bergan: Mr. Justice I am sorry, I do not know, my friend says the answer to that is yes, but I am using the references in the -- that were used in the opinion of the court below and the ones that we have used in the brief.

The language of Section 841, the “except as authorized” language, suggests it seems to us that when you read that subchapter, one has to read “except as authorized” by this subchapter --

Justice William H. Rehnquist: By this title?

Mr. Raymond W. Bergan: Right, by this title.

In the original it was subchapter, but as it was codified it becomes that title. You find in that title in Section 822 (b) a provision for registration.

Dr. Moore was of course concededly registered with the Bureau of Narcotics and Dangerous Drugs as the Agency was called at that time, at all times through the course of the conduct, for which he was prosecuted, convicted and sentenced.

Section 822 (b) provides that persons registered by the Attorney General to dispense controlled substances, and I may alluding a few words in this quote, are authorized to dispense such substances to the extent so authorized, I believe that is the precise language of Section 822 (b).

Now, he was authorized, other --

Justice William H. Rehnquist: Does not 401 (a) except as authorized, by this title it shall be unlawful for any person and then proscribes a series of acts, does not that suggest that the exception is in terms of acts, or conduct, rather than in terms of persons?

Mr. Raymond W. Bergan: No, I think not, Mr. Justice Rehnquist, and I think not for the reason that those Acts and I take it you are referring to the provisions of subdivision-1 and subdivision-2, manufacture, distribute, dispense that particular language, those are the acts which are covered by the classes of persons who are permitted to register to do those acts under the preceding sections of the statute.

For example, Section 822, picks up almost the same language, Section 822 (a) refers to annual registration.

Every person who manufactures, distributes, or dispenses any controlled substance or who proposes to engage in the manufacturing, distribution or dispensing of any controlled substance shall annually obtain a registration issued by the Attorney General in accordance with the rules promulgated.

Justice William H. Rehnquist: Subsection-2 of 841, where it is made unlawful to create, distribute or dispense or posses with intent to distribute or dispense a counterfeit substance.

Your position that doctors are authorized to distribute counterfeit substances?

Mr. Raymond W. Bergan: No, there is no provision that I know of in the statute that would authorize the registration of physicians or anyone else, pharmacists or manufacturers, or whatever to create, distribute, or dispense counterfeit substances.

Justice William H. Rehnquist: But they could not be prosecuted, a doctor could not be prosecuted under 841 (2) under your theory, even though he dispenses a counterfeit substance.

Mr. Raymond W. Bergan: No, I suggest that --Mr. Justice Rehnquist, perhaps I have not made my theory clear, let me put it this way.

A doctor could not, under my theory, under our theory and as I think the Court of Appeals below held, a doctor could not be prosecuted under 841 (a) (2), which I believe is the counterfeit substance situation, could not be prosecuted under that for creating, distributing, or dispensing a counterfeit substance if he was authorized by another section of this title so to do, but he could not so be authorized.

Justice William H. Rehnquist: But then it is conduct that you are talking about, it is authorization of conduct, not just the fact that the guy has an MD license?

Mr. Raymond W. Bergan: It is not the fact that he has an MD license.

It is the fact that he is authorized by the Bureau of Narcotics and Dangerous Drugs to dispense certain narcotics, as he was in this case authorized to dispense dolophine or all Schedule II narcotics for off the record shows, I am not sure that it shows it one way or the other.

The --

Justice Harry A. Blackmun: The statue with be more helpful to you if it instead it is referring to any person, it referred to any person other than a registrant I suppose?

Mr. Raymond W. Bergan: I suggest that if the statute said that, Mr. Justice Blackmun, there would be no ambiguity and the answer to your suggestion is yes, it would be more helpful to me if I said that.

I wish that it said that.

It does not unfortunately, but I believe that the manner in which the statute is written creates an ambiguity, which requires the kind of liberalized, if that is the correct word, construction placed on it by Judge Bazelon, for the reason that the earlier cases from this Court so hold that before one can say that the Congress intended the more severe of two or more possible alternatives to result, they should have spoken so -- spoken to that with more clarity than they did in this case.

Justice Thurgood Marshall: Suppose Dr. Moore, in his office, dispensed methadone at $25.00 a shot, could he be guilty?

