William H. Rehnquist: We'll hear argument now in Number 96-292, Marian Johnson v. Kristine Fankell. Mr. Gilmore.
Michael S. Gilmore: Mr. Chief Justice, and may it please the Court: Today the Court is presented with the question whether the qualified immunity defense is as powerful in State courts as it is in Federal courts, or whether its scope and its protection may vary among the States, or between Federal district courts and one State, and State trial courts in the same State. Thirty-six States are involved in this, between the amicus and the petitioners, because of the importance of the qualified immunity defense to the practical functioning of State government, and because of the value of this defense to the employees and officers of State and local governments throughout the Nation.
William H. Rehnquist: Do you think, Mr. Gilmore, that if the Idaho legislature had amended its judicial code to allow appeals in this kind of case that you say the Federal statute requires the supreme court of Idaho would have entertained this appeal?
Michael S. Gilmore: That's a very difficult question to answer, Your Honor, because the Idaho supreme court in three instances had ruled that its court rules take precedence over statutes in the area of conflict in rules of procedure, rules of evidence, and rules regarding a special statutory court that was established to adjudicate water rights in the Snake River basin.
William H. Rehnquist: But it hasn't extended... the court has not said the same with respect to appellate rules?
Michael S. Gilmore: That is an open question. It has not addressed that.
William H. Rehnquist: Well, it seemed to... you know, the one sense... I believe in one sense orders seemed to say this was not a final, whatever it is that the Idaho stature requires. My concern is that since these qualified immunity is designed to protect State officials I would think the Idaho legislature could probably extend the appeal right if it wanted to.
Michael S. Gilmore: I simply cannot concede that, because the entire recent jurisprudence in Idaho has been for the State supreme court to say its rules preempt statutes are inconsistent.
David H. Souter: But in any case, however the State speaks, whether it speaks through the legislature or it speaks through the supreme court, there is an agency of the State which is capable of valuing the State's interest here, and if it believes that the State's interest really does require the appealability of a qualified immunity ruling, there's some agency of a State that can say, that's the regime we will have.
Michael S. Gilmore: The Idaho supreme court could adopt an appellate rule that would explicitly provide for appealability of denial of absolute or qualified immunity motions.
David H. Souter: So that ultimately the responsibility for the nonappealability is with the State itself.
Michael S. Gilmore: It is with one of the branches of State government.
David H. Souter: Yes. Now, what do you say to the argument that the justification for immediate appealability is a justification which rests ultimately not on individual interests but on State interests, and therefore, if the State doesn't want to take advantage of it, why, indeed, should a Federal court interfere with that decision?
Michael S. Gilmore: Because the defendants in this case, or the petitioners here, are sued in their individual capacities. They are not sued as State officers, as such, in their official capacity.
Ruth Bader Ginsburg: But if they were merely individuals there wouldn't be any kind of immunity that they could lay hold of. It's only because they're State officers that they have this qualified immunity.
Michael S. Gilmore: That is correct, only governmental officers.
Ruth Bader Ginsburg: But let me ask one anterior question about where the rule-making authority is. I don't recall the Idaho counterpart to 1292(b) that gives the discretion only at the appellate level, is that a rule of the court, that the courts made up, or is it a legislative enactment?
Michael S. Gilmore: It's Rule 12(a) of the Idaho supreme court, and the Idaho supreme court decision of Todd v. Budell states that that was modeled upon 1292.
Ruth Bader Ginsburg: But the source of it is the Idaho supreme court, not the Idaho legislature?
Michael S. Gilmore: That's correct.
Stephen G. Breyer: What was your answer to Justice Souter? I mean, I take it quite specifically, why are the States filing amicus briefs? It's up to the States. I mean, there's no Federal interest here. If the State wants to subject its people to good procedural advantage, they can. If they don't, they don't. The Federal Government doesn't care, so what's the answer to that? That's what I take it--
Michael S. Gilmore: The answer to that is, the State officers who the Attorney General must represent want to assert these personal defenses that you have held as a matter of Federal law--
Stephen G. Breyer: --What is it as a matter of... no, I take it the Federal law is that 1983, in giving liability, imposing liability, in helping plaintiffs attain certain things, doesn't reach as far as the area where what the State person did was lawful or uncertain. It only reaches the area where what the State officer did was clearly illegal. Now, that's what this Court has held often. Qualified immunity in fact arose under State law, and Congress bought into it, so that's the Federal interest. How is that Federal interest hurt in any way at all by some States giving these people some procedural advantage and others not?
