UNITED STATES OF AMERICA, PETITIONER V. GERMAN MUNOZ-FLORES

   No. 88-1932

   In the Supreme Court of the United States

   October Term, 1988

   The Solicitor General, on behalf of the United States, petitions
for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Ninth Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

           TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Constitutional and statutory provisions involved
   Statement
   Reasons for granting the petition
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-15a) is
reported at 863 F.2d 654.  The opinion of the district court (App.,
infra, 16a-25a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on December 12,
1988.  A petition for rehearing was denied on March 29, 1989.  App.,
infra, 29a.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

           CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

   The Origination Clause of the United States Constitution, Art, I,
Section 7, Cl. 1, states:

      All Bills for raising Revenue shall originate in the House of
      Representatives;  but the Senate may propose or concur with
      Amendments as on other Bills.

   Section 3013 of Title 18, U.S. Code (Supp. IV 1986), as it was
enacted by the Victims of Crime Act of 1984, Pub. L. No. 98-473, Tit.
II, ch. XIV, Section 1405(a), 98 Stat. 2174-2175, provided:

   Section 3013.  Special assessment on convicted persons

         (a) The court shall assess on any person convicted of an
      offense against the United States --

         (1) in the case of a misdemeanor -- (A) the amount of $25 if
      the defendant is an individual;  and (B) the amount of $100 if
      the defendant is a person other than an individual;  and

         (2) in the case of a felony --

         (A) the amount of $50 if the defendant is an individual;  and

         (B) the amount of $200 if the defendant is a person other
      than an individual.

         (b) Such amount so assessed shall be collected in the manner
      that fines are collected in criminal cases.

                          QUESTION PRESENTED

   Whether 18 U.S.C. 3013, which directs sentencing courts to impose
monetary assessments on all defendants convicted of federal offenses,
was enacted in violation of the Origination Clause of the
Constitution, Art. I, Section 7, Cl. 1.

                               STATEMENT

   1. In June 1985, respondent and several other persons were indicted
in the Southern District of California for aiding the illegal entry of
aliens.  Prior to trial, respondent entered into a plea agreement with
the government.  Pursuant to the agreement, respondent pleaded guilty
to a superseding information charging him with two misdemeanor counts
of aiding and abetting aliens to elude examination and inspection by
government officials, in violation of 8 U.S.C. 1325.  App., infra,
16a, 31a-32a.

   In accord with the government's recommendation, the magistrate to
whom the case was assigned suspended the imposition of any prison
sentence and placed respondent on two years' probation on each count.
The magistrate also directed respondent to pay a $25 special
assessment on each count under 18 U.S.C. 3013(a) (Supp. IV 1986).
That provision, which was enacted by the Victims of Crime Act of 1984,
Pub. L. No. 98-473, Tit. II, Section 1405(a), 98 Stat. 2174-2175,
stated:  "The court shall assess on any person convicted of an offense
against the United States -- (1) in the case of a misdemeanor -- (A)
the amount of $25 if the defendant is an individual * * *." /1/ The
judgment embodying the conviction and sentence, including the
suspension of prison sentence, probation, and the total of $50 in
assessments, was entered on September 30, 1985.  App., infra, 16a-17a,
27a-28a.

   On October 15, 1985, respondent filed a motion under Rule 35, Fed.
R. Crim. P. (1985), /2/ asking the magistrate to correct the allegedly
illegal sentence.  Respondent's principal argument was that Section
3013 as enacted was unconstitutional under the Origination Clause of
the United States Constitution, Art. I, Section 7, Cl. 1, because, he
contended, it was a "revenue raising statute that unconstitutionally
originated in the United States Senate." App., infra, 17a.  The
magistrate rejected the argument and denied the Rule 35 motion.  C.A.
Excerpt of Record 36-39 (transcript of oral ruling).

   On appeal pursuant to 18 U.S.C. 3402, the United States District
Court for the Southern District of California affirmed.  App., infra,
16a-25a.  /3/ The court observed that it is "well established that the
origination clause does not invalidate statutes that are primarily
regulatory or penal, but which raise revenue incidentally." Id. at
18a.  The court concluded that Section 3013 as enacted in 1984 was
primarily penal, relying on congressional descriptions of the
assessments as penal and on the analysis in United States v. Mayberry,
774 F.2d 1018 (1985), in which the Tenth Circuit held that Section
3013 was penal for purposes of the Assimilative Crimes Act, 18 U.S.C.
13. App., infra, 18a-22a.  /4/

   2. The court of appeals held Section 3013 as enacted invalid under
the Origination Clause and therefore vacated the sentence insofar as
it imposed the two $25 assessments.  App., infra, 1a-15a.  The court
explained that the Origination Clause establishes a straightforward
three-part test for validity:  whether "the statute falls within the
class of revenue raising bills covered by the clause";  if so, whether
"the bill (i.e., the statute) originated in the House";  and if not,
whether the Senate's participation in the legislative process can be
construed as an amendment permissible under the clause." App., infra,
6a & n.4.  The court concluded that Section 3013 as enacted failed
that test.  /5/

   a. On the first question, the court stated that this Court's
decisions in Millard v. Roberts, 202 U.S. 429, 436 (1906), Twin City
Bank v. Nebeker, 167 U.S. 196, 202 (1897), and United States v.
Norton, 91 U.S. (1 Otto) 566, 569 (1875), established that the
Origination Clause "do(es) not extend to bills that incidentally
create revenue if those bills were enacted for purposes other than
revenue raising." App., infra, 6a.  Section 3013, the court concluded,
was enacted for the purpose of raising revenue.

