John G. Roberts, Jr.: We'll hear argument first this morning in case 06-5754, Rita versus United States. Mr. Cochran.
Thomas N. Cochran: Mr. Chief Justice, and may it please the Court: Under the system described in Justice Breyer's opinion for the Court in Booker, judges would no longer be tied to the sentencing range indicated in the guidelines. That, of course, was a passage from this Court's recent decision in Cunningham versus California. Mr. Rita is asking the Court in this case to reiterate in strong enforceable terms that it meant what it said in Booker, that the guidelines are merely advisory provisions. The Government's assertion that the guidelines deserve a presumption of reasonableness was nothing more than an unfounded claim put forth to justify its efforts to try and thwart the Booker decision. The ink wasn't given a chance to dry on the Booker decision before the Department of Justice issued a memo to all of its Federal prosecutors directing that they adhere to the guidelines and that they seek sentences within the guidelines in all but extraordinary cases. The district court below in this case did not treat the guidelines as advisory when it imposed a 33-month within guideline sentence. The district court did not consider Mr. Rita's military record, the fact that he had been a combat soldier in two wars.
Ruth Bader Ginsburg: How can you say that, given that at the sentencing hearing, that military record was brought out, his physical ailments were brought out, his activity in law enforcement, all that was brought out? And indeed, the judge was assisting the defense attorney to make the case clearer when it was presented.
Thomas N. Cochran: In the district court, Mr. Rita did put forward evidence of his military records, health concerns, he... the district court received that information. The district court did not consider that information because there's nothing in the record where the district judge weighed any of that information to determine what... what effect to give any of it.
Stephen G. Breyer: Well, you know, you don't get a summary judgment case all the time. I used to get them, and the district court would hear all the arguments and write down the word denied. Does that mean he didn't consider the arguments? That's a very common thing. Here we have a district judge, he hears all the arguments. The attorneys brought it out. It's in the file. He reads the presentence report. It's all there, and the judge says, on balance, I'm going to go apply the guidelines. So how can you say he didn't consider them?
Thomas N. Cochran: Justice Breyer, the district judge didn't say that we're going to weigh all of the stuff, and I--
Stephen G. Breyer: No, he doesn't in a summary judgment case either. I mean, I've had quite a few of them, I used to, I think, where they just wrote denied. That was the opinion.
Thomas N. Cochran: --Well, in the instance of a summary judgment matter, we don't have 3553(c), that requires the district court to state in open court in front of the defendant the reasons for the imposition of sentence.
Stephen G. Breyer: Now, he says the reasons are these. I think that the guidelines sentence is a reasonable sentence. Would that be sufficient?
Thomas N. Cochran: It would not, Your Honor.
Stephen G. Breyer: Why not? What in the statute or the law or the Constitution says that a district judge, although it might be good form in a difficult case to write more, but I've often written opinions where I say, and the remaining arguments we feel are not sufficient to change the result. That means I don't think they're that great an argument, and I don't answer every single one.
Thomas N. Cochran: With regard to the first question Your Honor posed, it's not sufficient for the district court to simply state conclusions, which is what happened in this case, that--
Stephen G. Breyer: Where in the law does it say that?
Thomas N. Cochran: --Well, in 3553(c), it requires that the judge give the reasons for the imposition of the particular sentence.
Anthony M. Kennedy: Where... I'm looking at that. It says shall consider. Am I missing something?
Thomas N. Cochran: The preamble states--
Anthony M. Kennedy: Can you give me your page cite?
Thomas N. Cochran: --I'm sorry, Your Honor, on page 3-A of Petitioner's brief in the appendix. It states, "the court at the time of sentencing shall state in open court the reasons for its imposition of the particular sentence. " And that's what we contend requires the district court to explain the facts that the court is relying on to impose the particular sentence in the case.
Stephen G. Breyer: So it isn't sufficient, in your view, that the judge just says, the reason I imposed this sentence is that's the guideline sentence, and I think in this circumstance it's reasonable?
Thomas N. Cochran: That's correct, Your Honor. Because the guidelines don't take into account all the myriad facts, and in this case, did not take into account the military record, the employment record, Mr. Rita's health concerns. The guidelines specifically did not take those into account.
Stephen G. Breyer: I think these other factors that have been brought out, while they're serious factors, I don't think they're enough to warrant a different sentence. Suppose he adds those words?
Thomas N. Cochran: Your Honor, I think the--
Stephen G. Breyer: What I'm worried about basically is, I don't think in the law there's a special category that requires a judge to give special reasons in a guideline case. I think it's the same as any other matter. Judges do normally give reasons. And I'd worry a bit about creating a special situation where district judges have to do something unusual.
Thomas N. Cochran: --I don't think that this is unusual, Your Honor. I think the court has to explain the rationale for imposing the sentence, and not only does it have to do so in court, in front of the defendant, so the defendant understands the sentence that he is receiving--
Stephen G. Breyer: Well, I get where you're going. Can I say this in an opinion, would this satisfy you? And of course, like any other matter, judges do normally give reasons. They do normally reject arguments with reasons, and it's the same here. Would that satisfy you?
Thomas N. Cochran: --I think it would have to be specific to the issues raised by the parties. And in this case, at a minimum, the judge would have to address the three issues that Mr. Rita put forward and discuss those: His military record, his employment, his health concerns. It would have to address any issues that the Government would raise, and any issues that the district judge was considering that maybe neither party had raised to the court as well.
Antonin Scalia: How do you reconcile the language in the prologue of (c) which says, the court shall state the reasons, with (c)(2), which says that if the sentence is not of the kind or is outside the range described in (a)(4) of the guidelines, the court shall state the specific reason for the imposition of a sentence different from the guidelines? Now, this seems to set up some dichotomy between giving reasons and giving the specific reason. Where does that line fall in your estimation?
Thomas N. Cochran: Well, I think foremost, Your Honor, is that that provision came about prior to the Booker decision when the guidelines were mandatory. And what that addresses and what it was meant to address was if the court were to depart, then it was... it needed to explain that departure in a greater reason to enable the sentencing commission to take that information into account in revising the guidelines. That is still a purpose with the sentencing commission, to revise the guidelines, and they can still use that information. But it... at the very least, we need information from the sentencing judge about each of the matters that he or she--
Antonin Scalia: You haven't answered my question. I mean, you explain why it's put in there, but I want to know what is the difference between giving the reasons and giving the specific reason.
Thomas N. Cochran: --The specific reason I think, Your Honor, is so that the sentencing commission can take that information into account in later revisions of the guidelines. That was the purpose at the point that statute was passed.
David H. Souter: But are you saying now that that distinction should be ignored?
Thomas N. Cochran: I don't know, Your Honor, if it's so much that it should be ignored inasmuch as the district court needs to give as many reasons, or as clear a reason for the imposition of the particular sentence. That will help--
David H. Souter: But it sounds to me as though you want all the reasons to be specific. I mean, I understand your argument. But if we accept that argument, then the distinction between reason and specific reason basically is going to be a matter of history, and perhaps it should be.
Thomas N. Cochran: --It, it may, Your Honor. And, and because that provision predated this Court's Booker decision, it still holds relevance but not nearly the relevance it had when the guidelines were mandatory.
Ruth Bader Ginsburg: So your position would be, Mr. Cochran, that the obligation to be even-handed would have to... that the trial judge would also have to go through... now this defendant maintained his innocence. He didn't express any remorse. He accused a Government agent of perjury. All that, he would have to take into account, just as specifically?
Thomas N. Cochran: Your Honor, I think that the Court certainly could consider all of that; and... and if pressed by the Government would need to consider that. But certainly at a minimum, the Court needs to--
Ruth Bader Ginsburg: Isn't that what the Government pressed at the sentencing hearing?
Thomas N. Cochran: --It did, Your Honor, and again the district court never came out with any specifics regarding any of those issues other than the conclusion that it felt that the guideline range was not inappropriate.
Anthony M. Kennedy: Suppose the district court says I give these following... I've considered these following specific factors. But in my view, the consistency and nationwide uniformity that the guidelines strive to achieve is of great importance; and for that reason, I'm following the guidelines?
Thomas N. Cochran: I don't--
Anthony M. Kennedy: Is that an inappropriate judgment for the district court to make?
Thomas N. Cochran: --I think it's inappropriate, Your Honor, because while there should be uniformity in an attempt to move in that direction, uniformity is not the end all and be all. 3553(a) addresses individualized sentencing of the defendant before the court.
Anthony M. Kennedy: It's not the end all. Suppose the district judge said I think this is of great importance. You don't think that the Booker opinion... or do you think the Booker opinion rejected uniformity and consistency as an important factor?
Thomas N. Cochran: I don't believe the Booker decision rejected that, Your Honor. What I believe the Booker opinion said was that for there to be advisory guidelines, for there to be constitutional sentencing practices, then uniformity is going to have to give way to some extent. At least at the very beginning. Once the district courts apply the 3553(a) factors, and go through the statute, and consider the guidelines, the district courts will then explain their rationale; and then that rationale will be... in our opinion, will show where the shortcomings of the guidelines are.
Samuel A. Alito, Jr.: Mr. Cochran, are you arguing the sentencing in this case violated the Sixth Amendment?
Thomas N. Cochran: Not as it was applied. It came close in the sense that the district court was laboring, in our opinion, under the belief that the guidelines held some control.
Samuel A. Alito, Jr.: If it didn't violate the Sixth Amendment, then your argument is based on the Sentencing Reform Act?
Thomas N. Cochran: Well, it came... it may have violated the Sixth Amendment. I don't know that I would concede that. But to avoid any constitutional issue, if we analyzed this under the statute, clearly the district court didn't comply with the statute.
