Cases by Issue - Conspiracy

Whitfield v. U.S. - Oral Argument

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

Case:

Whitfield v. U.S.

Media File:

03-1293_20041130-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Sharon C. Samek

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

Ms. Samek.

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

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

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

The list of specified unlawful activities under 1956 is vast.

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

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

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

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

Mr. Samek: Excuse me?

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

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

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

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

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

Mr. Samek: --Yes.

Justice Stevens: --as they do--

Justice Scalia: Is that the only basis for venue?

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

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

Justice Scalia: But... but read it.

What does it say?

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

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

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

Isn't it an either/or?

Mr. Samek: Yes.

Our position is that when you read the venue--

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

It's just requiring an overt act.

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

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

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

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

That's the--

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

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

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

It gives you a choice of forum.

It doesn't limit.

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

It would be extraordinary to make a venue provision exclusive.

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

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

Congress decides that.

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

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

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

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

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

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

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

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

The ordinary provision for venue.

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

Justice Ginsburg: Yes.

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

So it would be consistent with it.

Our--

Justice Ginsburg: I thought the crime is the conspiracy.

The overt act may be an additional requirement.

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

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

The Shabani case requires you to recognize that.

Mr. Samek: --Correct.

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

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

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

Mr. Samek: As a--

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

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

Mr. Samek: --That's correct.

And no.

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

But this statute is unique.

The money laundering statute is unique.

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

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

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

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

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

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

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

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

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

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

Mr. Samek: Your Honor--

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

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

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

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

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

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

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

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

846 was a separate, distinct, discrete offense statute.

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

Mr. Samek: That's true.

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

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

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

If anyone... if we look--

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

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

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

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

The--

Justice Scalia: Let's get--

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

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

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

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

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

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

So it would be an offense in that respect.

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

A conspiracy offense under this section.

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

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

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

[Laughter]

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

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

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

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

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

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

The placement of the--

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

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

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

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

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

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

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

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

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

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

That is not our position.

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

And clearly in the legislative history--

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

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

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

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

Justice Stevens: In the text of the statute?

Mr. Samek: In the--

Justice Stevens: Reading the whole text.

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

Justice Stevens: None of which mentions an overt act.

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

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

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

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

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

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

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

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

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

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

So this Court has done that before.

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

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

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

So this Court can look at the legislative history.

The purpose is clear.

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

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

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

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

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

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

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

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

Because that's not a violation of this section.

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

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

Justice Scalia: The offense is never completed.

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

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

The offense is established by 371.

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

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

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

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

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

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

Interesting--

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

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

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

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

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

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

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

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

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

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

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

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

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

Shabani didn't create them.

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

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

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

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

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

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

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

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

Mr. Samek: --The--

Justice Ginsburg: --and assured yourself on that?

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

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

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

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

They didn't do that.

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

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

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

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

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

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

But--

Justice Stevens: Do you want to reserve any time?

Mr. Samek: --Oh, yes.

I'm sorry.

Justice Stevens: Mr. Marcus.

Argument of Jonathan L. Marcus

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

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

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

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

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

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

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

I will address a few of those grounds here.

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

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

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

But there is--

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

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

Is that correct?

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

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

Justice Souter: But not in exclusively laundering cases.

Mr. Marcus: --Generally, no.

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

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

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

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

1956.

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

You could.

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

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

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

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

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

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

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

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

Justice Scalia: This is 846.

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

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

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

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

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

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

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

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

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

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

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

The other is meant to modify district.

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

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

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

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

They wouldn't need separate clauses.

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

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

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

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

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

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

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

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

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

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

Justice Stevens: Are there any?

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

I mean, it's--

Justice Stevens: It seems to me quite unlikely.

Mr. Marcus: --Well--

Justice Stevens: I'm just wondering.

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

Mr. Marcus: --Yes.

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

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

If the Court has no further questions--

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

Wasn't there a sentencing question?

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

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

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

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

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

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

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

Thank you.

Justice Stevens: Thank you, Mr. Marcus.

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

Rebuttal of Sharon C. Samek

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you.

Justice Stevens: Thank you very much.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Rutledge v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:48 +0000

Case:

Rutledge v. United States

Media File:

94-8769_19951127-argument.mp3

Related Transcript:

1995_94_8769_argument.xml

Transcript:

Argument of Barry Levenstam

Chief Justice Rehnquist: We'll hear argument now in Number 94-8769, Tommy L. Rutledge v. United States.

Mr. Levenstam.

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

This case presents the question of what limits the Double Jeopardy Clause places upon the punishment to be imposed upon a defendant found guilty of violating 21 U.S.C. section 848, the continuing criminal enterprise statute, and section 846, the drug conspiracy statute, where the same conduct constitutes the conspiracy and the in concert element of section 848.

Unknown Speaker: Is it the Double Jeopardy Clause in the constitutional sense, or simply a concept that's somewhat like Double Jeopardy when we're interpreting congressional intent?

Mr. Levenstam: The Court's analysis has incorporated the Double Jeopardy Clause of the Constitution historically.

There have been cases decided without reference to that, and then there have been a number of cases which rely on the Double Jeopardy Clause.

Unknown Speaker: But do all parties concede, or at least do you agree that if Congress wanted multiple or cumulative punishments set for the two crimes, that they could constitutionally enact a provision that would secure that objective?

Mr. Levenstam: Yes, Your Honor.

Under Missouri v. Hunter and a long line of cases from this Court, that is clearly the case.

Unknown Speaker: So then we're really talking about what Congress intended, rather than double jeopardy, are we not?

Mr. Levenstam: Well, the... what Congress intended in the multiple punishments context defines the parameters of the double jeopardy protection.

Unknown Speaker: Which really means there isn't any constitutional question involved, if Congress can provide whatever it wants, and double jeopardy accordingly recedes whatever Congress has provided.

Mr. Levenstam: Well, double jeopardy does not impose limitations on Congress, it's true.

It's been analyzed to impose limitations upon the courts in imposing Congress' will.

Whether it's actually necessary, given the presence of the Due Process Clause, or even the body of the Constitution, relative authority granted under Article I or Article III, insofar as my client is concerned, he would be as happy to have one of these convictions vacated under any of those rubrics, but historically, looking at the cases, they have analyzed these situations under the double Jeopardy Clause.

Unknown Speaker: But then if we're concerned with Congress' intent--

Mr. Levenstam: Yes.

Unknown Speaker: --as you agree, then why would Congress intend to put the prosecutor at risk of having no conviction... let's say the CCE conviction gets wiped out on appeal... if the conspiracy conviction has not been entered?

Why would we attribute such a will to Congress?

Mr. Levenstam: I don't think you should attribute such a will to Congress, and I don't believe that that is what would happen.

Our suggestion as to what should happen in a situation, it's clear under this Court's decision in Ball that the prosecutor is entitled to charge both, to present evidence as to both, to put both before the jury, and the Court is entitled to accept a verdict back from the jury with respect to both.

If the jury comes back and enters guilty verdicts with respect to both, our position is that it would be incumbent upon the district court to enter a vacatur with respect to one or the other in that court's discretion, and then when the entire case goes up on appeal, and we would assume that the defendant, having been found guilty, would take an appeal, both the guilty verdict, the judgment entered upon the conviction... for instance, the CCE... and the vacatur that the district court entered on the conspiracy would be before the appellate court.

It would be incumbent upon the defendant to argue with respect to both of those counts everything that he has, because the appellate court, having jurisdiction over the entire case and all the orders therein because the appeal is from a final appeal, if it determined that the CCE count should be reversed based on some element of CCE or some aspect of the case pertaining to an element that distinguishes it from the underlying conspiracy, the appellate court would have the authority to reverse the vacatur on double jeopardy grounds at the same time.

Unknown Speaker: How would that work if there is no judgment entered on the conspiracy count?

Mr. Levenstam: Well, there would be a final judgment entered in the case, and in the line on the judgment form it would say, jury verdict vacated with respect to the conspiracy, and then the court, the appellate court could simply reverse the vacation of that, and remand to the district court.

Unknown Speaker: The Government would have to appeal that, though, to get the vacatur reversed, wouldn't it?

I mean, the defendant isn't going to say, reverse the vacatur.

Mr. Levenstam: Well, the defendant won't say that.

It's my understanding that a final appeal, because all orders merge in the final judgment order, the court would have the authority to--

Unknown Speaker: Well, merge... you've just used a word that the Second Circuit... what you describe seems to be what the Second Circuit's position is, and yet in your brief you reject that.

Mr. Levenstam: --Well, I reject that because the Second Circuit's approach involves entering judgments of conviction on two counts when we believe under the Ball decision that judgments of conviction should be entered under only one of the counts.

That, we believe, is Congress' intent, and that, we believe, is backed up by the force of the Double Jeopardy Clause.

Unknown Speaker: But isn't this all just formalism if your end result is that the court on appeal could reinstate the verdict on the conspiracy count in the event that the CCE conviction were reversed on a ground peculiar to that charge?

Mr. Levenstam: Perhaps it may appear to be formalism from the standpoint of the court, but from the standpoint of the defendant who has a double jeopardy interest here, he will have stood trial in public, perhaps in his community, and under the Second Circuit means of addressing this issue, he will have the additional stigma which the Court mentioned in Ball of having two judgments of conviction entered, really upon one offense.

Unknown Speaker: Why is--

--And you think the vacatur erases, washes off that stigma?

This is not formalism?

Mr. Levenstam: Yes.

Unknown Speaker: He's walking around in the community with two convictions instead of one conviction and a conviction plus vacatur.

That's the difference.

Mr. Levenstam: Right.

He'll--

Unknown Speaker: And that's not formalism.

Mr. Levenstam: --No.

Unknown Speaker: Why is there any additional stigma when the second offense is essentially a lesser included... I mean, he's already got all the stigma he can get from the first one.

The second is stigmatically redundant, isn't it?

[Laughter]

Mr. Levenstam: No, Your Honor, we don't think so.

I think--

Unknown Speaker: No, but why not?

Mr. Levenstam: --Because--

Unknown Speaker: What do they know about him as a result of the second conviction that they don't know about him as a result of the first?

Mr. Levenstam: --That he's been convicted on two significant drug offenses, which are in fact one and the same, that he has received two life sentences, and the newspaper reports at the time of the sentencing noted the number, the conviction total with respect to my client, and it seems to me, although I've been involved in the legal system nearly 20 years now, that for people who are not, when they read the papers and see that someone has received not one but two life sentences, they glean from that that he committed not one but two exceptionally heinous crimes, and under a--

Unknown Speaker: And he... I'm sorry.

Mr. Levenstam: --I'm sorry.

Unknown Speaker: No, go ahead.

Mr. Levenstam: I was simply going to say, under Congress' definition, based on our position, there has been only one offense here.

The lesser included is not to be punished separately.

It's not to be taken as a separate offense.

Unknown Speaker: A district court order that the lesser offense be simply suspended, he would suspend entering judgment, I don't think that would work, because then you couldn't have both appeals.

Mr. Levenstam: My concern with the suspension, and why I respectfully suggest that the vacatur is a more satisfactory solution, is because suspending the count sort of leaves it out somewhere in Never Never Land.

Unknown Speaker: Sort of like a springing use.

Mr. Levenstam: Something I never really understood in law school myself.

[Laughter]

Unknown Speaker: Well, what do we do in the present case?

Mr. Levenstam: Our request with respect to this would be that you remand to the district court with the direction that one of the two convictions be vacated.

Unknown Speaker: Be vacated.

Which one?

Mr. Levenstam: That would be up to the district court.

Unknown Speaker: But what... I mean, how is it supposed to work?

That's what I can't figure out in this case.

The judge gets a piece of paper, and the piece of paper says, judgment on 846, then there's a blank or something.

I mean, normally he'd fill in, convicted, all right.

Then 848, he'd fill in judgment of conviction.

It's this piece of paper called a judgment, and in your opinion, how should it read?

After all, I mean, it sounds very technical and very formal.

If he puts the wrong one and then on appeal the other one's reversed, or something, you know, and what happens when one party thinks that they are lesser included and the other doesn't?

I mean, isn't the simplest thing just say, judge, fill in both, convicted.

Do that.

Just fill it both in, convicted--

Mr. Levenstam: Well, both--

Unknown Speaker: --and the collateral consequences will take care of themselves.

You say... you wouldn't be able to count it twice, like recidivism statutes, et cetera.

Mr. Levenstam: --But... that might be the simplest approach, but I--

Unknown Speaker: All right, so now what is your approach?

How would you... how would you--

Mr. Levenstam: --My approach, which is suggested, I believe, by Ball, is that the district court exercise its discretion.

Unknown Speaker: --But you say that.

I'm the district judge, pretend, and I would say, since I haven't that much experience, I'd ask you, what do you want me to do?

Mr. Levenstam: In the normal course I believe you would enter judgment on the greater offense--

Unknown Speaker: All right.

Mr. Levenstam: --and vacate the lesser included.

Unknown Speaker: Fine, so I'd enter judgment, 848 convicted, okay, and I enter judgment on 846, I say, strike it out.

Do I say, acquitted?

What do I... I don't put acquitted.

Mr. Levenstam: No.

Unknown Speaker: I just cross it out, okay.

Now what happens is that you appeal, and lo and behold you discover that the money wasn't used in an enterprise or something, and so that's reversed.

Now what happens?

Mr. Levenstam: Well, the appellate court then would say that because the Government did not satisfy the requirements to establish a CCE, and there is no CCE conviction--

Unknown Speaker: Right.

Mr. Levenstam: --the vacatur entered on the conspiracy conviction--

Unknown Speaker: There was no vacatur.

No judgment was ever entered on it.

That's what you say was the appropriate thing.

You said the district judge should convict on only one count.

Mr. Levenstam: --And vacate the jury's verdict on the other.

Unknown Speaker: You don't vacate it... the jury's verdict.

You just don't enter judgment on it, right?

Mr. Levenstam: Well, I believe the jury's verdict is, as a matter of course, entered on the docket, and the docket entry would then be vacated.

Unknown Speaker: Right, so now what's supposed to happen, in your opinion?

Mr. Levenstam: Then the court of appeals can say the decision, given that there is no longer a conviction under the continuing criminal enterprise statute, there is no longer a double jeopardy bar, and so we reverse the vacatur order, and we remand to the--

Unknown Speaker: We reverse the... in other words, the Government had to file a piece of paper called cross-appeal?

Mr. Levenstam: --Well--

Unknown Speaker: Because you won't care.

I mean, as far as you're concerned, you're representing your client.

You won't care.

So what they were supposed to do is, they're supposed to file a cross-appeal from the vacatur order, and so that then they're protected?

Mr. Levenstam: --I don't believe that would be necessary, but--

Unknown Speaker: All right, what if... no, but I want to know what's supposed to happen, so let me leave you alone and you'll tell me.

Mr. Levenstam: --Okay.

Unknown Speaker: All right.

Mr. Levenstam: I don't believe that because, typically, from a final judgment order, all orders entered in the case are brought before the court of appeals, I don't believe that the Government would have to file a notice of appeal.

Unknown Speaker: I'm now an appellate court judge, and I've just reversed the 848 conviction because of the lack of that final element, and now I say to you, now please tell me, what do I do now?

I'm new at this.

I want to know how to do it.

Mr. Levenstam: Well, the vacatur is no longer valid because there's no longer a double jeopardy bar to the entry of a judgment of conviction on the conspiracy, the lesser included, and so you reverse the vacatur and you remand to the district court with instructions to enter judgment, assuming that there is no prejudice, say, here as a result of the--

Unknown Speaker: And they don't have to have appealed.

Mr. Levenstam: --They don't have to have--

Unknown Speaker: But--

Mr. Levenstam: --They do have the authority to do that.

Unknown Speaker: --But then does your client appeal again from the second judgment, so that can be reviewed for possible error?

Mr. Levenstam: The... in the typical case, and this has happened, in 25 years, so infrequently that it's... that it... there aren't a lot of examples to cite to, but in the typical case, the only thing that the district court would do would be to enter judgment and then issue a sentence and the only question really left for appeal would be the propriety of the sentence.

Unknown Speaker: Well, but doesn't... wouldn't your client have a right to claim some sort of error, perhaps in the instructions, in the case of the judgment that's now been entered against him?

You wouldn't have been able to argue that on the previous appeal.

Mr. Levenstam: I believe we... yes.

Not only would we have, but it would have been incumbent upon us to argue all error.

Unknown Speaker: Yes, but the... not all of the errors might have been the basis for the decision.

Let's assume that on the continuing criminal enterprise count some element other than the conspiracy element was found to be insufficiently supported by evidence, and the court says, that's enough, we reverse.

Then we get back to the position that you posit.

The other conviction, the conspiracy conviction is brought forward.

I presume at that point you would say, oh, well, I now want to appeal this because there was insufficient evidence of conspiracy.

Mr. Levenstam: Well, I don't think it's that complicated, because you have to--

Unknown Speaker: Well, no, but just tell me, why won't you... I mean, you're not going to concede that on behalf of your client--

Mr. Levenstam: --Oh, no.

Unknown Speaker: --and if, in fact, it was not reached by the appellate court as the grounds of its decision in the first appeal, you're going to want to reach it in the second one, because if you do, your client will walk, so of course you're going to want to appeal it, aren't you?

Mr. Levenstam: Well, that's true, but I will want to appeal because the conspiracy claim is a true, lesser-included offense.

I will want to raise every issue with respect to that, too, because every--

Unknown Speaker: And you will raise every issue, but in my example the appellate court says, we find one ground of error.

We don't have to get into the question of the sufficiency of evidence on conspiracy.

That's difficult.

So we're going to decide it on the ground of the clear error, and so you will have done everything you're supposed to do, but because the court decided on the ground that it did, you will still have the conspiracy issue before you, and you're going to appeal it, aren't you?

Mr. Levenstam: --Yes, although I would say--

Unknown Speaker: So there will be... I mean, we've got to assume that the price to be paid here is a second appeal.

Mr. Levenstam: --Well, yes.

At some level... I don't think it will be that complicated, a second appeal, because the same court that you're talking about will have--

Unknown Speaker: But what sense does it make?

If you say that it doesn't have to be a retrial on the conspiracy, why have two appeals instead of just one?

As long as there's not going to be additional collateral consequences, as Justice Breyer indicated, doesn't it make entire sense to let the whole case go up to the court of appeals and just ensure that there will be no more than one punishment?

Mr. Levenstam: --Well, again, I guess I don't agree with the underlying premise that there are no collateral consequences, because Ball clearly recognized the social stigma--

Unknown Speaker: But if you lose on the stigma point, there are none, isn't that fair to say?

If we say, look, there is no cognizable extra stigma when you have a mere lesser included offense, then you really wouldn't have an answer to Justice Ginsburg's question, would you?

Mr. Levenstam: --Justice Souter, you're absolutely correct with respect to a situation other than the one that is in our case, where the Seventh Circuit has affirmed concurrent sentences... concurrent judgments, separate judgments and separate concurrent sentences.

In our case, there was never a vacation of either offense, and so the argument to this point has been talking about preferred approach to take, but has not really addressed what's happened in our case.

In our case, the Seventh Circuit affirmed separate convictions and affirmed concurrent sentences.

I will--

Unknown Speaker: But if it's so that under that Seventh Circuit judgment there is no greater exposure to recidivist charges because under the guidelines they would be treated the same as if there'd been only a CCE conviction, so that there is no recidivist consequence, then under the Seventh Circuit decision, when there's no longer a prison term, the only consequence is the extra stigma.

Mr. Levenstam: --No, I disagree.

Unknown Speaker: Fifty dollars.

Mr. Levenstam: Excuse me?

Unknown Speaker: Fifty dollars.

Mr. Levenstam: Well, there is... yes, there is the assessment of $50, there is in addition... there are certainly other collateral consequences that may adhere.

First of all, there is the question of potential future impeachment, and the fact that my client may be imprisoned does not mean that he will not--

Unknown Speaker: Or a three-strikes-and-you're-out law in a State.

Mr. Levenstam: --Yes.

Unknown Speaker: I assume if there are two convictions, rather than a merged one it would count for two, is that right?

Mr. Levenstam: Yes, that is also a possibility.

There's also a--

Unknown Speaker: Can you raise that in connection with your client?

How many convictions does your client have?

Mr. Levenstam: --Well, depending on whether you count both, it would be five or six in this case.

Unknown Speaker: And there were, indeed, three life sentences, were there not?

Mr. Levenstam: Yes.

Unknown Speaker: So does... the way this particular case is decided, does it have any practical consequences, given that your client has not two, but three life sentences at the moment?

Mr. Levenstam: Well, I think the answer to that, Justice Ginsburg, is that I don't know.

I mean, and nobody sitting here today can project that far into the future.

Unknown Speaker: May I ask kind of a basic question that will reveal my ignorance?

This lesser included offense situation, where a person is charged with a greater offense and a lesser in the same proceeding, that must happen quite frequently in the State courts, doesn't it?

Mr. Levenstam: Well, generally in the State courts, at least in Illinois, charges aren't made on a separate basis.

You're charged for an aggravated battery, for instance, and the question would come up at the end of the case whether to submit jury instructions on the lesser includeds of battery and assault.

Unknown Speaker: Supposing you do have jury instructions for a greater and a lesser included offense in the same case, what does the judge do?

Does he enter two judg... I mean, what does the--

Mr. Levenstam: I think the jury... I believe that the jury, at least in my State, is instructed to do one or the other, so the problem does not come up.

Unknown Speaker: --Well, why wouldn't the proper solution here be the same, have him do one or the other?