Would it be an exception because he is authorized?

Mr. Raymond W. Bergan: I am sorry now, I am not sure I understand your question --

Justice Thurgood Marshall: Anybody off the street, he has got a big sign out, “methadone for sale” cheap drug dispensed it within his neighborhood, Dr. Moore.

Mr. Raymond W. Bergan: He has got a BNDD registration?

Justice Thurgood Marshall: Yes.

Mr. Raymond W. Bergan: I suggest, Mr. Justice Marshall, that as long as that BNDD is in effect, the answer is to revoke that registration and then prosecute him if he keeps doing it because that is the dichotomy, which I suggest that the Congress set up.

Justice Thurgood Marshall: You mean Congress deliberately set that up?

Mr. Raymond W. Bergan: I believe that Congress --

Justice Thurgood Marshall: Set that up that the doctors are the only that can violate the law and sell the drug --

Mr. Raymond W. Bergan: No.

Justice Thurgood Marshall: -- and not violate the statute?

Mr. Raymond W. Bergan: No, no, it would apply to wholesalers, manufacturers, pharmacists, all others who are authorized or who can be authorized by Bureau of Narcotic and Dangerous Drug registration to deal in narcotics.

Justice Thurgood Marshall: A wholesaler can sell a million dollars worth of methadone to the mafia and that he cannot be convicted?

Mr. Raymond W. Bergan: No I -- you put a case, Mr. Justice Marshal, that I have never focused on, I would --

Justice Thurgood Marshall: I am only -- well, he sells a quarter of a million which is what this case is about, you mean, he could not be touched?

Mr. Raymond W. Bergan: I am not at all sure that I can answer that question.

I am not at all certain that he could be touched under 841 as long as he had authorization. That authorization can be revoked.

It could be revoked at the time.

The means of revocation are now more easily set forth in the new Narcotic Addicts -- Narcotic Addict Treatment Act, it is an annual registration.

Justice Thurgood Marshall: So he just takes his quarter of a million and goes to Europe again?

Mr. Raymond W. Bergan: He --

Justice Byron R. White: Mr. Bergan, it seems to me that the -- you rest on the provisions of 841 which say, except as authorized, and then 822 (b) has headed authorized activities.

So you look for this under your theory, even though your theory you would look to what the scope of the authorized activity was, and 822 (b) says, to the extent authorized by their registration?

Mr. Raymond W. Bergan: That is correct.

Justice Byron R. White: Now let us -- now it seems to me we must then ask what did the -- what did their registration authorized them to do, right under the plain words of 822 (b).

Now, you would not suggest that their registration just on its face authorized them to sell methadone without a prescription for example?

Mr. Raymond W. Bergan: No, obviously it is not a willy-nilly authorization to do everything.

Justice Byron R. White: Well, then it seems to me that the except as authorized language at 841 does not held you at all, although if you do something in selling methadone that is not authorized by your registration?

Mr. Raymond W. Bergan: But my registration, or Dr. Moore’s registration in this case, authorized him to dispense methadone, that was the limitation of it, sir.

Justice Byron R. White: It authorized him to dispense methadone, in some way other than by prescription?

Mr. Raymond W. Bergan: Oh! No, by prescription, well I suppose --

Justice Byron R. White: Let us take Justice -- Mr. Justice Marshall’s example.

Assume he just -- did he not just sold methadone other than by prescription, now that was not authorized by his registration?

Mr. Raymond W. Bergan: Assuming his registration was limited to by prescription that would not be authorized.

He would be outside the authorized chain.

Justice Byron R. White: Well then, he can be prosecuted under 841, even under your theory?

Mr. Raymond W. Bergan: Because he was not authorized to do what he then did.

Justice Byron R. White: That is the answer to Mr. Justice Marshall, he just was not authorized to do that.

Mr. Raymond W. Bergan: Well, if that is the situation, yes, to the extent so authorized.

Justice Byron R. White: Well, now think of a situation where -- where he gives prescriptions, but he just does not act like a doctor.

Now, I suppose his registration assumes that he is going to act like a doctor, he is authorized as a physician to practice medicine and to dispense methadone connection with his practice in medicine?