Samuel A. Alito, Jr.: You can't say whether it did or did not violate the Sixth Amendment?
Thomas N. Cochran: The district court held the guidelines to a greater quantum than simply advisory.
Samuel A. Alito, Jr.: Well, was your client's sentence enhanced by any fact that should have been submitted to the jury?
Thomas N. Cochran: Well, under... under a pure advisory system... and I think Your Honor is addressing the cross-reference in this matter... in a purely advisory system, the guidelines were calculated correctly in Mr. Rita's case, because under a purely advisory system, the district court could look at that cross-reference, understand that it came about from uncharged and unproven conduct, and disregard it. But by not doing so in this case, and that cross enhancement doubled his effective guideline range, then this case may very well be unconstitutional because of the extra weight that the court gave the guidelines.
John Paul Stevens: Mr. Cochran, you do contend, do you not, that if the guidelines had been mandatory, there would have been a violation of the Sixth Amendment.
Thomas N. Cochran: No question, Your Honor.
John Paul Stevens: Because of the, the accessory after the fact point.
Thomas N. Cochran: That's right, Your Honor, absolutely.
Stephen G. Breyer: Then the question ultimately is, does it violate the Sixth Amendment to say that we have a presumption there, a sentence is in the guidelines as a reasonable... if you're an appellate court judge. And you think it does violate the Sixth Amendment?
Thomas N. Cochran: Our position is that the presumption does violate the Sixth--
Stephen G. Breyer: Then I guess the argument of the other side, which I would like you to address, is that, in which there... we didn't think it violated the of Sixth Amendment if the district judge simple applied 3553... uh, 3553(a). And of course, 3553(a) includes all of these things that go into the guidelines; it make a big point of that in 3553(a). So why... why couldn't you say, you know, all these factors are taken into account by the commission? They start with an effort to apply them in typical cases. This is their judgment in typical cases. So it is entitled to some kind of weight; and... at least in a typical case.
Thomas N. Cochran: --Your Honor, the guidelines should be consulted. No question--
Stephen G. Breyer: No, no, not consulting them. What I'm trying to do is to how much weight can a judge reading this give them without violating the Sixth Amendment? All I'm trying to do here is not whether the guidelines are good, bad, or indifferent. Congress wanted to apply them. We excised the mandatory to comply with the Sixth Amendment. Now, what else do we have to do to comply with the Sixth Amendment? Because I would think unless we have to do something else, we shouldn't do it, because Congress wanted it.
Thomas N. Cochran: --I would contend, Your Honor, that the Court needs to very clearly explain that the guidelines are, are a reference. They are--
John G. Roberts, Jr.: The guidelines are what?
Thomas N. Cochran: --Are a reference.
Anthony M. Kennedy: Can you say it is an initial benchmark?
Thomas N. Cochran: I don't... when we start establishing benchmarks and presumptions, I think that's where we, we--
Anthony M. Kennedy: So benchmarks are bad. Presumption is bad. Great weight, that's bad?
Thomas N. Cochran: --That's bad, too. And I think it's just another thing to consider.
John G. Roberts, Jr.: Does it matter what judge did in other cases? I mean, if we look on the day before he said, well, the guidelines say this, but I think this case is different, so I'm going to depart, and the day after he says I know what the guidelines are, but I'm going to impose a higher sentence? I mean, how do we know he's... when he says I looked at the guidelines and I think they're appropriate, that he's considering himself bound by something that he may or may not agree with, as opposed to what he said? Which is, well, I cannot find that they're inappropriate?
Thomas N. Cochran: And what that tells me, Mr. Chief Justice, is that, that the district court felt that the guidelines had a center of gravity, that the judge was bound... in other words, shifted the burden to the defendant to say, well, I... unless you can show that these are inappropriate, that it is a setting of a benchmark, it's a drawing of a line, and we contend that that is what the Sixth Amendment prohibits. If the guidelines are advisory, if they are but one of many factors to be considered, together with all of the other factors in 3553(a), the court can use that information, can use that reference. But once it starts putting any greater weight on the guidelines... and the statute doesn't admit to that.
Ruth Bader Ginsburg: How about the point that Justice Breyer made that these other factors have been taken into account by the sentencing commission because Congress told them to consider those same factors?
Thomas N. Cochran: Well, Your Honor, the sentencing commission by its own admission has not taken into account all of the factors. In the very first guideline manual, 1987, the sentencing commission itself said it could not take into account all of the facts that play into human conduct.
Stephen G. Breyer: There are two separate things there. The general aims of sentencing, the four basic aims of sentencing, I believe the commission certainly took into account. A separate thing was the rule that said you can depart only for a matter that has not been fully considered by the guidelines. And there the original version, I believe, said that we've considered nothing thoroughly. Except for certain specific matters that had been mentioned like age, race, and we'll refer to statutorily. Now, that is what you're thinking of? I mean, if that's what you're thinking of, I don't think it's relevant to what your present point is.
Thomas N. Cochran: I'm not, Your Honor. First of all, I don't know and would contend that the initial sentencing commission did not take into account all of the four purposes of sentencing. They centered on crime control--
Stephen G. Breyer: That's because when they looked at all of the literature, they explained it, the rehabilitative purpose was not that it wasn't taken into account, it was there was a consensus among experts that there isn't much you can do about it. That's different from not taking into account.
Thomas N. Cochran: --The other point I think with regard to that, Your Honor, is in looking at 3553(a) that statute gives the district court the dual commands of first considering all of those factors and then imposing a sentence sufficient but not greater than necessary. The statute does not give to the sentencing commission that obligation.
Antonin Scalia: Mr. Cochran, I have this concern: If we accept your submission that the district court should just consider the guidelines together with everything else, give them a presumption of validity, anything else, just something to consider, that would presumably eliminate any Sixth Amendment problem with the district court's findings of fact. But the district court's sentence is going to go on appeal. And the appellate court in reviewing it for reasonableness, let's assume in this case the appellate... the appellate court says oh, no, this person had... we find as a matter of fact, given the record, military service, you know, which we think should have been taken into account. And, therefore, we set it aside. Now, the next case that comes up, which doesn't have the element of military service, in all other respects the same as your client's case, it comes up to the court of appeals, and the court of appeals would say, ah, we don't have that different fact here and therefore we affirm the sentence. Isn't... in other words isn't the finding of a fact necessary for the process of judicial review, even if it is not made necessary for the purposes of the district court's determination? He would not get that sentence but for this fact.
Thomas N. Cochran: That's correct, Your Honor. And--
Antonin Scalia: So you haven't shown us a way out of the problem.
Thomas N. Cochran: --In a purely advisory system, the district court is bound by the statutory minimum and maximum. And as this Court has said in Cunningham, if the Court is bound simply by that statutory minimum and maximum, then the factual finding as to where within that is up to the district court. It's only when we establish thresholds as the guidelines do we run into the constitutional problem.
Antonin Scalia: No, even if you don't... don't establish thresholds by reason of the guideline, you are establishing thresholds upon judicial review, guidelines or not. If the... if the appellate court says, oh, given there's this fact in this case, the sentence below was reasonable, but in the next case, where that fact does not exist, the court of appeals says, ah, the sentence is unreasonable, in other words, that fact is made a necessary condition for giving the higher sentence. So you haven't... you haven't solved the problem of the, of the apparent conflict between... between Booker and the advisory guidelines.
Thomas N. Cochran: Well, I think so long as the district court can evaluate and consider and potentially reject what the guidelines say, just as the Court can consider the effect of... of the person's military record, Mr. Rita was a combat veteran in two wars, which is separate and apart from someone who may have been an Army recruiter--
Antonin Scalia: You're not focusing on my point. I concede that the district court is free as a bird... free as a bird... but you have appellate review. And the appellate court in reviewing for reasonableness is going to make a particular fact determinative of whether this sentence can stand or not. Isn't that right?
Thomas N. Cochran: --It is.
Antonin Scalia: And that's going to be a problem.
Thomas N. Cochran: I think what the court would have... the appellate court would have to do is evaluate all of that through the prism of 3553(a). Is the sentence that was imposed the least sufficient sanction that the court below could have imposed. And if not, for whatever reasons, vacate it and return it back to the district court.
John G. Roberts, Jr.: Counsel, what if there weren't guidelines at all, and the district court said maybe, you know, it's new, I want to see what other judges have done; he presses a button on the computer, give me what the sentences were looking at these facts, and finds out in the last 100 cases, this is what the sentence was. And he says this seems to me no different than those and that's the sentence I'm going to impose. Is there any problem with that?
Thomas N. Cochran: There is. And again, because 3553(a) is an individual weighing of the defendant--
John G. Roberts, Jr.: Yes, well, he looks at all the individual factors and he says they seem not terribly different from these 100 other cases and the range in those 100 other cases was, you know, 5 to 7 years, and so I'm going to give him 5 years.
Thomas N. Cochran: --If the district court considers all those facts and considers what may have been done and it is sufficient, if not greater than necessary given those facts, then the court can do that.
John G. Roberts, Jr.: How is that different than the... how is that different than looking at the guidelines, which did that in a much more comprehensive way, and saying, I don't see anything different in this case from the normal guidelines case and so I'm going to impose that sentence?
Thomas N. Cochran: Well, the guidelines didn't take everything into account, and the sentencing courts were coming from 18 years of mandatory guidelines, of being required to follow this book that necessarily didn't incorporate all of the human factors in sentencing. And they have held to that.
Antonin Scalia: Well, it did incorporate them in that district judges were free to depart from the guidelines if indeed they found there was some one of these human factors not considered by the guidelines which existed in the particular case.