Michael S. Gilmore: --In a literal sense, the Federal interest is not hurt.
Stephen G. Breyer: Well, if that's so, then isn't that the end of the matter, because... well, why not?
Michael S. Gilmore: Because... because all of these officers of the State of Idaho are Federal citizens and have citizens' rights. The Federal Government, I suppose, could be indifferent to all kinds of... all kinds of violations of rights or immunities of Federal citizens unless it enacts a law to take care of them.
Speaker: Mr. Gilmore--
Michael S. Gilmore: Yes.
Antonin Scalia: --I thought that the qualified immunity Federal rule did not just apply to Federal officers but also applied to State officers.
Michael S. Gilmore: It applies to all State, local, Federal Government officers.
Antonin Scalia: So then there is some Federal interest, or at least when we discerned that rule we thought that was, or when Congress enacted the statutes relying on prior historical practice Congress thought there was a Federal interest in allowing State officers to have immunity.
Michael S. Gilmore: There's--
Antonin Scalia: We do give State officers immunity in Federal courts, don't we?
Michael S. Gilmore: --Yes. There's a Federal interest that's been described in both the Bivens cases and the 1983 cases, preventing unfounded distraction of Government officers and disruption of effective Government.
Ruth Bader Ginsburg: All of those-- --Suppose a State were to say that we don't... for State law purposes have this immunity. Our officers don't have this immunity. Under 1983, would the State officer nonetheless be able to claim an immunity that his State as a matter of State policy thinks the officer should not have?
Michael S. Gilmore: No. As I understand the Court's precedent, State officers can only claim Federal immunities, not State immunities. For example, in this case--
Ruth Bader Ginsburg: No, I mean his 1983 immunity which he would get is a Federal source, but the State says, just as municipalities can waive their sovereign immunity, that we don't want our officers to be any less responsible than anyone else for the torts they commit, so our officers will not be shielded by immunity. Now, would there be a Federal interest in saying, State, in defiance of your policies, we are going to insist that in 1983 cases these people be shielded by qualified immunity?
Michael S. Gilmore: --Yes. I think there are several Federal interests. One is that there be identical decisions in the 1983 case between the Federal district court and the State courts in the same State. I think our interest in 1983 be applied uniformly throughout the Nation.
Anthony M. Kennedy: Well, isn't the interest stronger than that? Isn't the interest that the citizen is liable for a judgment under 1983 under a Federal statute, and that is a Federal immunity that appertains to that person as an individual?
Michael S. Gilmore: Yes, and that's the interest--
Anthony M. Kennedy: As part of the contours of the 1983 right. The liability of the officer personally does not extend so far as to avoid an immunity that the Federal Government grants.
Michael S. Gilmore: --The Federal Government has an interest in all of its citizens.
Ruth Bader Ginsburg: But you're saying the Federal interest, then, is superior, that even though a State can waive its Eleventh Amendment immunity, the State cannot waive this federally granted immunity for its officers?
Michael S. Gilmore: I--
Ruth Bader Ginsburg: That the Federal policy in shielding the State officer is... tugs against the State policy no matter how strong that State policy is?
Michael S. Gilmore: --The State cannot waive its Federal officers... excuse me. The State cannot waive its officers or employees' rights as Federal citizens. This is a right that every citizen of the United States has if they work for a Government.
Stephen G. Breyer: Is there a right? That is--
Michael S. Gilmore: An immunity.
Stephen G. Breyer: --Say Federal statutes allow me or you or anybody to sue certain groups of people under myriad circumstances, and in each of those statutes there are thousands and thousands of ways in which the person might not be liable. That's because the statute doesn't cover the situation. Is there then some Federal interest in making certain that the procedures that are used to decide each way he's not liable is going to be the same in every State, the Federal Government?
Michael S. Gilmore: No.
Stephen G. Breyer: Because that's the problem I have. Once I see the case that way, and I have... obviously have been seeing it that way. Once I see it that way, I find it difficult to articulate the Federal interest.