Mr. Levenstam: Well, it would make sense to me, but I believe that the Ball case said that a jury verdict, that you can bring back... return a jury verdict on both.

Unknown Speaker: I mean, it seems sort of strange to have a very special rule with lesser included offenses in the Federal court that's different from what's applied all over the country in State courts.

Mr. Levenstam: Well, I don't--

Unknown Speaker: But... but--

Mr. Levenstam: --I don't disagree that this creates the problem, is the situation of the Government charging both the lesser and the greater.

Unknown Speaker: --But is this a lesser included offense case?

Is this a lesser included offense case?

Mr. Levenstam: Yes.

Unknown Speaker: I thought the position was that there were two different acts.

One was a conspiracy, the other was a very successful conspiracy.

Mr. Levenstam: Well, but--

Unknown Speaker: It's not necessary... the only reason it's lesser included is because there's a lesser punishment--

Mr. Levenstam: --No, Your Honor--

Unknown Speaker: --Not a lesser... not a--

Mr. Levenstam: --The... I think it's important to point out that every continuing criminal enterprise will have embedded within it a conspiracy, because one of the statutory elements, without looking to the facts of the case or anything, a pure Blackburger analysis, is in concert, the conduct has to be in concert, and so there will always be a conspiracy buried in a continuing criminal enterprise.

Unknown Speaker: --Well, yes, but we've conceded at the outset... I thought we conceded that they could be punished separately and cumulatively if Congress so intended.

Mr. Levenstam: That's true, and our position--

Unknown Speaker: And that is not a paradigmatic lesser included offense.

Mr. Levenstam: --I'm sorry, I didn't hear the last thing you said.

Unknown Speaker: In that situation you do not have a paradigmatic lesser included offense.

Mr. Levenstam: That's true, but Congress did not intend for pyramiding sentences here.

The Government agrees that Congress did not intend for pyramiding sentences.

The Government's position is--

Unknown Speaker: Well, but wouldn't you agree that Congress could pyramid sentences with lesser included and greater offenses?

Mr. Levenstam: --Yes.

Unknown Speaker: Sure.

So why isn't this a para... why... I don't understand why this is not a parad... whatever the word is--

Mr. Levenstam: A para--

[Laughter]

Unknown Speaker: --A case of... a conspiracy is always a lesser included offense of the CCE.

Mr. Levenstam: Well, I guess in my waning moments perhaps I sort of leapfrogged to an issue I was hoping to get to address, which is Congress' intent.

Unknown Speaker: Well, before you do that--

Mr. Levenstam: Yes.

[Laughter]

Unknown Speaker: --I don't understand what you said about the State case.

Why is it okay to send it to the jury?

You say no harm is done if you... so long as there's an instruction at the end.

What if, in fact, you know, the jury convicts of aggravated assault, and it turns out, on appeal, that there's not enough evidence to support the aggravation part?

If the lesser included offenses have not been submitted to the jury, he walks, I assume, right?

Mr. Levenstam: My understanding is that... and I have seen cases in which there were reversals in remand for trial on the lesser included.

Unknown Speaker: Oh, before retrial, I'm sure... he can be retried.

Mr. Levenstam: Yes.

Unknown Speaker: But why wouldn't it be better to submit both to the jury so that if the one conviction is reversed, the other one would stand, as your argument would be the case here?

Mr. Levenstam: To be honest with you, I don't know.

Unknown Speaker: Okay.

Mr. Levenstam: It's not how the Illinois law has evolved.

Unknown Speaker: In the State court case you hypothesized, that you explained, the jury returns a verdict on only one of the two charges, not both.

Mr. Levenstam: Yes.

Unknown Speaker: But here they do both, so that's different from the standard lesser included offense, now.

The lesser included offense, the jury has a choice of one or the other.

Here, the Government is entitled to require a jury verdict on both.

Mr. Levenstam: The same was true with respect to the... I... with respect to the two firearms statutes involved.

They were separate offenses.

They were both submitted.

This Court held specifically that both could be submitted to the jury.

The verdicts could be returned.

Nevertheless, it was clear that the possession statute was a lesser included of the receipt statute, and this Court, in examining the statutory history, the legislative... the statutory structure and the legislative history, came to the conclusion that Congress did not intend to cumulate punishment, and based upon that conclusion said, because of the collateral consequences issue, that you could not enter cumulative sentences even if they're concurrent.

The same situation presented itself in United States v. Gattis, which is... was a bank robbery case, and the jury returned verdicts under 2113(a), 2113(b), and 2113(d), and this Court, in its footnote, said, well, obviously, you're going to have to vacate the separate convictions and the concurrent sentences for all but the 2113(d).

So I think within the Federal system... perhaps it was unfortunate I even interjected my State, but within the Federal system, it is not unusual to submit lesser included and the greater offense at the same time.

Unknown Speaker: In... Ball you say was lesser included?

I thought that they were so close to the same offense, why would... why do you characterize those as lesser, possession as lesser included?

Mr. Levenstam: Because in order to receive you have to possess, but in order to possess, you do not have to receive, and the... Chief Justice Burger in writing that case noted in a footnote that one way of doing that would be to... for the person who possesses the gun to manufacture it.

You know, the zap gun situation.

But there is a much more frequent occurrence that distinguishes those two statutes, and that is, somebody who is not a felon goes out, buys a gun... it happens all the time... commits a felony, is convicted, and upon his release returns home to his gun collection.

Now, every one of those guns is illegally possessed, but not one of them was illegally received, and so there you have... that is the situation.

It's a virtually identical situation here where there is a lesser included offense.

Unknown Speaker: What actually is your objection to what I take is the SG's position on our piece of paper called judgment in the district court?

The district court would write, 846, conviction, 848, conviction, and then between the two he'd write the words, 846 is included as part of the, or something like that.

Now, that's... or merged into, I don't know.

He writes some extra words between those two pieces of paper, and that would signal to everybody... lawyers see the word conviction, they know they have to appeal, so they'd have a signal, appeal both, and the words in between those two things would apparently make clear to everybody, we'd hope, with an opinion of this Court, that the collateral consequences don't apply.

Do you have an objection to that approach?

Mr. Levenstam: I... well, I would certainly prefer it to the approach taken by the Seventh Circuit in this case, okay.

Unknown Speaker: That's true.

Mr. Levenstam: Beyond that, I still believe, as I started out the morning, that the vacatur approach is better because that way there is no question but that there is only one conviction for one offense.

If there are no further questions, I'd like to reserve the remaining time for rebuttal.

Unknown Speaker: Very well, Mr. Levenstam.

Mr. Feldman, we'll hear from you.

Argument of James A. Feldman

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

It is a consequence of petitioner's position that a defendant who is validly found guilty by a jury of two very serious Federal offenses, drug conspiracy and CCE, should have the opportunity, under some circumstances, to gain a windfall.

If he's able to have the CCE conviction... since the district court under petitioner's position may only enter judgment on the CCE offense, if, on appeal, he's able to have that conviction overturned, the defendant will obtain the possibility of going free notwithstanding that he's committed the drug conspiracy offense, that he's been validly charged of that offense before a jury--

Unknown Speaker: Mr. Feldman, is that any different from any normal lesser included offense situation in which the Government gets the verdict on the greater offense and the defendant appeals and has it set aside?

He walks on the entire transaction.

Mr. Feldman: --I... well, actually, I guess I have two answers to that.

First, I don't think that is the ordinary case.

In the ordinary case of a simple or greater and lesser included offense, where they're defined in a single statutory section and there are increasing aggravating factors of the same series of offenses, in that situation, the normal practice is, you can... if the greater offense is overturned, the court can enter a judgment on the lesser offense, assuming... the court can enter judgment on the lesser offense, assuming the reason for overturning the greater doesn't cast any doubt on the jury's finding that the defendant committed all of the elements of the lesser.

Unknown Speaker: Do you have at hand authority that I could look at?

Mr. Feldman: Yes.

One... there's the case we actually cited in our brief, the case from this Court that, it's a little bit obscure, but actually it's normally cited for that proposition.

It's Tinder v. United States.

Unknown Speaker: Oh, Tinder.

Mr. Feldman: Actually, a commonly cited case from the D.C. Circuit that lays that out is Allison v. United States at 409 F. 2d 445.

There's a recent Second Circuit case, U.S. v. Buossono at 926 F. 2d 230, and there are some others.

Unknown Speaker: Well, if that's the general rule, why wouldn't that rule apply here?

Mr. Feldman: Well, in--

Unknown Speaker: Just enter judgment on the greater offense.

Mr. Feldman: --Well, that ordinarily is what happened when... is what the normal Federal practice is where, as I said where separate offenses are defined in distinct sections of a single statute with aggravating factors.

Unknown Speaker: Let me back up just a second.

Is it correct that it's common ground here that the conspiracy offense is a lesser included offense in this case?

Mr. Feldman: We're willing to assume that for purposes of this case.

If it were necessary--

Unknown Speaker: Then--

Mr. Feldman: --for the Court's decisions, we don't agree with that proposition.

Unknown Speaker: --But if that were true, then why wouldn't... shouldn't this be treated just like any other lesser included offense situation?

Mr. Feldman: Well, it's not the way it's ordinarily done when the statutes... where statutes have as complex a relationship as the two statutes--

Unknown Speaker: No, but maybe it would simplify things to do it that way.

That's the question I'm asking.

I realize there's been a lot of confusion--

Mr. Feldman: --Right, well--

Unknown Speaker: --with these two statutes--

Mr. Feldman: --The basic--

Unknown Speaker: --But if we made it clear that one is a lesser included of the other, wouldn't that solve everything?

Mr. Feldman: --Well, that... it would be one way of addressing the problem, I'd agree with that.

Unknown Speaker: What would be wrong with it?

Just put it in harmony with all our other lesser included offense law.

Mr. Feldman: The basis of the normal way of treating things, as you mentioned, is that it's assumed that when Congress puts aggravating factors of a given offense in this particular statute, that Congress only wants one conviction, and in fact the way it's normally submitted to the jury.

The jury's told to first consider the greater, and then only if it finds the defendant not guilty of that should it go down and consider each of the others, and that, due to long practice, and the way things have been done, it's assumed that when Congress defines--

Unknown Speaker: But the reason it hasn't been done here is, there's been a debate of very realistic arguments on both sides as to whether these are, in fact, entirely separate offenses, what did Congress intend, that if we assume what everybody's been assuming in the argument up to now, that you lose on that issue, then wouldn't it make sense to just put it in the same pattern?

Of course, I understand you don't want to concede that, but--

Mr. Feldman: --Well, I mean, I don't think so, because I think that the question is what Congress intended, and where Congress defined statutes in two distinct sections of statutes, and moreover, where it takes an offense like CCE, which is really dramatically different from an underlying conspiracy, which involves the defendant obtaining substantial income, acting in concert with five or more people, and committing a series of violations, when it takes that kind of statute--

Unknown Speaker: --Yes, because that's just like a murder is more serious than an assault, too.

Mr. Feldman: --It's true, and Congress could... could, if Congress' intent were not to... were to treat murder and assault the same way, then that would be a reasonable way--

Unknown Speaker: Isn't it first up to us to decide what Congress' intent was, and if we agree with you, why, then they're totally separate, but if we disagree with you, then why does it make any difference that they're in separate statutes rather than in one?

Mr. Feldman: --If--

Unknown Speaker: You see, if we agree with you that Congress intended two separate proceedings entirely, then you win, period.

But if we disagree, and think that they did intend one to be a lesser included offense of the other, even though they're in separate provisions of the code, then why shouldn't they be treated just like a normal lesser included offense?

Mr. Feldman: --If it were... if they were treated like normal lesser included offenses, and if it were made clear that the procedure whereby you... if the greater one were reversed that the court could just enter judgment on the lesser one, so long as the reason for the reversal didn't cast any doubt on the jury's finding of guilty of the lesser one, I mean, that would--

Unknown Speaker: Well, what did this Court say in Ball that sheds light on this, do you think?

Mr. Feldman: --I think the Ball court had two holdings, both of which we agree with.

The first holding was that the entry of a conviction and the entry of a concurrent sentence does in itself constitute some modicum of punishment, albeit perhaps not as much punishment as a longer prison term, or a substantially larger fine, but some modicum of punishment.

Unknown Speaker: Did Ball indicate that the conspiracy is a lesser included offense of CCE, in your view?

Mr. Feldman: No.

I... maybe... Your Honor, maybe you're referring to the Jeffers case.

Ball did not deal... I was going to get... the other holding in Ball was that the two offenses at issue there, receipt of a firearm by a felon and possession--

Unknown Speaker: Oh, that's right.

Mr. Feldman: --of a firearm by a felon--

Unknown Speaker: Right.

Mr. Feldman: --were essentially to be treated as directed at a single evil and as the same offense, and again, that--

Unknown Speaker: Was it Jeffers where we discussed--

Mr. Feldman: --Yes.

Jeffers was the previous case that involved--

Unknown Speaker: --Yes, right.

Mr. Feldman: --CCE and conspiracy.

Unknown Speaker: Right.

Mr. Feldman: The plurality in that case stated that Congress didn't intend a greater prison term to be imposed or a greater fine.

They didn't intend that kind of pyramiding of punishments, or consecutive punishments to be imposed on the defendant.

Unknown Speaker: And the plurality in Jeffers assumed without deciding that there was a lesser included offense.

Mr. Feldman: That's correct, but they still went on, and we're basic... we are submitting this case to the Court, and willing to accept the same assumption that the Court adopted in Jeffers, and that is, we can assume they are a greater and lesser included offense, but there still remains the question of what Congress intended.

Jeffers stands for the proposition... at least, the plurality opinion in Jeffers... that Congress intended not to impose a greater prison term or a more substantial fine, but Jeffers didn't address the question of whether this modicum of additional punishment that's caused merely by the entry of a judgment and a concurrent sentence, whether that was something that Congress would have imposed.

Unknown Speaker: --we should decide whether this is a lesser included offense or not.

Mr. Feldman: The Court could decide that in this case.

It would be our submission that it's not a lesser included offense because the CCE offense doesn't require... although it may be satisfied by proof of a classic conspiracy, the in concert with element doesn't require proof of a conspiracy.

It only requires that the defendant act together with a number of other people to organize an enterprise, but it doesn't require that the other people who are involved with the defendant necessarily know the criminal goals, or the full criminal goals, of the enterprise.

If a defendant, for example, organizes a business to transport merchandise from some country where drugs are prevalent to the United States, and does so in a fairly... a shady and unusual way, there may be other people who join with him possibly even thinking it's an innocent enterprise, or possibly not, but who don't know that in every one of those shipments is a large amount of cocaine.

In that kind of a case, we think it's reasonable to say that the defendant acted in concert with the other five individuals even though they may... they couldn't all be found guilty of conspiracy.

For that reason... and this was an argument also that we submitted in Jefferson the Court didn't reach.

For that reason, we don't think that it's a classic relationship of greater and lesser included offenses.

Unknown Speaker: No, but in that case that you give, you wouldn't have a conspiracy indictment.

Mr. Feldman: Right.

In that case--

Unknown Speaker: Sure.

I mean, you can have--

Mr. Feldman: --In that case, you wouldn't.

Unknown Speaker: --Every assault isn't a lesser included offense of every murder.

It depends on the facts of the case.

Mr. Feldman: That's correct, and in that case--

Unknown Speaker: But if the conspiracy is an element of the CCE, then it's always a lesser included offense.

Mr. Feldman: --No, I don't think that's the analysis to--

Unknown Speaker: Your example doesn't disagree with that.

Mr. Feldman: --No, I don't think that's right.

You don't look at whether, on the facts of a particular case, whether the defendant was not only guilty of the conspiracy but also the CCE, just... what you look at is whether under the statute it's possible to be guilty of the CCE without being guilty of the conspiracy, and it's our position, because of the example I just gave, that that is possible, that if the court had to reach the question--

Unknown Speaker: But we deal with cases in which... the only cases we're concerned with are those in which the government has made both a conspiracy charge and a CCE charge, so it doesn't help the analysis to hypothesize CCE cases that don't involve conspiracy.

Mr. Feldman: --I think I agree with you in the following sense.

I think what my example showed was that they are, in fact, distinct offenses, but in any event, the question is what Congress intended for defendants in the position of petitioner here.

Unknown Speaker: How could we resolve Jeffers the way we did against the Government and not reach this issue, as you say?

Mr. Feldman: Because Congress... because the Court in Jeffers held that in any event what you have to do is look at Congress' intent with respect to--

Unknown Speaker: Well, isn't it very relevant to Congress' intent whether the two... whether one crime is a lesser included offense or not?

Mr. Feldman: --I think actually in many cases it is, although the Court frequently, when it deals with that question, looks not only at what... at the relation of lesser... and greater included offenses, but also looks at what... the direct indications of what Congress, how Congress intended--

Unknown Speaker: Did we say in Jeffers that we were not reaching this question?

Mr. Feldman: --Yes.

The Court specifically said it I think two or three times in the course of its opinion, and... actually, the Court didn't have an opinion in Jeffers.

I should correct myself.

There was only the plurality opinion that even proceeded along this line of reasoning.

Justice White wrote an opinion in which he said they were not greater or lesser included offenses, and therefore any kind of accumulation of punishment would have been permissible in his view, and I--

Unknown Speaker: It seems to me it's a very, very fine congressional intent you're asking us to posit.

I don't like talking about congressional intent anyway.

It seems to me you look at the statute and see what the statute reasonably means, but you say there's one class... we can discern a congressional intent not to pyramid punishments, however, to cumulate convictions.

So there are three categories of statutes.

You can cumulate both, and then, category two, you can pyramid punishments but not convictions, and category three, you can't pyramid either one, and we're to discern this refined congressional intent statute by statute.

Mr. Feldman: --Well, I think--

Unknown Speaker: It's a real difficult task, don't you think?

Mr. Feldman: --Well, that is what the Court... I think that's what the Court did in Ball.

It looked at those two particular statutes in that case to determine what Congress intended with respect to--

Unknown Speaker: Well, I think the one goes with the other.

I think when Congress doesn't intend to pyramid punishments, it doesn't intend to pyramid convictions, either.

That's my point.

I think it's a very refined congressional intent to allow the double punishment but not allow the double conviction, or vice versa--

Mr. Feldman: --Well, I think to be fair, it's also--

Unknown Speaker: --I guess there are even more than three categories.

Maybe sometimes they want to allow two convictions but not two punishments.

Sometimes they want to allow two punishments but not two convictions.

We re going to have to go through the whole list, aren't we?

Mr. Feldman: --Well, I mean, I think as a logical matter it's possible Congress could have had any kind of intent with respect to punishment, because the Constitution doesn't impose limits in that respect.

Unknown Speaker: Life is too short.

We can't figure all of this out.

I mean, if it's... the two are cumulated or not, and if they're cumulated, you can neither punish twice nor you can convict twice.

That makes a lot of sense to me.

Mr. Feldman: Well, as a practical matter, the notion of punishment that's involved here is a fairly involved, refined notion of punishment.

I mean, merely having the piece of paper say that you got convicted of both crimes and concurrent sentences, in this case concurrent life sentences, don't really impose the kind of disability on a defendant that the separate... that an additional term of years in prison, or an additional fine would have imposed.

And when you're working with such refined notions of punishment, I think it's important to also try to figure out how... whether the Congress wouldn't have wanted that kind of refined notion of punishment to get in the way of what is truly one of its primary goals, which is seeing to it that a defendant who is... who commits and is convicted of both section 846 conspiracy and a section 848 CCE, that that defendant receives the punishment that Congress intended for both offenses, regardless of some fluke of later judicial procedure.

Unknown Speaker: What's the source of this refined concept of punishment that you were just talking about?

Are there cases from this Court that suggest it?

Mr. Feldman: The only case that I'm aware of is Ball.

The only case is United States v. Ball.

Unknown Speaker: It isn't entirely consistent with some of our other cases, is it?

Mr. Feldman: Ball was... is in some tension with a number of cases.

Unknown Speaker: Yes.

Mr. Feldman: But the... Ball had a fairly unique circumstance, which was, you had two statutes of receiving and possessing a firearm by a felon.

The Court basically treated them as if they were really two ways of committing the same offense.

As the Court said in its opinion, there's one evil that Congress was legislating against there and, in fact, a year after the decision in Ball, Congress in fact took the two statutes, which really by happenstance were just codified separately, and combined them into what... what's now 18 U.S.C. 922(h).

Unknown Speaker: But Mr. Feldman, Chief Justice Burger said, twice in that opinion said the criminal conviction itself, and not just the sentence, is punishment, and he stated that... I'm sure you're familiar with the decision... twice as a perfectly general proposition not tied to this peculiar receipt possession.

Mr. Feldman: I agree, and again we don't disagree, or we're not asking the Court to... our position doesn't require disagreeing with that holding.

It's only that it does perhaps suggest that there should be a recognition that the kind of punishment that's imposed merely... especially in a case like this merely by the entry of an extra judgment and a concurrent sentence is not the kind of punishment is not... is one that Congress would have intended to avoid the problem that was being addressed during petitioner's argument, which is the possibility that defendant is going to gain a windfall and not receive a prison sentence for a drug conspiracy that he committed.

I would also add that it's even less of a punishment than it was in Ball.

Now, at the time of Ball, there was parole in the Federal system.

There is no parole, and one of the things that Chief Justice Burger referred to was the possibility that the extra conviction could have an effect on a parole decision.

Well, in fact, under CCE there never has been parole, so that--

Unknown Speaker: But if the Tinder case that you cited, if that's the model, then the Government is protected against what you said at the outset of your argument was your real concern.

Mr. Feldman: --That's correct.