Thomas N. Cochran: In theory, yes, Justice Scalia. But in practice, no, because what happened in the very cases as United States versus Foy out of the Ninth Circuit, the defendant in that case argued to the district court that he should have a departure based upon lack of youthful guidance, and it was a reasoned decision. It went to the Ninth Circuit. The Ninth Circuit found it to be a reasoned decision; and within the next amendment process of the Sentencing Commission, it was eliminated as a departure basis with no discussion at all. So yes, there may have been departures, but they were systematically removed, and in fact chapters 5(h) and 5(k) show that very clearly.
Antonin Scalia: Well, if they were systematically removed then all of these other human factors that you're complaining about were considered by the guideline commission and were simply rejected.
Thomas N. Cochran: They weren't considered, Your Honor, and in the history of those amendments that's borne out. And if the Court has no further questions, I'd like to reserve some time.
John G. Roberts, Jr.: Thank you, counsel. Mr. Dreeben.
Michael R. Dreeben: Thank you, Mr. Chief Justice, and may it please the Court: The court of appeals appropriately applied a presumption of reasonableness in reviewing the sentence imposed pursuant to the advisory guidelines system that this Court announced in United States versus Booker. The guidelines represent the integration of the multiple purposes of sentencing reflected in section 3553(a) that the district court is obligated to consider. The commission also represents an expert body that has considered the various parameters of sentencing and the fact patterns that arise in the Federal system and has made an effort over time to arrive at an appropriate--
John Paul Stevens: Isn't it true, just to get one thought out on the table, that there are factors that the guidelines don't... did not consider, such as military service?
Michael R. Dreeben: --Justice Stevens, the commission considered that factor and then determined that it was not generally appropriate to a sentence outside the guidelines.
John Paul Stevens: But isn't it true that under the guideline no weight is given to military service?
Michael R. Dreeben: The guidelines specifically do not give weight to it. They permit a judge--
John Paul Stevens: What should a judge do if he thought some weight should be given to military service?
Michael R. Dreeben: --Under Booker the judge should do that. That is the difference between an advisory guidelines system and a mandatory guidelines system. The judge can give weight to factors That the commission decided should not have weight in the sentencing process. That is the essence of what it means for the guidelines--
Antonin Scalia: And presumably cannot give weight to factors that the commission decided should have weight.
Michael R. Dreeben: --He can do that, too, Justice Scalia.
Stephen G. Breyer: Are we back to the original version, which I'll read what it says. It says: "With a few specific exceptions... race, sex, national origin, creed, religion, socioeconomic status... with those exceptions, the commission does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case. " That's what it said. Apply the guidelines in the heartland. If it's not the heartland, depart. Now, what I wonder is are we not back under your theory of it just to where we were when it started out, before the commission started ruling all these things out and began to make all its... the judge could do that.
Michael R. Dreeben: I think we're back, Justice Breyer, to a further point even than the first set of guidelines, because even under the first set of guidelines application of the guidelines was mandatory unless the court found an aggravating or mitigating circumstance that wasn't taken into account.
Stephen G. Breyer: We said we took nothing into account and therefore any circumstance that makes the case unusual would be in principle a ground for an exception.
Michael R. Dreeben: I understand that, Justice Breyer.
Stephen G. Breyer: You're saying more than that is necessary.
Michael R. Dreeben: I think that the reconciliation of this Court's merits opinion in Booker and its remedial opinion in Booker does dictate that the judge has additional freedom to impose a sentence that's different from what's described in the guidelines.
Stephen G. Breyer: He could do this: He could set aside the guideline on the theory that the guideline itself is unreasonable, that is it doesn't properly take account of sentencing. But suppose he doesn't do that. Then, if you take your view that there's a presumption in its favor and if it is the normal case, not an unusual case in any respect, how can he not apply the guideline?
Michael R. Dreeben: Justice Breyer, I think we have to distinguish between what the job of the district court is and what the job of the appellate court is; and in this case, the Government is arguing for a presumption of reasonableness on appeal. Once the district judge has determined that the guidelines sentence aligns with his own application of the section 3553(a) factors, our submission here is that a court of appeals can generally presume that that is a reasonable sentence. The defendant of course has the opportunity, or the Government if the Government has appealed, to show that that presumption is overcome.
David H. Souter: But unless there is a way to calibrate the strength of the presumption, there's no clear way to distinguish the presumption from the mandate. The mandate is gone. You say yes, they consider other things. But unless we can calibrate the presumption in some way that says, you know, a mandate was force 60 and a presumption is a force 40, something like that, there's no way to tell the two apart in practice.
Michael R. Dreeben: Justice Souter, I'm not sure that that would be true even if what we were talking about was a direction to the district judge to presume that he would impose a guidelines sentence. But that's not what we're talking about. The district judge does not operate and does not have to operate under the position that we're arguing for with a presumption that the judge will impose a guidelines sentence unless persuaded otherwise. The judge's obligation is to--
Antonin Scalia: He doesn't have to do it unless he wants to be sure of being affirmed.
Michael R. Dreeben: --I would think that what the judge wants to do is be sure that he's complied with his statutory obligations.
Anthony M. Kennedy: Well, perhaps I misunderstood Justice Souter's question, but I have this concern, and I thought it was his concern as well. At the appellate level, is the presumption something that can only be overcome by a clear and convincing showing or is it just an initial benchmark? We're playing with standards and words here.
Michael R. Dreeben: Well, we are.
Anthony M. Kennedy: And when we talk about presumptions at the appellate level, that's actually a little strange in any event. You usually talk about presumptions as assisting us in finding a fact.
Michael R. Dreeben: That's true, Justice Kennedy. But I think what it reflects at the appellate level is that the court of appeals enters the case with an attitude that, our job is to decide whether what the district judge did was reasonable. We can operate--
Anthony M. Kennedy: So we write that this is an additive thing?
Michael R. Dreeben: --Yes, I think that it's not so different from the court of appeals saying we can enter this case feeling pretty confident that we can affirm a guidelines sentence unless the person who challenges that shows us a good reason otherwise.
David H. Souter: Well, is your view... on your view, is the appellate court engaging in some kind of de novo review or is the appellate court supposed to engage in a review that it will disturb the sentence only if it is shown to be unreasonable?
Michael R. Dreeben: The latter, Justice Souter. And I think that in that regard there is a range of reasonable sentences that could be imposed based on a given set of facts.
John G. Roberts, Jr.: Well, if you... if you have that, two criminals, criminal defendants, with the same identical background and everything else, one judge says, I think military service should be taken into account, so I'm going to depart from the guidelines by 3 years. The judge next door says, I don't think it should be taken into account so I'm going to impose the guideline sentence. Both cases are appealed. They're consolidated for argument. What is the court of appeals supposed to do? Uphold both of them?
Michael R. Dreeben: The court of appeals can uphold both of them if it concludes that the actual sentence that's imposed is reasonable. And in the second case that the Court is going to hear today the Government argues for a proportionality principle that should govern the review of sentencing.
David H. Souter: What is reasonable is... is not merely a sort of number within a spectrum. It seems to me that what is reasonable is a function in part of the reasons that are given. And in the Chief Justice's view, two diametrically opposed reasons are given for two different sentences. Does the, does the appellate court in his example say, well, I think reasonable people could go either way on that, so however it comes out it's fine on appellate review? Isn't that what the court would have to do in order to affirm both sentences, other things being equal?
Michael R. Dreeben: You're right, Justice Souter, and I can't say that that would be the first choice of the Congress that enacted the Sentencing Reform Act.
David H. Souter: Isn't it clear that it would have been the last choice of the Congress?
Michael R. Dreeben: It is, and it's not the first choice of the Government, either. But it strikes me that it is something of an inevitability once this Court has declared that mandatory guidelines are impermissible under the Constitution if judicial factfinding--
Samuel A. Alito, Jr.: What does the Sixth Amendment have to do with the selection of the sentencing philosophy that is to be imposed? How can there be a Sixth Amendment violation if either the guidelines or our case law says military service is or is not a relevant factor? I don't see how that has anything to do with anything that you can get out of the Sixth Amendment.
Michael R. Dreeben: --It probably does not, Justice Alito. But what happened in the first part of Booker is that the Court declared that the guidelines are advisory and advice. It's advice that can be accepted or rejected.
Stephen G. Breyer: I know, but Booker says what we're trying to do is to come close to what Congress wanted but not violate the Sixth Amendment. Now, what I think we're talking about now... I think... i mean, you sort of shed some... you clarified something very well for me, which is that in this case we're talking about the situation where the district judge applies the guidelines sentence, and then what's the attitude of the court on appeal, and the attitude is going to be, well, the Sentencing Commission thinks it's okay, the judge thinks it's okay, okay, you have to... you better show me a good reason to think to the contrary. Fine. But the interesting problem is the problem of the next case which you're now talking about, is, well, what happens if the district judge and when should be the district judge and how free should the district judge feel he is to depart from the guidelines sentence even if it's not an unusual case.
Michael R. Dreeben: Let me try to address that and try to address Justice Alito's point about the question of how much sentencing philosophy can be decreed by the sentencing commission or Congress before a Sixth Amendment problem arises. As I understand this Court's sequence of opinions from Apprendi leading up to the most recent decision in Cunningham, if the law establishes a level of punishment that may be imposed based on the facts found by the jury and says to the judge, judge, you may not go above it unless you find a particular fact, that fact is subject to the Sixth Amendment rule that the Court has announced and must be found by a jury.
Antonin Scalia: Or some fact, not necessarily a particular fact.