   As an initial matter, the court noted that the statutory language
did not sufficiently establish another purpose.  The court explained
that Section 3013(b), which states that assessments "shall be
collected in the manner that fines are collected in criminal cases,"
might suggest that the assessment is analogous to a fine and therefore
punitive, but the court declined to draw that inference.  It reasoned
that subsection (b) "may be interpreted as a purely procedural
requirement" and that the absence in Section 3013 of a restriction on
the use of the collected funds "suggests that the revenue raising
aspect of the bill is not subsidiary to any enunciated functions."
App., infra, 7a-8a.

   Turning to the legislative history of Section 3013, the court
pointed out (App., infra, 8a) that the provision was designed in part
to help defray the cost of the newly established Crime Victims Fund,
which would provide funds to assist victims of crime (42 U.S.C. 10601
et seq.).  See S. Rep. No. 497, 98th Cong., 2d Sess. 13-14 (1984).
The court acknowledged, based on Millard v. Roberts, 202 U.S. at
436-437 (rejecting Origination Clause challenge to tax on District of
Columbia property enacted to provide funding to railway company), that
the provision might well have been constitutional "(h)ad the proceeds
been clearly confined to this purpose." App., infra, 8a.  The court
concluded, however, that Section 3013's main purpose was not to fund
victims' assistance programs, because "Congress contemplated that the
revenue might be used as general federal revenue." App., infra, 9a.
The court relied for that conclusion (id. at 8a, 9a) chiefly on the
Senate Judiciary Committee's statement -- in the Senate Report that
accompanied a bill, S. 2423, 98th Cong., 2d Sess. (1984), that was
similar but not identical to the ultimately enacted Section 3013 --
that the assessments "will constitute new income for the Federal
government." S. Rep. No. 497, supra, at 14.  /6/

   The court next rejected (App., infra, 10a) the suggestion that the
penal character of the assessments was shown by the fact that the
Senate Committee and S. 2423 both used the term "penalty assessment."
See S. Rep. No. 497, supra, at 5, 13;  130 Cong. Rec. 23,803-23,804
(1984) (reproducing S. 2423 as passed by the Senate).  The label
"penalty" is irrelevant, the court said, and "penalty assessment" does
not appear in the codified version of the statute, since Congress
changed the language to "special assessment" in the enacted bill.
That Section 3013 exacts money only from convicted persons, the court
continued, does not mean that the exaction is not a tax, for Congress
is free to tax the class of convicted persons.  App., infra, 10a-11a.
In addition, the court explained that there was no persuasive judicial
precedent holding Section 3013 punitive for purposes of the
Origination Clause.  /7/ Accordingly, the court concluded (App.,
infra, 12a) that "the primary purpose of the special assessment was to
raise revenue, not to finance state victim assistance programs or to
punish offenders."

   b. The court next concluded that the legislative history "clearly
indicates that section 3013 originated in the Senate." App., infra,
12a.  Although Section 3013 was enacted into law by Section 1405(a) of
a House bill, H.R.J. Res. 648, 98th Cong., 2d Sess. (1984), the court
examined the legislative history to determine from which house the
particular assessment provision came.  The court found that Section
3013 originated in a Senate bill, S. 2423, 98th Cong., 2d Sess.
(1984).

   The court explained that, on May 1, 1984, in hearings on S. 2423,
Senator Heinz proposed to include in that bill a provision allowing
for the collection of "penalty assessments" (The Victims of Crime
Assistance Act of 1984:  Hearing on S. 2423 Before the Senate Comm. on
the Judiciary, 98th Cong., 2d Sess. 21 (1984)), and such a provision
was included in the bill reported by the Senate Judiciary Committee on
May 10, 1984 (S. Rep. No. 497, supra, at 4, 13) and passed by the
Senate on August 10, 1984 (130 Cong. Rec. 23,803-23,805).  That bill
was never passed by the House.  According to the court of appeals, the
next relevant step in the legislative process occurred on October 4,
1984, when the Senate had before it the version of the 1985 continuing
appropriations bill, H.R.J. Res. 648, that the House had passed on
September 25, 1984 (130 Cong. Rec. H10,131 (daily ed.)) -- a bill that
did not then contain any assessment provision (see id. at H11,970
(daily ed. Oct. 10, 1984) (joint explanatory statement of conference
committee)).  On October 4, according to the court of appeals (App.,
infra, 13a), the Senate "added the text of the Victims of Crime
Assistance Act of 1984, including the special assessment provision, to
(H.R.J. Res. 648)." 130 Cong. Rec. S13,520, S13,544 (daily ed.).
After that amendment, the Senate passed H.R.J. Res. 648 the same day
(id. at S13,384), and the provision remained in the conference
committee's bill (130 Cong. Rec. H11,913 (daily ed. Oct. 10, 1984)),
which was approved by both houses (130 Cong. Rec. H12,107, S14,226
(daily ed. Oct. 10, 11, 1984)) and became law on October 12, 1984
(Pub. L. No. 98-473, 98 Stat. 1837).