Unknown Speaker: That you'd be stuck without any conviction.

Mr. Feldman: That's correct.

If--

Unknown Speaker: I'm not sure that's so, because in Tinder what happened... I've just read it... the court gave a sentence that was in excess of the authorized sentence unless they showed that the value of the items stolen from the mail had been more than $5,000.

The court just made a mistake.

There had been no proof the value was over $5,000, so this Court said, well, you just have to sentence for the lesser amount because it wasn't shown.

That's all that was.

The offense was the same.

The question was whether or not the sentence could stand.

Mr. Feldman: --Well, I--

Unknown Speaker: The offense was the same offense.

Mr. Feldman: --The way Tinder has been read by the lower courts, and the Court didn't... this Court did not discuss this issue in any detail, as you know, but the way it's been read by the lower courts as whereas the greater offense required proof of over, whatever it was, over $5,000 of merchandise stolen, and that was an element of the greater offense, there was a... that was a felony, there was also a misdemeanor offense that didn't require proof of that element, and therefore the relationship between the two offenses was a greater and lesser included offense.

But if it were clear that Tinder would apply in that situation, the Government's primary interest here is in seeing to it that a defendant who's convicted of both, under both statutes receives the punishment that Congress intended for both.

Unknown Speaker: A lot of that has to be implied from Tinder, doesn't it, since it really goes from a long recitation of the facts to saying, reversed.

Mr. Feldman: That's correct, but it's... the disposition of... it's not just reversed, it's also the disposition of the case, which was entry--

Unknown Speaker: Yes.

Mr. Feldman: --of judgment on the misdemeanor, but I agree.

Nonetheless, Tinder has been taken by the lower courts to mean that.

I think the Seventh Circuit's approach is the simplest way of achieving the result of making sure that the defendant who commits both offenses receives the punishment that Congress intended for both.

Now, the Second Circuit's approach is another way of encompassing the same objective, and although it's... the Seventh... under the Second, if the Court disagrees with our submission that Congress didn't intend, and believes that Congress didn't intend separate convictions and concurrent sentences, the appropriate thing to do would be to deal with the case like the Second Circuit does, which is to enter one judgment of conviction, and make it clear on the judgment that a single conviction is being entered for violation of the two statutes, and a single sentence is being entered.

Unknown Speaker: Mr. Feldman, what light do you think that Garrett v. The United States sheds on this problem?

There, the Court dealt with what, a CCE offense and a predicate offense?

Mr. Feldman: That's correct, and the Court stated that the relationship between those two offenses is a very complex relationship, and it cannot be simply analogized to the greater... that of greater and lesser included offenses.

Near the end of its opinion, it cited the Jeffers case once, but the point of that citation and what it said about Jeffers was simply, we are not dealing today with an issue of dealing with a conspiracy offense based on the same agreement.

We're dealing with the relationship between an individual criminal predicate offense, which can be one of any number that can be a predicate for CCE and the CCE offense itself, and the Court held in that case that not only could defendant be separately punished, defendant could be separately prosecuted for those two.

But I don't... I think really the only relevance of Garrett is that it recognized that that wasn't the issue that it was dealing with in that... the Court was dealing with in that case.

As I was saying, the Second Circuit's approach doesn't... has no possible consequences that would enure to the defendant's detriment.

There's only one conviction.

There's only one sentence, and under this Court's decision in Ball, there's nothing wrong with a judgment of conviction that was entered the way the Second Circuit does.

Since that... the Second Circuit's approach would also make it clear that the defendant has to bring all of his issues to the appellate court in the very first appeal of the conviction, and since--

Unknown Speaker: You think it's a lesser punishment to say I was... I have two convictions of two crimes, than to say I have one conviction of two crimes?

I mean, it seems to me the court that said in Ball that two convictions are punishment, you know, is cumulative punishment would also say that a conviction of two crimes is cumulative punishment, don't you?

Mr. Feldman: --I don't think so, because I think that Ball was concerned not just with the very abstract question of counting of crimes, but the possible consequences that could flow to the defendant from two convictions, and those consequences can't flow.

In other words, Ball can't flow from merely the entry of a single conviction.

Ball didn't hold that the entry of two convictions, if it had no collateral consequences whatsoever, would still, just as a matter of stigma, constitute punishment that has to be dealt with.

Unknown Speaker: You think it's stigmatically neutral, is that it?

Mr. Feldman: Yes, I guess I would think it's stigmatically neutral, I think, and particularly in the context of these statutes, where the CCE offense is really one of the most serious ones in the Federal criminal law.

the fact that a defendant was also... was convicted of a single conviction, convicted once of violating CCE and a drug conspiracy statute I don't think carries any additional stigma.

Unknown Speaker: Could you help me with something very, very basic?

Assume no knowledge on my part... very basic.

What happens in the absolute ordinary case in the Federal courts where you have crime A, and everyone agrees that crime A is a lesser included offense of crime B?

Now, how do you instruct the jury?

You instruct the jury... you instruct the jury in the ordinary Hornbook basic case that they can convict of both, or do you tell the jury you can convict of A only if you acquit of B?

Mr. Feldman: It's... the latter is the ordinary way of doing it.

Where the two--

Unknown Speaker: The latter is the ordinary way.

Mr. Feldman: --Where the two bear the simple--

Unknown Speaker: So ordinarily, the basic Hornbook thing is that you'll end up with one conviction, and if that conviction is reversed on appeal, you'll have to have a new trial.

Mr. Feldman: --No, I don't think that's correct.

I think if that--

Unknown Speaker: If that's--

Mr. Feldman: --Well, it depends, but if the conviction is for the greater offense--

Unknown Speaker: --Yes, they convict for the greater offense.

Mr. Feldman: --and if he's convicted for a reason that's unrelated to the lesser offense--

Unknown Speaker: Yes, that's right.

Mr. Feldman: --Then you can just enter a conviction on the lesser offense.

Unknown Speaker: How could you if the jury never came in with a conviction?

Mr. Feldman: I beg your pardon?

Unknown Speaker: Sorry.

If you instruct the jury, jury, convict of B, if you convict of B you can't convict of A--

Mr. Feldman: Right.

In ordinary--

Unknown Speaker: --It's just lesser included.

Mr. Feldman: --That's correct.

Unknown Speaker: And now they do convict of B. On appeal, reversed.

You have to have a new trial, don't you?

Mr. Feldman: No, I don't think that that's correct.

I think under the Tinder case and at least the way... and the way the Tinder case has been understood by the lower courts, the court can simply go back and enter judgment, and in fact should just enter judgment on the lesser included offense.

Unknown Speaker: I see, okay.

Mr. Feldman: The jury has found the defendant guilty of all of the elements--

Unknown Speaker: All right.

If that's so, fine.

If that's so, why does the Government care if we adopt their position?

That is, if it's a lesser-included offense, then we'd simply behave as normal.

The Government must care because you're trying to save the possibility... what is it... I don't understand why--

Mr. Feldman: --The Government's... I would say our primary interest in this case is making sure that whatever mechanism is involved, the defendant, who has committed both the 846 and 848 offenses--

Unknown Speaker: --Yes.

Mr. Feldman: --gets... and can't, through some fluke on collateral attack or appeal, by getting one of those overturned, for a reason unrelated to the other, doesn't therefore end up scott-free.

Unknown Speaker: You've just explained to me how that's impossible.

You've just explained it to me.

You said--

Mr. Feldman: In the normal... the normal course, in the normal course or a statute that defines greater and lesser degrees of a single offense, committing an offense and then committing the same offense with a gun, or something like that, I think that that's the way Congress intended things to work.

I do think thaT where Congress defined the statutes entirely independently and included--

Unknown Speaker: --But that's a legal argument.

I'm interested in why you care about it.

That is, from what you just said, if I were to write down your very words, and it turned out you're right about how this is normally so, and it also turned out that this is a less included offense of a normal sort, you would therefore, if I wrote down your very words you just told me, have what you want, isn't that so?

Mr. Feldman: --I think, actually, yes.

Yes, in the sense that if it were clear that that was a procedure that would work in these kinds of cases--

Unknown Speaker: Yes.

Mr. Feldman: --That would protect the interest that the Government is seeking here.

Unknown Speaker: So then what we should say, in your view, is almost, I think, identical to what your opponent told us.

We should say, this is a lesser included offense.

This is how the lesser included offense works, and then say what you said.

Mr. Feldman: We do... well... we do disagree that it is a lesser included--

Unknown Speaker: No, but if we say that it's a lesser included offense, you get everything you want, don't you?

Mr. Feldman: --If it's clear that that procedure would work, at least in terms of our... again, I don't think this is what Congress intended here, but in terms of our interest--

Unknown Speaker: No, but let's... all right, let's assume we'll commit that error, and we'll say that Congress did intend these to be treated as greater and lesser included, then there's nothing else that you're worried about, is there?

There's no broader point that you're concerned--

Mr. Feldman: --So long as it was clear, again, that the defendant who somehow managed to get the CCE conviction overturned on direct or on collateral attack, the judgment could still be entered on the lesser... on the conspiracy offense.

Unknown Speaker: --Well, I think that was Justice Breyer's--

Mr. Feldman: Right, so... and I just want to be sure that that is our primary interest.

As long as that was clear, then that would be... that would accommodate that interest.

Unknown Speaker: --And you recognize--

--But the precedent--

Mr. Feldman: But for the reasons I said before, I really do want to add that we don't view them as greater or lesser included offenses, and in our view--

Unknown Speaker: --No, but you're basically making the argument that Justice White accepted in Jeffers now, and eight members of the Court made the assumption to the contrary.

They didn't rule it, but if we took the suggestion Justice Breyer made, we'd really have the precedent of the assumption made by eight members of the Court in Jeffers.

Mr. Feldman: --Well, you... I think actually you'd have four... there were four members of the Court who I think accepted the assumption.

It didn't make merely the assumption, but would have held that.

There were another four members who did assume it, but I don't think that you can take much weight from the fact that four members of the court were willing to assume that, since they found it didn't make any difference for that case.

Unknown Speaker: No, but if Justice White was right, his is a much simply disposition of the case than the rather convoluted position of the majority.

Mr. Feldman: Well, I think that the four... the plurality of the Court in that case was... it's true they didn't accept Justice White's view.

They also didn't accept the view of the concurring opinion, either.

Unknown Speaker: But all of this is--

--As one who joined the convoluted--

[Laughter]

--I must say, when I... when the opinion says we assume something, I don't figure we're deciding it, I figure we're reserving it.

Mr. Feldman: Right.

I think it was because the Court believed it was... because the plurality believed it was a difficult question that it did assume it, and it found that in that case it could resolve the question simply by referring to congressional--

Unknown Speaker: But if we were to decide the case that way, we would have... in order to reach this happy result that's been suggested to you, I think we would have to confirm the correctness of the D.C. Circuit's opinion in the Allison case, which said that without a jury verdict on the lesser included offense, the Court could order a judgment on that defense, and that that seems--

Mr. Feldman: --That's correct.

Unknown Speaker: --to me to be something we have not yet decided.

Mr. Feldman: Again, I do... it has been taken to be... and I've been cautious in how I word this throughout.

That's been taken to be the holding of Tinder, and I don't really think that Tinder can be read to mean anything else.

It is the general practice of the courts of appeals.

I can't say that it's totally secure--

Unknown Speaker: To say that the court of appeals enters judgment in the court of appeals on an offense which the defendant was not convicted of by the jury because the jury very likely would have convicted him on--

Mr. Feldman: --It's really more than that.

It's that the defendant... the jury necessarily found that the defendant committed all of the elements of that offense, and then what the issue in the court of appeals is, some element that doesn't have to do with that offense, so in a very real sense, the jury has convicted him of a crime and the jury has found him guilty of all of the elements of the offense, and I think the proposition is that having done that, there's no reason why the court of appeals... generally what's done is in orders, it remands in orders to the district court to enter judgment on the lesser included offense.

Unknown Speaker: --Mr. Feldman, if we don't make what you regard as the error of treating this... these two offenses as greater and lesser, then, in fact, there would, I suppose be a further stigmatic element quite apart from the $50 in the conviction for conspiracy, since that need not be on your view assumed under CCC, and so if we read the law right, why shouldn't you lose just on straightforward analysis of cumulative effect?

Mr. Feldman: I guess this Court has never gone so far as to hold that that level of effect really constitutes a punishment that in any real sense should determine to guide the analysis or in particular should stand in the way of reaching what I think is a logical Seventh Circuit--

Unknown Speaker: I see.

Mr. Feldman: --result here.

Unknown Speaker: Let me--

--Ball could be read to say just that.

Mr. Feldman: I beg your pardon?

Unknown Speaker: Ball could be read to say just that.

Mr. Feldman: I--

Unknown Speaker: That the very conviction is--

Mr. Feldman: --It said--

Unknown Speaker: --an additional punishment, and one of the reasons is the stigma.

Mr. Feldman: --Right, but they only... but Ball said that only after going... it said there is some modicum of additional punishment that attaches to... that attaches to a conviction in the circumstance where both... there was both adverse... the possibility of adverse collateral effects and this kind of stigmatic injury, but Ball... but then Ball said that in this case we're only holding that the conviction has to be reversed, and we're only holding that the... and the sentence can't be entered because of the particular relationship between the two statutes here.

It requires that the--

Unknown Speaker: Thank you.

Thank you, Mr. Feldman.

Mr. Feldman: --Thank you.

Unknown Speaker: Mr. Levenstam, you have 2 minutes remaining.

Rebuttal of Barry Levenstam

Mr. Levenstam: Thank you.

With respect to the Jeffers--

Unknown Speaker: Mr. Levenstam, may I... I'm sorry, but would you address... I was going to ask Mr. Feldman this.

What's the significance of the $50 here?

Mr. Levenstam: --Well, under this Court's per curiam decision in Ray, there really are no longer concurrent sentences in the Federal system, because each judgment of conviction carries with it a separate $50 assessment.

Unknown Speaker: So the $50, at least in your view, is punishment.

It's not some administratively neutral user fee for being sentenced, or something like that?

Mr. Levenstam: Yes.

Statute 3013 says it's to be collected as if it were a criminal fine, and this Court's decision in Ray clearly indicated that this was not a... there were no longer concurrent sentences in the Federal system.

With respect to Jeffers, while the Court was willing to assume for that cases the status of the conspiracy as a lesser included, what it did not assume, and the question it specifically answered was, would it call the critical inquiry whether Congress intended to punish these two statutes separately, and the answer there was no, and that answer was not only shared by the four members of the plurality, but I believe my reading, if you look at footnote 5 of Justice Stevens' concurrence, he said there were two punishments imposed unconstitutionally as well, so eight justices there, regardless of the lesser included issue, said specifically Congress did not intend to punish violations of 846 and 848 separately.

Unknown Speaker: Mr. Levenstam, what is your position on the Tinder approach?

That is, CCE, only conviction, appellate court can remand with instructions to enter a conviction on the conspiracy count?

Mr. Levenstam: Assuming that you can interject the Morris v. Mathews analysis, which is, if there has been some prejudice to the defendant as a result of the charging of the greater offense, then we would agree with that, with the Tinder approach.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Levenstam.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

United States v. Shabani - Oral Argument

Fri, 09 Jan 2009 14:49:55 +0000

Case:

United States v. Shabani

Media File:

93-981_19941003-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Richard H. Seamon

Chief Justice Rehnquist: We'll hear argument now in Number 93-981, United States v. Reshat Shabani.

Mr. Seamon.

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

This case concerns the Federal drug conspiracy statute which is codified as section 846, title 21 of the U.S. Code.

Respondent was indicted by a Federal grand jury in the District of Alaska on one count of violating section 846 by conspiring to distribute cocaine in Alaska.

The indictment did not allege that respondent or any of his coconspirators committed any overt act in furtherance of the conspiracy.

Respondent moved to dismiss the indictment on the ground that the Government is required, in a prosecution under 846, to allege and prove an overt act in furtherance of the conspiracy.

The district court denied that motion, and subsequently, at the close of the evidence at trial, the court denied respondent's request to instruct the jury that the Government was required to prove an overt act.

The jury found respondent guilty, but the Ninth Circuit reversed his conviction.

It held that the Government is required by section 846 to prove that an overt act in furtherance of the conspiracy was committed.

That holding conflicts with the holdings of all eleven other regional courts of appeals.

The Government brought the case here on a writ of certiorari.

The question presented is whether section 846 requires proof of an overt act in furtherance of the conspiracy.

In our view, the answer to that question is no, section 846 does not require such proof, for three reasons.

First, the text of section 846 does not expressly require proof of an overt act in furtherance of the conspiracy, and in contrast, many other Federal conspiracy statutes, including the general conspiracy statute, do expressly require such proof.

In light of the many Federal statutes that set forth the requirement expressly, section 846 cannot be construed to impose the requirement by implication.

Second, in United States v. Singer, this Court upheld the conviction under a conspiracy statute that the Court construed not to require proof of an overt act in furtherance of the conspiracy.

Singer in an earlier decision--

Justice O'Connor: Mr. Seamon, in the Felix case, I guess Justice Stevens in his separate concurrence argued that the overt acts didn't establish an essential element of the conspiracy, and the majority opinion did not seem to accept that view as expressed by Justice Stevens.

Is that something we're going to have to explain if we agree with you on this interpretation?

Mr. Seamon: --No, Justice O'Connor.

The majority opinion in Felix simply didn't address this question of statutory interpretation presented here.

Felix was a Double Jeopardy case, and both courts agreed in this Court that section 846 doesn't require proof of an overt act, and the case was litigated in this Court on that assumption.

Furthermore, the court of appeals in Felix, even though it decided the Double Jeopardy issue against us, also recognized that section 846 doesn't require proof of an overt act, therefore the majority's opinion in Felix was directed at explaining why, although a broad reading of Grady might have barred the prosecution, it was rejecting that broad reading.

The decisions of this Court that do control here are Nash and Singer.

Those decisions not only construe a conspiracy statute that is silent on the question not to require proof of an overt act, but they apply a rule of statutory interpretation that fully applies here.

Justice Ginsburg: Mr. Seamon, this was an avoidable controversy, was it not, because the overt acts were proved, but the prosecutor insisted that the charge not include that specification?

In other words, the overt act requirement in a case such as this is not difficult to show, it was in fact shown, and yet the prosecutor resisted the charge?

Mr. Seamon: It is correct that overt acts were proven in this case, and that as a general matter they won't be difficult to prove in a conspiracy case.

In the... the prosecutor examined the state of the law and concluded that proof of an overt act wasn't an essential element of the crime and therefore didn't have to be alleged in the indictment.

As a matter of fact, it was actually the district court that first raised the question of whether an overt act needed to be alleged, and it determined that one didn't need to be.

Therefore, the district court submitted the case to the jury without instructing it that it was required to prove an overt act.

Justice Ginsburg: But the prosecutor could have mooted this controversy by allowing the charge to be made?

Mr. Seamon: Yes, that's correct.

He could have done so, and he chose not to, because after studying the law on this particular point, he concluded that section 846 doesn't require proof of an overt act.

Justice Ginsburg: She chose not to do so, is that right?

Mr. Seamon: Actually, the prosecutor who brought the charge was different from the prosecutor who tried the case.

She tried the case, and it was he who brought the charge.

Justice Souter: But she could not have solved the problem of the allegation.

I mean, she, if an overt act was an essential element, she could not have amended the indictment at that point.

Mr. Seamon: That's right.

If the district court had concluded that an overt act was an essential element, the Government would have had to reindict, so it wasn't quite as simple a matter as simply amending the indictment, and in--

Justice Stevens: Mr. Seamon, is it necessary to prove an overt act to establish venue in a particular district where the case is brought?

Mr. Seamon: --Yes.

The burden is on the... to establish venue and one way in a conspiracy case to do that is by alleging an overt act in--

Justice Stevens: So you have to prove it, even if you don't have to allege it?

Mr. Seamon: --It does have to be proven if it's a matter of dispute.

Now... and as a matter of practice, prosecutors typically do--

Justice Stevens: Normally does, yes--

Mr. Seamon: --allege something to establish venue, and the question here--

Justice Stevens: --Couldn't the formation of the conspiracy establish the venue, that the conspirators convened at a particular place?

Mr. Seamon: --Yes, Justice Scalia.

Justice Scalia: And that wouldn't be an overt act in furtherance of the conspiracy in the normal meaning of that term, would it?

Mr. Seamon: That's correct.

Venue can be established either by the commission of an overt act in the district where the prosecution is brought, or the formation of the conspiracy in that district.

The question here really doesn't have to do so much with whether the prosecutor could have alleged and proven an overt act, because overt acts were proven, but the question is whether conduct that Congress has made a crime can be punished in the Ninth Circuit, as it can be in every other circuit of the country.

As this shows, the Government has lost what it considers to be valid convictions because of the Ninth Circuit's erroneous view of the law.

Justice Scalia: Or maybe you could put it, maybe, that it should not be punished in all the other circuits in the country, just as it is not in the Ninth.

I mean, that's just as much the question before us, isn't it?

Mr. Seamon: I'm sure that's the way our opponent would phrase the question.

[Laughter]

The... and our primary argument is based on the text of section 846, which... and Congress' intent in enacting that statute.

The text of section 846 is set out in relevant part on page 9 of our opening brief on the merits, and page 9 also sets out the general conspiracy statute with which it is useful to compare section 846.

Section 846 is at the top of page 9.

It does not expressly require proof of an overt act in furtherance of the conspiracy.

It punishes

"any person who conspires to commit any offense. "

defined in the subchapter proscribing various drug offenses.