Michael R. Dreeben: Any fact at all, as a matter of fact is what the Court has said, although I understand that to mean facts pertaining to the offense and the offender, not facts about the world such as the prevalence of crime. Now, what that leads me to conclude is that in order to escape the bright line rule that's been announced in this sequence of cases, including Booker itself and most recently Cunningham, a judge must be able to look at the set of facts that the jury found, determine what level of punishment would be advised by, say, a guidelines system, and not be bound to impose that level of punishment if the judge feels that a different level of punishment is appropriate. If that is a correct understanding of what this Court has held, it necessarily implies that a judge does have a certain amount of freedom in an advisory guidelines system to disagree with what the Sentencing Commission has found, give the judge's reasons, and then is subject to appellate review for the reasonableness of that explanation and, the Government submits, subject to a proportionality principle, so that the sentence that's imposed outside the guidelines is a reasonable one and not an arbitrary one. Now, if I'm wrong about that and it is not necessary for the court to have the legal freedom to be able to disagree with what the Sentencing Commission said, that would be very good from the Government's perspective. But as I understand the complementary rules that are established by Booker, what an advisory guidelines system requires is that the guidelines be treated as advice rather than mandate. So while the guidelines have determined that military service is not ordinarily relevant to the level of punishment, a judge may determine in a particular case that he disagrees.
John Paul Stevens: May I ask you, this is the hypothetical: Supposing a judge thinks military service is relevant, and he decides to impose a sentence a little below the guidelines. But then he says, I recognize that in this circuit there is a strong interest in uniformity and the court of appeals has adopted a rule where they will presume a within guidelines sentence is reasonable and will affirm in those cases. And I think with respect to the court of appeals, I think I would be wise to impose the guidelines sentence, so I will do so even though my own judgment is that it should be slightly lower. What should the court of appeals do with such a sentence?
Michael R. Dreeben: I think the court of appeals should correct the judge on a mistaken apprehension of law, which is that the judge--
John Paul Stevens: Should reverse the judge then, within a... a within guidelines sentence?
Michael R. Dreeben: --In the circumstance, Justice Stevens, I think that you put your finger on two different types of review. In the circumstance in which a district judge operates with what I'll call legal blinders on that prevent him from complying with--
John Paul Stevens: No. He operates with total candor. He's saying exactly what he feels like saying.
Michael R. Dreeben: --I'm hoping that it's a misunderstanding of what the court of appeals has said, because the court of appeals should not have told the judge you're obligated to impose a guideline sentence.
John Paul Stevens: Well, they didn't say you're obligated, but you can be pretty sure you'll be affirmed if you do impose within guidelines sentences.
Michael R. Dreeben: Judges are still obligated to comply with 3553(a), which requires them to exercise discretion. Now if a judge decides I might as a personal matter if I were writing the guidelines write them differently, and I might give great weight to military service, but one of the things that I'm required to do under section 3553(a) is to consider the need to avoid unwarranted disparity between defendants who have been convicted of similar criminal conduct and have similar records. And therefore, I am going to moderate my own personal preference and not impose a significant outside the range sentence, in order to ensure that I fully have taken into account the fact that we are in a Federal system with 674 Federal district judges, and we cannot have all our own personal guidelines systems. Now if a judge does that, I don't think there's anything wrong with that. I think that judge has actually complied with--
John G. Roberts, Jr.: What if the court of appeals does that? What if the court of appeals says we've got 10 district judges in this circuit, nine of them do not take military service into account, one does, and we think that's inequitable, doesn't serve the interest in uniformity. And so even though that one judge says in the exercise of my discretion I'm going to depart, we're going to reverse that as unreasonable?
Michael R. Dreeben: --Mr. Chief Justice, I think there's a difference between a sentence that varies from what other judges would do and a sentence that is unreasonable. If the sentence that is different from what other judges would do is not supported by a cogent and coherent explanation, and it is unduly productive of disparity because, say, it takes a guidelines range like this one, of 33 months to 41 months, and the judge says in my view military service means that this defendant gets probation. Or to take an example that's on the other side, suppose that the judge says this defendant actually didn't get any extra credit in his criminal history for his prior crime, but he has been convicted before of lying to the Government about his gun charges. I'm now going to take him up to the statutory maximum or near it and give him eight years. I think in those circumstances a court of appeals can and should say, hold on, this is a view that the district judge is entitled to take on the merits. He's entitled to give greater weight to that factor, whether it's aggravating or mitigating, than what the guidelines did, but not to this extent, or we're going to be left with a system in which disuniformity is the main principle.
Stephen G. Breyer: It's not that complicated. All that happens is the court of appeals says, look, in the case of bank robberies we've discovered about 33 percent of the defendants in the typical case have been in the Army. And therefore, we think that just ordinary armed services is not a reason, ordinary armed... services in the military is not a reason for a diminished sentence. That's all, period. Or they can say it the other way, the absence of a military service is a reason for having the higher sentence, put it any way you want. And by the way, district judge, if you disagree with that, we're going to reverse you because we think it's unreasonable. Okay. What about that?
Michael R. Dreeben: That to me sounds identical to the system that pre-existed Booker's holding.
Stephen G. Breyer: It did. But is there anything in the Sixth Amendment that forbids that?
Michael R. Dreeben: This Court hasn't specifically addressed--
Stephen G. Breyer: Well, what do you think? Because I would think that if you're going to answer that question yes, you are saying that not even the court of appeals can try to assure a degree of fairness among different defendants in respect to sentencing.
Michael R. Dreeben: --Well, Justice Breyer, I would like to be able to answer the question yes and say that courts of appeals can establish their own sub-legal rules as--
Stephen G. Breyer: It's not sub-legal rules. What it's called is precedent. What you do is you decide a case and you decide this is unfair, and then the thing that as a similar case comes along, is you decide it the same way. And if a district judge doesn't follow that, you reverse it.
Michael R. Dreeben: --Justice Breyer, if do you that, what you have is each court of appeals functioning as a sentencing commission.
Antonin Scalia: Exactly. You've simply substituted stare decisis and the necessity of the district court following circuit law for the guidelines. And--
Stephen G. Breyer: Exactly.
Antonin Scalia: --If the guidelines are unconstitutional because they make facts automatically determinative, I assume that would be unconstitutional because it makes facts automatically determinative.
Michael R. Dreeben: I assume too under the rationale--
Stephen G. Breyer: Well then, in other words, the Constitution of the United States prevents the courts themselves from trying to assure that sentences who are... that individuals who are in similar positions, commit similar crimes, will be treated in similar ways. That to me is possible, but of course I've been in dissent in these cases. But it seems to me--
Antonin Scalia: So long as the jury determines the facts that make them similar.
Stephen G. Breyer: --We're back--
Antonin Scalia: The problem here is what makes them similar.
Michael R. Dreeben: --I understand this dialogue. And what we have-- [Laughter] I too have been with the dissenters in these cases, and what I'm trying to argue for here is a set of principles that appellate courts can apply and that district courts can look to when sentencing, that will come as close as is reasonably possible to achieving Congress's aims in the Sentencing Reform Act without crossing over the bright line rule that this Court has announced--
John G. Roberts, Jr.: I don't know how terribly different it is than the normal review for abuse of discretion. I mean, you don't even need two judges in my earlier question. Let's say you have the same judge, and for three weeks every criminal defendant who comes before him he says, I think if you have military service, you should get a reduction. And then all of a sudden he says, I see you have military service, but I'm not going to give you a reduction. I mean, is he bound by some abuse of discretion standard to be a little bit consistent? And if that's the only type of appellate review we're talking about, to ensure some degree of consistency in how similar individuals are treated in similar cases, I don't see that it raises any concern.
Michael R. Dreeben: --Well, Mr. Chief Justice, I'm not arguing for any proposition that I think would raise concern. I do think that a general tenet of abuse of discretion review is that the court of appeals can affirm a result that it would not necessarily have reached itself.
Ruth Bader Ginsburg: Mr. Dreeben, may I ask you, please, to address a point that Mr. Cochran raised? I think you were very helpful in saying this presumption for the guidelines is how the court of appeals evaluates a district court sentence, that there is no presumption that binds the district judge. But one of the main points that Mr. Cochran made in his presentation was the district judge has to give reasons. He... this was just a summary paragraph at the end of the sentence hearing. He has to respond to what defendant presented. He has to respond to what the Government presented. There is an obligation stemming from subpart (c) to give reasons, and that's what he saw as the principal flaw in this sentence, that the court of appeals has used. Reasons weren't given for it.
Michael R. Dreeben: Justice Ginsburg, I don't think there was anything problematic with what this district judge did. As Your Honor noted, this was a sentence that was imposed after a lengthy sentencing hearing in which the court engaged in a dialogue with defense counsel about the three bases and the exclusive bases on which defense counsel asked for a downward departure. The judge at least four times in this transcript brought up Section 3553, recognizing that the judge was well aware of his obligation to imply the purposes of sentencing and the factors that were presented to him. Now he did that and he made comments along the way that indicate why he did not find physical condition, military service, or asserted vulnerability in prison to be reasons that would justify giving this defendant a lower sentence. And in his ultimate explanation, though it is brief, he pointed to two of the Section 3553 factors explicitly. He pointed to the seriousness of the offense and he pointed to the need for public protection. Now if you look at the legal obligations that the judge had under Section 3553(c) to explain himself, the statute actually sets up a hierarchy of three different levels of explanation. First, in any case the judge is to state the reasons for the sentence. Second, if the sentencing range is greater than 24 months, the judge is supposed to explain the particular reason for giving a sentence at one end or another end of the range. And finally, if the sentence is outside the range, the judge is to give the specific reason for a sentence outside the range. That statutory framework makes it entirely plausible to say that if a judge imposes a guideline sentence and explains, I see no reason not to impose a guideline sentence, he has met his burden of explanation without having to respond literally and in sequence to each argument that the defendant has made.