Mr. Raymond W. Bergan: One must be a physician to be -- to have the type of authorization, which Dr. Moore had.

I would assume that --

Justice Byron R. White: At least the Government is contending, I gather, that he just acted outside the scope of the ordinary conduct of a physician?

Mr. Raymond W. Bergan: I think that is the heart and soul of the Government’s contention.

Justice Byron R. White: And therefore is no more covered by the exception in 841, then would be selling without a prescription?

Mr. Raymond W. Bergan: Well, I believe that is what their case comes down to, Mr. Justice White.

Justice Byron R. White: But you apparently agree that he could be breached under 841 if he sold without a prescription?

Mr. Raymond W. Bergan: Yes, on the assumption that his -- that his, let us take an easy example, if he went to the playground at Central High School and sold methadone then the answer to your question would be, yes.

The extent of his registration was to prescribe and dispense with controlled substances in that way and he was then acting outside the scope of his registration and he does not fall within the except as otherwise authorized language of Section 841.

Chief Justice Warren E. Burger: Mr. Bergan, on this question of what a doctor can do, I suppose hypothetically you would agree that, or perhaps you would not, that the old practice of bleeding patients which was done 150 to 200 years ago is, let us assume it is no longer accepted in medical practice, I --

Mr. Raymond W. Bergan: I suppose we can assume that together, I would take that --

Chief Justice Warren E. Burger: -- because I do not know, but there was doctor who just simply took his some kind of a knife and cut-up one of his patient’s arteries and then just went out to play golf and let the patient die on the place where he had left him.

Do you suppose that the -- some suggestion that this was not his medical practice to his way of treating patients would help him on a manslaughter case?

Mr. Raymond W. Bergan: I think not at all.

I think the case you have put, Mr. Chief Justice, would be a classic manslaughter situation.

Chief Justice Warren E. Burger: Undoubtedly, in such a case the prosecution would bring in physicians who would testify that that was not accepted practice.

Presumably, or let us assume in defense he would bring in some kind of a textbook material or some expert evidence that this was a new idea and that it might be coming back again, the bleeding process, then the jury would decide that question, how does that differ in terms of what was submitted to the jury here?

Mr. Raymond W. Bergan: I think it differs markedly, Mr. Chief Justice.

First of all, let me say to you that as we have developed in the brief, and as was developed at some minor extent by the opinion in the Court below, not to any great extent because it was not necessary to reach that point, this kind of a situation, the kind of a situation with which we are dealing here, Section 841 of the Controlled Substances Act, ought not to depend upon conflicting medical opinions as to what is or what is not valid.

A fellow ought not to be, and I suggest that the statute does not permit a fellow to be prosecuted, convicted, sentenced to a long period of incarceration, in the answer to your question Mr. Justice Stewart, is that it was 45 years, because of conduct which is subject to conflicting views among physicians.

Now, we are dealing in an area and that Congress has been wrestling with this area for several decades, and that is the area of narcotics.

The Schedule I narcotic for example, no one would dispute that is heroin and others which have no real medical value, and that Congress has in this statute and in others in effect said, thou shalt not use it.

The Schedule II, Schedule III, Schedule IV, and they go down in order of difficulty to handle are narcotics as to which all persons would perhaps say, as to some, that there is some legitimate medical value.

Perhaps fewer persons would say as to some of them that there is greater or less legitimate medical value.

That is why I suggest, and this is laid out at some length in the Prettyman report, it has troubled this Court from time-to-time over the last 35 or 40 years beginning with a case, which I regret that I can never pronounce, Jin Fuey Moy, I think is the case and leading up to Linder, perhaps even more recently, it is laid out in the Prettyman report and the Katzenbach report, and that is why I suggest that in this particular statute as the Congress itself said, as the House report itself says, the world of the drug universe is divided into those registered to do certain things, and those who are not registered to do certain things.

We deal more harshly with the ones who are not registered to do these things because they are outside the chain where we can keep an eye on them and see what they do, and to revoke their registration or refuse to re-register, pardon me, Sir.

Justice Harry A. Blackmun: Even though such an 841 refers to any person?

Mr. Raymond W. Bergan: Yes, yes.