Michael S. Gilmore: The Federal interest is in preservation of the State actors' Federal immunities created under Federal law, and the prevention of a loss of those Federal immunities.
John Paul Stevens: May I ask a hypothetical question? Do you think the State could pass a statute that was patterned after 1983 and said, State court shall entertain claims for violations of Federal constitutional rights and everything else the same as in 1983, and add to it, and the State... and the defendant shall not be allowed to plead qualified immunity?
Michael S. Gilmore: I think the State would have the constitutional authority to pass such a statute.
Sandra Day O'Connor: Well, what if the Federal courts... what if Congress passed a law saying, unlike the law as written at present, that when we say there can only be an appeal from the final judgment, we mean it, and there are no exceptions. Is there some constitutional reason why we can't give that effect in a Federal court?
Michael S. Gilmore: If Federal law prohibited appeal from qualified immunity motions from the denial of qualified immunity motions in the Federal courts, we would not be here today.
Sandra Day O'Connor: Well, but we've just given them a right in the Federal courts to appeal based on an interpretation of the law that Congress has applied, not as a matter of constitutional law, have we?
Michael S. Gilmore: No, I do not believe the qualified immunity defense has been characterized as a matter of constitutional law.
William H. Rehnquist: What if the double jeopardy defense, which, you know, has more of a constitutional basis, obviously, than qualified immunity, in the Abney case that we decided some time ago, we said a defendant could appeal that in the Federal system on an interlocutory basis. Do you think Congress could say, no, we're not going to allow that kind of an appeal?
Michael S. Gilmore: I am not an expert in this area of relations between Federal courts and the Federal Congress, but for the purposes of this case, I think I would say yes, only to try to outline the contours of what we're looking for.
William H. Rehnquist: Congress could regulate.
Michael S. Gilmore: Congress--
Anthony M. Kennedy: On that subject, it seems to me that if you prevail here, States must give Abney appeals in all double jeopardy cases. Do the States generally do that?
Michael S. Gilmore: --When I did my research in that area, a majority of the States that I was able to identify allowed an Abney appeal, and then there was a further safety valve. Three of the circuits in cases where there are no... in which there are States located that have not allowed Abney appeals, have found an exception to Younger abstention and have handled the practical difficulties of dealing with double jeopardy claims in the State courts by proceeding to enjoin the criminal prosecution.
Anthony M. Kennedy: Well, it does follow from your position here, I suppose, that Abney appeals would be mandated on the States in all double jeopardy cases if you prevail here. It would seem to me a parallel principle, perhaps a principle of even more importance, as the Chief Justice has indicated.
Michael S. Gilmore: I think there are theoretical parallels. There may be practical differences in the sense that I've just been talking about. There already may be an existing safety valve that the circuits have created.
Ruth Bader Ginsburg: But if the... this is a right that does have a constitutional underpinning, double jeopardy, and I think the precedent you cited said States might very well want to adopt that policy as their own, but it seemed to me it wasn't your brief, it was I think the State's brief in support of you that just cited Abney and... sort of en passant, but that would be a pretty big thing to say, yes, we want the officer to be shielded here in 1983, even though we recognize the price might be that the States no longer have a choice that some of them thought they had about double jeopardy.
Michael S. Gilmore: I think if you look at the Kentucky amicus, that is something the Court must weigh in the balance, but I would hesitate to say that the Court must reach that issue in this proceeding I think because of the practicalities of administration of Abney, in particular, modification in Richardson with the notion of a colorable double jeopardy claim.
Ruth Bader Ginsburg: There's another oddity here that in addition to the States saying their own State court is not sufficiently the guardian of the State officer's rights, it's that these cases are removable by the defendant, are they not? So if you're complaining about Idaho procedure being less generous to the defendant, why couldn't the defendant remove?
Michael S. Gilmore: At the time this case was brought, we had no reason to believe Idaho procedure would be less generous, and there are practical reasons--
Ruth Bader Ginsburg: Well, you didn't know about that they had this final judgment, firm final judgment rule and that they didn't allow interlocutory appeals except in specified cases?