John Paul Stevens: May I ask this question? The district judge is reviewed under an abuse of discretion standard, which I take it means there's a presumption he got it right. Is that correct? There's a presumption the district judge sentence is correct?
Michael R. Dreeben: Well, Justice Stevens, our position is more complicated than that, because within a guidelines range if a sentence is imposed, the Government--
John Paul Stevens: Why shouldn't there be also the same presumption when it is outside the guidelines range?
Michael R. Dreeben: --Because sentences that are outside the guidelines range are more likely to be the cause of or a source of unwarranted disparity than a sentence within the range. And that is why that if the court of appeals is interested in fulfilling what Booker said the role of the court of appeals is, which is to iron out sentencing differences, there is more reason for the--
John Paul Stevens: Well, do you think the interest in uniformity, in same sentences across the board is stronger than the interest in getting the correct sentence for the particular defendant who's in court at the time?
Michael R. Dreeben: --Well, there isn't any one correct sentence usually.
John Paul Stevens: No, there isn't. But if you say the district judge has broad discretion, which he does, and the review is under abuse of discretion, why should there not always be a presumption that the district judge got it right?
Michael R. Dreeben: Because there are more legal elements that go into sentencing and sentencing review than just those that you've named, Justice Stevens. Section 3553(a) itself, which is the guidepost for review, mandates that the district court consider the guidelines, consider the policy--
John Paul Stevens: Yes, but it's sort of like findings of fact. They must take into consideration all sorts of aspects of the case, and you have a strong presumption that the findings of fact are accurate. Why don't you have a strong presumption that the ultimate judgment on the sentence is also accurate?
Michael R. Dreeben: --What happens when a sentence is imposed outside the range is that there is a greater risk of infringing the main purpose of the Sentencing Reform Act, which was to avoid unwarranted disparities; and in contrast to a sentence within the range which does not merely run that risk to the same degree, a sentence outside the range may well. It's different from what the sentencing commission with its expertise and its experience has recommended as the appropriate sentence, given those facts.
Antonin Scalia: Well, you're... I mean, this is a self fulfilling prophecy. You're saying if you don't comply with the guidelines, you're not going to have uniformity. Well, I... my goodness. Is that consistent with the notion that the guidelines are advisory?
Michael R. Dreeben: I wouldn't put it as strongly as that, Justice Scalia. What I would say is that the further that a sentence diverges from the guidelines range, the greater the possibility of unwarranted disparity; and as a result of that, a court of appeals should look more critically at the reasons that the district court gave and ensure that the constellation of reasons and facts that's presented is not so likely to be a disproportionate sentence than--
Antonin Scalia: But that's just inconsistent with the notion which I think is correct, that the district judge can simply disagree with the basic... basic reasons of the commission, can simply disagree with the fact that the commission considers white collar crime, for example, something that should justify incarceration.
Michael R. Dreeben: --But Justice Scalia, reasonableness review connotes that the court of appeals will review the reasons that the district court gave for that disagreement.
David H. Souter: So doesn't your presumption argument come down to an argument for a sufficiently comprehensive statement of reasons, with a more extensive statement required the further the court gets from the guidelines? Isn't that what it boils down to?
Michael R. Dreeben: It does for an out of range sentence, Justice Souter. I think that for a sentence within the range, the judge's statement that I have considered the guidelines range and I think it's appropriate does explain why that judge has given the sentence that he's given. It's consistent with the statute and it's consistent with the Constitution. Now when--
David H. Souter: Is there... may I interrupt you? Because your time is getting short. Is there a difference between a presumption of reasonableness to the guidelines on the one hand and a rule that says the further you get from them, you can get as far as you want to, but the further you get from them, the more extensive your explanation has to be? Is there a distinction between those two, two rules?
Michael R. Dreeben: --There is a distinction between them but I think they are complementary rules and in the next case the Government will argue for a presumption that is precisely what you have articulated, Justice Souter. A greater and more extensive and more persuasive explanation is needed the further that you go from the guidelines range.
John G. Roberts, Jr.: Or presumably the further the facts suggest that you ought to depart from the guidelines range? If you've got a submission here 18 compelling reasons, you shouldn't follow the guidelines, and you get one sentence from the district court saying... you know... I followed the guidelines, presumably that would be the same as a significant departure without further justification?
Michael R. Dreeben: It wouldn't be identical but I agree with you, Mr. Chief Justice, that a sentence within the guidelines can be unreasonable if there is a compelling case for a sentence outside the range because the guidelines simply don't fit in that circumstance. The sentencing commission itself recognized that the guidelines were generalizations; they carved out a heartland in the language of the sentencing commission's first set of guidelines, and that there will be circumstances that would justify different sentences.
Antonin Scalia: Is the system that you're describing any different for mandatory guidelines that are subject to departure when the district judge finds a significant reason, which was what mandatory guidelines had?
Michael R. Dreeben: Yes, Justice Scalia. It is quite--
Antonin Scalia: Wherein is it different?
Michael R. Dreeben: --It is different precisely on the area that, that you yourself articulated. The judge can disagree with the sentencing guidelines and determine that on the basis of the facts that the jury found, the judge would impose a different sentence, and that conclusion is then subject for reasonableness review and we submit based on a proportionality principle.
John G. Roberts, Jr.: Thank you, Mr. Dreeben. Mr. Cochran, you have three minutes remaining.
Thomas N. Cochran: Thank you, Mr. Chief Justice. I would like to return first to the across the board reasonableness review that this Court established in Booker. That in and of itself shows why there cannot be a presumption of reasonableness on appeal. Because you are holding the presumption to a different standard at that point. It is not a reasonableness across the board. You are putting the burden on one the parties, most likely the defendant, to come forward and explain why the presumption should be rebutted. That flies in the face with the across the board reasonableness this Court set forth in Booker. The guidelines are fraught with disparity. That why is they are advisory. That's why they can only be advisory. And the district courts must be allowed to look at them, to see them, to consider them, but ultimately to impose a sentence outside them for valid reasons. In Mr. Rita's case, the court didn't. The court felt the guidelines held some undue weight. It is indicated in the record in two places, first and foremost on page 49 of the joint appendix, where the court at the beginning of the sentencing hearing states: Other than the motion for downward departure that you submitted, do you have any other objections; and what I'm trying to do now is determine where your client fits within the sentencing guidelines. Clearly the judge was rooted in the guidelines and that's why he gave a sentence of 33 months at the low end.
Ruth Bader Ginsburg: The, the judge also pointed out that the jury made certain findings and he thought he was bound by them; that is, the defendant protested his innocence, and the jury had found him guilty of false statements.
Thomas N. Cochran: That's correct. That's--
Ruth Bader Ginsburg: The judge was bound by those.
Thomas N. Cochran: --That's correct, Your Honor, but interestingly the court found very dubious the additional information regarding the cross-reference. And on page 87 of the joint appendix, the court states it was not able to evaluate the seriousness of that other investigation; and yet that was the cross-reference that doubled his guidelines sentence. We would ask the Court to rule in this case that the presumption of reasonableness cannot be accorded to the guidelines.
John G. Roberts, Jr.: Mr. Cochran, you've started out by saying there were two places in the record that you thought showed the judge was bound by the guidelines. 49, what was the other one?
Thomas N. Cochran: Your Honor, the other one was page 87.
John G. Roberts, Jr.: Of the one... oh, that point? Okay.
Thomas N. Cochran: And that would be in the second paragraph, Mr. Chief Justice, where the court found it was unable to stray or found the guidelines were inappropriate; and I suggest that that is a, a giving of greater weight and too much so in this case. Your Honor, Mr. Rita asks the Court to find that a presumption cannot be accorded to the guidelines, that his sentence was unreasonable in this case, and that his case be returned for resentencing. Thank you.
John G. Roberts, Jr.: Thank you, Mr. Cochran. The case is submitted.


Warren E. Burger: We’ll hear arguments next in number 5, United States against United States Coins and the Currency. Mr. Ward, you may -- excuse me, Mr. Feit, you may proceed whenever you’re ready.
Jerome M. Feit: Mr. Chief Justice and may it please the Court. This is a statutory forfeiture case under the internal revenue laws which is here on writ of certiorari issued at the Government’s behest, seeking review of the decision of the Seventh Circuit which it held, forfeiture of property used in violation of the wagering tax laws is precluded by the privilege against self-incrimination under this Court’s decisions in Marchetti and Grosso. This case was originally argued in the 1968 term, February 1969 and its here on re-argument. The relevance --
William O. Douglas: The same brief that you have been or a new brief?