In contrast, the general conspiracy statute, which is at the bottom of page 9 of our brief, does expressly require proof of an overt act.

It makes it illegal, in relevant part,

"If two or more persons conspire to commit any offense against the United States and do any act to effect the object of the conspiracy. "

That language in the general conspiracy statute, referring to an act to effect the object of the conspiracy, shows that Congress understood that an act in furtherance of the conspiracy is separate and distinct from the conspiracy itself.

Thus, under the general conspiracy statute, the overt act requirement is not implicit in the term "conspires".

It is spelled out in separate language that specifically refers to the act.

The term 846, and there, too, the term should not be construed to contain an overt act by implication.

Such a construction would be especially unjustified in light of the fact that there are other Federal conspiracy statutes in which Congress used express language to require proof of an overt act.

The construction of section 846 that we're urging also is compelled, I think, by the Court's decisions in Nash and Singer.

In both Nash and Singer, the defendant was charged with a conspiracy under an indictment that did not allege any overt act in furtherance of the conspiracy.

In both cases, the defendant argued in this Court that the indictment was defective because of its failure to allege an overt act and, in each case, this Court rejected the argument because the statute under which the defendant was charged did not expressly require proof of an overt act in furtherance of the conspiracy.

The Court explained that because the statute was silent as to overt acts, it punished conspiracies "on the common law footing", which is to say, without requiring proof of an overt act.

Nash and Singer provide guidance here in two ways.

They give guidance to the court in interpreting conspiracy statutes that are silent as to overt acts, and they give guidance to Congress by providing a blueprint for it to follow when drafting a conspiracy statute, because they make it clear that if Congress wants to require proof of an overt act in furtherance of the conspiracy, it has to say so expressly.

If it does not, the statute will be construed not to require such proof.

And it's reasonable to assume that Congress followed the blueprint laid out in Nash and Singer, because Nash and Singer were on the books both when Congress enacted the earliest drug conspiracy statute and when it enacted section 846, and their validity has never been called into question by this Court.

Nash and Singer support our position in another way.

They apply a rule of statutory interpretation that applies here.

The rule is that, when Congress uses a common law term, the Court presumes, in the absence of evidence to the contrary, that Congress intended the term to have its common law meaning.

At common law, as the Court said in Nash and Singer, proof of an overt act in furtherance of the conspiracy was not necessary to establish the conspiracy, and there is no evidence that Congress intended to depart from the common law in punishing drug conspiracies.

Now, respondent questions whether Nash and Singer understood the common law of conspiracy correctly, but in a sense, the question is beside the point.

The point is that Nash and Singer were on the books when Congress enacted the Federal drug conspiracy statutes, and their understanding of the common law had not been called into question up to that point, or for that matter at any point later, for example, when Congress enacted section 846 in 1970.

Thus, Nash and Singer furnish the background rule for Congress in drafting the conspiracy statutes, and they should also apply the background rule for interpreting the statute.

Respondent's other argument is that Nash and Singer represented, to use his term, an illadvised expansion of conspiracy law, but Nash and Singer didn't break any new ground.

Each began with the recognition that at common law it was not necessary to prove an overt act, and that principle had been recognized by this Court as early as 1879 in United States v. Hirsch, and it was reaffirmed in a decision that was issued just a few months before Congress enacted the first Federal drug conspiracy statute.

Based on their understanding of the common law, Nash and Singer applied the rule of statutory interpretation concerning Congress' use of a common law term.

That rule, likewise, had been applied in many earlier and later decisions.

In short, this Court has never disavowed Nash or Singer or the principles underlying them, and so respondent cannot bear his burden of explaining why the Court should not follow Nash and Singer in this case.

If there are no questions, I'd like to reserve the balance of my time for rebuttal.

Unknown Speaker: Very well, Mr. Seamon.

Mr. Riordan, we'll hear from you.

Argument of Dennis P. Riordan

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

Both parties to this action agree that, if possible, the meaning of this statute should be settled on its face.

Both parties agree that in this case it cannot be settled by simple reference to the text of the statute without reference to any other historical statutory or precedential source, and the reason for that is that it contains the term conspire, and conspiracy.

If Congress had said... instead of using the term conspire had used the word agree, if you agree to commit a crime, we wouldn't be here today.

We all agree that the term agree has a common meaning.

It means a meeting of the minds.

We all agree that a meeting of the minds doesn't require or imply further action.

People agree with their doctors every day to stop smoking, and further action is neither necessary to that term nor, as we know, frequently none follows, but in this case they use conspire and conspiracy, and both parties agree that there is probably no term in the criminal law less... less capable of easy analysis or common understanding than the terms conspire and conspiracy.

In an article relied on by both parties, by Benjamin Pollack, Professor Pollack stated that the crime of conspiracy

"is the most difficult to define. "

and it is almost impossible to confine the true law of conspiracy within the bounds of a definite statement.

So we are left, then, with the terms, conspire and conspiracy, and the question, what do they mean in 846?

The legislative history, we both agree, doesn't help us.

There is no legislative history.

There is no indication anywhere in the statute whether, when Congress used the terms, conspire and conspiracy, it meant by those terms the definition of conspiracy such as in 371, which contains an overt act requirement, or, on the other hand, it meant some different definition.

Unknown Speaker: You don't regard the comparison of 371 with the language of 846 as being legislative history?

Mr. Riordan: We do in this sense we think it helps us, and here's why, Your Honor.

If 846 was a statute that was intended to define the elements of conspiracy, it was intended to provide a selfcontained definition of conspire and conspiracy, then we would admit that the failure not to include an overt act requirement when it is included in 371 would be very significant.

But one thing that's been missed here is that 846 is not a definitional statute, and it's not a conspiracy statute.

It's called, "Attempts and Conspiracies".

That's the title of it.

It deals with two crimes, not one, attempt and conspiracy, and its function is not to define either attempt or conspiracy, but to set the punishment for attempts and conspiracies.

Unknown Speaker: But at least you have in 846 a prohibition against conspiracy which says nothing about an overt act, and you have in 371 a prohibition against conspiracy which does require an overt act.

Mr. Riordan: Absolutely, Your Honor, and if, as I say, 846 was intended to be definitional, to contain... if we could discern from it an intent by Congress to state the elements of conspiracy, then that argument would be persuasive.

But the Federal courts have looked at... for an example, the attempt portion of this, it says that the punishment for attempts and for conspiracies shall be the same as for the substantive offense either attempted or which was the object of conspiracy.

The Federal courts have confronted the issue of what attempt means, and in a long line of cases they have said, there is no definition of attempt in 846.

We have to look elsewhere for it.

The Eighth Circuit in the Joyce case, the Fifth Circuit in the Monduhano case said, we can't discern what attempt means from looking at 846, so therefore we have to go to the Model Penal Code, to a Learned Hand opinion in 1951, and in the Joyce case to a 1901 Oliver Wendell Holmes opinion written when he was on the Massachusetts State courts, to find out what attempt means.

If Congress did not, and it certainly did not, provide the elements of attempt, or a definition of attempt, in 846, then we can't assume that it provided a definition of conspiracy.

What we can assume is it inserted the words attempt and conspiracy knowing that the definition of those terms would be located elsewhere.

Unknown Speaker: Well, one place we locate it is under the general rule of following common law definitions.

Mr. Riordan: Ah--

Unknown Speaker: If we do that, you lose.

Mr. Riordan: --No, we don't, Your Honor, and here's why, because again, in the sources that we've cited, the Pollack article, the Sayre article, the Harno article, the definitive studies of the common law, there's a consensus that over 800 years of English history, and it hardly should come as a surprise, that conspiracy meant different things at different times.

What the Government has done is said that the term, the meaning of the common law definition of conspiracy, is fixed by the 1611 Poulterers' case, and the Poulterers' case was not even before a common law court, it was before the Star Chamber, which was not... I'm no legal historian, but it was not a common law court, it was a prerogative court, a court of the king.

And to suggest that when Congress in 1970 looked for a common law definition, if that's what it was going to do, it looked to a decision of the Star Chamber, when this country was founded on a rejection of Star Chamber precedent, that Andrew Hamilton thundered against application of the Star Chamber precedents in his defense of John Peter Zanger--

Unknown Speaker: The 1970 view was Sir Edward Cook's view, wasn't it?

Mr. Riordan: --Well, I would suggest to you, Your Honor, if we could be certain of one thing, if there was a celestial magnetic resonance imaging machine that could produce a graph of what Congress was thinking in 1970 when it passed this statute, I'd suggest we'd find that it wasn't thinking about the issue of an overt act--

Unknown Speaker: Well, if we had a celestial resonance machine that could bring up the image of a common law lawyer, we'd get Sir Edward Cook right in the front of the line, wouldn't we?

[Laughter]

And his view was that you didn't need an act.

Mr. Riordan: --But Congress--

Unknown Speaker: Isn't that right?

Mr. Riordan: --Cook did say that.

Cook did say that, Your Honor.

Unknown Speaker: That counts for the other side.

Mr. Riordan: But that was hardly the only definition of conspiracy given at common law, but more importantly, what the Government is saying is that when Congress didn't speak to this question at all, the overt act being in or out, it must have been thinking about the common law, and it must have been thinking about those precedents, Nash and Singer, which suggest that if you don't say anything about an overt act, then you're getting the common law definition.

But in 1970, there were also 100 years of decisions from this Court--

Unknown Speaker: If you go back to your first argument, the text of the statute, and you say that 846 was not an attempt to define the word conspiracy, that might be more persuasive if 371, the general conspiracy statute, had read, if two or more persons agree, but it doesn't.

It reads, if two or more persons conspire, and one or more such persons do any act, so conspire... both statutes say, any person who conspires, two or more persons conspire.

The overt act is added on as something additional.

Mr. Riordan: --I'm lucky, because the answer to the two pending questions is the same.

In 13... in 371, when it was passed in 1867, they used the term conspire, and they included the overt act requirement, but by 1970 there were 100 years of decisions from this Court which said, as Bannon and Mulkey said, as Hyde said, that Congress had decided to reject the common law, the Star Chamber definition of conspiracy--

Unknown Speaker: On the basis of statutes that did that.

Mr. Riordan: --That's right.

That's right.

That's absolutely right, Your Honor, but--

Unknown Speaker: That is, on the basis of statutes that included an overt act requirement.

Mr. Riordan: --That's right, and the question is whether, in 1970, after a statute, admittedly a statute which expressly included an overt act requirement, and 100 years of judicial gloss on that statute, Congress, when it was standing around putting two different offenses in a statute, assumed that the word conspiracy meant what it had meant for 100 years under 371, but--

Unknown Speaker: I assume that the majority of people in Congress really had no knowledge of those cases at all and wrote a... you really think a majority of people in Congress knew all the cases we're talking about?

Mr. Riordan: --No, we're--

Unknown Speaker: Or even knew who Sir Edward Cook was?

Mr. Riordan: --We're in complete agreement, Your Honor.

What we're dealing with here... what we're dealing with here is legal... legal fictions which, in a situation where Congress--

Unknown Speaker: We're left with the language that Congress adopted, and we have to take our best shot at what the meaning of that language is.

Mr. Riordan: --Right.

Unknown Speaker: Now, in other instances where Congress has wanted an overt act, it's said it.

In this instance, it didn't say it.

Mr. Riordan: That's true, but as I say, Your Honor, if... if we can say that Congress was focused on the definition... we know that they did not provide... they did not suggest one element of the crime of attempt.

The Federal courts have looked at the attempt side of 846 and thrown up their hands and said, Congress didn't... they didn't define it, they didn't give a hint what it meant, and they're all over the lot in attempting to--

Unknown Speaker: 371 doesn't define conspiracy, either.

I mean, neither--

Mr. Riordan: --Right.

Unknown Speaker: --of the two statutes we're talking about purport to define the offense of conspiracy.

Mr. Riordan: I quite agree, Your Honor, which means that we're in the position of attempting to figure out whether Congress put all of the elements in there, and if it didn't put all of the elements in there, where do we look to find them?

Unknown Speaker: Well, but you're also faced with the question why Congress required an overt act in 371 and why Congress didn't require an overt act in 846.

Mr. Riordan: Right, and I would suggest to the Court that we are in a situation where I think that we could be relatively certain that Congress didn't think at all about this issue.

Unknown Speaker: What reason is there to think that Congress thought about it in 1867 and put in the overt act, but didn't think about it in 1970?

Mr. Riordan: Because according to the cases that have interpreted 371 from this Court, the Court said that in 1867 when they were writing a general Federal conspiracy statute for the first time, they made a conscious decision to reject the common law model, so we know that's why they did it.

They were starting from the ground up.

The question is, with a silent legislative history in 1970, is there anything to indicate that they thought about it at all, or when they used the term conspire and conspiracy, they could have well said that what they meant in the situation is whatever conspire and conspiracy has come to mean under the general conspiracy statute.

If you're asking me whether I can demonstrate to you that that is what Congress was thinking, the answer is no.

The burden, however, in this case is on a party such as myself to, and the defendant in this case to, suggest that there's a reason to doubt the Government's interpretation of the statute, because if there is a reason to doubt that the Congress expressly intended to delete an overt act requirement, then the Rule of Lenity kicks in, and we have to interpret it in such a way that's favorable to the defendant, knowing that Congress always has the option should we be wrong, should we find out that we have a position on the matter, to correct the statute.

Unknown Speaker: It always has the option to correct it the other way if we rule against you.

Mr. Riordan: That's absolutely true, Your Honor, and what ultimately we are saying in this case is that there is not only a reason, there are many reasons to doubt the interpretation that the Government relies on here, that they are saying that Congress made a conscious decision to eliminate an overt act requirement.

And let me point out--

Unknown Speaker: Is it your argument that Congress would have to say, and there is no overt act requirement, in order to give a conspiracy statute that effect?

In other words, there's not enough to leave out, as 371 has it, that there is an overt act requirement, but Congress would have to say, and we do not mean that there should be any overt act requirement?

Mr. Riordan: --It sure would have helped.

Unknown Speaker: But is it necessary?

If Congress doesn't want an overt act--

Mr. Riordan: Right.

Unknown Speaker: --what must it do to accomplish that intent?

Mr. Riordan: If it doesn't want an overt act, the easiest and simplest thing to do, since we all agree that if possible this is the way we should interpret statutes, is to put it on the face of the statute.

Secondly, if there was an express statement in the legislative history--

Unknown Speaker: Putting it on the face of the statute means, and we do not mean that there be any overt act requirement, is that it?

Mr. Riordan: --That's right.

That's right.

Then the whole question of what's the significance of 371, which contains an overt act requirement, would be omitted.

Absent that, it could have a legislative intent that suggests that that was its clear intent.

Thirdly--

Unknown Speaker: How does it do that?

Mr. Riordan: --Well, the committee reports could make clear that, unlike 371... I realize that the--

Unknown Speaker: Why do you look at me when you say that?

[Laughter]

Mr. Riordan: --I realize that there are some... there's doubt in some quarters of whether that's a reliable source, but it would be more helpful to either side if it were there rather than complete silence.

Or, Your Honor, if the precedent of this Court, its decisions concerning conspiracy, were uniform as to what the terms meant, it would be something else.

On the one hand, we have 100 years of this Court's decisions saying not merely that 371 has an overt act requirement, but saying why that's a very good thing.

The cases--

Unknown Speaker: But you also have Nash and Singer, which say otherwise with respect to different kinds of statutes.

Mr. Riordan: --They're a very thin read, Your Honor, for this reason.

In Nash, Nash dealt with a Sherman antitrust conspiracy statute, which is outside the purview of normal criminal law.

In Nash, it does contain the statute that, absent an overt act requirement, we look to the common law, but interestingly enough, the rest of the Nash opinion says, reverses the conviction there, because the Government failed to prove an act.

That is, in the antitrust context, the Government alleged the specific means by which trade was obstructed, and the Court found that the obstructions in that case were such that they permitted the jury to convict without finding that the means was proven, and the Supreme Court said, given what it says in the Sherman act, we don't have any reason to go further.

Well, the Sherman act, as pled and proved in that case, required action, so it wasn't a case where Nash was saying, we're now going to have a conspiracy statute which does require the Government to plead and prove actions, because they did in the Nash case.

Unknown Speaker: But they did say in the Nash case that an overt act was not required to support a conspiracy conviction under the Sherman Act, did they not?

Mr. Riordan: They most assuredly did.

Unknown Speaker: Why, then, is it a thin read?

Mr. Riordan: Well, because we're dealing not with an antitrust statute or a selective service statute, we're dealing with a statute that's traditionally in the criminal area.

Unknown Speaker: What difference does it make whether... the particular substantive offenses that we're talking about?

I mean, there probably weren't any prohibitions against the use of drugs in 1611, if you're talking about traditional statutes.

Mr. Riordan: Right, but we're talking about, as this Court said in MCI, the really relevant period of time to figure out statutory intent is the time that the law was passed, which is 1970.

Unknown Speaker: At which time the Congress had the Singer and the Nash precedents which it could have relied on.

Mr. Riordan: And had it been explicit in doing so, our task would be very easy, but--

Unknown Speaker: You say, then, that Congress, in order to rely on the Singer and Nash precedents in drafting a statute, must say, either in the legislative history or in the statute, we're relying on these precedents, rather than simply following what they suggest?

Mr. Riordan: --Well, if this legislative history indicated the slightest cognizance of Nash and Singer, no, they don't have to state it explicitly, but again, it would help if there was even the faintest footprint of Nash and Singer in the developmental process of this statute.

There isn't, so we're again confounded as to where to go and what to look for.

And let's remember the practical consequences of this in this sense Did Congress, could it be said that they felt it was necessary to eliminate the overt act requirement from the drug conspiracy statute?

Federal drug laws right now criminalize every drug transaction that goes on in the United States.

The Federal Government... or virtually.

The Federal Government has no desire, nor any capacity, to prosecute anything other than the tiniest, tiniest fraction of those cases that literally come within the scope of the Federal drug laws.

The notion that in order to enforce the Federal drug laws which already are far broader than the actual ambit that they're going to focus on, that Congress needed to eliminate from drug conspiracies the overt act requirement, which is satisfied by the most minimal, by the most minimal action, it doesn't even need to be an illegal action, I would suggest simply doesn't make any sense at all.

And on the other hand, what it's doing is cutting up against the cases of this Court such as Yates, such as Hyde, such as Bannon and Mulkey, which say the function of the overt act requirement is to provide a locus poenitentiae, that is, a point where somebody knows they're going to be punished if they take even the slimmest overt act step forward.

Secondly, to allow those who form a joint mental state but do nothing about it, terminate that evil thinking before they go forward, and to provide, to assure society that this action has gone forward in some way which begins to threaten its societal interest.

Those are all very, very good objectives of the overt act requirement, and they, this Court has found them desirable in the context of 371.

I would suggest that there's as much reason to believe that Congress read those opinions about the function of the overt act requirement as there is to believe that it read Nash and Singer, which are Sherman, you know, a Sherman antitrust case, or the selective service--

Unknown Speaker: But they would have read the cases you're referring to and seen that those cases originated out of a statute, which itself required an overt act.

Mr. Riordan: --Well, I think we--

Unknown Speaker: Would they not have?

Mr. Riordan: --Well, I think that we both agree that we're discussing a level of fantasy here, because this is all legal fiction.

Unknown Speaker: Well, you're the one that began fantasizing.

Mr. Riordan: Well, I--

[Laughter]

I am, Your Honor, but the difference is that I am not asking the Court to accept my view of the legislative history of 846.

I am merely suggesting that it is a reasonable view of what Congress may have been thinking or not thinking in 1970, and if it is a reasonable view of what Congress may or may not have been thinking, if it raises a reasonable doubt about whether there's an element of an overt act in this statute, then we're in the situation of invoking the Rule of Lenity, which ultimately is really our entire case, that is, that the statute is uncertain.

Unknown Speaker: Mr. Riordan, may I ask you this question?

Is it your view that the overt act must be alleged in the indictment?

Mr. Riordan: It is neither our view nor the view of the Ninth Circuit, and this came up during the argument before, because the Ninth Circuit has never held that the act had to be alleged, it merely has held that it had to be proven, and the Government has--

Unknown Speaker: And there has to be an instruction.

The error here was a failure to give the instruction.

The indictment was sufficient, according to them.

Mr. Riordan: --That's right.

The Government has--

Unknown Speaker: Are you taking the position that even when the statute on its face requires an overt act, the Government doesn't have to allege it in the indictment, it's enough that they prove it?

Mr. Riordan: --I don't know the answer to that question, Your Honor.

I don't know whether... I suppose it would depend how it were written, but it is possible that if there were explicit statutory requirements it might well have to be alleged.

I simply... it is not--

Unknown Speaker: You have no rule for when it has to be both alleged and proved and when it suffices to have it proved even if it isn't alleged?

Mr. Riordan: --That's right.

The Ninth Circuit in this case has taken the position, in fact it did in this very case below, that there was no failure... the Government did not err in failing to include the overt act requirement expressly in the indictment, and therefore there would have been no need for a dismissal under Ninth Circuit precedent.

They merely would have had to instruct.

So therefore the error below is not the failure to include the allegation, the error was the failure to instruct upon it, and the Government has said a number of times that the overt acts here were proven.

We don't know whether they were proven.

We do know that the jury never made a finding.

Unknown Speaker: But given that explanation, your understanding of Ninth Circuit law is that it is still an element of the crime?

Mr. Riordan: In the sense that it is something that has to be proven beyond a reasonable doubt in order to sustain a conviction, yes, that is the position the Ninth Circuit has taken.