Michael S. Gilmore: --No. We knew that the language of Idaho Appellate Rule 11(a) was, you may take appeal from judgments, orders, or decrees which are final, and this was an order, and this Court's precedent had discussed the finality of denial of qualified immunity orders many times.
Ruth Bader Ginsburg: Well, does Idaho have the collateral order rule? Does it have it in Cohen v. Beneficial, because you would have know about that one way or the other.
Michael S. Gilmore: To the best of my knowledge, Idaho has never addressed Beneficial, to adopt or reject the collateral order rule.
Ruth Bader Ginsburg: But you could have removed... in any case, wouldn't one factor, if one wants... if a Federal court is going to tell... if this case is going to tell the State, change your procedure for these cases only, that the defendant who is asking for that could have gotten himself into the Federal forum.
Michael S. Gilmore: One cannot always get in the Federal forum, and many 1983 cases will be a suit against a number of officers, perhaps city, county, and State, and without concurrence of all the defendants, there is no right of removal.
Ruth Bader Ginsburg: Apart from the... if you have multiple defendants and they... what interest would any of them have in not getting into Federal court on a question of the qualified immunity?
Michael S. Gilmore: Maybe not legal interest, but practical interest. Idaho's a big State. It has 44 county seats. I was looking at a map yesterday. One of them... the two fish and game officers in Salmon, Idaho, for example, were sued in State district court and attempted to remove, the nearest Federal district courthouse to them would be in Pocatello, 209 miles away, so if they were looking at trial, they'd be looking at leaving their family and friends, having a 2-1/2 to 3-hour drive with the new speed limits on a sunny, clear day, and 5 or 6 hours on a snowy day through mountain roads. There are real interests in keeping things in the State courts.
Stephen G. Breyer: But don't they have influence with the legislature in Idaho? [Laughter]
Michael S. Gilmore: But I think to elaborate on Justice Ginsburg's question, the answer is the same as the plaintiffs in Felder. They could have filed in Federal district court if they didn't want to worry about Wisconsin's notice of claim statute, but the answer in there was, when you are in State court applying Federal law, you apply all the Federal law, not some of the Federal law, and these defendants have the--
Ruth Bader Ginsburg: Well, let me ask how far you would take that, because there's one respect in which Idaho is more generous in allowing interlocutory appeals, and that is from a new trial order, right?
Michael S. Gilmore: --That's correct.
Ruth Bader Ginsburg: So suppose we had a case where a plaintiff had prevailed, and then the judge, the trial judge said, sorry, I'm going to wipe that out... let me see if I've got that reversed.
Michael S. Gilmore: I think I understand.
Ruth Bader Ginsburg: Yes, so where it would be... the State procedure would be to the defendant's advantage to take the interlocutory appeal, but we wouldn't be allowed that in the Federal system. Can the plaintiff then say, no interlocutory appeal from the new trial?
Michael S. Gilmore: That's a close call, and I can't find anything in the Court's precedents and things like FELA or 1983 to really answer that. I guess the only answer there is like development in FELA, or development in 1983, that's going to require a case-by-case analysis. I don't see that as being a black-and-white issue. What I think is black and white is that if you don't get your appeal from denial of a qualified immunity motion, and you should prevail later but you've gone to trial in the meantime, you've lost the benefits of your qualified immunity, and that is a black-and-white issue, not a gray issue. I think one of the essential underpinnings that we're looking for in this case is even-handedness between treatments of plaintiff's rights and claims in 1983 in State courts and defendant's immunities. Felder v. Casey has been decided, so Idaho's notice of claim statute allow this case to be brought in State court. If State courts would be taken as they found them, the plaintiffs wouldn't be here at all. Both, it's time to, we think, look at the other hand, look at the question of what happens to defendants who find themselves in State courts for whatever reasons... they prefer the forum for convenience, they can't get concurrence of all the defendants to remove to Federal court... they should be given the same benefits of Federal law as plaintiffs.
Antonin Scalia: Mr. Gilmore, here's what troubles me. We do have language in our opinions to say that the immunity right is a right not to be tried, not just a right to be acquitted, or found innocent. However, we said that for the purpose of deciding whether the policy expressed in 1983 was sufficient to overcome what would be the normal operation of a Federal statute. I'm not sure that it's the same question whether that policy is strong enough to overcome the State's ability to manage procedures in its own courts. Don't you think they're really two different questions?