   The court of appeals summarized its reading of the legislative
history:  "(t)he special assessment provision was introduced in the
Senate Judiciary Committee, it was first passed by the Senate and was
only adopted by the House on later repassage of H.J. Res. 648." App.,
infra, 13a-14a.  Based on that reading, the court concluded that "the
Senate clearly initiated the special assessment legislation." App.,
infra, 13a.

   c. Finally, the court ruled that Section 3013 was not valid under
the proviso to the Origination Clause, which states that "the Senate
may propose or concur with Amendments as on other Bills." The court
observed that the Senate may attach an amendment to raise revenue to a
House bill only if the House bill itself is a revenue-raising measure
within the meaning of the Clause.  Here, the court concluded, the
House-passed version of H.R.J. Res. 648 that the Senate amended on
October 4, 1984, was not a bill for raising revenue and so was not
validly amended by the revenue-raising Senate amendment.  App., infra,
14a.

                   REASONS FOR GRANTING THE PETITION

   The court of appeals has held an Act of Congress unconstitutional,
and its decision will affect thousands of cases every year.  In
addition, the court's ruling directly conflicts with several district
court decisions, it rests on an interpretation of Section 3013 that
conflicts with the views of other courts of appeals, and it is
contrary to this Court's Origination Clause decisions.  The court of
appeals erred both in ruling that Section 3013 was enacted in a
"Bill() for raising Revenue" and in ruling that Section 3013
originated in the Senate.

   1. The decision of the court of appeals would invalidate sentences
in thousands of cases each year in the Ninth Circuit alone and in tens
of thousands more each year if followed in other circuits.  By its
terms Section 3013 applies to every defendant convicted of a federal
crime.  /8/ Although the court invalidated the original 1984 version
of Section 3013, the 1988 amendment, which revised one part of Section
3013(a), only marginally diminishes the reach of the decision.  /9/

   With respect to felonies, which are subject to Section 3013(a)(2),
the 1984 version has not been amended.  The Ninth Circuit ruling would
therefore invalidate assessments in all felony convictions since the
1984 enactment took effect and indefinitely into the future.  The
Executive Office of the United States Attorneys has informed us, based
on statistics collected from the United States Attorneys' offices,
that in the year ending September 30, 1988, more than 27,000
assessments were imposed on felony counts nationwide, and more than
3,700 were imposed in the Ninth Circuit.  With respect to misdemeanors
and other lesser offenses, which are subject to Section 3013(a)(1),
the 1984 law struck down by the court of appeals applied to all
criminal convictions until subsection (a)(1) was amended in December
1988.  According to the Executive Office, more than 13,000 assessments
were imposed on misdemeanor counts annually prior to the amendment,
and more than 3,000 in the Ninth Circuit.

   The decision of the court of appeals holding Section 3013 invalid
has already begun to generate conflicts among the lower courts.
Several district court decisions have upheld the statute against such
challenges.  See, e.g., United States v. Clark, No. 88 Cr. 0793 (RWS)
(S.D.N.Y. Mar. 22, 1989), appeal pending (2d Cir.);  United States v.
McDonough, Cr. No. 4-88-137(1) (D. Minn. Feb. 23, 1989), appeal
pending (8th Cir.);  United States v. Hines, 88 Cr. 739 (MBM)
(S.D.N.Y. Feb. 23, 1989), appeal pending (2d Cir.);  United States v.
Ramos, 624 F. Supp. 970, 973 (S.D.N.Y. 1985).  Other district courts
have followed the court of appeals' decision in this case.  See, e.g.,
United States v. Thompson, CR88-479A (N.D. Ga. Mar. 20, 1989), appeal
pending (11th Cir.);  United States v. Culbreath, No. 88-00186 (M.D.
Tenn. Feb. 27, 1989), appeal pending (6th Cir.);  United States v.
Hamilton, Cr. No. 88-136 (W.D. Pa. Feb. 15, 1989), appeal pending (3d
Cir.);  United States v. Simpson, Cr. No. 88-91 (W.D. Pa. Feb. 15,
1989), appeal pending (3d Cir.);  United States v. Williams, Cr. No.
88-96 (W.D. Pa. Feb. 8, 1989), appeal pending (3d Cir.);  United
States v. Solomonson, Cr. No. 3-88-73 (D. Minn. Feb. 6, 1989), appeal
pending (8th Cir.).  No other court of appeals has yet rejected an
Origination Clause challenge to Section 3013, but appeals are now
pending in all of the cited recent district court decisions, and the
issue is currently being litigated in numerous cases through the
nation.