Unknown Speaker: Does the Ninth Circuit hold that any other elements of any other crimes need not be alleged in the indictment but must be proven?

Mr. Riordan: Well, I should know the answer to this question, Your Honor, but I'll tell you as a criminal lawyer it's never been my impression that there's a statutory requirement that all elements of the offense have to be alleged in the indictment in order to go to the jury, either under State or Federal law.

I'm relatively certain that Federal prosecutors as a practice don't include all of the elements of a crime in the indictment.

We have essentially notice pleading.

Unknown Speaker: Notice pleading for criminal offenses?

Mr. Riordan: Well, in the sense... in the sense that each element of the offense, each mental state element, for instance, is not included within the pleading.

There can be four or five--

Unknown Speaker: I thought it was hard book law that essential elements of a crime must be pled in an indictment.

That doesn't mean every detail of your proof, but the requisites to spell out the crime.

Mr. Riordan: --It's a very good thing that the answer to that question isn't critical to the Court's decision of this case, because I will confess that I don't know the answer, Your Honor.

Unknown Speaker: I'm glad you clarified your position, because I thought you were disagreeing with the Ninth Circuit to the extent that they didn't require the act to be alleged, but you think the Ninth Circuit is right in its middle view?

Mr. Riordan: I want to make absolutely clear that the issue of whether the Ninth Circuit was right in rejecting the contention that the elements had to... the overt act had to be pled is not before the Court, and I am taking no position on it.

I am certainly not saying that the Ninth Circuit opinion below that says it doesn't have to be alleged is in any way incorrect.

I'm merely defending the position that the overt act is an element of the offense that has to be proven beyond a reasonable doubt, which is the position that the Ninth Circuit has taken, correctly, we believe, in contraposition to Eleventh Circuit's.

I prepared for the argument today by watching Henry Fonda, who argued against 11 in Twelve Angry Men.

We acknowledge that other circuits have gone the other way on this question, but I would submit to the Court that I have seen nothing in those decisions that has focused on the fact that 846 is not a conspiracy statute, it deals with more than one offense, and that its primary function is to set penalty rather than to define the offenses, and that's a fact that those opinions simply haven't contended with, and we think it's absolutely critical to the correct decision of this case.

Unknown Speaker: But you're not saying it's any different than 371 in that respect?

Mr. Riordan: I'm sorry, Your Honor, in which respect?

Unknown Speaker: Well, you say 846 is a statute that doesn't purport to define conspiracy, it just sets penalties.

Mr. Riordan: Right.

Unknown Speaker: You're not suggesting that in that respect it's any different from 371, are you?

Mr. Riordan: Well, it is different in this respect, Your Honor Many States have classified felonies A, B, C, and D, and there's a whole group of felonies that fit in each class.

If we found a statute that said, Class A felonies will be punished by a sentence of death or life without parole, we would not be surprised that they didn't, in that same statute, list all the elements of those offenses.

Even if--

Unknown Speaker: Are you explaining now why you think 846 is different from 371?

Mr. Riordan: --Yes, I am, Your Honor.

I am, in the sense that 371 deals with the crime of conspiracy, and conspiracy alone, and 846 deals with more than one offense, and--

Unknown Speaker: Why does that make any difference?

Mr. Riordan: --Well, I suggest that since we know from the case precedent that Congress... the courts have uniformly declared that Congress wasn't focusing on the elements of attempt, I think it's fair to infer in this very statute that they weren't focusing on the elements of conspiracy.

Unknown Speaker: Well, and what makes you think they were focusing on the elements of conspiracy in 371?

Mr. Riordan: Well, the legislative... the courts' interpretations of that seems to be that since this was the first general conspiracy statute in 871, they were focused on the fact that they wanted to create a statute that had an overt act requirement that didn't exist at the Star Chamber and at English common law, and we would suggest that, 100 years later, there may well have been Congressmen thinking the overt act requirement had worked its way into the warp and woof of the definition of conspiracy in this country, that that's the American definition of conspiracy.

Unknown Speaker: Mr. Riordan, what Federal criminal statutes do define crime?

My impression is, all of them just say whoever commits this shall be punished by that.

I mean, this is not an unusual statute in that it, as you say, it does not define the crime.

Most Federal statutes read like this, don't they?

Mr. Riordan: Well, I--

Unknown Speaker: They use a common law term and say, the punishment shall be thus, or a common sensical term.

Mr. Riordan: --I'm sure that's true, Your Honor, but in Joyce and Monduhano, the Federal court said, look, we don't get any guidance on what the term attempt means from the statute itself, and all we're saying is, we think the same is true of the conspiracy end of the statute, and that the courts have to look elsewhere to figure out what the heck this means, and we think that one reasonable interpretation is that Congress thought that when it uses conspiracy and conspire, it was referring to the kind of offense contained in the general Federal conspiracy statute.

Admittedly, that is not... that is not... that's not the only reasonable interpretation of 371.

The... of 846.

We concede that the Government's reading of 846 is indeed reasonable.

We could concede that perhaps there's a probability that it's right, but we think there's a very reasonable reading of the statute which suggests that Congress was not focused on deciding that one way or the other, and we have to look elsewhere for the answer to the question.

Unknown Speaker: Thank you, Mr. Riordan.

Mr. Riordan: Thank you.

Mr. Seamon, you have 16 minutes remaining.

Rebuttal of Richard H. Seamon

Mr. Seamon: Unless the Court has further questions, I have nothing further.

Unknown Speaker: I do have a question, actually.

What do you say in response to Mr. Riordan's argument?

That is, I take his argument basically to be that by the time this particular statute was passed, 846, by that time in 1970 it had become fairly widely accepted practice that, in the Federal law, conspiracy included overt acts.

Indeed, the only exceptions to that were really criminal provisions that aren't even printed in what we think of as the criminal section of the U.S. Code, 18, 21, 26, et cetera, but rather, sort of outliers, the Sherman Act, which isn't in the West Publishing thing, the Selective Service Act, and so by that time anyone who was a drafter would have thought, of course it includes an overt act when we use that word conspiracy.

Indeed, this particular statute doesn't define a crime.

It seems to refer back to 371.

It just says, those who commit this kind of offense shall have the same penalties, et cetera, and so at least the matter is ambiguous.

After all, a drafter would have looked far and wide for any other normal criminal section with conspiracy if it didn't include overt act.

I mean, that's, I think that's his argument, so that's at least a good enough argument to invoke the Rule of Lenity.

Mr. Seamon: We--

Unknown Speaker: So what is your specific response to that?

Maybe you've made it already and you'd just be repeating yourself, in which case, I don't want you to repeat yourself, but I wanted you to have a chance to focus directly.

Mr. Seamon: --Thank you.

Although the Court has focused on 371, the general conspiracy statute which was enacted in 1867, there were many subsequent statutes that expressly require proof of an overt act in furtherance of the conspiracy in so many words, including a number of statutes that were on the books in 1970 when Congress enacted section 846.

Those statutes are evidence that the word conspire did not change to include implicitly an overt act element.

I thank the Court.

Chief Justice Rehnquist: Thank you, Mr. Seamon.

The case is submitted.

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Albernaz v. United States - Oral Argument

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Albernaz v. United States

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Anderson v. United States - Oral Argument

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Anderson v. United States

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Transcript:

Argument of David Ginsburg

Chief Justice Warren E. Burger: We will hear arguments next in the 73-346, Anderson against the United States.

Mr. Ginsburg, you may proceed when you are ready.

Mr. David Ginsburg: Mr. Chief Justice, may it please the Court.

This case is here on certiorari to the Fourth Circuit.

It arises in Logan County, West Virginia.

The charging statute is Section 241 of 18 U.S. Code, a conspiracy statute that has been before this Court many times before most recently in Guest, in Price and before that in Classic in Williams and Screws.

The central issue as we understand this case is whether an alleged conspiracy to cast fraudulent votes in the State primary election, in this particular case for the office of a County Commissioner of Logan County, West Virginia states a Federal offense under Section 241.

So far as we are aware, this question is not yet been ruled upon by this Court.

Now the Government finds in the record a much simpler case.

It contends that the indictment alleged and the evidence showed two separate conspiracy violations for casting and counting fraudulent votes.

One, for the election of State and County Officers and the other for the election of candidates for Federal Officers and the Government regards this case as ruled in effect by Saylor in Classic and Ingram and I suspect would have the writ dismissed as improvidently granted. The facts were not complicated.

The petitioners were indited on January 12, 1971.

The text of the indictment is in this white brief of our petition for certiorari to the Court.

There were five defendants, all of them were State officials.

William Anderson was Clerk of the County Court of Logan County.

John Browning, Clerk of the Circuit Court of Logan County, its intermediate State Court.

Ernest Red Hager was a Deputy Sheriff of Logan County, Bernard Smith was the West Virginia State Senator and Earl Tomblin was the Sheriff of Local County.

A paragraph six of the indictment in Appendix B states that the primary election that was held in West Virginia on May 12, 1970 for the purpose of nominating candidates for two federal officers, the United States Senate and the US Representative and I quote “various State and County offices”.

Unknown Speaker: On a single ballot?

Mr. David Ginsburg: On a single ballot, Your Honor.

In the context of the trial, the reference to the federal officers proved irrelevant but we take no exception to this aspect, this statement of fact in the indictment.

Our paragraph nine describes the alleged conspiracy.

Unknown Speaker: At what page of the Appendix?

Mr. David Ginsburg: It’s beginning I think, Your Honor, on page 1B, Appendix B and paragraph nine.

It’s in this white brief.

Unknown Speaker: Thank you.

Mr. David Ginsburg: The petition for certiorari, now looking on pages 2B and 3B.

Unknown Speaker: Thank you.

Mr. David Ginsburg: A paragraph nine describes the conspiracy from May 1, 1970 to January 12, 1971 date of the filing of the indictment.

The five defendants are said to have conspired to dilute the vote of qualified voters secured to them by the Constitution of Laws of the United States to vote for the aforesaid officers that is for the two federal officers and the various State and county officers which are described in paragraph six.

Now, paragraph 10 of the indictment ties the alleged conspiracy to a single precinct in Logan County, Mount Gay precinct that we’ll hear a good deal about.

He asserts that conspiracy violated State Law.

There’s no contest about that.

The evidence centers around what happen before and after May 12, 1970 in connection with the voting that took place at the Mount Gay precinct.

There are no allegations in this case of racial bias, there’s no charge that voting rights were in anyway denied or abridged or diluted because of racial color.

According to the testimony, these five defendants with the help of three election officials who were stationed in that Mount Gay precinct, setup the house that merely means that the defendants these five men obtained the help and the cooperation of three people within the precinct office to attain their purpose.

Now, what was their purpose?

Their purpose was to secure the Democratic Nomination for County Commissioner of a man named Okey Hager who headed a slate for various State and Local offices.

Okey Hager was already the incumbent County Commissioner and he is the father of Ernest that’s Red Hager who was one of the defendants in this case.

There is a testimony that a man named Cecil Elswick who was one of those three people stationed at the Mount Gay precinct and he was a co-conspirator that granted immunity by the Government, cast false and fictitious ballots on the voting machines at Mount Gay for the entire Hager slate and he got rid of poll slips, destroyed them so that the number of voters could not be determined except from the machine tally.

The trial lasted twelve days, the transcript is nearly 2,000 pages long and the five defendants were all found guilty under 241 and given provisional maximum sentences of 10 years imprisonment.

I spoke of the Hager’s slate.

What is the role of the federal officials in relation to the Hager slate?

Okey Hager’s major opponent for County Commissioner was a man named Neal Scaggs.

Hager and Scaggs each headed a Democratic Party slate or faction.

Now, repeatedly in its brief, the Government says that Senator Byrd and Congressman Hechler who were seeking renomination in 1970, were on the Hager slate and that the Mount Gay precinct was setup to ensure the nomination of all candidates, State and Federal.

We find no support in the record for this view.

So far as we can tell, neither Byrd nor Hechler was on the Hager slate or part of the Hager faction and the alleged conspiracy of these five defendants was limited to certain State and county offices including the [Voice Overlap] committee.

Justice William H. Rehnquist: Mr. Ginsburg, when you say the record, are you referring to the evidence actually introduced at the trial or to the evidence and the indictment?

Mr. David Ginsburg: In the evidence actually introduced at the trial, Your Honor.

Now, there’s some evidence that Cecil Elswick did cast unlawful votes for Byrd and Hechler in the Mount Gay precinct but we have found no evidence in the record, Your Honor, and we’ve examined all of the Government’s record references that Byrd and Hechler were the object of any conspiracy or that they were on the Hager slate at all.

Chief Justice Warren E. Burger: Was there any impact you suggest that there was no impact whatever was --

Mr. David Ginsburg: There might.

Chief Justice Warren E. Burger: -- with regards to the federal candidates?

Mr. David Ginsburg: Yes.

I’m about to go, Your Honor, into the statistics of what actually happened there.

Now, this was a Democratic Party primary.

Byrd and Hager were important, incumbent federal officials seeking renomination.

They were clearly supported, that is Byrd and Hechler, by both factions.

It happens that Neal Scaggs slate is in the record and there is no candidate for federal office on it. Yet in 31 precincts that Scaggs won, that is out of the 59 reporting precinct in Logan County, Byrd won by over 94% and Hechler by over 79%.

Now, when we examined the returns for Logan County as a whole, counting all of the 59 precincts including those won by Hager.

We find that Byrd won by 95% and Hechler by some 82%.

He went up by 3% in the County as a whole.

Now, Your Honors, it would have been an absolute absurdity to setup by single precinct out of 59 in Logan County for Byrd who was running Statewide, 55 Counties in West Virginia, 60 precincts in the State -- in the County of Logan, setup one precinct for Byrd.

Or for Hechler, Hechler had a large Congressional District including eight counties.

There was absolutely no political justification to setup Mount Gay for Byrd or Hechler.

Now, whatever conspiracy these defendants may have entered into had absolutely nothing to do with the candidates for federal office, for these defendants, the contest was between Scaggs and Hager.

Now, even the Government’s key witness, Cecil Elswick and it was he who testified that he had put the illegal votes on the machine.

He was very careful to separate Byrd and Hechler from the Hager slate.

There are excerpts from Elswick testimony of the Government’s brief but each time that Elswick referred to Byrd and Hechler, and there are only two references, Your Honors, in the 2000-page transcript.

He speaks of helping to win “for the Okey Hager slate” and for Byrd and Hechler.

Wholly natural because Hager, the Red Hager who was one of the defendants in this case also happen to be the County’s Democratic Executive, Head of the Counties, Chairman of the County Democratic Executive Committee.

Now, we simply invite the Court to examine the Government’s transcript references.

None of them we believe, we’ve examined them, all supports the Governments conclusion that the Hager slate included Byrd and Hechler or that this conspiracy was in anyway directed toward Byrd and Hechler.

Now, let’s take at look what happened at the trial.

What was the Government’s theory at the trial below in the District Court before Judge Field.

Now, again, although the indictment included a reference to federal officials indicated in the text of the indictment, the case was tried in the District Court as a conspiracy to secure the Democratic Nomination for County Commissioner for Okey Hager.

The assistant US Attorney in his opening statement made this clear.

He repeated this again in his closing statement and then when the case came up to the Fourth Circuit, the Fourth Circuit concluded “The true object and purpose of the alleged conspiracy was to secure the Democratic nomination of Okey Hager as County Judge.”

Now --

Justice William H. Rehnquist: Mr. Ginsburg, if the Government had proved the case, it alleged in its indictment in paragraph nine, you wouldn’t be making the same arguments as you now make, I take it.

Mr. David Ginsburg: f the Government had proved its case, both as against the State and the federal officials, it had proved any case against the federal officials, yes, Your Honor, we would not be making this argument.

Chief Justice Warren E. Burger: Now you indicated--

Mr. David Ginsburg: We indicated that in our brief.

Chief Justice Warren E. Burger: You suggested a moment ago that the County Chairman, the County Party Chairman who was part of this is one of the defendants?

Mr. David Ginsburg: He was indeed but there was no --

Chief Justice Warren E. Burger: It is not his -- it is not one of his functions to see to it that the incumbents of the --

Mr. David Ginsburg: I would hope so --

Chief Justice Warren E. Burger: --party get the nomination?

Mr. David Ginsburg: Absolutely and I would hope so that it would suppose that what this man did was to go out, that is Hager, Red Hager as County Chairman, go out to seek support for his candidates.

Chief Justice Warren E. Burger: Well, but the problem that he had here is that he was getting support in another way, wasn’t he?

Mr. David Ginsburg: No, but not for this purpose.

There is absolutely no evidence in the record, Mr. Chief Justice that there’s on -- that indicates that the conspiracy was directed to the federal officers.

They had only one interest.

This was the County Chairman’s job which was a very important job in that County Control Patronage.

It was a job that was very considerable importance in Logan County and this was the subject of the conspiracy not in anyway, so far as the record indicates anything having to do with Byrd and Hechler.

And as I said before, it would have been a nonsense for these people to proceed to try to setup a single precinct in a large county for a man running Statewide.

It didn’t happen, couldn’t have happened, there is a practical political matter.

Now, what did the Fourth Circuit do with this case?

On the authority of Price and Guess, it affirmed.

Now, the Fourth Circuit found that Section 241, and we’re presenting to the Court an issue of interpretation, covered the Fourteenth Amendment Rights including Voting Rights protected by the Equal Protection Clause.

In effect, the Fourth Circuit held that in a primary where federal officers were also on the ballot, a conspiracy to cast fraudulent ballot for State Office in which State election officials take part, results in the denial of equal protection and violates Section 241 even though the conspiracy was not directed against federal office, that’s the issue as we see it.

And this is the first case we find that has -- of this sort has come before the Court.

Now, the question I’m raising and we’ll consider now is whether Section 241 does cover State voting frauds.

Now, the history of --

Justice Byron R. White: Mr. Ginsburg.

Mr. David Ginsburg: Mr. Justice White?

Justice Byron R. White: Let’s assume that Mr. Justice Rehnquist suggests that they had a -- that this in fact it had seated on fraud in a federal occasion, I take that you would say that 241 which is the --

Mr. David Ginsburg: I would certainly agree --

Justice Byron R. White: What is the Constitutional Right there that is implicated by -- what is the Constitutional Right that would trigger the application of 241?

Mr. David Ginsburg: The Article 1 Sections 2 and 4, Your Honor.

Justice Byron R. White: The right to vote and I mean, that’s the right for the election.

Mr. David Ginsburg: Yes this --

Justice Byron R. White: The election--

Mr. David Ginsburg: The Court has ruled on this issue and it seems to me clear and separate.

Justice Byron R. White: Where has it ruled on that?

Mr. David Ginsburg: I beg your pardon?

Justice Byron R. White: Where has that ruled on then?

Mr. David Ginsburg: Oh, I think the Court has dealt with this before in Classic and before Classic and in Saylor.

Justice William H. Rehnquist: How about Oregon against Mitchell?

Mr. David Ginsburg: It would, yes, Your Honor.

Justice Byron R. White: And so just as in then equal protection approach to 241, isn’t it?

Mr. David Ginsburg: No.

Justice Byron R. White: This is the substantive --

Mr. David Ginsburg: Exactly so, sir.

Justice Byron R. White: Now, that you say that we must -- that isn’t involved here so now we go to the State.

Mr. David Ginsburg: Exactly right and this is what I’m proceeding to.

Consider the Fourteenth Amendment aspect of Section 241 as contrasted with the Article 1 Sections 2 and 4 aspect of --

Chief Justice Warren E. Burger: Gray against Sanders, I guess had something to do with that.

Mr. David Ginsburg: Exactly.

Now, this is a well-plowed field as the questioning has already indicated and every lawyer who's read the decisions knows that this field is also well-mined.

Now, obviously the Congress didn’t intend the 1870 Act to apply to non-federal elections unless some form of racial discrimination was involved.

Indeed it was convinced in 1870 and the history has shown in many decision of this Court at that time the Congress had felt that the Court -- the Congress felt that it had no Constitutional authority in this field.

But today, we do not question the existence of Constitutional authority.

The question we’re submitting to this Court is whether without Congressional sanction Section 241 should now by interpretation of this Court, be extended to cover the Federal policing of State and local elections where racial discrimination is not shown and it’s not an issue.

That I believe is a central issue in this case.

Now, so far in my view, Your Honor, the Courts could extend Guest and Price to cover Anderson although the indictment and the record in this particular case would I think present the Court with troublesome problems that I’ll come to in a moment.

We urge however that the Court leave the decision on federal policing of State and local elections to the States and to the Congress where again racial bias is not shown.

There’s ample legal justification for it.

The Congress has considered this matter many times before, most recently I think in 1957 and 1964 and again in the Voting Rights Act of 1965.

The legislative history is fully set forth in our brief.

There’s no need for the Court to expand the jurisdiction of the Federal Court into this area which so far has been reserved to the States.

The authority which the Government now seeks from this Court for its prosecuting attorneys has been deliberately and consistently withheld by the Congress and it’s peculiarly the kind of authority which lends itself to partisan and even geographically discriminatory political direction.

The States we submit must be given a full opportunity to come to grips with these issues of corruption.

We’ve see it Maryland, we’ve seen that in New Jersey what’s been happening and even in West Virginia in this particular case, Your Honor.

A State grand jury had been called and had come in to session and it was the US Attorney as we understand it who asked that the State grand jury not be convened and warned that if it were convened, the Government would seek an injunction to stop it.

Now, let me turn for a moment to the indictment.

Again, paragraph nine of the indictment charged to the defendants with the conspiracy to injure the qualified voters of Logan County by denying them the right to have their votes fully counted, by having their votes diluted.