Justice Harry A. Blackmun: So that in effect you are saying, and I guess I am trying to be facetious, that a physician is not a person within the meaning of that Section at least?

Mr. Raymond W. Bergan: No, I am not saying that.

What I am saying is that when that Section goes on to say, Mr. Justice Blackmun, except as authorized by this subchapter or by this title as Mr. Justice Rehnquist indicated --

Justice William J. Brennan: Mr. Bergan even though I was thinking, that certainly is -- was a subject of congressional concern so also, was it not a concern that among the worst abusers in the drug traffic field were physicians.

Mr. Raymond W. Bergan: There was that concern.

It was expressed by the Congress in the passage of this very Act and having so been expressed that Congress then went on, I suggest Mr. Justice Brennan, to divide the world of those who deal with drugs and to those who do so under the watchful eye of the Bureau of Narcotics and Dangerous Drugs or now the drug enforcement --

Justice William J. Brennan: But to do it I suppose, Congress must have thought consistently with the authorization they had to do?

Mr. Raymond W. Bergan: And the authorization, if Your Honor please in this instance, was to dispense by means of prescription a Schedule II narcotic.

Chief Justice Warren E. Burger: Do you think there is any significance, Mr. Bergan, in the fact that 841 is entitled, “Prohibited Acts?”

Mr. Raymond W. Bergan: No, I do not find any significance in the title.

It has been a long time Mr. Chief Justice, since I dealt with codified statutes.

But I -- those titles are normally put in by the codifier and it is clear that it does in fact deal with, when we come directly to the question which I think you are asking, it does deal with prohibited acts.

It does deal with prohibited acts and if this man was operating beyond his registration, as for example going across to the front steps of the Capitol, and handing out heroin, the fact that he was registered with the Bureau of Narcotics and Dangerous Drugs to do something else, the fact that he was a physician would not immunize him from prosecution.

In this case, however, because he was registered to do what he did, the remedy was two-fold, together or one at a time.

De-registration or refusal to register on an annual basis when he came for re-registration and or prosecution under 842 or 843 of the statute for the various things, which registrants are precluded from doing.

Justice Byron R. White: Just let me ask you.

Do you think that he was a, do you think 842 or 843 would proscribe the conduct for which he was prosecuted in this case?

Mr. Raymond W. Bergan: Yes, I think it could Mr. Justice White --

Justice Byron R. White: Do you think the Government is wrong in saying that unless he is liable under 841, he is not liable at all for the specific conduct that for which he was convicted in this case?

Mr. Raymond W. Bergan: Well I am not terribly sure that the Government is taking that position.

Maybe that -- I am not just sure that that is the position they are taking.

For example though, Section 842 makes it criminal to fail to keep records, and defines the types of records which were required to be kept, the evidence in the Court below is certainly susceptible of the -- of a finding if a Section 842 charge had been made and submitted to the Jury, that adequate records were not kept.

Justice Thurgood Marshall: Mr. Bergan, he did more than that.

He did more than just not keep records?

Mr. Raymond W. Bergan: I quite agree, Mr. Justice Marshall, but he did not do more which the Congress said he could be prosecuted for.

Justice Thurgood Marshall: You mean if he had sold himself a quarter of a million of dollars worth of methadone to anybody in the world, in his office, he could not be prosecuted?

Mr. Raymond W. Bergan: If that is what he was -- if that is what he was authorized by BNDD to do, Mr. Justice Marshall, then I would answer that question he could not be prosecuted under 841 (a).

Justice Thurgood Marshall: What statue authorized him to dispense methadone to anybody under any circumstances?

Mr. Raymond W. Bergan: His registration by the Attorney General of the United States, pursuant to Section 822 (b) of the statute, authorized him to dispense or prescribe methadone without limitation.

Now that --

Justice Thurgood Marshall: In my case, what it was not prescribed, he just sold it?

Mr. Raymond W. Bergan: He prescribed methadone.

Justice Thurgood Marshall: I said assuming that he just sold it, you said it would be the same?

Mr. Raymond W. Bergan: Well, I am sorry, I have misinterpreted your question then, if your --

Justice Thurgood Marshall: If the people come in and he says, here I will sell you $35.00 worth of methadone, it violates the statute, the same doctor with the same registration, right?