   In addition, as the court of appeals in the present case
acknowledged (App., infra, 11a-12a), the decision below rests on
interpretations of Section 3013 that are, at a minimum, in tension
with the interpretations adopted by several other courts of appeals in
cases not involving the Origination Clause.  Two circuits have
concluded that Section 3013 was designed to provide funds for the
crime victims' assistance programs, United States v. Donaldson, 797
F.2d 125, 127 (3d Cir. 1986);  United States v. Dobbins, 807 F.2d 130
(8th Cir. 1986), whereas the court in the present case concluded that
the provision's primary purpose was not to finance such programs
(App., infra, 8a-9a, 12a).  And three circuits have concluded that the
assessments under Section 3013 as enacted were punitive, United States
v. Davis, 845 F.2d 94, 97 n.2 (5th Cir. 1988);  United States v. King,
824 F.2d 313, 317 (4th Cir. 1987);  United States v. Mayberry, supra
(10th Cir.), whereas the court in the present case concluded that the
provision's primary purpose was not to punish offenders (App., infra,
10a-12a).

   2. a. The court of appeals mistakenly concluded that Section 3013
as enacted was a "Bill() for raising Revenue" within the meaning of
the Origination Clause.  This Court has given the Clause a narrow
interpretation.  /10/ The court of appeals' decision is inconsistent
with this Court's decisions establishing that the Clause does not
apply to legislation that imposes an exaction for a purpose other than
the raising of general revenue.

   This Court has three times ruled, following Justice Story's
analysis of the Origination Clause, that "the practical construction
of the Constitution and the history of the origin of the
constitutional provision in question proves that revenue bills are
those that levy taxes in the strict sense of the word, and are not
bills for other purposes which may incidentally create revenue." Twin
City Bank v. Nebeker, 167 U.S. at 202-203.  Accord Millard v. Roberts,
202 U.S. at 436-437;  United States v. Norton, 91 U.S. (1 Otto) at
569.  /11/ Under that principle, even an assessment labeled a "tax" by
Congress is not necessarily within the strict meaning of the Clause.
Thus, in Nebeker, the Court rejected an Origination Clause challenge
to a provision in a law that established a national currency secured
by a pledge of bonds of the United States and that imposed what the
statute labeled a tax on notes in circulation.  The Court held that
the provision was not a revenue-raising measure within the strict
sense of the Clause because the tax was designed "to meet the expenses
attending the execution of the act" and to accomplish the goal of
establishing the currency, rather than "to raise revenue to be applied
in meeting the expenses or obligations of the Government." 167 U.S. at
202-203.  Similarly, in Millard, the Court rejected an Origination
Clause challenge to a law levying a tax on property within the
District of Columbia in order to raise money for certain railroad
construction activity.  The Court explained that the measure was not
within the Clause because "(w)hatever taxes are imposed are but means
to the purposes provided by the act." 202 U.S. at 437.  See also South
Carolina v. Block, 717 F.2d 874, 887 (4th Cir. 1983) (50-cent
deduction imposed on proceeds of milk sales to defray cost of
price-support program and to reduce overproduction not within
Origination Clause).

   Section 3013 was not enacted in violation of the Origination Clause
because it was not designed to raise general revenue for the support
of the government.  Rather, the provision was enacted as one part of
an integrated program to provide assistance to victims of crime.
Victims of Crime Act of 1984, Pub. L. No. 98-473, Sections 1401-1405,
98 Stat. 2170-2175.  That Act established a Crime Victims Fund and
various grant programs to provide such assistance (42 U.S.C. 10601,
10602, 10603 (Supp. II 1984)), and it directed that the special
assessments collected under the authority of Section 3013 (along with
certain fines and forfeitures) are to be deposited into the Fund (42
U.S.C. 10601(b)(2) (Supp. II 1984)).  A measure like Section 3013 that
imposes an assessment to support a particular governmental program is
not a bill for raising revenue -- especially if the program itself is
a remedial one designed to address problems caused by the conduct of
the class of persons on whom the assessment is imposed.