Michael S. Gilmore: I don't, because I think the policy we're talking about is what immunities can citizens of the United States assert, and how can they protect them, and that's a policy that this court says overrides under the collateral order doctrine--
John Paul Stevens: No, but the procedure that's followed doesn't reach the question whether you will ultimately prevail on the immunity issue. If you do have the immunity, you will ultimately win the lawsuit, but you will have the burden of a trial that you will otherwise avoid, a burden that is a burden on the State judicial system as well as on the parties to the case, and the top officers of the State judicial system say we're willing to pay that price in order to save the appellate courts the premature adjudication burden.
Michael S. Gilmore: --I think the answer there was given in Behrens last term. In that case, Behrens said... the opinion in Behrens was that when you talk about appealability you don't talk about whether you're going to succeed or not succeed, whether you've got a good case or a frivolous one. You talk about categories of orders. And here is a category of order, a black and white category, denial of a motion for qualified immunity, be it 12(b)(6) or summary judgment, and that is so important... so important under Federal law that that's considered final.
Ruth Bader Ginsburg: Mr. Gilmore, in the reverse situation in cases, Erie cases in Federal court where State law is governing just as 1983 Federal law is governing, the decisions of this Court have said there is an essential character to the Federal court system, and things that pertain to that essential character don't give way to the States. I mean, think of if a State allowed an interlocutory appeal whenever the lawyers liked it. You had... you've got diversity cases certainly wouldn't have the Federal courts copy that, so is there a... should there be some kind of symmetry? Just as the Federal courts don't have to make themselves over in the State court's image, the State courts ought to be allowed their essential characteristics, including how firm they want their final judgment rule to be.
Michael S. Gilmore: Symmetry should hold up to the Supremacy Clause and either the burdening or in this case the extinguishment of a Federal immunity. What we're talking about here is the complete elimination of a Federal immunity of discovery from trial should there be an erroneous trial court ruling, and there's always going to be an asymmetry between these two situations because of the Supremacy Clause.
David H. Souter: Mr. Gilmore, you have repeatedly characterized the right which is at stake here as being a personal right of United States citizens. The difficulty I have with that is this. As I understand our analysis of qualified immunity up to this point, it is an analysis which has recognized the immunity number 1, because it was thought to be recognized at common law when 1983 went in, and that common law background is supposedly the basis for our interpretation. But number 2, because the interest which that immunity protects is the public or State interest against having its officers made timid or distracted, and so on. My understanding is we have never recognized the interest as being a separate, individual interest. The individuals get the benefit because that's the necessary implication of the State getting the benefit. Am I right in my understanding?
Michael S. Gilmore: You have always tied the individuals' interest to their function in the State or local government, or National Government in the Bevins case. I see that my time is running. If there are no further questions from the bench at this moment, I will reserve the remainder for rebuttal.
William H. Rehnquist: Very well, Mr. Gilmore. Mr. Latta, we'll hear from you.
W. B. Latta, Jr.: Mr. Chief Justice, and may it please the Court: The qualified immunity that is recognized in Harlow, and the procedure set out in Mitchell, are benefits offered to the States, including Idaho, by Congress. In this matter, the State has declined twice the benefit of the ability to take an interlocutory appeal from a qualified immunity denial. First, Idaho's longstanding finality rule and its nonrecognition of the collateral order doctrine are State policies by the proper parties in Idaho at least. The Idaho supreme court--
William H. Rehnquist: Well, when you say nonrecognition of the collateral order doctrine, Mr. Latta, do you mean that the supreme court of Idaho has rejected it, or simply has never confronted it one way or the other?
W. B. Latta, Jr.: --It has never confronted it, and based on the jurisprudence as... and I believe Mr. Gilmore and I both read it it would be unlikely that they would do it because the door is open by another means, Appellate Rule 12, that allows for permissive appeals to bring those up. The permissive appeal rule is the... would be the preferred, under Budell v. Todd, matter to bring this--
William H. Rehnquist: And what does the permissive appeal rule provide, briefly?