Jerome M. Feit: No, it’s on the same brief, Your Honor. The relevant factual background maybe briefly stated. During August of 1963, investigation by FBI and alcohol tax agents, of a race track in Cicero, Illinois revealed that claimant Angelini and others were engaged in an unlawful bookmaking activities at the track, the surveillance expand a course of some three weeks. On August 24, 1963, Mr. Angelini and his confederates were arrested at the race track pursuant to an arrest warrant. A search of this person subsequently revealed that he was in possession of $8,674.00 in currency. In 1964, Mr. Angelini was criminally convicted of willful failure to register under Section 4412 of Title 26 and to pay the annual $50.00 occupational tax under Section 4411. He was sentenced to 60 days in prison, fined $2,500.00 and placed on probation for three years. The Court of Appeals affirmed his conviction in 1965, and this Court denied certiorari. Meanwhile, an entirely separate proceeding in February 1964 was instituted in libel in rem against the respondent money which had been seized at the race track. The libel alleged that the money was forfeit to the Government by virtue of its use and its intent for use in violation of the internal revenue laws, Section 7302 which is set forth at page 3 of our brief. Claimant Angelini intervened, asserting that property belonged to him. A trial was there after held by the court and in June 1965, approximately 12 federal agents testified to their observations of the 1963 bookmaking operations at the race track, and it was also evidenced that the respondent money was used in the business as ready-cash to pay off bettings. It was also stipulated at this trial that although claimant Angelini had registered and paid the occupational tax in 1957 and 1958, he had not done so for the period covering 1963. The District Court found and its findings are set forth at pages 9 and 10 of the appendix, there was no jury trial and none having been demanded in the forfeiture proceeding, that a bookmaking business had been conducted at the race track from August 1 to August 24, 1963 without payment of the required taxes that the respondent money was “integral part of this operation” and it therefore was forfeit to the United States. The Court of Appeals thereafter affirmed on the basis of Kahriger and Lewis and claimant filed a petition for certiorari. The case was pending here on that petition when this Court decided Marchetti-Grosso and some five weeks after that decision, remanded this case to the Seventh Circuit for reconsideration in light of the Marchetti-Grosso rulings.
Harry A. Blackmun: Mr. Feit, do you know what has happened to the other case that were remanded at the same time, the other cases?
Jerome M. Feit: My understanding of the other cases were several of them were remanded were criminal cases which involved convictions under 7203 for failing to file the appropriate forms. Those cases were remanded to the Courts of Appeals and my understanding is that they were -- the convictions were dismissed.
Harry A. Blackmun: This is the only forfeiture case in the group?
Jerome M. Feit: This -- no. The -- what happened was this. There were many forfeiture cases pending in the District Courts at the time. When this case was remanded, they were in the sense frozen. At the present time, my -- excuse me, at the present time, there are 20 forfeiture cases pending on appeal in the Courts of Appeals. There are some 200 cases pending in the District Courts awaiting decision in this Seventh Circuit case. There is on certiorari another case, two other cases, the Dean case which involves $300,000.00 and 455 this term which -- Sixth Circuit case which the Sixth Circuit affirmed on the authority of its Dean ruling. I’m also informed that involved in those cases, presently pending, approximately $200 million -- excuse me, approximately two and a quarter million dollars primarily automobiles and cash, but those cases have just been awaiting this Court’s decision in Angelini. There has been no -- there has been -- well, I shouldn’t say no, there had been perhaps one to two forfeiture proceedings instituted subsequent to the remand of Angelini.
Harry A. Blackmun: But none of the cases remanded with Angelini under the title of Stone against the United States?
Jerome M. Feit: That is correct.
Harry A. Blackmun: That involved forfeiture other than Angelini?
Jerome M. Feit: That is my understanding.
Harry A. Blackmun: While I have you interrupted, do I correctly assume that the Seventh Circuit assumed in this case took it for granted the retroactivity of Marchetti-Grosso?
Jerome M. Feit: I would assume that Seventh Circuit assumed in this case that Marchetti-Grosso was retroactive to the extent that it applied to all cases within its reach pending on appeal when Marchetti-Grosso was decided.
Harry A. Blackmun: And is it on that comment that you’ve just made that one may resolve any seeming inconsistency with the Seventh Circuit’s decision in Mackey, maybe, they’re not inconsistent.
Jerome M. Feit: Well, Mackey involved a non-gambling offense which is one basic distinction. It’s on habeas on 2255 and collateral attack involved a final conviction. I think the basic thing here was that the Seventh Circuit assumed that Marchetti-Grosso applied to all cases pending on appeal by virtue of Stone and that this case was simply a Marchetti-Grosso case. And it is our position that the Seventh Circuit erred in that conclusion that neither the letter nor the spirit of the Fifth Amendment privilege, nor its application in Marchetti-Grosso support the determination of the Seventh Circuit in this case.
Harry A. Blackmun: Just one last question and I’ll stop interrupting you. I take it you sense no inconsistency between the Seventh Circuit’s respective decisions in this case and in Mackey?
Jerome M. Feit: Well, --
Harry A. Blackmun: They’re different panels, except for one judge?
Jerome M. Feit: That’s right. They can be distinguished. I think that there have been inconsistencies primarily and difficulties in Courts of Appeals in applying the principles of Marchetti-Grosso in these myriad of situations because it is not been clear -- the issue of retroactivity had not been focused on by this Court in Marchetti and Grosso at all. The assumption had been by virtue of Grosso and by virtue of Stone that all cases pending on appeal, criminal cases involving Marchetti-Grosso violations was subject to its terms, we think that Mackey can be distinguished from this case in terms of the fact that it’s an income tax case, that is on collateral attack, it’s not within penumbra of the wagering tax scheme and -- but, I would like to focus if I may on this particular case which as I say, our starting point is Marchetti and Grosso to determine what it did and what it did not hold for purposes of this case. In Marchetti-Grosso, this Court determined that if a gambler failed to register and pay the occupational tax, he was subject to criminal prosecution. On the other hand, if he did register, he faced the real danger of the information he had provided which subjected him to prosecution under a network of federal or state provisions making gambling a crime. Marchetti and Grosso as we read the opinion, freed the gambler from this dilemma by holding that the comprehensive scheme could not be employed “to punish criminally a gambler who defends a failure to comply with the assertion of the privilege against self-incrimination."
Hugo L. Black: May I ask you, if the Government is filed any brief any later than the brief of January 2, 1969?
Jerome M. Feit: In this case?
Hugo L. Black: Yes.
Jerome M. Feit: No, it is not Your Honor. There -- we have filed following this case, there are questions of retroactivity, different in context than the problem focused upon here which will follow in the next three cases --
Hugo L. Black: Next case.
Jerome M. Feit: -- which the Government has developed in some detail its general positions on the retroactivity question in different context. Mackey, of course, does involve a conviction, allegedly in violation of Marchetti-Grosso, and that was filed last term. The next two cases involve a full development in the Fourth Amendment context on the retroactivity issue, but in this case, no further brief have been filed. It seems to us that in Marchetti and Grosso, the court repeatedly made clear that the wagering tax scheme was being left intact, that neither the occupational nor excise tax provisions were invalid with its civil liability was in anyway being extinguished, that in short as the court pointed out in Mr. Justice Harlan’s opinion, its holding was not meant to prevent either the taxation or regulation by Congress of activities otherwise made unlawful by federal or state law -- statutes. The erosion of the privilege in that setting thus was that the compulsion was directed at individual who if he failed to succumb had to pay the price of criminal punishment. As Mr. Justice Brennan put it in his concurring opinion in Grosso, that scheme was designed primarily for and utilized to pierce the anonymity of citizens engaged in criminal activities. We think that the root fallacy of decision of the Seventh Circuit is its equation of statutory forfeiture with the criminal punishment dealt within Marchetti-Grosso. It misapprehends the continuing existence of the wagering tax scheme and in our judgment overlooks wholly the fact that statutory forfeiture from the time of Blackstone and before was recognized as a remedial measure to enforce a tax still entirely valid. I think it’s quite important on this aspect of my argument to emphasize that this distinction between criminal or common law forfeiture and statutory forfeiture. In criminal forfeiture, it is necessary to prove the guilt of the owner in order to forfeit property, whether or not the owner himself is convicted. In statutory forfeiture, the guilt or innocence of the owner of the property is irrelevant. It is the illegal use or intent to use -- or intention to use the property in violation of law which is the material consideration. These cases are set out in our brief, Goldsmith, Bryant, the most perhaps best illustration was during the period of prohibition.
Speaker: Hasn’t the -- this is my recollection of the plaintiff’s to argument that I heard you’ve drawn, hasn’t the administration to the statute -- hasn’t the Government who remitted these forfeitures or abused to exact them or what -- go to participation of the -- over the property?
Jerome M. Feit: You mean in this particular wagering scheme, not --
Speaker: In this case?
Jerome M. Feit: No, no. I know what you mean, within the gambling tax scheme, not that I know of this. As I had indicated, that is precisely -- that’s a remission proceeding which may or may not be available, but as far as I know, the cases have not been remitted. There has been no remission proceedings and the money was not been turned over presumably to the bettors. As I had indicated before that the District Court have some 200 cases presently pending, and that there are 20 cases pending on appeal in the area.
Thurgood Marshall: What about the old liquor case?
Jerome M. Feit: I’m -- excuse me, I’m sorry.
Thurgood Marshall: The old liquor cases?
Jerome M. Feit: Ah --
Thurgood Marshall: Did they --
Jerome M. Feit: The old liquor cases quite clearly recognized this distinction Your Honor.
Thurgood Marshall: No, but I mean if a man was eventually acquitted, what did they do with that? I’m not talking about the liquor; I’m talking about the whiskey here.
Jerome M. Feit: Oh, the whiskey -- the whiskey was in a sense contraband that forfeit.
Thurgood Marshall: How about the money?
Jerome M. Feit: The money is not contraband in the traditional sense of the term, but we’re dealing with the use in an internal revenue statute.
Thurgood Marshall: How about an automobile?
Jerome M. Feit: The automobile was forfeit.