   The court of appeals, while appearing to recognize the
Millard-Nebeker principle, rejected its application here simply
because, in its view, Section 3013 assessments would be available as
general revenue.  App., infra, 8a-9a.  There is no adequate basis for
that view or the inference the court drew from it.  The Senate
Committee statement that the assessments "will constitute new income
for the Federal government" (S. Rep. No. 497, supra, at 14), on which
the court placed principal reliance, does not support the court's
conclusion.  That simple observation would be equally true for any
bill that brought in money to fund a particular governmental program,
such as the railroad construction program in Millard or the currency
program in Nebeker;  the statement does not mean or imply that
assessments would be available for general governmental expenditures.

   Moreover, the court wholly ignored Congress' command, in the same
statute that contained the assessment provision, that assessments are
not to be placed in the general fund of the Treasury but are to be
deposited in the separate Crime Victim's Fund.  42 U.S.C. 10601 (Supp.
II 1984).  In fact, moneys from that Fund were to be transferred to
the general Treasury only if the Fund reached $100 million (42 U.S.C.
10601(c)(1) (Supp. II 1984)), and that figure has never been reached
by the Fund.  See U.S. Dep't of Justice, Office for Victims of Crime,
Office of Justice Programs, Victims of Crime Act of 1984:  A Report to
Congress By the Attorney General 11 (1988).  /12/ In any event, even
if excess amounts are eventually transferred, the character of the
assessment provision would not change;  and nothing in Millard or
Nebeker or the statutes involved there indicates that money raised
under the programs at issue would under no circumstances be used as
general revenue.  Hence, the assessment provision is properly viewed
as outside the reach of the Origination Clause because it was designed
to finance victim assistance programs rather than to raise general
revenue.

   In addition, under an appropriately narrow reading of the
Origination Clause -- and under the principle that "(a) statute * * *
is to be construed, if such a construction is fairly possible, to
avoid raising doubts of its constitutionality," St. Martin Evangelical
Lutheran Church v. South Dakota, 451 U.S. 772, 780 (1981) -- Section
3013 as enacted should have been upheld because, like fines and
forfeitures, the assessments should be characterized as penal.  There
are several bases for such a characterization.  Assessments are
imposed only on convicted criminals, and they are imposed as part of
the sentence.  Section 3013(b) directs that assessments are to "be
collected in the same manner that fines are collected in criminal
cases." The provision directing that assessments be deposited in the
Crime Victims' Fund refers to them as "penalty assessments." 42 U.S.C.
10601(b)(2) (Supp. II 1984).  And the statute that added Section 3013
to the Criminal Code did so in a provision, Section 1405(a), that was
labeled "penalty assessment." 98 Stat. 2174.  /13/ Under those
circumstances, a court seeking to avoid rather than invite a
constitutional question would have construed the provision to be a
penal measure and not to be a strict measure for raising revenue
subject to the Origination Clause.

   b. Even if the court of appeals were correct that Section 3013 as
enacted came within the scope of the Origination Clause, the decision
would still be wrong.  The court erred in concluding that the
assessment provision originated in the Senate.  That conclusion rests
on a mistaken reading of the legislative history and on an
insufficient appreciation of the "practical construction" (Nebeker,
167 U.S. at 202) that must be given, and has been given by Congress
itself, to the Clause.

   It is true, as the court of appeals stated (App., infra, 13a), that
the Senate in the 98th Congress was the first of the two houses to
pass an assessment provision.  But the court incorrectly suggested
that it was that provision, Section 201 of S. 2423, which the Senate
added to H.R.J. Res. 648 on October 4, 1984.  While the Senate's
October 4th amendment was identical to the provision ultimately
enacted (see 130 Cong. Rec. S13,520, S13,544 (daily ed.)), S. 2423 is
different in wording and structure.  /14/ What the Senate added to
H.R.J. Res. 648 was actually the text of a provision of a House bill
-- Section 1005 of H.R. 5690, 98th Cong., 2d Sess. (1984) -- that the
House had passed two days earlier, on October 2, 1984.  130 Cong. Rec.
H10,721, H10,859 (daily ed.).  /15/ Hence, the first house to pass the
assessment provision that was enacted into law was the House of
Representatives, not the Senate.  And what the Senate did by its
October 4th amendment was nothing more than to take two House-passed
bills and to merge part of one into the other.

   Where, as here, the House is the first actually to pass the precise
measure in question, the measure must be found to have originated in
the House, even though a similar measure had earlier been passed by
the Senate.  Although other conditions would doubtless also be
sufficient to find House origination, one sensible and readily
applicable test for origination is which house first passed the
particular measure that was ultimately enacted.  That conclusion also
follows a fortiori from the well-established prerogative of the House,
upon being presented with a Senate-originated bill for raising
revenue, to insert the Senate's language into a House bill, pass the
new bill, and send it to the Senate.  /16/ Since the House may do
that, it may also, upon being presented a Senate-originated revenue
bill, insert a modified version of that bill into a new House bill.
The fact that the new House bill "originated" in the House is not
altered in any way when that bill and another House bill are combined
by the Senate into a single bill.