Mr. Raymond W. Bergan: If he sold it without the prescription, and if his authorization was to prescribe --

Justice Thurgood Marshall: No, no, he got the same authorization he has got now, and the man comes in and says I would like to buy some methadone for 35 bucks, and he says okay here is $35.00 worth of methadone, did he or did he not violate the statute?

Mr. Raymond W. Bergan: That is a different case than we have, Mr. Justice Marshal, but the answer to your question I think very candidly is yes, the Government would have a better case of prosecuting that particular person --

Justice Thurgood Marshall: But if you have a good case, he could be prosecuted?

Mr. Raymond W. Bergan: The Government would have a better case of prosecuting him under Section 841, it would depend sir --

Justice Thurgood Marshall: If the man comes in and says I want $35.00 worth of methadone, he says I cannot give you the methadone, but he had the prescription, that is it and he could, he cannot be prosecuted?

Mr. Raymond W. Bergan: One would have to examine the particular facts of that case, but as you put the case, if he is authorized by BNDD so to do, he could not be prosecuted under 841.

Now, it would depend, sir, it would depend upon the precise limits of his authorization, but in this case the --

Justice Thurgood Marshall: Doctors have different authorizations?

They all have the exact same authorization.

Mr. Raymond W. Bergan: I am not sure of that, Mr. Justice Marshall, I do not know the answer to that.

I do not know whether -- the answer is yes, some of them do differ.

For example, there are clinical investigative authorizations which require that the --

Justice Thurgood Marshall: I am talking about medical doctor?

Mr. Raymond W. Bergan: I am talking of a medical doctor, sir.

Justice Thurgood Marshall: If he practices as a physician, you mean each physician has a different authorization?

Mr. Raymond W. Bergan: No, I do not mean that each has a different authorization, but there are differing types of authorizations.

For example, physicians may be authorized to conduct clinical programs in their office, and that authorization even back at the time here in question frequently --

Justice Thurgood Marshall: What did Dr. Moore had?

Mr. Raymond W. Bergan: My answer to your question is the same, sir, that the question that you posed, that doctor who sold did not prescribe could be subject to prosecution under 841.

Justice William H. Rehnquist: Mr. Bergan, you are not seeking to uphold the reasoning of the Court of Appeals there, are you, your argument does not track that of the Court of Appeals?

Mr. Raymond W. Bergan: It does not track it directly, Mr. Justice Rehnquist, I think it parallels it, but --

Justice William H. Rehnquist: But the Court of Appeals in effect said that if you are a registrant, you could not be prosecuted under 841 and you are saying that if you are a registrant, you might be prosecuted under 841 if you exceed the authority conferred by your registration?

Mr. Raymond W. Bergan: If you act outside your registration.

I am not really sure we are saying anything differently, but that is what I am saying, if you act beyond your --

Justice Byron R. White: The Court of Appeals spoke much more broadly than your theory?

Mr. Raymond W. Bergan: Well they painted it with a very broad brush, I certainly have to concede that Mr. Justice White.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Bergan.

Do you have anything further --

Rebuttal of Paul L. Friedman

Mr. Paul L. Friedman: Just two quick comments.

Mr. Bergan’s main point I think was that administrative controls ought to be used instead of criminal prosecution.

I think it bears emphasizing that under 823 (f), all doctors must be registered if they are licensed to practice medicine, so it is not a discretionary thing to deny them their registration.

And that there were only three reasons for revoking registrations prior to the Narcotic Addict Treatment Act of 1974, that is that a registrant has materially falsified an application, that he has been convicted of a felony, and that he has had his state license or registration suspended, revoked or denied.

It seems --

Justice William J. Brennan: (Inaudible) that the Government suggests how prosecutors ought to know what registrants may be prosecuted under 841 and what registrants may not?

Mr. Paul L. Friedman: I am not sure I understand that.

Justice William J. Brennan: Well, I gather your position here is that this one is so beyond the pale of the registration that the clearly he may be prosecuted under 841.

Well, there must be any number of cases of registrants whose conduct may not go this far, well how is the line to be drawn?