Defendants moved to dismiss the indictment and the motion was denied on the ground that the indictment adequately charged the defendants under Section 241.

At trial, the Government sought to prove a conspiracy that had at its object not the Office of Senator or Representative but County Commissioner.

The indictment didn’t specify the State or County Office which was the object of the conspiracy.

The indictment didn’t suggest that the five defendants or their three co-conspirators were acting under color of State Law.

It did not identify the separate Constitutional Rights or rights which were allegedly denied, and as a practical matter, it failed clearly to inform the defendants of the charges against them and all of their subsequent motions for discovery and clarification were denied.

It wasn’t until the trial began that the defendants and their counsels first learned that the alleged conspiracy involved the State Office and it wasn’t until the fourth day of trial that they know who the unnamed co-conspirators were and where the acts took place.

Now, the deficiencies -- well, if in the indictment and this goes to a point of the question Mr. Justice Brennan asked.

The Government had at least separated the two alleged offenses in separate counts.

The Court and the defendants would have been in a position to challenge the legal sufficiency of Section 241 and its application to State and County Offices and at the close of the Government case the sufficiency of the evidence in relation to the Federal charge.

This wasn’t done.

Here the Government was in the enviable position of being able to defend a motion to dismiss by arguing that a conspiracy to cast fraudulent votes in a Federal election clearly stated an offense under Section 241 and then proceed to try the case on the basis of a conspiracy to cast votes in an election for a local office and on appeal the Government will then be free to urge affirmance on whatever basis that felt emerge in the record.

Unknown Speaker: Well, can’t you move for judgment of the acquittal at the close of the Government’s case if they failed to approve the conspiracy of the alleged in the indictment?

Mr. David Ginsburg: We did move to dismiss, Your Honor.

It was overruled.

Section 241 is a conspiracy statute which required no overt act does an element of defense I don’t have to bring to the attention of this Court the kinds of problems where Justice Jackson dealt with and described in his separate opinion in Krulewitch.

This indictment, Your Honor, was defective and it wasn’t cured by anything by the evidence brought out in the trial.

It was subsequently and substantially defective and it wasn’t the case of a meeting any magic or talismanic words.

It simply didn’t frame the issues which already been be framed by the questions of this Court but there’s still another problem, that the Government fails to come to grips with.

The indictments charged that the defendants conspired to dilute votes in two Federal officers.

This gets to the point that Mr. Justice Brennan inquired.

The integrity of Federal elections is protected as indicated by Sections 2 and 4 of Article 1, the integrity of State and local elections is protected by the Fourteenth Amendment.

In Screws, one of the landmark cases of the Court in this area, the Court held that in order to prevent serious doubts about unconstitutional vagueness in Section 242, a companion statute, we’re dealing here with 241, it was 242 in Screws where the term willful was used.

The term willful, this Court said in that Section must be construed to mean a purpose to deprive a person of a specific Constitutional right and then it said that that issue must be submitted to the jury under appropriate instructions.

Chief Justice Warren E. Burger: We’ll resume there right after lunch.

Mr. Ginsburg are you trying to continue or reserve?

Mr. David Ginsburg: I’ll continue -- I’ll reserve three minutes, Mr. Chief Justice.

Chief Justice Warren E. Burger: Very well.

Mr. David Ginsburg: We’re dealing here with an alleged voting frauds in Federal and State elections under separate Constitutional Provisions due to the facts.

Now, under Screws and Price combined, the Government was required to demonstrate specific intent to violate each of these provisions and the Court, the District Court, was required to submit these issues to the jury under its charge.

The District Court of course failed to do that, the indictment failed to separate the Constitutional provisions and no such charge was made.

Now, the essential problem was the defect in the indictment and that obscurity wasn’t cleared by the evidence that came in the trial.

If this was a multiple conspiracy, as the Government contends, then neither the prosecutors nor lawyers that tried the case, nor the District Court that heard it nor the Fourth Circuit that reviewed it, appreciated that fact.

Now, I have one final point and that is on the matter of the relief we have requested.

Under a very broad Section 241 indictment, the Government security conviction on the assumption that this Court had already ruled.

That 241 permits the Government, Federal Government, to police State, the voting frauds and asking this Court to reverse the judgment below.

We’re simply asking the Court not to extend the jurisdiction of Section 241 to local elections where no racial fraud is shown but we do recognize in this in response to questions that Mr. Justice White and Mr. Justice Rehnquist asked.

We do recognize that the Government might have presented evidence, if they had any, under the same indictment showing a conspiracy by these five defendants to cast fraudulent votes in a Federal election.

It didn’t do so but if the Court concludes that the Government should now be given a chance to produce such evidence, if it has it, then we urge that the decision below be reversed on the issue of statutory interpretation and remanded for trial under appropriate instructions on the Federal issue.

Unknown Speaker: Then your real quarrel was not with the indictment or the proof adduced in the support of, isn’t it?

Mr. David Ginsburg: No, Your Honor.

The indictment failed to separate these two Constitutional provisions and there was no evidence submitted in the trial on the Federal issue.

Now, our position is that the Government is entitled to its day in Court if it has such evidence and the case can be sent back for trial on the Federal issue.

Unknown Speaker: That’s not the only evidence, of course, under your submission that they could be on retrial?

Mr. David Ginsburg: Exactly so, sir.

Chief Justice Warren E. Burger: This is not exactly the position that was taken in the Court of Appeal, is it?

Mr. David Ginsburg: Your Honor, let me be perfectly frank with this Court that it’s quite clear that these issues were not sought to be brought out in the District Court.

The case was tried without reference to it.

It came to the Court of Appeals. The issue wasn’t briefed in the Court of Appeals on oral argument.

There began to be some awareness that there was a Federal issue on a problem of a statutory interpretation but the case was obscure and the issue has been finally delineated only before this Court.

Unknown Speaker: Mr. Ginsburg, could I ask, as I read the Court of Appeals’ opinion I got to the question of State elections and said that 241 -- and said that 241 covered frauds in State elections because of an equal protections rationale but they felt compelled to reach that question because of admissibility of evidence issue.

Let’s assume that this Court said, well if the indictment was wholly proper because of the Federal case, Federal election the evidence, then the conviction would have been proper on normal circumstances as to protect the Federal election but then could you avoid the State election question or is everything tainted by the fact that there was an evidentiary question here, admissibility of evidence question.

Mr. David Ginsburg: It seems to me that there is essentially for this Court as far as we been able to analyze the case and the record as you’ve indicated is obscure is that the Fourth Circuit really did rule on the issue of statutory interpretation and it did hold, it extended your decisions in Price.

Unknown Speaker: But it did so in the name of passing on the admissibility of evidence question.

Now if --

Mr. David Ginsburg: We failed to appreciate that point, Your Honor.

It’s -- we can’t --there was the it -- I think, Your Honor, that the issue to which you have reference arised in this fashion.

There was an argument before the Court of Appeals that the Federal election had been certified 15 days after the recount and the defendants argued before the Court of Appeals early that after the Federal election had been certified, no evidence, what had happened and then it subsequent investigation should have been introduced and the Court overruled that.

They said, “Yes, go ahead” and they introduced that evidence but the essential thrust that seems to us as we read the decision is that that Court passed on the issue that the evidence in this case having to do with a State election satisfied -- fell under the jurisdiction of Section 241.

Unknown Speaker: Let’s assume that the Court was wrong on its construction in 241 with respect to State elections.

Mr. David Ginsburg: Yes sir.

Unknown Speaker: Then I take it, this evidence that we’re talking about arguably was inadmissible.

Mr. David Ginsburg: Arguably?

Unknown Speaker: Well, let’s assume that it was inadmissible.

Mr. David Ginsburg: Yes.

Unknown Speaker: That’s an independent ground for reversal of the convictions, isn’t it?

Mr. David Ginsburg: If the evidence was improperly introduced, my view would be at that point that there would be no evidence in this record to even having to do with the statement.

Unknown Speaker: [Voice Overlap] The problem under this argument then is that since there was no contest over the votes for Federal officers, Federal jurisdiction on a conspiracy ended at that time and the evidence of subsequent events at a contest hearing involving only a State office, voted on at the same election was accordingly inadmissible.

Let’s assume that was inadmissible, would that require that the conviction be reversed?

Mr. David Ginsburg: It would in my view because there would be no evidence in the record.

This is the essential evidence in --

Unknown Speaker: Well, the Federal Court – whether they could have convicted your clients for fraud in a Federal election is dispositive with the case because even if they could apparently that was inadmissible evidence introduced.

If the Court was wrong on the 241 --

Mr. David Ginsburg: I don’t quarrel with that analysis as we see the case at the moment, the Government at least as the case has presented at both below in the intermediate Court and here, as it finally reaches here, is simply that a Federal violation was charged and therefore we have the right to come in under Section 241.

We say that a State Voting fraud was a conspiracy was shown, if it was shown there.

But that had nothing to do with the Federal election and that the statute should not be extended.

Chief Justice Warren E. Burger: At least there are no power -- there is no power in any Federal statute to guarantee the integrity of a State election.

Let’s assume you had an off year election and there were no Federal officers on the ballot at all, just local, is there -- doesn’t the statute seek to protect the integrity of State electoral processes?

Mr. David Ginsburg: The Court, Your Honor, until now has refused, deliberately refused, after the most mature consideration to extend it so far.

If it’s done, this would be the first time in judicial history that Section 241 has sought to be applied.

Chief Justice Warren E. Burger: I was speaking of power.

Mr. David Ginsburg: No doubt, Your Honor, regarding Constitutional power.

We raised no question that under the Fourteenth Amendment Section 5, the Congress can clearly reach it and indeed they are debating it.

They debated it over the past 10 years, there are bills pending today dealing with these problems and there’s no doubt too that the State could deal with it and many States had dealt with it that effectively.

The issue really is whether this section should now by interpretation of this Court be extended without the sanction or prior consideration by the counsel.

Chief Justice Warren E. Burger: But it’s already has that reach if there were any discrimination in terms of voting.

Mr. David Ginsburg: Exactly right, sir.

If there's racial discrimination, there’s no doubt in our view.

We’re not urging that point that Section 241, in our view, would be applicable.

Chief Justice Warren E. Burger: Well, Mr. Ginsburg, we’ll allow you your three minutes rebuttal and adjust all the time accordingly.

Mr. Wallace.

Argument of Lawrence G. Wallace

Mr. Lawrence G. Wallace: Mr. Chief Justice, and may it please the Court.

There are two questions presented in the petition for certiorari in this case.

One is whether Section 241 of Title 18 applies to a primary elections for State officers and the other is whether if it does so apply, an indictment under Section 241 must charge State action or action under color of State Law.

Those two questions were both decided by the Court of Appeals and are properly before the Court and we have argued that they were correctly decided by the Court of Appeals but we also advance an argument that the Court of Appeals need not have reach those issues and this Court need not reach the issues because the case involved the casting of fraudulent votes in a State election -- in a Federal as well as the State election.

There were some other arguments advanced with respect to the sufficiency of the indictment or with respect to the charges to the jury that in our view are not comprised within those questions presented and are not properly before the Court.

Unknown Speaker: How about -- you will mention whether you have to reach the State election issue based on this evidence question?

Mr. Lawrence G. Wallace: I will, Your Honor and I’ll be getting to that in just a moment.

Unknown Speaker: Because that seems to be the way the Courts of Appeals reach that question?

Mr. Lawrence G. Wallace: It undoubtedly was delayed.

The Court of Appeals reached the issue of 241’s applicability to State elections but we think unnecessarily under the Court of Appeals own rulings.

Now, contrary to one remark made by counsel for the petitioner, the Government’s theory in this case is not that they were two conspiracies.

In our view the entire case was tried and the indictment charged, a theory of the single conspiracy to cast and have counted fraudulent votes for candidates running for the Federal and State offices in the May 19, 1970 West Virginia primary.

No distinction was made by either the Government or the defense between the Federal and State offices during the entire course of the trial from beginning to end.

As the Court of Appeals opinion itself points out, that issue first was brought into the case in course of oral argument in the Court of Appeals.

Now, we think the evidence as well as the allegations shows that the conspiracy embraced the casting of false votes for Federal officers.

We had set forth in our brief in the statement on pages six and seven of our brief in a lengthy footnote, footnote number 11, the most relevant portions of the evidence dealing with the reach of the conspiracy to the casting of fraudulent votes for the Federal officers.

Cecil Elswick who was the witness during this part of trial was testifying about his activities and he is the one who did the actual casting of the fraudulent votes in the Mount Gay precinct and his testimony recounted on page six.

When he was asked what the petitioner Hager asked him to do and bringing him under the conspiracy, he answered that, “He wanted me to go along with them and if I didn’t, he would cause me trouble.

He was a Deputy Sheriff”, the petitioner Hager.

To detail you what he meant by going along with them and they answered go along and help win the Mount Gay precinct on election.

They questioned “For whom?” and answered, “For the Okey Hager’s slate and Senator Byrd and Ken Hechler” that was when Mr. Elswick was brought in to the conspiracy and as the Chief Justice suggested, the record does show that petitioner Hager was the Chairman of the Democratic County Committee and he may well have had an interest in maximizing the votes for the Federal candidates as well as for his father who was running in the most hotly contested elections.

Then the testimony goes on, on page seven as that footnote continues, Cecil Elswick testified that he in fact put fraudulent votes on the ballots at Mount Gay for the Federal officials.

“Mr. Elswick, did you put any illegal votes on those machines that day?”

“Yes sir, we did.”

“How many?”

“I lost count at about 90 it was over a hundred.

I lost count that evening, I only more on after I lost count, so it was over a hundred votes.”

“Who were you putting those votes on there for?”

“I was putting them on there for Senator Byrd and Ken Hechler and Okey Hager slate before I count” etcetera.

And the evidence shows mathematically as its recounted on page eight of our brief that fraudulent, false, fictitious votes were in fact cast for the Federal candidates or votes were cast for each Senator Byrd and Congressman Hechler and there were voters who could have possibly voted in that precinct that day.

There is also on page seven in the footnote, references in the record to the Byrd’s slate which was apparently synonymous with the Hager slate.

The Federal candidates where opposed in that election as the figures that counsel for the petitioner gave the Court indicate.

They received a high percentage but not 100% of the vote in that primary.

Then we have here a situation in which possibly the motivation, the motive of the conspiracy was solely to win the election for the County in a Court office that was at State.

This was not the theory of the defense, there was nothing introduced in evidence at the trial to show that the conspiracy was anything other than a conspiracy to cast votes for the Federal and State offices and indeed it would be inherently incredible to think that they could conspire to stuff more than 100 ballots in a precinct of this size for the State offices alone because it would be so conspicuous and so likely to allows suspicion if the vote was that much less for the well-known Federal candidates.

Again, for the State candidates it obviously, it would not be an effective way of proceeding and there is some indication in the record on page 44 of the appendix that are this indeed may have been one of the reasons why the conspiracy embraced the Federal officers as well as the State ones and Mr. Elswick testified about what petitioner Browning said to him in a meeting, concerning what was to be done at the Mount Gay precinct and the question there on page 44 about six or seven lines down.

“You’ve seen Mr. Browning was at that meeting?” answer “Mr. Browning was at that meeting and when we walked outside to the door, there he said Cecil, put them on there but don’t put enough on there to get in any trouble” He meant don’t pull all the registration book or you would get in trouble and they could catch it easy.

Well, obviously that at least meant not to cast more votes than they were possible voters in the precinct but that --

Unknown Speaker: They believe that admonition, I think.

Mr. Lawrence G. Wallace: [Laughter] He may not have anticipated the proof that would be offered of the number who did not in fact vote but obviously, there were more than a hundred votes cast for the State offices and not for the Federal, the conspiracy would have little chance of succeeding.

And so the entire theory of the case was that this was the single conspiracy which involved the casting of fraudulent votes for both the Federal and State offices and the evidence introduced while it showed that it also tended to focus a great deal on what was the principal contest and the contest, the outcome of which was affected by the votes cast at this precinct because countywide, the difference between the vote for Mr. Hager and the vote for Neal Scaggs, his opponent, was only about twenty-one votes and more than one hundred fraudulent votes were cast for Mr. Hager according to the allegations here in this one precinct.

This was enough to change the outcome.

This was the dramatic aspect of the conspiracy and the aspect that had given rise to subsequent acts on the part of the conspirators to effectuate the counting of those ballots in the State contest proceeding.

Chief Justice Warren E. Burger: Under the statute does it make any difference whether the fraud affects the outcome?

Mr. Lawrence G. Wallace: It does not, Mr. Chief Justice.

The cases indicate that the statute --

Chief Justice Warren E. Burger: The fraudulent effort that fails is just as much a crime as one would succeed?

Mr. Lawrence G. Wallace: Even if the purpose was not to affect the outcome but just to falsify the votes, the holdings have been that the right protected of voters in the Federal election is to an accurate count and to have their votes given their proper effect and weight in the election.

And as we know, in political life, the magnitude of victory can be quite important in determining governmental policies where even if they don't change the outcome but who was elected to office.

Now, the evidentiary question to which Mr. Justice White has alluded, arose because the defendants contended at the trial that in its instructions and this was the only objection made to the Trial Court’s instructions and preserved at the trial, that the jury should have been instructed to disregard all evidence of acts that occurred after the results of the election had been certified approximately a week after the election date.

There had been much evidence introduced at the trial concerning the contest proceedings about the results in the County of Court raised.

All of which occurred after the certification in an effort to upset the certification for the State office.

And in the course of passing on whether that evidence was properly admitted, and that is the controversy about whether evidence was improperly admitted, the Court of Appeals held that it was properly admitted with respect to the conspiracy charged and proved confining itself to the conspiracy for the State offices because it held and this is on page 18A of the appendix of the petition for certiorari because it held that the true object in purpose of the conspiracy charge, so far as this question is concerned, was to secure the Democratic nomination for Okey Hager as County Judge and that this conspiracy embraced the attempt to effectuate these returns throughout the contest proceedings and not end with the formal certification of the results that was subject to being undone in the contest proceeding.

So that the evidence that had been introduced concerning the continued efforts of the conspirators in furtherance of the objective of the conspiracy after the formal certification was properly admissible the Court held.

Unknown Speaker: So, your theory then is that if the conspiracy embraced, in the slightest way, the casting of any fraudulent votes for Federal officer that’s enough to bring it under 241?

Mr. Lawrence G. Wallace: Well, under the established holdings under 241.

Unknown Speaker: What would the Court of Appeals, you probably don’t know but they held that -- well, then arose the question well -- even so the evidence was inadmissible because 241 doesn’t cover State election.

Mr. Lawrence G. Wallace: That’s right and at oral argument in the Court of Appeals for the first time, a contention was made that the casting of fraudulent votes for the Federal officers constituted something separate and all the 241 covered and that -- as to that conspiracy if it could be deemed a separate conspiracy, the certification was to cut off for possible admission of evidence because no contest ensued with respect to the Federal officers.

Now, this was the first time that any suggestion had been made that this was more than one conspiracy.

Every indication in the allegation and in the trial was that it was a single conspiracy to cast and have counted votes for this slate of candidates, Federal and State alike.

Unknown Speaker: The Court of Appeals then did reach the constructions?

Mr. Lawrence G. Wallace: And the Court of Appeals for that reason, instead of holding that the evidence as to the acts of the conspirators in furtherance of the conspiracy insofar as they affected only the State returns was properly admissible.

Unknown Speaker: Because it was one conspiracy.

Mr. Lawrence G. Wallace: Because it was one conspiracy.

Instead of reaching that issue the Court of Appeals held that 241 applies to a conspiracy just to affect State officers anyway to cast fraudulent votes for State officers and therefore it need not worry about.

Unknown Speaker: What should we do if the Court was wrong in that deal of 241.

I’m not saying it is but assuming that it’s wrong?

Mr. Lawrence G. Wallace: Well, we think that --

Unknown Speaker: Then we have to remand the Court of Appeals or do we -- then but you suggest for just reached the single conspiracy --

Mr. Lawrence G. Wallace: Well, we would suggest that this is an alternative ground for affirmance that the Court -- it’s apparent on this record that this is a single conspiracy, an identical issue really except it didn’t involve the time gap that was involved in this case.

Unknown Speaker: Mr. Wallace, do you submit an argument for against the Court of Appeals’ interpretation of 241 as reaching local --

Mr. Lawrence G. Wallace: We do submit an argument that the Court of Appeals decided that correctly and that’s our alternative contention here.

Chief Justice Warren E. Burger: I understand that you’re saying too that even if the different conspirators had different priorities in terms of the objective that they were trading horses in effect and that each is then charged with the total action.

Mr. Lawrence G. Wallace: The conspiracy embraced the casting of fraudulent votes as one of its objectives for the federal officers even though the motive may have been solely to get Okey Hager elected to the County Court, the fact that the conspiracy embraced the casting of false votes with the federal officers is enough under this Court’s decision in the Ingram case for federal jurisdiction to apply without reaching the question whether the statute reaches the conspiracy to affect the State offices, that aspect of the conspiracy and surely it’s of no moment to obvious federal interest why it is that more than a hundred false votes were cast in the federal election for the federal officers.

We analogize it in our brief to the conspiracy to rob a federally ensured bank.

It’s just as this much a crime regardless of what it is that the conspirators were intending to use the proceeds for.

And we see no difference here that their motive may have been only to affect the outcome of the State election, and they were for, they were conspiring to falsify the federal election.

Chief Justice Warren E. Burger: Would you have to go that far? [Voice Overlap]

Mr. Lawrence G. Wallace: That’s what the [Voice Overlap] hold.