   In the present case, the House bill, H.R. 5690, was not simply a
modified version of the earlier Senate-passed measure, S. 2423.  It
was an accommodation of S. 2423 and several other measures, including
another House bill, H.R. 3498, 98th Cong., 1st Sess. (1983).  /17/
Rep. Rodino explained the origins of the Senate amendments to H.R.J.
Res. 648 and hence of the conference bill (130 Cong. Rec. H12,084
(daily ed. Oct. 10, 1984)):

         The other body early last August passed a modified version of
      the administration bill, and shortly after that I began
      negotiations with the administration and the leadership of the
      other body's Judiciary Committee.  Those negotiations
      successfully resolved the differences among the three bills --
      H.R. 3498, the administration bill, and the bill passed by the
      other body.  I introduced the compromise that we worked out --
      H.R. 6403 -- which was also included in the crime package
      amendments to H.R. 5690 that were approved by the House on
      Tuesday, October 2.  The other body attached the compromise to
      the continuing resolution, and the House's conferees agreed to
      accept the language.

In short, the bill that enacted Section 3013 into law originated in
the House for purposes of the Origination Clause.

   c. The foregoing conclusions are bolstered by a number of
considerations that strongly counsel against judicial invalidation of
statutes under the Origination Clause.  To begin with, this Court has
at least implicitly suggested that policing compliance with the Clause
might be a matter for Congress alone.  Thus, based on the ruling in
Field v. Clark, 143 U.S. 649 (1892), that a court should not look
behind the signatures of the Speaker and the President of the Senate
on an enrolled bill to determine whether the signed bill omitted a
provision included in the bill upon its passage, the Court has on
three occasions expressly reserved the question whether it is ever
appropriate for a court to examine the Journals of Congress to
determine in which house a bill that has been passed by both houses
and signed by the President in fact originated.  Rainey v. United
States, 232 U.S. 310, 317 (1914);  Flint v. Stone Tracy Co., 220 U.S.
107, 143 (1911);  Nebeker, 167 U.S. at 203.  /18/

   In addition, the Senate and House of Representatives have a strong
reliance interest in the continuation of at most a modest judicial
role under the Origination Clause.  No court has struck down any
statute under the Clause, except for the lone 1915 district court
decision that involved an express congressional declaration of Senate
origin of a concededly revenue-raising bill -- a matter of labels
entirely within Congress's control.  See note 5, supra.  Various House
precedents clearly exhibit reliance on a limited judicial role.  See,
e.g., 6 C. Cannon, Cannon's Precedents of the House of Representatives
Section 314, at 448 (1935) (Origination Clause objection in House
untimely once bill went to conference);  id. Section 315, at 448-449
(discussing "differentiation between bills for the purpose of raising
revenue and bills which incidentally raise revenue");  2 A. Hinds,
Hinds' Precedents of the House of Representatives Section 1491, at 954
(1907) (discussing untimeliness of Origination Clause objection).  As
a practical matter, Congress has enacted legislation against the
background of the lenient standards of this Court's and other courts'
decisions.

   Furthermore, the House and Senate have long paid close attention to
the enforcement of the Origination Clause.  See, e.g., 2 A. Hinds,
supra, Section 1481, at 942 (discussing 1807 precedent);  H.R. Doc.
No. 279, 99th Cong., 2d Sess. 43-44 (1987) (House annotation of
Origination Clause, citing to rules and precedents).  The House's
ability to enforce its prerogatives under the Clause strengthens the
case for viewing the Clause at least primarily as an internal rule of
procedure not calling for aggressive judicial supervision.  Cf. Garcia
v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985)
(federalism limits of Tenth Amendment enforceable principally through
the political process).  Such a view of the Clause is also suggested
by the difficulty of identifying what concrete protections the Clause
today affords the citizenry.  While the British rule that money bills
must originate in the House of Commons, with the House of Lords
entitled only to approve or disapprove, reflected the unrepresentative
character of the Lords, that concern was always of limited
applicability to our government (see J. Story, Commentaries on the
Constitution Sections 445, 446, at 315-317 (R. Rotunda & J. Nowak ed.
1987)), and it is especially so now that the Senate is popularly
elected.  U.S. Const. Amend. XVII.  /19/ Hence, as the court of
appeals in the present case acknowledged, "diminished concern about
the Senate's lack of accountability has largely undermined the
clause's rationale." App., infra, 4a (footnote omitted).