Mr. Paul L. Friedman: I think you have to look at the evidence of the case, in each case, and if you look at the evidence in the cases that are now pending under cert in this Court, the Rosenberg case and the Green case and the Jin Fuey Moy case, you will find that in each case it is completely blatant, and that the uncover agents where they were at --

Justice William J. Brennan: (Inaudible) was completely blatant?

Mr. Paul L. Friedman: Well, there is no legitimate medical purposes of the test outside the course of professional practice.

Justice Byron R. White: You are not -- on your theory of the relationship between 841 and 822, it seems to me that you could just as well argue that any violation of the provisions of regulating a registrant would be reachable under 841, anyone, you do not suggest that?

Mr. Paul L. Friedman: No, there are two --

Justice William J. Brennan: (Inaudible) you do not suggest that?

Mr. Paul L. Friedman: Yes.

Justice William J. Brennan: You are representing that Government does not suggest?

Mr. Paul L. Friedman: Yes.

Justice Byron R. White: That for some violations that their registration, they may not be prosecuted under 841?

Mr. Paul L. Friedman: They are permitted to dispense --

Justice William J. Brennan: No, my question is whether for some violation registrants nevertheless may not be prosecuted under 841?

Mr. Paul L. Friedman: If it is a technical and formal violation of their registrations, they are liable under 842 and 843 --

Justice William J. Brennan: What is technical and formal (Voice Overlap)

Mr. Paul L. Friedman: Well, Congress set it out in the legislative history.

There are certain things that are technical violations.

Not using an order form, not prescribing with, not using a prescription, in those kinds of things, there are lesser penalties, one year --

Justice Byron R. White: Not using a prescription?

Mr. Paul L. Friedman: Let me give you the exact --

Justice Byron R. White: Your colleague here suggested that if he does not dispense with the prescription, he would be reached under 841?

Mr. Paul L. Friedman: 842 (a) (1) says that you are subject to one-year penalty if you distribute or dispense in violation of 829, and 829 requires that you cannot dispense without the written prescription?

Justice Byron R. White: You would say that is a technical violation, and if you just started, if you just put up the sign and just start selling --

Mr. Paul L. Friedman: No, because then it is not for any legitimate medical purpose in the course of professional practice.

But if --

Justice William J. Brennan: What if another criteria --

Mr. Paul L. Friedman: Well it is in the statute -- but that is in the statue.

What we are saying is that the statute has two requirements that what is authorized under 841 is what is authorized to the extent authorized by your registration and some registration permit you to detoxify, some registration permits you to do other things, some registration say you can use methadone, but you cannot use other forms of drugs, and secondly, you may only -- the only authorized activities are those which are in conformity with other provisions of the subchapter.

Now, the other provisions of the subchapter use the language in the course of professional practice and for legitimate medical purpose, and if what you are doing is not in the course of professional practice and not for a legitimate medical purpose, then we say you clearly violate 841.

And that gets I think to Mr. Justice Marshall’s hypothetical, if someone sets up a sign and sells methadone and gives no treatment of any kind --

Justice Byron R. White: You say this is no worst -- no tougher test on the physicians than just the ordinary law on any kind of practice.

He is going to be subject to some kind of liability unless he uses -- conforms ordinary standards of medical practice?

Mr. Paul L. Friedman: I think that is right.

Justice Potter Stewart: Well, Civil liability is one thing and 45 years in penitentiary is something a little different.

Civil liability for negligence or malpractice --

Mr. Paul L. Friedman: Yes, but we are not talking about negligence or malpractice --

Justice Potter Stewart: But that is what Justice White I think was talking about, maybe I misunderstood.

Mr. Paul L. Friedman: Well, maybe I misunderstood.

Justice Byron R. White: Then what you are suggesting though in these other provisions that if for no legitimate medical purpose?

Mr. Paul L. Friedman: That is right, that is what the regulation say, that is what the statue says and that is what the decisions of this Court say.

But we have been able to distinguish what is legitimate and what is not legitimate, and what is within the scope of legitimacy, and what is so far beyond the pale that under no interpretation could it be considered legitimate medical practice within the course.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Bergan, thank you Mr. Friedman.

The case is submitted.

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