Chief Justice Warren E. Burger: Do you have to go that far in view of the testimony that, I forgot the name of the man but it’s in footnote 11.

It was for the slate of the Senator, the Congressman, and local slate.

Mr. Lawrence G. Wallace: That is what we’re relying.

Chief Justice Warren E. Burger: If the jury had a right to believe that then do you say that every member of the conspiracy is charged with that testimony.

Mr. Lawrence G. Wallace: And it was a single conspiracy to falsify returns for that slate in that one primary.

The casting and the counting was all done in the one primary for the one slate of candidates.

We don’t see how this is really separable into more than one conspiracy.

The suggestions that’s made is that really they did it with respect to the federal officers only to subserve their purpose to win for the County Clerk post which really intertwines it into one conspiracy in their contention as well as we understand their contention.

We don’t see how there is a separate conspiracy here at least, no one has raised that defense and so under the Court of Appeals on holding we think the evidence --

Unknown Speaker: There must have been a problem with evidences.

This argument is probably made by Court of Appeals, wasn’t it?

Mr. Lawrence G. Wallace: It arose on an oral argument for the first time.

Unknown Speaker: Well, I know but you must have made the same argument at the Court of Appeals as single conspiracy.

The Court of Appeals didn’t--

Mr. Lawrence G. Wallace: They didn’t pass on that.

Unknown Speaker: They would offer -- that they reached a much more difficult complicated questions, it seems to me.

Mr. Lawrence G. Wallace: Well, it is not so difficult after what this Court set in Price.

In Price, the Court unanimously held that 241 applies to all Federal Constitutional rights.

Unknown Speaker: Well, I didn’t want to give in the merits that.

I just wonder what the Court of Appeals must have thought there was -- not that the single conspiracy theory wasn’t so sound as you might make it sound.

Mr. Lawrence G. Wallace: Well, I have not read the transcript of the oral argument before the Court of Appeals.

I really don’t know to what extent these issues have been clarified --

Unknown Speaker: They pass but they don't buy that --

Mr. Lawrence G. Wallace: Well, that’s the way they chose to decide the case and it’s quite understandable because in addition to the passages that we cite from Guest and Price, There was in Price another passage which is very indicative of this holding and that’s on page 805 of the 383 US in which the Court holds, “We cannot doubt that the purpose and effect of Section 241 -- purpose and effect of Section 241 was to reach assaults upon rights under the entire Constitution including the Thirteenth, Fourteenth, and Fifteenth Amendments and not merely under part of it.

Unknown Speaker: Neither those cases deal with voting and State election.

Mr. Lawrence G. Wallace: Well, immediately neither of those cases dealt with that precise issue but immediately before that sentence, there’s a footnote saying in this historical context in the text, “It is hardly conceivable that Congress intended Section 241 to apply only to a narrow and relatively unimportant category of rights.”

And then the footnote cites among other cases, for example, United States v. Classic parenthetical right to vote in federal elections.

It’s quite obvious that the reasoning was that 241 embraces more than that as it was the reasoning from the Mosley case through the others under Section 241 that have dealt with voting rights.

The fact of the matter is that although Congress in 1870, may have had a limited conception of the Federal Constitutional Protection of Voting Rights, this has been expanded enormously since that statute was enacted.

Not only by interpretations of the Fourteenth Amendment but by other Amendments to the Constitution including the Seventeenth Amendment providing for direct election of Senators.

The Nineteenth Amendment --

Unknown Speaker: But isn’t it the question, that Congress intended to cover by 241 not enough what -- not what the -- not that the Constitution is construed to that.

Mr. Lawrence G. Wallace: That is what the Court addressed in all of these cases and decided in Mosley and in Price and in the cases in between, that 241 was broadly written in generic terms to cover not only the rights that then existed but all rights that may come into fruition under the Constitution including the rights under the Nineteenth Amendment, the rights under the Twenty-fourth Amendment and under the Twenty-sixth Amendment and under the Fourteenth Amendment.

Unknown Speaker: As I put it, except -- if they have said except voting rights, I suppose you wouldn't make that argument.

Mr. Lawrence G. Wallace: If they had put exemption in of course --

Unknown Speaker: You won’t but the legislative history is equivalent to an exclusion.

Mr. Lawrence G. Wallace: That issue was thoroughly mooted in the majority and dissenting opinions in Mosley, in Classic, and in Saylor.

And it seems to us that the Court has disposed of it.

Justice William H. Rehnquist: What you’re contending that that would make ballot stuffing in a School Board election as a federal offense under 241?

Mr. Lawrence G. Wallace: That is correct, Your Honor, and contrary to what the petitioners’ counsel contends that there’s no need for this.

This record itself suggests that there is in need for this on page 31 of the appendix in which the testimony was about what the false story was to be in this State proceedings which as we’ve noted came to not in this case, these votes were not thrown out in the State proceedings.

The bottom of page 31, the question was, “Did they tell you what the story was to be?”

Answer, “Well, like Garret Sullins’ voting for one thing and if we would stick together in telling falsehoods about this, that we would could not be convicted of nothing because we had the County Court, the Judge, and the prosecuting Attorney, and the Sheriff.”

Justice William H. Rehnquist: Well, whether one thinks there’s a need for that, Mr. Wallace, on the basis of that testimony and I suppose depends one’s view on the federal system whether every time you find a corrupt Prosecuting Attorney in a County you feel that the Federal Government ought to step in. I don’t think that’s beyond debate.

Mr. Lawrence G. Wallace: It may not be beyond debate but the holdings of what 241 means is that there is Federal protection for the Constitutional rights of individuals under the Federal Constitution and certainly one of the most important of those rights is not to have his vote diluted improperly.

This has been the whole thrust of the series of reapportion in cases addressed an improper dilution of ones voted certainly and certainly am improper dilution to cancel it out through ballot box stuffing and in effect make it a half vote or a third of the vote.

Chief Justice Warren E. Burger: I take it Mr. Wallace that if in a local election on hypothesis of Mr. Justice Rehnquist’s question.

In a local election, if you had a woman candidate and the man who were in-charge of the election machinery said, agreed among themselves that they were only going to count one in three of the woman’s votes on the assumption that they were all going to -- most of them would vote for the woman, woman candidate.

Do you say 241 would cover that?

Mr. Lawrence G. Wallace: We say it would cover it and the petitioner's theory is that it would not cover it even in a Federal election because the Congress that enacted 241 prior to the adoption of the Nineteenth Amendment that it did not have power to protect against sex discrimination.

The same thing would be true about the poll tax that is protected against in the Twenty-fourth Amendment and the 18-year old vote that the Twenty-sixth Amendment affords protection for.

The Court in this whole series of cases for Mosley through Price and Guest has rejected the idea that 241 which is written in generic terms to apply all of these rights has frozen the Constitutional Rights protected to those that existed in 1870.

Unknown Speaker: Was Mosley a Federal election?

Mr. Lawrence G. Wallace: Mosley was a Federal election, Your Honor.

Unknown Speaker: Mr. Wallace, I didn’t understand the petitioner to say that 241 would not be applicable to a Federal election. Can you elaborate on this?

Maybe I misunderstood what you just said.

Mr. Lawrence G. Wallace: The ballot box stuffing in a Federal election, that is correct and that is his theory, that that could be protected, ballot box stuffing or racial discrimination in a Federal or State election.

Unknown Speaker: But do you understand that he does not say that 241 applies in a federal election?

Mr. Lawrence G. Wallace: That would be the sex discrimination.

Well, the old holdings were that 241 did not apply under the Bathgate case in a Federal election to bribery of voters and that was the --

Unknown Speaker: Well,

Mr. Lawrence G. Wallace: The principal issue is --

Unknown Speaker: Mr. Wallace, the prisoners’ counsel would speak for himself but I understood that for the purposes of this case, at least, he had acknowledged that a conspiracy to frank on a fraud in a federal election would be covered by 241 and indeed a conspiracy to racially discriminate in the State election would be covered but --

Mr. Lawrence G. Wallace: Well, --

Unknown Speaker: He’ll speak for --

Mr. Lawrence G. Wallace: This is something that the Court would --

Unknown Speaker: He does say that I understood it that way too.

He does --

Mr. Lawrence G. Wallace: I did not.

My understanding of his theory is that 241 must be interpreted in light of the powers, the Congress thought it had in 1870 and if Congress at that time thought it could not protect against sex discrimination in Federal or State election --

Unknown Speaker: How about --

Mr. Lawrence G. Wallace: -- and 241 wouldn’t cover it. that inquiry would have to be made.

Unknown Speaker: How about the power to protect against ballot box stuffing in the State election?

Mr. Lawrence G. Wallace: No, he’s not asking the Court to overrule Saylor and Saylor was a direct holding on that point but it does cover ballot box stuffing.

Unknown Speaker: Yes but he agrees in Federal election, --

Mr. Lawrence G. Wallace: In federal elections.

That’s right.

I don’t want to make his contention for him and say what it is but it seems to me that the theory of his case as I understand it because there’s no other basis on which he is asking the limitation of 241 and I don’t see any other basis after Price and Guest in which he can ask for a limitation of 241.

His theory has to be that it’s limited to what Congress thought it had the right to protect against in 1870.

It seems to us, the holding in Guest, the holding in Guest rejects that theory because at that time it was even before Plessy against Ferguson had been decided but that certainly was the governing principle of rights under the Fourteenth Amendment at that time and yet the holding in Guest was that in a series of cases beginning with Brown against Board of Education another Constitutional principle had come in to prevail and was embraced within the protection of Section 241.

So, I don’t think that this necessarily seem like the more difficult issue to the Court of Appeals.

It seemed to them like something that had been decided in Guest and Price and we agree with them that the essential thrust Guest and Price is that 241 applies to these rights.

This was thoroughly considered at the time, 241 had given the Court a great deal of trouble and in a unanimous opinion in Price, the Court concluded that 241 does apply all rights under the Thirteenth, Fourteenth, and Fifteenth Amendments italicizing all in the Court’s opinion as well as to all other Constitutional rights.

Unknown Speaker: But you still don’t think it’s necessary for us to reach that issue in this case?

Mr. Lawrence G. Wallace: Well, we see no need for because they decided cases involving voting frauds under 241 seems to us, show that the statute protects against falsifying elections for Federal Offices in the manner that it was done here and we don’t think there was any ambiguity even about whether this was all one conspiracy and --

Unknown Speaker: We do have to dispose of that evidentiary question -- would you suggest we don’t do it the way the Court of Appeals did but on another ground?

Mr. Lawrence G. Wallace: Yes that you can nearly hold -- The Court of Appeals did hold that the evidence with respect to the contest proceedings was properly admissible here because the conspiracy lasted this long even though there was no longer any contest about the Federal officers and our submission is that that holding was correct as far as it went and suffices to uphold this conviction.

This is exactly the question that the Court of Appeals for the Eight Circuit had before it in a case called Devoe against the United States which is cited in the footnote at the very bottom of page 15 of our brief.

A case back in 103 F.2d and what the Court of Appeals for the Eight Circuit had to say in that case was the Government’s evidence.

I’m quoting from page 588 now at 103 F.2d, “The Government’s evidence was not at any time directed towards showing the existence of a number of separate and distinct conspiracies but was directed toward showing one general conspiracy which contemplated in part a false count and a false certification of the ballots cast for the Congressional candidates.

So much of the conspiracy has constituted a violation of the federal law was a part of the general plan or scheme of those engaged in the conspiracy.

The contention of the Government should have been limited in its proof to only so much of the evidence as directly bore upon the portion of the conspiracy which constituted the violation of Federal Law is we think unsound.”

And that is the Court of Appeals in the present case could have used the exact same language in disposing off the case without reaching the issue whether 241 applies to a conspiracy that do not involve the casting of fraudulent votes for the Federal officers.

So, we think the judgment should be affirmed on either of these grounds.

We leave to our brief the discussion of the adequacy of the indictment to alleged action under color of law if the Court reaches that issue.

Chief Justice Warren E. Burger: Mr. Ginsburg, you have three minutes left.

Rebuttal of David Ginsburg

Mr. David Ginsburg: Mr. Chief Justice, may it please the Court.

Government has said that this is a single conspiracy and of course the re-indictment was so framed.

This is one of the errors in the Government’s, in the way the case was tried below.

I might point out to the Court in the appendix that printed page 854, I’m now reading from the Government’s closing statement, “In the summary of the evidence introduced in that case, I think from the evidence that Mr. Kingley(ph), you can conclude by now that the theory behind the Government's case actually is that this vote for cast encountered by going through the contest and all in order to get Okey Hager elected to the County Court.

In order to get Red Hager’s father elected to the County Court that these defendants along with others got the votes cast and got the votes counted in the long drawn out procedure that was involved over there.

There are other references and it was through -- the indictment charged a federal offense.

The attempted proof was a conspiracy to get Okey Hager elected County Commissioner.

Justice Thurgood Marshall: What about that language that Mr. Wallace read on the sixth and seventh page of their brief?

Mr. David Ginsburg: This was the language, Mr. Justice Marshall, to which I had reference during the oral argument. I pointed out specifically and this was clearly understood at the time the record in this case is a sociological document of what exists in Logan County, West Virginia, pages six and seven.

And one case for the Okey Hager’s slate he was casting vote and Senator Byrd and Hechler.

Justice Thurgood Marshall: Well, what that -- who were putting those votes on there for?

Mr. David Ginsburg: I was putting them on for Senator Byrd and Ken Hechler and the Okey Hager slate.

There were two.

The point was that they were all for Ken Hechler.

They were all for Senator Byrd and the problem was did this conspiracy direct itself to Hechler and Byrd or was it limited to the County Commissioner.

Our submission on the record of this case, check every citation that the Government has given to you, is that the conspiracy was limited to this job of County Commissioner.

Had nothing to do with Byrd and Hechler?

They were all for Byrd and Hechler in Logan County, West Virginia, 95% of the vote went for them.

Justice William H. Rehnquist: But supposing you’re right in that, Mr. Ginsburg, can you raise that under the questions you’ve presented in your petition?

Mr. David Ginsburg: Yes, I think so, sir.

Because as we read the Court of Appeals’ decision to which we’ve had so much reference, the Court felt apparently as we do here that the submission of the Government was a submission of a case on the basis of a State fraud and they felt it necessary to extend Section 241 to Local-State fraudulent voting issue.

Just on the issue of Constitutional --

Unknown Speaker: Thank you very much, Mr. Ginsburg.

Mr. David Ginsburg: Just on the issue of Constitutional power there is no question of ample Constitutional power to deal with these matters whether it has to do with sexual discrimination or the kind of vote frauds that dealt within this case.

The issue is whether Section 241 will now be extended by this Court into this area on this record.

Justice Byron R. White: Mr. Ginsburg, can I ask you one question.

It may seem impossible in West Virginia, the circumstances but let’s assume that one of these federal candidates had lost the election by fewer than a hundred votes, would your position be the same?

Mr. David Ginsburg: I think if the conspiracy, my position would be the same on the record on this case, there’s no doubt of that.

Because the conspiracy that was shown the only conspiracy that was shown under Section 241, the only evidence in the record and that will take you into a consideration of the evidence in the record, and the only evidence in the record we can find is that when these people talked among themselves as to what they were going to do, they were talking about Okey Hager and there was no consideration, no discussion, no effort to direct any concerted action in the in the election of Hechler and Byrd.

Justice Byron R. White: But they must have -- but people like that must have intended to have their acts have some impact on something besides Okey Hager.

Mr. David Ginsburg: Well, we’ve --

Justice Byron R. White: Because they were voting for a slate may necessarily, necessarily, were falsifying the returns in a Federal election.

Mr. David Ginsburg: Mr. Justice White, we have played with this necessary and probable consequences of their intended act and we’ve tried to analyze it in those terms but the reality is, as this record shows, the transcript, the 2000 pages of it, that these people were concerned with something real to them and that real was this County Commissioner Judge.

Justice Byron R. White: That maybe so but a very real impact -- there was a very real impact flowing from their acts in the Federal election too.

Mr. David Ginsburg: No, we --

Justice Byron R. White: Just as many votes were falsified in the Federal election as it was in the State.

Mr. David Ginsburg: But the conspiracy was not directed against the -- for federal office.

The only conspiracy that was shown in the record was a conspiracy that was limited to the local office.

Justice Byron R. White: For the one colloquy --

Mr. David Ginsburg: The burden of proof was on the Government nothing is shown of that.

Chief Justice Warren E. Burger: The one colloquy in footnote 11 or 12 would seem to be cutting across that somewhat where the man said he was assured that if they got the County Sheriff, the County Prosecutor, and the County Judge then nothing could happen to them, i.e., if there was any fraud beyond that, all the people in the State level, the local levels to deal with these problems were their men.

Mr. David Ginsburg: That was clearly the assumption and that the -- but the issues with which they were dealing -- the only issues with which they were concerned and indeed the only issue that was involved in the election contest was what?

Okey Hager is the County Commissioner.

These were their concerns.

They had no concern in their own interest in the problem of the Senate or the House --

Chief Justice Warren E. Burger: Some of them did made their testimony.

Mr. David Ginsburg: Well, but only as individuals not as conspirators.

This is the -- I think the central issue.

Justice Thurgood Marshall: Were some of the votes illegally cast for Federal officers?

Mr. David Ginsburg: Clearly some votes were cast for Federal office by man named Elswick who actually pulled the lever --

Justice Thurgood Marshall: Was he part of the conspiracy?

Mr. David Ginsburg: He was a member of the -- one of the conspiracy.

He was a co-conspirator, actually not a defendant with given immunity in this case and the issue is whether he took his instructions from Hager who was one of the defendants or whether he took this instructions from conspirators as such.

Chief Justice Warren E. Burger: Thank you, Mr. Ginsburg.

Thank you, Mr. Wallace.

The case is submitted.

Featured:

United States v. Dege - Oral Argument

Thu, 29 Nov 2012 22:23:01 +0000

Case:

United States v. Dege

Media File:

14_19591020-argument

Related Transcript:

14_19591020-argument

Transcript:

Argument of Jerome M. Feit

Chief Justice Earl Warren: Number 14, United States of America, Appellant, versus Lucille Aldine Dege.

Mr. Feit.

Mr. Jerome M. Feit: Mr. Chief Justice, may it please the Court.

This case is here on direct appeal from an order of the District Court for the Southern District of California, dismissing an indictment which charged appellees, who are husband and wife, with conspiracy to smuggle psittacine bird into this country from Mexico.

The single issue on this appeal is whether or not husband and wife can conspire under the federal conspiracy statute.

There is no additional evidentiary question as to whether one spouse may testify against the other nor as to whether confidential communications between husband and wife may be revealed, solely whether husband and wife are two separate individuals within the purview of a federal statute.

The court below relying upon the ancient notion of marital unity found that husband and wife were not two persons but one and on this basis, dismissed the indictment.

We think that ruling was incorrect.

The federal conspiracy statute 18 U.S.C. 371 which is set forth at page 2 of our main brief punishes conspiracy between two or more persons.

There is no limitation in that statute which says, "Two or more persons except if they're husband and wife."

In present day terms it is clear, we think, that husband and wife are legally separate individuals.

Plus in old states under the married women statutes, she may own her property separate and apart from her husband.

She may sue and be sued in tort and in contract.

She may contract with third parties.

Her citizenship does not follow that of her husband and quite significantly, we think, in the overwhelming majority of jurisdiction she is deemed a separate legal person who can civilly contract with her husband.

In our view, if man and wife are two separate individuals, two separate persons, for the purpose of contractual capacity, we certainly think that they are within reach and are two separate persons under the federal conspiracy statute.

Justice John M. Harlan: What impact does that do you think that this Court's decision (Inaudible)

Mr. Jerome M. Feit: Mr. Justice Harlan, I have read the Hawkins the decision.

It deals with a rule of evidence which is based upon the notion, the present day notion that in order to protect the domestic relationship of husband and wife, neither spouse should be allowed to testify against the other.

It does not in our view deal with this problem at all because on -- on the theory that it did, it would mean that husband and wife could not be convicted together of the subsequent of defense, which is certainly not the law.

Again, if a third party joined the conspiracy it is clear that husband, wife and the third party, each to be separately tried and punished.

We think that to say that the Hawkins case, applies here is to expand it beyond its purpose.

It is in fact to say, that under all circumstances despite the evidence, despite the proof, husband and wife upon some outmoded fiction of unity cannot conspire.

Turning to the criminal status, criminal independence, the criminal responsibility of a married woman present time is clear that in those jurisdictions, majority of jurisdictions which have dealt with the problem of whether one spouse may steal from another which derive from the same fiction of the unity the rule that neither spouse could steal from one another, is derived from the same fiction of unity which the District Court applied here to support this notion that they could not conspire together.

The majority of jurisdictions in this country which have dealt with this problem have held husband and wife can steal from one another if they are separate and discreet individuals.

Most recently in fact and I might point out this is noted at page three of our reply brief, the New York Court of Appeals in 1954 held in the case of People against Morton and it's cited to page two and three of our reply brief, held that a husband may steal from his wife but she was a separate person within the New York larceny statute.

Again at the common law there was a presumption that a married woman who committed a crime in her husband's presence acted under his control and coercion.

This presumption derived from perhaps a more realistic view of the legal relationship of husband and wife at common law.

That is that the wife was subservient to and under the control of her husband, that she was under his dominance, nonetheless and at least 21 jurisdictions that we have been able to find this presumption has been overturned and in those jurisdictions in order to support the defense the married woman must show affirmatively that she was acting under the control of her husband.