   Accordingly, in addition to the ordinary principle requiring
statutes to be construed to avoid constitutional difficulties,
considerations distinctive to the Origination Clause counsel caution
in the judicial invalidation of a duly enacted statute under the
Clause.  The court of appeals' decision here did not display the
needed caution.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   RICHARD G. TARANTO

      Assistant to the Solicitor General

   MAY 1989

   /1/ Section 3013(a) was amended in 1988.  Anti-Drug Abuse Act of
1988, Pub. L. No. 100-690, Sections 7082, 7085, 102 Stat. 4407, 4408;
see App., infra, 33a-34a (reproducing current version of Section 3013
and identifying amendments).  The amendment, which refined the
schedule of assessments for misdemeanors and infractions, does not
apply in the present case, as the offenses, the prosecution, and the
judgment all occurred in 1985.  Under the current version of Section
3013, respondent's offenses, which would be Class B misdemeanors (18
U.S.C. 3559 (Supp. IV 1986)), would result in assessments of only $10
per count.  Subsec. (a)(1)(A)(ii).  The 1988 amendment, like the 1987
amendment that added subsections (c) and (d) to Section 3013 (see
Criminal Fine Improvements Act of 1987, Pub. L. No. 100-185, Section
3, 101 Stat. 1279), did not alter Section 3013's directive that
assessments shall be imposed on all persons convicted of a federal
offense.

   /2/ At the time, Rule 35(a) provided that "(t)he court may correct
an illegal sentence at any time." Rule 35 was completely revised
effective November 1, 1987, by the Sentencing Reform Act of 1984, Pub.
L. No. 98-473, Tit. II, Section 215(b), 98 Stat. 2015.  See Section
235(a)(1), 98 Stat. 2031;  Sentencing Reform Amendments Act of 1985,
Pub. L. No. 99-217, Section 4, 99 Stat. 1728.

   /3/ The district court, like the magistrate, rejected not only the
Origination Clause challenge but also respondent's additional
arguments -- that only one assessment could be imposed on him because
his two offenses arose from a single transaction (App., infra,
23a-24a), and that no special assessment could be imposed for a petty
offense, such as his violation of 8 U.S.C. 1325 (App., infra,
24a-25a).

   /4/ The Tenth Circuit held that, because Section 3013 assessments
were penal, they were inapplicable to cases arising under the
Assimilative Crimes Act, which states that persons who violate state
criminal laws in certain areas within federal jurisdiction "shall be
guilty of a like offense and subject to a like punishment" (18 U.S.C.
13).  In 1987, Congress overruled Mayberry by adding subsection (d) to
Section 3013.  See App., infra, 34a.

   /5/ The court ruled that respondent's Origination Clause challenge
does not present a nonjusticiable political question.  App., infra,
2a-4a.  While noting that Congress itself has means to police its own
compliance with the Origination Clause (id. at 3a & n.1), the court
stated that the text of the Clause does not commit its enforcement to
the political branches and that the standards of the Clause are
judicially manageable and involve no policy determinations (id. at
3a-4a).  The court also observed that five decisions of this Court and
numerous lower court decisions had adjudicated Origination Clause
challenges on the merits, although, among all of those decisions, only
one district court decision, rendered in 1915, had actually found a
violation of the Clause.  Id. at 4a, 5a-6a & n.3 (citing Hubbard v.
Lowe, 226 F. 135 (S.D.N.Y. 1915)).  That lone decision held a statute
invalid under the Clause where (a) the parties agreed that the enacted
bill was one for raising revenue and (b) the bill was accompanied by
an official certification by the secretary of the Senate that the bill
originated in the Senate.  226 F. at 137, 138.

   /6/ The court also stated (App., infra, 9a) that "Congress failed
to restrict the use of the monies assessed under section 3013 in any
way, so that they might be shifted to another purpose at any time" and
that Congress recognized that "only small amounts would be collected
by the assessments."

   /7/ The court noted (App., infra, 11a-12a) that all but one of the
prior decisions holding that Section 3013 assessments are punitive
drew that conclusion for purposes of the Assimilative Crimes Act, 18
U.S.C. 13, or the Seventh Amendment civil jury trial right.  See
United States v. Mayberry, 774 F.2d 1018 (10th Cir. 1985) (18 U.S.C.
13);  see also United States v. Davis, 845 F.2d 94, 97 n.2 (5th Cir.
1988) (same);  United States v. King, 824 F.2d 313, 317 (4th Cir.
1987) (same);  United States v. Smith, 818 F.2d 687 (9th Cir. 1987)
(Seventh Amendment).  The court declined to follow the sole prior
decision rejecting an Origination Clause challenge to Section 3013,
United States v. Ramos, 624 F. Supp. 970, 973 (S.D.N.Y. 1985),
explaining that it relied on Mayberry's analysis outside the
Origination Clause context.  App., infra, 12a.  The court of appeals
also noted (id. at 11a) that two decisions, United States v.
Donaldson, 797 F.2d 125, 127 (3d Cir. 1986), and United States v.
Dobbins, 807 F.2d 130 (8th Cir. 1986), had stated that Section 3013
was not a criminal statute subject to the rule of lenity because its
purpose was to raise funds to support the crime victims' assistance
program;  the court of appeals did not discuss those decisions in
rejecting the claim that the purpose of Section 3013 was to support
the victims' program.