Thurgood Marshall: Even if the man was found not --
Jerome M. Feit: Oh, there were two -- there were separate provisions, and that’s why I’d like to talk about perhaps the Prohibition Act to give you an illustration of what I meant. One provision of the Prohibition Act, Section 26 provided for a criminal prosecution and the traditional theory of criminal or common law forfeiture that upon such conviction, the property used would be forfeit. And there was another provision which was in the revised statutes and which is the predecessor of the instant provision which didn’t focus upon the owner or the -- owner, but focused on the use, and the question arose as to whether they were inconsistent as to whether you had to use one or the other provisions. And this Court made clear in One Ford Coupe, which is at 272 United States that these provisions were not inconsistent, that if the Government used the internal revenue provision rather than these precise criminal forfeiture -- criminal provision which entail forfeiture that the innocence or guilt of the owner was wholly irrelevant. And this seems to me to be the very essence of Boyd upon which claimant relies and upon which the Court of Appeals rested its decision. Namely, in Boyd, what the Court was dealing with was this criminal forfeiture provision, so that we, of course, do not request this Court to retreat one inch from Boyd in this case. Our position is as Mr. Justice Brandeis made clear and held them against Mitchell that Boyd is not applicable here and Boyd itself has recognized. Indeed, the quoting, the supplemental brief filed by the claimant in page 11, quoting from Boyd makes it quite clear that they were talking about punishment of the individual. That was the essence of criminal forfeiture, the essence of statutory forfeiture, the kind that is here involved is to remove property which has been used in violation of the law. The basic purpose of that is that the property cannot be so used again. It is a remedial, traditionally and historically a remedial function. If there’s any privilege in these circumstances, it is that of a property not that those who would put the property to illegal use. For example, relevant here I think is this Court’s decision in Campbell Painting Corporation at 392 U.S. where the president of the corporation could not proclaim -- complain because he suffered an economic loss or felt compulsion because of his refusal under a claim of privilege to testify before a grand jury which resulted in termination of his corporation’s contract. His privilege had not entered into the matter of law at all. So here, neither thus the privilege of Mr. Angelini, nor anyone else engaged in the gambling business. That protection has already been afforded. No gamblers as I understand the decisions of this Court could be prosecuted criminally for failing to file the requisite forms. And as this Court pointed out in Knox, the converse would be true if one filed under the compulsion of the statutory scheme which led to conviction for a gambling offense or led to a prosecution for gambling offense, as this Mr. Justice Harlan pointed out in Knox, then the claim of privilege would be available. This would be the other side of the coin, and that was the Lookretis case which this Court referred to in the Knox opinion. It is our alternative position in this respect that even if the privilege of forfeiture be deemed a penalty, it is not every degree of compulsion or every type of penalty which the privilege bars. Here, the penalty is attenuated and the closest analogy as I’ve noted is the Campbell Painting Corporation case, and also Gardner and Broderick in Uniformed Sanitation Men which are recited in our brief. In those cases, it was recognized that public employees could be discharged for public -- from public employment for failure to provide information to the state relating directly to and narrowly to the performance of their official duties, so long as the discharge was not based upon the invocation of the privilege, and where the invocation could not be used against them in later criminal prosecutions. Here, it seems to us whatever penalties and I’ve -- this is an alternative argument that that even assuming that I’m wrong that these are not penalties, whatever penalties maybe said to -- which attach to the gambler or even more remote in collateral, he has the protection of the privilege from criminal prosecution and it seems to us it would be straining Grosso and Marchetti quite clearly beyond its -- their holdings if in addition he may retain property which may or may not be his. For example in Buick Sedan, this Court -- District Court concluded that the $300,000.00 there seized did not belong to the claimants, and there’s nothing to indicate here except for claim of claimant that the $8,000.00 seized belong to him. The District Court made no such finding at all. The gambler, it seems to us should be no preferred position, that privilege should not we think be converted into a license to use property in violation of valid and existing tax provisions. If the Court is of a view that the principles however of Marchetti and Grosso are applicable in this civil context, then a question of retroactivity emerges. This takes on perhaps several forms. First, it seems to us, it would have to be decided that Marchetti and Grosso itself, the straight Marchetti-Grosso situation was fully retroactive. And then if so, whether this case would fall within those principles, our basic position is that Marchetti and Grosso is not retroactive in the criminal context under the gambling statutes where relief from its terms is sought on post conviction review under the three-pronged standard of purpose, reliance and effect upon the administration of justice. We would certainly argue that while this case technically is on direct review, but it is also collateral in the sense that we are not here dealing with criminal convictions. We’re dealing with the issue of an alleged interest in property used in gambling. With property in fact which was seized in August 1963, two years before this Court decided Albertson I might point out, five years before it decided Marchetti-Grosso. It is therefore not at all comparable we think to cases on direct appeal in the criminal context. We think that the purpose and effect upon the administration of justice also counsel persuasively against retroactivity. The time of the seizure here, Kahriger and Lewis with the law and the seizing officers could legitimately rely on those decisions. Even more, significant is the disruptive effect upon the administration of justice in applying Marchetti retroactively in this forfeiture context. I’d indicated the extent of the case is presently pending and the money involved in these various forfeitures. We are further advised by Internal Revenue Service that since 1951 when these gambling statutes were enacted, and I use their phrase literally thousands of items used in gambling, automobiles and money have been forfeit under the wagering tax statute. We have set forth some of these figures --
William J. Brennan, Jr.: Well, I gather Mr. Feit, you carry that you are urging on necessity of retroactivity or prospectivity on these decisions after January 29, 1968. You’re not urging that on necessity with respect to criminal convictions which haven’t yet become final?
Jerome M. Feit: Well, the reason I cannot -- in the Marchetti-Grosso context.
William J. Brennan, Jr.: Yes.
Jerome M. Feit: The reason I think that I cannot urge that is two-fold. One, this Court dealt with Grosso which involved a claim other than -- a claim, an addition to the claim there made, the claim of Marchetti-Grosso and remanded it, the Court in Stone sent -- remanded all the cases pending on appeal when Marchetti-Grosso was decided. And while the Court did not focus upon the reasons for it, is it is plain that the court has concluded that case is pending upon appeal --
William J. Brennan, Jr.: Yes, but we haven’t said that.
Jerome M. Feit: Well, you have not said that and as I say, the Court has not spoken on the matter at all.
Byron R. White: But why would you assume -- why would you assume that we’d decided the retroactivity question just by remanding? It might be that you remanded to have the matter first considered by a Court of Appeals?
Jerome M. Feit: It might be and if that is true, then it seems to us that it counsels favorably as to retroactivity on collateral attack.
Byron R. White: Let’s just assume for the moment that you’re wrong in saying that door is closed. What’s the Government’s position on the retroactivity of the Marchetti-Grosso as if it were an open matter?
Jerome M. Feit: Right. The Government’s position as if it were an open matter on that supposition is that Marchetti-Grosso should apply prospectively.
Byron R. White: That is --
Jerome M. Feit: Under the --
William J. Brennan, Jr.: -- the events -- assume the events occur after that decision on --
Jerome M. Feit: January 29, 1968.
William J. Brennan, Jr.: The Stovall --
Jerome M. Feit: The Stovall, and Johnson-Desist approach. All I was suggesting was the -- even if the Court deems that what had done following Marchetti-Grosso doesn’t require it to do the same things the case is pending on collateral attack, but as -- in answer to your precise question Mr. Justice White, our view would be prospectivity, if that question is open. I would like to save what remaining time I have for rebuttal.
Warren E. Burger: Very well Mr. Feit. Mrs. Lavin?
Anna R. Lavin: Lavin.
Warren E. Burger: Lavin? Thank you for --
Anna R. Lavin: Yes sir. If it please the Court, I don’t -- counsel made a factual mistake and I don’t know that it has any real significance, but I think we may as well dispose of it, so we will at least recognize that there is no Fourth Amendment question in this case. Counsel stated that a search was made of Mr. Angelini’s person at the time of his arrest, it developed that there was some $8,600.00 on this person. Actually, the money was revealed at the time he went through the ordinary processing at the United States Marshall’s Office on a request to empty his pockets as all persons taken into custody are. The money was not seized at the race track as counsel indicated. As I say, I don’t think it’s a matter of great consequence one way or another. Mr. Justice Blackmun asked about cases remanded at the same time as was this case. I point out that not one to my knowledge in that one has the Government requested certiorari where the -- we had a criminal matter involved. They however have made a distinction in this case because it concerns forfeiture. I think that there is no distinction between a criminal conviction and a forfeiture proceeding. I think that Marchetti and Grosso apply equally to both. The announced object of this Court in deciding Marchetti and Grosso was the protest or rather the protection of the individual against self-incrimination under the comprehensive system of federal and state prohibitions against wagering activities. In Malloy versus Hogan, this Court said in part that the Fifth Amendment secures the right of a person to remain silent unless he wishes to speak in the unfettered exercise of his own will and to suffer no penalties. In Spevack versus Klein, again, this Court emphasized that penalties used in the context of the Malloy case is not restricted to fine or imprisonment; that it means any sanction that makes assertion of the privilege is in the word this Court did costly, and we have the Spevack, disbarment, (Inaudible) loss of job, the young lady who lost her position as a teacher whose name I don’t now remember. So I suggest to the Court, if Marchetti and Grosso have retroactive effect, a question that has not until right now to my knowledge was brought up so far as criminality is concerned, then it has retroactive effect so far as forfeiture proceedings are concerned. I would like to address myself just in passing to the Mackey case because that was also a product of questioning by the court. The Seventh Circuit stated that its distinction between Mackey and the earlier case of Lookretis which was remanded by this Court, a criminal gambling prosecution, though under 1952, the distinction it made was that Mackey did not involved gambling offenses, it being an income tax evasion case. Later, the Second Circuit in -- I mean, the Seventh Circuit in even a more recent case decided on September 9, 1970, Zizzo versus the United States in reversing Zizzo said we distinguish this from Mackey because Mackey did not come within the object of the Supreme Court when they said they wanted to protect a privilege against self-incrimination where local and state gambling statutes were concerned. That’s the distinction the Seventh Circuit makes and I submit to this Court that it’s a valid one. Now, counsel here has indicated that this Court has recognized in certain instances Boyd is not a deterrent to the -- well, to implement error, interpretation of constitutional rights. I might say that when any -- whenever this Court has held -- so spoken it has spoken in regard to Sixth Amendment rights and has expressly omitted from consideration any Fifth Amendment rights which it has always considered pervasive. The Government opines here before this Court that Marchetti-Grosso applies prospectively. I assume that the Government uses the standards that this Court has set up in its several cases of which I think Linkletter was practically the lead. As a matter of fact, several times in its submissions to this Court by argument, it has said that there are three governing principles on prospective and retrospective application. The first principle, it says the purpose to be served by the new constitutional rule, the second purpose, Government reliance on the prior rule, and the third, the effect on the administration of justice. We suggest to this Court that none of those has any validity in the light of the rationale of the Marchetti-Grosso decision. This is dictated by a basic consideration. The basic consideration is that before the utilization of those three standards, the Government reads an insurmountable barrier. That barrier is that those three standards do not even come into operation where the new constitutional rule so called bears on the integrity of the guilt determining process. Here, the decision of Marchetti versus Grosso does bear on the guilt determining process. As a matter of fact, the rule is the heart and soul of the process. The only act of the claimant here which are contended to have made his property subject to this forfeiture is his refusal to waive his Fifth Amendment rights. If that aspect is removed from the case as constitutionally unenforceable, there is no basis for a finding of guilt.