Justice Potter Stewart: And in that respect what is the presumption and was the --what is the way that the presumption if any in the Federal (Voice Overlap) --

Mr. Jerome M. Feit: In the Federal Court the presumption is very slight Mr. Justice.

Justice Potter Stewart: Is this a matter of case law or legal --

Mr. Jerome M. Feit: This is a matter of case law and Federal Courts.

In the State in some jurisdictions it is a matter of statute.

The legislature had abolished the presumption.

In a number of other states I believe six or seven, this is set out at page 21 of our main brief, page 21 and 22, in six or seven States, the -- the termination reputing any presumption was by judiciary.

Justice Potter Stewart: So it does continue a presumption in the federal court in federal criminal cases and a weak resumption you tell us?

Mr. Jerome M. Feit: May I say, at least from reading the cases, if there is a presumption it is at -- of the weakest nature.

Justice Potter Stewart: (Inaudible)

Mr. Jerome M. Feit: Exactly the point that I wanted to make was even in those states which retained the presumption, a slight showing that the wife was acting independently off her husband, revised it.

At the -- again at the --

Justice Potter Stewart: Could that be showing all in the federal court which he be entitled to the directed verdict of acquittal, if there were no showing the contract made by the constitution?

Mr. Jerome M. Feit: I -- I do not -- I do not think so.

I think the trend.

I might say the trend of recent decisions exemplified by United States against Anthony, a District Court case, would seem to indicate that the presumption is either hanging by a slim thread and ready to go, I think perhaps that federal court view would be following the -- the majority view I think in any recent cases -- any new case which might arise.

Not only -- another example of this independent status to the married woman, was that, she could always be guilty and contrived with inciting her husband for the commission of a substantive offence.

Certainly it seems as if a married woman can control and direct her husband's criminal action, criminal activity.

She can be charged with agreeing with him in the commission of crime.

What we think is that the ruling below was to read in to the federal conspiracy statute an exception which derives from an ancient notion, an ancient notion of marital unity which derived essentially from the writing of text writers from Hawkins and from thence into the case law.

We think that in light of the present day realities which indicate that all circumstances, but civilly and criminally, a wife is legally distinct and separate from her husband but this Court may read that exception out and say that the District Court was wrong, it was improperly reading the federal conspiracy statute.

In this recent New York case of People against Morton which is referred to at page two and three of our reply brief and this is a response to the claim by my opponent that we request the Court to indulge in judicial legislation.

That same argument was made in the New York Courts with respect to this -- this concept that husband and wife cannot steal from one another, a concept which derived from the same fiction of unity as this conspiracy rational adopted by the court below.

The District Court recognized -- I mean -- I'm sorry, the appellant division in New York recognized that this was an essential judicial function, that where legislature had not acted, the New York Courts very properly could view the larceny statute the word “another” as including a married woman.

So here, we think it is a proper function of this Court to recognize that a vestige, an ancient vestige of the common law is no longer in force and at the conspiracy statute means what it says, that two or more persons, and not two or more persons, excluding husband and wife, but two or more persons who conspire can be charged and convicted.

In 1913, Mr. Justice Holmes referred to this ancient notion for marital unity as now vanishing fiction.

We certainly believe that this Court will recognize in the present day considerations and the present day conditions that this fiction has actually vanished.

Moreover, we do not think that there are any present day policy considerations which would support the retention of this vestige, this notion that husband and wife are one and therefore cannot conspire together.

Those that have been asserted in our view are essentially evidentiary rules which are adequately protected under existing rules of exclusion.

So for example Mr. Justice Harlan, Hawkins decision announces this Court's view that either spouse could testify against one another.

Certainly it is no reason we think to -- there is no reason to expand that decision, beyond its limits to say that under no circumstances apart from what evidence maybe adduced, husband and wife cannot conspire together.

Similarly the argument deriving from the notion of marital confidences, there is a similar evidentiary rule which we do not challenge here and which is validly recognized, the confidential communications between husband and wife are not to be revealed.

Certainly, that rule will be applied on trial, but again it is a -- there is no reason, no justification, we submit, for extending that rule so that it becomes an immutable substance of rule which carves out for husband and wife an area of immunity from criminal liability.

Other individuals having a relationship of confidence certainly do not enjoy such a position in a law.

Husband and wife can conspire with their children.

Brothers and sisters can conspire together.

Attorney and client have a confidential communication privilege relating to their confidences and certainly my opponent would not say that for that reason they're entitled to a rule precluding criminal responsibility if they conspire together.

We recognize -- we think this is the essence of the matter that at a trial there maybe in any particular case difficulties in proof.

But the question here is whether husband and wife can be charged under the federal statute.

As we suggest in our main brief, it might be appropriate at the trial of any particular case for the trial judge to instruct the jury that associations between husband and wife certainly do not have the same -- do not -- would not have the same inference that perhaps association, clandestine association between strangers might have with respect to conspiracy.

Again this presumption of rule which I had mentioned might be necessary to indicate to the jury that there was a presumption that one of the partners whether husband or wife was under the control of the other and they might indulge in that presumption, but this all goes to the question of proof?

Justice Felix Frankfurter: In respecting all this your arguing first off what -- what I've heard, it goes to immediate question of evolution in the common law, isn't that affair (Inaudible) arguing?

Mr. Jerome M. Feit: Yes Mr. Justice.

Justice Felix Frankfurter: But we are dealing with the statute here, and what I'd like to ask you is what do you think if this case could come up before this Court in 1868 the year after the statue was originally passed, do you think that if any of these (Inaudible) that would have been construed the way you want us now construe it or I'll give you a later date 1909 it was readopt -- adapted by the penal code, do you think then it would have been construed other than if you are one person and not being husband and wife but that -- that would have been the construction, wouldn't it?

Mr. Jerome M. Feit: I -- I would -- I would agree with that.

The construction in 1868 or construction in 1909 would have been that.

Justice Felix Frankfurter: So that the statute then in effect is presented as we're not say two or more persons not being husband and wife, you couldn't possibly (Inaudible)

Mr. Jerome M. Feit: Exactly.

But --

Justice Felix Frankfurter: What I'm suggesting is if that is the construction that unreasonably is attributed to that language either in 1867 or 1909 that does not probably now we need that reply qualification.

Mr. Jerome M. Feit: May I answer the question this way Mr. Justice.

I agree that in 1867 and in 1909 such a construction would be proper because of this judicial theory which had been engrafted into -- in interpreting the federal conspiracy statue.

We could have argued here that if by readapting the statute in 1948 as part of the re-adaption in Title 18 to positive of law and by not noting the exception at the time when husband and wife were clearly separate and discreet legal individuals.

Congress indicated an intent to cover them in the Statute.

Justice Felix Frankfurter: (Inaudible) could argued, but you won't?

Mr. Jerome M. Feit: No were not.

But we argue which we think is the -- is the proper argument.

This is a question of capacity.

That this question as -- derives from a judicial rule which was read into the conspiracy statute.

Certainly --

Justice Felix Frankfurter: What if it's (Inaudible)

Mr. Jerome M. Feit: -- but certainly -- certainly with respect to the insanity rule for example, Congress did not intend to include in every criminal statute adopted any specific rule of insanity existing at any particular time.

And certainly this Court would not say that a Statute is frozen if adopted in 1867 when -- when the rule might have been solely the difference between right and wrong.

Justice Felix Frankfurter: That is merely of question of proof.

That is not a qualification for taking control out of the focus of the statute.

Mr. Jerome M. Feit: Well, by the same --

Justice Felix Frankfurter: What if -- I suppose when you're saying that this is not -- it didn't come up in 1867 --

Mr. Jerome M. Feit: Well, I -- I will let --

Justice Felix Frankfurter: -- (Voice Overlap) 1909 and therefore there hasn't been a past law and this is 1959 that's your argument.

Mr. Jerome M. Feit: Yes Mr. Justice.

Justice Potter Stewart: Now two Court appeals -- you represented to us and I agree with your position on that (Inaudible) the Court Appeals on the -- on appeals with Fifth Circuit?

Mr. Jerome M. Feit: Yes sir.

Justice Potter Stewart: I appreciate that your opponent said that District Columbia court is perhaps just (Inaudible) local rule, but in any even when did -- when -- when those decisions with reference to any re-enactment of the federal statute?

Mr. Jerome M. Feit: Those decisions -- the District of Colombia decision was in 1946.

The Fifth Circuit, the first Fifth Circuit decision was in 1955.

Justice Potter Stewart: Right.

Mr. Jerome M. Feit: I believe it was 1955 Mr. Justice.

They have been later Fifth Circuit decisions which we also know in 1958, but the District of Colombia Circuit decision was in 1946.

Justice Potter Stewart: And then there was at least formal re-enactment of the statute in 1948.

Mr. Jerome M. Feit: In 1948 certainly when Title 18 was readopted --

Justice Potter Stewart: (Voice Overlap) --

Mr. Jerome M. Feit: -- positive law, yes sir.

Justice Felix Frankfurter: But when they re-enacted it in 1948, Title 18 re-enacted, didn't (Inaudible) state of change the law?

Mr. Jerome M. Feit: Yes, and the revises no -- it would so stay (Voice Overlap) --

Justice Felix Frankfurter: (Voice Overlap) you don't need to state it unless we heard you say so.

They don't need to change it unless we go straight, is that right?

Mr. Jerome M. Feit: That's right sir.

Justice Felix Frankfurter: If you're drawing heavily on (Inaudible) to say that in 48 Congress enacted by implication the decision of the District Columbia Court of Appeals.

That's it talking a little far --

Mr. Jerome M. Feit: I -- I --

Justice Felix Frankfurter: Re-enacted --

Mr. Jerome M. Feit: We -- as I --

Justice Potter Stewart: At least the law wasn't conflict as of that date.

Mr. Jerome M. Feit: The law was, yes.

And I might mention that the decision --

Justice Potter Stewart: (Voice Overlap) --

Mr. Jerome M. Feit: -- in California was in 1926 the first one in 43, the second one.

We think then that this ancient notion of marital unity cannot support the reading of conspiracy statute which the District Court has given it nor do we think that there are any policy considerations which would warrant such a reading in the statute.

We think therefore that this Court should reverse the order of the District Court and remand the case back to that Court for further proceedings under the indictment.

Thank you.

Chief Justice Earl Warren: Mr. Whelan?

Argument of Thomas Whelan

Mr. Thomas Whelan: Mr. Chief Justice, members of the Court.

I hope the Court won't mind of my stating that this, on the occasion of my first appearance before the Court where I addressed the Court in a case that I say that I feel rather good about coming here from San Diego to represent clients who are -- what we might call just the average ordinary person to come here in a contest with the United States Government itself and to be heard by this Court, we have all of the right of these two individuals being as fully recognized and as fully protected as the rights of the Government itself.

But on Saturday evening I received an advanced copy of the reply brief of the Government and today I received the printed copy from the reply brief.

And in this printed reply brief there are about two points raised.

One being, that some consideration ought to be given to the proposition that because in 1948 following the decision by the Circuit Court of the District of Colombia that the Congress didn't make any exception in favor of husband and wife with reference to this conspiracy statute.

There are a few notes that I've had made in that regard.

I'd like to call of Court attention that this conspiracy Statute was – as has been stated here, first inactive in 1867.

Now, for a period of approximately 42 years after that the statute was not changed or re-enacted and during that period of time there were judicial decisions of State Courts which held that husband and wife alone could not be guilty of a crime of conspiracy.

One of which was the Supreme Court of the State of California in the case of People versus Miller which is referred to inside and I think a brief the appellants as well as the appellees.

Again, this statute was re-enacted in 1909 and there wasn't any change made in the first six lines at least of the -- first six words of the statute.

Then in 1940 when the statute was re-enacted into the criminal code 18 U.S.C. why there had been at that time the decision in the case of Dawson versus the United States which is a decision by the Court of Appeals of the Ninth Circuit which unequivocally held that husband and wife could not because of their common law unity constitute the two persons who could conspire under the federal statutes.

And in 1940 when Congress re-enacted the statute it again used the same first six words, "If two or more persons conspire".

Now, under the familiar rule of legislative re-enactment without change operates as an adoption of the prior judicial construction given to statute, we feel that Congress clearly intended that the conspiracy statute as it re-enacted in 1940 should not include husband and wife alone and that husband and wife were to be accepted from the provisions of the conspiracy statute.

Now, the next decision of any moment was in 1943 in the case of Gros versus The United States and again the -- the Ninth Circuit affirmed the holding that husband and wife alone could not be guilty of the crime of conspiracy against the United States.

And the first decision of the Federal Court was this case for Johnson versus the United States decided by the Circuit Court of Appeals of the District and that is referred to in the brief but I won't comment further on it, but it seems to me that that leaves as sort of a situation where if there's going to be any change in the law, the change ought to be made by the Congress and not by the Court.

Now, I --

Justice Potter Stewart: Mr. Whelan so that I could understand your position is to what the law now is, would you concede that there could be a criminal conviction of Mr. and Mrs. Dege, how do you pronounce your --?

Mr. Thomas Whelan: Dege is the way you pronounce it Your Honor.

Justice Potter Stewart: If -- if Lucille Dege and Ernest Dege and John Smith had been indicted of a criminal conspiracy, could all three of them convicted?

Mr. Thomas Whelan: I -- I think that's correct Your Honor.

I think all three because I think that the two Deges constitute one person at least under as the way I understand the Federal construction in our Circuit at least John Smith would be the other person and therefore there would be two or more persons and I think that both of the Deges if they were charged in such an indictment could be convicted.

Justice Potter Stewart: Well, and though -- you said the one person, but each separately could be convicted if --

Mr. Thomas Whelan: Well, if I -- I would -- I would think so your Honor.

Justice Potter Stewart: And each sent to separate prisons.

Mr. Thomas Whelan: Well, there actually are two physical persons but as a matter of the law they're one identity.

I think Dege alone could be charged in a conspiracy with John Smith or Mrs. Dege alone, but two of them together with John Smith but not the two themselves alone.

I think -- I don't think the Honorable James Carter would be flattered by the statement that he decided this on an ancient notion of marital unity.

I think his words were that he follow the Circuit and that's -- that's what he did, but the -- I think that the things that have been argued here have been discussed pretty generally in this brief which we filed.

There is one more thing that was raised in this reply brief which is a reference to the case of People versus Morton, this New York case where a husband was indicted for larceny of his wife's property and before the married women's statute of New York, he couldn't have been indicted.

And I think that's what the Court says in their opinion, but all that -- this case says is this, that the New York legislature has the right to pass statutes which change the status of married people as to property rights differentiating from their status prior to those statues by the common law.

And therefore when the statute says that the husband doesn't have any property interest in his wife's property that it belongs to her, he can be prosecuted for -- for stealing that property and it doesn't have any effect upon the marital unity or the marital relationship itself, it just has to do with that particular question of property that's involved and we have the same situation in California I believe in the footnote here they cite the case of People versus Gros right in 59 Cal. App. 706 which I -- wherever I start in 19 -- and that's a case where the an indictment was returned charging a man -- woman with the investment of her husband's property and forgery of her husband's name to require that property.

And the demurrer and the motion set aside the indictment or sustained by the trial court, but reversed by the District Court of Appeals saying that the -- because that the property rights of the husband and wife weren't separate, the wife could be prosecuted for stealing the husband's property or forging his name.

But at the same time that the District Court of Appeals was affirming this doctrine that it stated in People versus Gros, some years later in this Macmillan case the District Court of Appeals says, that husband and wife can't commit conspiracy in California and the rule was laid down in People versus Miller, but says that Justice who wrote that opinion the Supreme Court ought to do something about that or the Legislature ought to do something about it.

In other words, if there was to be a change in the law and it was recommended that the Supreme Court or the Legislature take some action to declare the status of husband and wife so that there would be a positive statement again whether they could or could not be guilty of conspiracy.

Justice Potter Stewart: This reference is to a California Supreme Court and not the Legislature.

Mr. Thomas Whelan: That is correct and the California Supreme Court denied the petition for a hearing which was asked by the prosecution in that case.

And the legislature of course never accepted the invitation to declare that husband and wife could be guilty of conspiracy.

Now, I think from the language of the Government's brief here that they're asking this Court to not only reverse the ruling of the United States District Court, but they're asking this Court to lay down a series of rules of procedure in the -- and the changed rules of evidence that have been a long time in existence and it seems to me that all of the problems that they raise in their brief are matters that ought to be addressed to the Congress and not to this Court.

Although counsel can see no difficulty because of a ruling in the Hawkins case if this -- if this case was to be reversed here, it seems to me like there would be nothing but difficulty, there would be nothing but questions of the rights in some cases of a defendant even testifying for herself or himself that depending upon the objection of -- of the other party if often this to be given effect, well, I don't know where husband and wife would be if they happen to be adverse to each other at the time of the trial.

And it seems to me that the -- the reasoning behind the decision in the case of Dawson versus the United States and Gros versus United States are well-founded and sound and that the Congress must have had the Dawson case in mind at least in 1940 and that the Congress impliedly approved the rule in the Dawson case and therefore that's what the statute means.

It means, if two or more persons accepting husband and wife and what according to Dawson that's what -- that's what the statute means and the legislature -- or the Congress must have meant the some things when they re-enacted the statute in 1940, but the Government wants this Court to say is this.

“If two or more persons including husband and wife conspire” and now, we feel, I certainly feel as a matter of correct procedure that if the changes to be made in the statute that are not to be made by the Congress and we respectfully submit the matter --

Justice Potter Stewart: I just -- before you sit you down.

I -- I don't quite understand your concern about the effect of the Hawkins decision (Inaudible) in this situation.

Mr. Thomas Whelan: Well, lets take this situation.

If the Government should indict a man and his wife for the crime of conspiracy and then should indict the man for two or three more substantiative offences relating to the conspiracy, but not indict the wife as to those substantiative offences.

If the prosecution put on the case -- the Government put on the case and it was a sort of a thin line proposition, the wife who was actually not guilty of any crime wanted to take the stand in her own behalf and testify in exonerating herself she might implicate her husband.

Therefore, if he objected to his wife of his testifying as he didn't – would have a right to do under Hawkins she'd be precluded it would seem to me from going ahead and testifying on her own behalf, exonerating herself because of the objection he made.

And that's a complication that it seems to me could have occur and what is to be done about it.

Justice Potter Stewart: Well now, how would any difficulties be present and that situation that would not be present if they were both indicted and being tried or substantive offences for the same -- commission of the same substantive offence or conversely have in any problems to be present in your hypothetical case it wouldn't be present if Mr. and Mrs. Dege or has a -- a codefendant John Smith.

But you've conceded (Voice Overlap) --

Mr. Thomas Whelan: Well, I think if they had a codefendant that this privilege of -- in favor the husband wouldn't -- wouldn't control the admission of the evidence there if she could testify against John Smith and she could exonerate herself and I -- I don't see how in that case that the husband could prevent her from testifying in -- on her own behalf.

There might be some rule of evidence that would provide that the evidence wouldn't be considered admissible against the husband.

I don't know how that would work out but I think that she could testify if there was a third defendant but if it were just her husband alone I rather doubt that she could.

Justice Potter Stewart: Well, there is certainly at least to be questioned to whether or not she could testify, if there is a third defendant it would be effective for her to testify it would be adverse to her husband under the profits decision that that there at least would be a question.

Mr. Thomas Whelan: There would be certainly a question but I don't think the question would be as great as that she and her husband were alone indicted.

Supposing they were just indicted on the conspiracy charge and she wanted to testify and her husband didn't want her to, wouldn't that create a problem?

Justice Potter Stewart: Well, is there any difficulty about having a severance and having separate trials for conspirators even though you know there are only two conspirators?

Mr. Thomas Whelan: Well, I would think that as a practical proposition you never get separate trial.

Justice Potter Stewart: Why not is there any difficulty about it?

Mr. Thomas Whelan: Well, as a practical the proposition there is I'm defendant a lot of conspiracy issues and I think in every case that made a motion for a severance and I have normally --

Justice Potter Stewart: Normally that's the advantage of the defendants, isn't it?

Mr. Thomas Whelan: To have a severance, yes.

If it can be obtained, but it's very difficult to obtain one.

Justice Potter Stewart: That wouldn't be very evidentiary testimony or problems that you suggest and I -- wouldn't they give a reason for a Court of (Voice Overlap) --

Mr. Thomas Whelan: Well, yes.

It --

Justice Potter Stewart: -- discretion to grant separate trail.

Mr. Thomas Whelan: If -- if there would be pronouncement from the Congress or some direction or suggestion by this Court that the Trial Courts ought to grant severances in such situation it probably would mean they were able -- the severance would be easier to get and it would be beneficial to defendants --

Justice Potter Stewart: In other words am I right in understanding that she -- you're suggestion is not the pocket which controls the disposition of the problem in this case but that in view of Hawkins their would be practical difficulties in trying husband and wife together as co-conspirators, is that it?

Mr. Thomas Whelan: That's it, but I don't say that Hawkins doesn't control the decision in this case.

Because it seems to me that Hawkins goes far enough to say that as a matter of public policy that marital unity ought to be preserved and for that reason husband and wife should not -- should not be permitted to testify against the other over objection.

And if that's good reasoning then husband and wife should not be joined together as conspirators because in such a case is that very unlikely there would be a separation between husband and wife.

One would blame the other and it would result in a widespread differences and the breaking up for that particular home and would have a tendency to -- to cause that effect in every case where two parties, husband and wife alone were conspirators, I think just as it would cause difficulty as set by the Supreme Court in Hawkins case where a wife testified against her husband or vice versa.

Chief Justice Earl Warren: Very well.

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