   /8/ In the year ending June 1988, there were approximately 40,000
criminal convictions nationwide, approximately 9,000 of which occurred
within the Ninth Circuit.  Director, Administrative Office of U.S.
Courts, Annual Report 1988, at 298, 302.

   /9/ The 1987 amendment of Section 3013 did not amend subsection
(a), which mandates the imposition of the assessments.  See note 1,
supra.

   /10/ As the court of appeals noted (App., infra, 2a-6a), this Court
has never held a statute invalid under the Origination Clause, and
there appears to be only one decision so holding.  That decision,
rendered by a district court in 1915, was based on the express
declaration of the secretary of the Senate that a bill that was
concededly a revenue-raising measure originated in the Senate.  See
note 5, supra.

   /11/ This understanding of the narrow scope of the Clause is
supported by its carefully chosen language, which refers not to bills
that raise revenue or to revenue-raising bills or to money bills, but
to bills "for" raising revenue.  This narrow reading is also supported
by the debates on the Clause in the 1787 Convention.  See, e.g., 2 M.
Farrand, The Records of the Federal Convention of 1787, at 263 (1937)
(Randolph);  id. at 273 (Mason);  id. at 276 (Madison) (noting that
the term "revenue" is ambiguous, that many measures would have a
revenue purpose as well as another, and that it would often be
difficult to determine whether raising revenue was the primary one).

   /12/ The $100 million cap has since been raised.  See Anti-Drug
Abuse Act of 1988, Pub. L. No. 100-690, Sections 7121(a), 7129, 102
Stat. 4419, 4423;  Children's Justice and Assistance Act of 1986, Pub.
L. No. 99-401, Section 102(b)(1), 100 Stat. 904.

   /13/ The Senate's use of "penalty assessments" in its first
assessment provision lends additional support.  See p. 7, supra.
Contrary to the court of appeals' suggestion (App., infra, 10a-11a),
there is no indication that Congress altered its understanding of the
assessment provision when it changed "penalty assessments" to "special
assessments."

   /14/ Section 201 of S. 2423 stated (130 Cong. Rec. 23,805 (1984)):

                        PENALTY ASSESSMENT FEES

         Sec. 201.  Whenever any person is convicted of an offense in
      any court of the United States, the court shall impose a penalty
      assessment fee on such person in the amount of --

         (a) $25, if the defendant is an individual and the offense is
      a misdemeanor;

         (b) $50, if the defendant is an individual and the offense is
      a felony;

         (c) $100, if the defendant is a person other than an
      individual and the offense is a misdemeanor;  and

         (d) $200, if the defendant is a person other than an
      individual and the offense is a felony.

   /15/ Section 1005 of the House bill is identical to Section 1405 of
H.R.J. Res. 648 -- the section adding Section 3013 to the criminal
code -- as it was enacted into law as Pub. L. No. 98-473.

   /16/ See generally 3 L. Deschler, Deschler's Precedents of the
United States House of Representatives Sections 13-18, at 292-312
(1974) (H.R. Doc. No. 661, 94th Cong., 2d Sess (1974));  2 A. Hinds,
Hinds' Precedents of the House of Representatives Sections 1484, 1485,
1495, at 943-969 (1907).  Without that prerogative, the House could be
entirely precluded by the Senate from adopting a given revenue measure
if the Senate simply passed it first.  That would not only be
practically intolerable but would turn the Origination Clause's
protection of a House prerogative on its head.

   /17/ In light of the court of appeals' statement that "(t)he
special assessment provision was introduced in the Senate Judiciary
Committee" in May 1984 (App., infra, 13a-14a), it is worth noting that
Rep. Rodino introduced H.R. 3498 on June 30, 1983, and that H.R. 3498
is far closer to the enacted bill in language and structure than is S.
2423.  See U.S. Dep't of Justice, Office of Justice Programs, Indexed
Legislative History of the Victims of Crime Act of 1984, at 176
(1985).

   /18/ The Fifth Circuit in Texas Ass'n of Concerned Taxpayers, Inc.
v. United States, 772 F.2d 163 (1985), cert. denied, 476 U.S. 1151
(1986), held nonjusticiable the question whether a bill that reduced
taxes was a bill for raising revenue within the meaning of the
Origination Clause.

   Indeed, it is not entirely clear whether it is possible to
formulate judicially manageable standards to determine in all cases
whether a bill is truly a revenue bill "in the strict sense" or
whether a bill "originated" in the House, given that many bills have
mixed purposes, that "origination" has no single obvious meaning, and
the need for congressional flexibility.

   /19/ The Framers drew the Origination Clause from the British rule,
but like most of the States prior to 1787, they deliberately departed
from the British model by, inter alia, permitting the Senate to amend
House bills for raising revenue.  See, e.g., 1 M. Farrand, supra, at
233 (Madison);  2 id. at 278 (Dickenson);  id. at 279 (Rutlidge);  3
J. Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 376 (2d ed. 1836) (Madison).

   Appendix