Thurgood Marshall: What I understand that in this hearing, there was evidence put on that he was gambling, and that this money was used in gambling?
Anna R. Lavin: That’s right sir.
Thurgood Marshall: This hearing is a forfeiture hearing?
Anna R. Lavin: Yes sir. That’s --
Thurgood Marshall: It has nothing to do with Marchetti-Grosso, does it?
Anna R. Lavin: I don’t think that has anything to do with the basis for Marchetti and Grosso or how it affects this case, not withstanding whatever I consider as Mr. Angelini’s lawyer long time ago, the infirmities are the proof and we must remember that there is no federal violation in carrying $8,674.00, nor is there any federal violation in using $8,674.00 in gambling activities; maybe a state violation, but not a federal violation. The only act necessary to the Government’s proof not to the way it puts in its evidence, not to the way it enforces a search warrant, but the thing necessary to its basic proof. The only act essential to that guilt finding process is first, that 4411, Section 4411 of Title 26, the payment of the $50.00 occupational tax had not been complied with, and second that the registration form, Section 4412 had not been filled out and submitted to the Government. Now, this Court in Marchetti versus Grosso makes it clear that those two statutes are interdependent because as it found from the decisions in those cases, you couldn’t pay the occupational tax without filing the registration and obviously, if you file the registration, your privilege against self-incrimination had been greatly -- well, I -- impinged upon. Yes sir, you’re about to say something?
Thurgood Marshall: Well I’m just looking at the findings and the judgment of District Court made no mention at all, neither document mentions the wagering tax?
Anna R. Lavin: Well, yes. I think if --
Thurgood Marshall: Was it in the record itself?
Anna R. Lavin: Oh, yes. You will find that in the -- in the libel, libel for forfeiture. As a matter of fact, you’ll find in the findings, and if I may refer Your Honor to the appendix, page 9, finding number 3, and also in the first paragraph of the libel at page 5, 4401, 4411, 44 --
Thurgood Marshall: Is this where the judgment below (Inaudible)
Anna R. Lavin: Alright, thank you sir. The thing I’m trying to point out and I hope I’ve done it is the only act that would make this forfeiture valid under federal law is proof of the failure to comply with 4411 and 4412. The only basis upon which guilt could be found is the refusal to waive constitutional rights under the Fifth Amendment. So actually, if I suggest to the Court, this new constitutional so called rule goes to the guilt finding process, and the three considerations for which the Government -- on which the Government suggests that you waive retroactivity and prospective application do not actually come into play here because this is beyond the consideration or the entertainment of those considerations. But if this Court disagrees with me and I submit, I don’t see that you can because it is obvious that the only thing that will prove the forfeiture is the failure to waive the Fifth Amendment right. If you do not agree with me, let us go then to the purpose to be served by this new rule. I think the lesson to be learned from Marchetti and Grosso is that you may not compel a person to pay a tax and file a return in the manner required by 4411 and 4412 unless you give him full immunity. The next question urged by the Government is would that immunity, require immunity just from criminal prosecution or also from a civil forfeiture a pure penalty hearing without relation to any $50.00 excise tax. It seems that the Government’s interpretation of this so called new rule that a congressional grant of pervasive criminal immunity be not extent to these penalty forfeitures. We submit and we have submitted on the basis of the many immunity acts passed by the Congress that the Congress recognizes that to give full immunity, you must not only give immunity from criminal statutes, but also your immunity must extend to the forfeitures. Without unduly burdening this Court, I would refer Your Honors to the digest of the wording of immunity grants that we have set out at pages 6 and 7 of our original brief; that’s a brief for the claimant respondent. Some 7, 8, 10, 15 statutes and all worded substantially the same.
Warren E. Burger: What page are you on?
Anna R. Lavin: Page 6, Your Honor, this is not the supplemental brief, but the original one. “No individual shall be prosecuted or subject to any penalty or forfeiture for an account of any transaction” and everyone of those statutes relating to the giving of immunity and I think, that’s what this Court suggested to cure the infirmity found in 4411 and 4412, incorporate immunity from any forfeiture proceeding. I say that diligent effort has been extended to this point and we found none that accepted forfeiture from the full scope of the immunity. Now, the second consideration that has been developed under the Linkletter line of cases concerns the extent of reliance by law enforcement authorities on the old standards which would be the standards under the Kahriger and Lewis. But this question I submit goes directly to the major prohibition against the application of the Government’s considerations. For in a situation where limitation has been made to prospective application, it has never been concerned with the guilt kind of finding process. It’s always been directed to evidentiary blunders. I would like to refer the Court to a very simple statement made by the amicus in this case, and I think he has developed it well. He says in his brief if may have been on the books, the Government could have -- the police could have obtained warrants. If Miranda had been on the books, the requisite warnings could have been given. If Griffin had been on the books, prosecutors could have avoided commenting. If Lee had been on the books, state prosecutors could’ve avoided offering evidence in violation of 605.
Hugo L. Black: What are you reading from?
Anna R. Lavin: I’m reading from the brief of the amicus because I thought he detailed these so concisely and understandably. It’s at page 6 and he continues through waive in Gilbert on the line ups and Duncan and Bloom jury trial for -- in contempt cases. In no instance, if this so called new rule had been applied, would there have been no guilt at all in any of those cases where we’ve had prospective application. Here, if the new rule is applied, there just is not a basis for guilt. Now, we come to the Government’s third consideration; that is the effect of the administration of justice. It isn’t clear to us just how the Government thinks that there’s going to be an affect in the administration of justice. A rather impressive figure was offered this afternoon of some two and a half million dollars involved here. Even more impressive figures where suggested in the Government’s brief about some $7 million in money and property having been appropriated. Now, I suggest that should it be necessary for the Government to give back any of this money or property that the simply expedient of writing a check is the answer to it, and there will be no interference with the administration of justice. In the meantime, I submit that the Government has been recompensed to the extent of probably 80 to 90% of the money and property it has appropriated. Counsel has indicated in this argument that this is purely a remedial statute, this statute calling for forfeiture. When this case was argued the first time, that argument was also made with a special reliance being made on Helvering versus Mitchell. The essence of that argument was that this forfeiture applying the rationale of the Helvering case did not constitute a penalty. It did not constitute a penalty in addition to the criminal sanctions, but rather compensated the Government for its actual loss. As this Court knows that Helvering was a tax assessment case and concerned the 50% fraud penalty. There, there was a direct relationship to the outstanding tax, here no outstanding tax exists. I think it should be indicated parenthetically, though it is indicated in the briefs that Mr. Angelini has been assessed for the $50.00 occupational tax, he has been assessed for the amount that the Government assumes that he made -- or the 10% under 4401. These have been paid. There is no relationship in this forfeiture to the assessment that the Government intended on account of these activities. So, --
Potter Stewart: How about his income tax, that’s no where in the record, isn’t it?
Anna R. Lavin: There is no question about this. Again, it’s off the record. Mr. Angelini has paid income taxes for I don’t know how many years. There has never been any question about the validity of the --
Potter Stewart: The Mitchell case involved as I remember, the 50% fraud penalty on ordinary income tax case, did it not?
Anna R. Lavin: Yes sir, Helvering versus Mitchell is -- with direct relation to the outstanding tax obligation.
Potter Stewart: Under the ordinary income tax?
Anna R. Lavin: Under the ordinary income tax. That doesn’t enter this case. We have no ascertainable tax outstanding -- well, we just have none outstanding. Whatever it has been assessed has been paid without application of any of these monies toward alleviating that tax in any manner. So I say, it’s beyond question of doubt that this constitutes a pure penalty and it’s remedial of nothing. There was no difficulty of investigation such as we talk about in Helvering in determining how much Mr. Mitchell owed the United States.
Potter Stewart: Who do -- was the money -- who did the money belong to in this case?
Anna R. Lavin: Mr. Angelini made claim upon that money. I find it surprising that the Government in here says there was no finding that Mr. Angelini was not the owner of that money. He and he alone made the claim. It was taken from his person. The Government did not contest on trial that he was in fact the rightful claimant and rightful owner. I do believe that’s gone down the drain. I think I have addressed myself to every question or matter brought up by the Solicitor General. If there are no other questions, I would respectfully submit this Court affirm this decision.
Warren E. Burger: Thank you. I think you’re time is exhausted, Mr. Feit? The case is submitted.