W. B. Latta, Jr.: --In this case, to illustrate, having received the order denying qualified immunity from the trial judge here, the State could go back to the trial judge and ask for its order permitting a permissive appeal to the supreme court. The court would issue its order. That order would not be binding on the appellate court because... the Idaho supreme court. The supreme court would make its own decision in light of the--
William H. Rehnquist: It's like Federal 1292(b), the--
W. B. Latta, Jr.: --Exactly. Not... excuse me, not exactly, but that was the model Rule 12 is modeled on, 1292.
Anthony M. Kennedy: --Does the trial court have to give its permission to have the ruling appealed under that discretionary regime?
W. B. Latta, Jr.: No, it would not. It could say this would be a frivolous appeal and deny it, just as it could deny a 54(b) certificate if it were asked, but--
Anthony M. Kennedy: I'm trying to ascertain what role does the trial judge have in establishing whether or not there may be a permissive appeal?
W. B. Latta, Jr.: --His role under Rule 12 is to look at requests for the order and say it should or should not be the subject of a permissive appeal.
Anthony M. Kennedy: And if he says that it should not, then that ends the matter?
W. B. Latta, Jr.: No. That is not binding on the supreme court. You look at... there are two separate decisions made, one by the trial judge to say yes or no, and then the supreme court acts on its own in light of what the trial judge has said.
Anthony M. Kennedy: Well, I suppose, then, if we were to say that this is a substantive, very significant right, the right to have an interlocutory ruling, then it would be then an abuse of discretion of Idaho law not to take the appeal, and so at least the right could be enforced under the existing procedural structure in Idaho.
W. B. Latta, Jr.: I would agree it could be under that scenario.
Ruth Bader Ginsburg: Mr. Latta, I thought that Idaho's creation of that rule, which does modify 1292(b), is to make it totally discretionary on its part. Idaho has a firm final judgment rule. It's enacted a provision for interlocutory review at its sole pleasure. Not the trial judge's approval but just... so how could it abuse its discretion when it's deliberately created a rule that gives it a prerogative to do as it pleases?
W. B. Latta, Jr.: I was unfortunately mixing the two court systems. The abuse of discretion rule that I was thinking of would be abusing this Court's discretion in failing to accept that permissible appeal. The Idaho Appellate Rule 12 is wholly permissive in nature, but it would be an abuse of this court's discretion not to accept a interlocutory appeal.
Sandra Day O'Connor: Who's going to enforce that?
W. B. Latta, Jr.: It might be... it might occur only in the circumstance that brings us here, where we are in front of the Supreme Court by virtue of--
Sandra Day O'Connor: If we don't take a case, how are you going to get here?
W. B. Latta, Jr.: --In... it is not likely that I would be the one who needed to get here. It would be the State.
Anthony M. Kennedy: Well, just focusing on the Idaho court based on your comments to Justice Ginsburg I assume no one could tell the Idaho court that it has to take... has to exercise its discretion to take the appeal. Let's assume that we think that it's very, very important that there be an interlocutory appeal. I was asking whether or not that could be accommodated within the existing Idaho structure, and suggested that maybe it would be an abuse of discretion for Idaho supreme court not to take the appeal, and then Justice Ginsburg points out, well, the whole point of this is so they can have complete control over their docket. They're not answerable to anybody. And so it does seem to me that there is then a problem if we agree with the petitioner's case that this is such a significant right that it has to be enforced in the State courts.
W. B. Latta, Jr.: Well, the... because it is permissive as to the Idaho supreme court, then it would only be answerable to this Court on an abuse of discretion theory, but the solution to the problem presented by the permissive nature of Idaho Appellate Rule 12 is in what was suggested by Justice Ginsburg earlier, and that is that this represents and tells us that the first opportunity to exercise the ability to get exactly what you want in the way of the interlocutory appeal is to take this Court's... excuse me, take Congress' route, and that is to remove it to Federal court.
Ruth Bader Ginsburg: Which might be equally inconvenient for your client, given the distance that Mr. Gilmore just told us about, that the State court is much more accessible.
W. B. Latta, Jr.: There are three Federal courtrooms in Idaho, and for a large number of people in Idaho it's a very long haul to a Federal courtroom, but if the State believes on behalf of its actors that it must have the right of interlocutory appeal, then the answer is to go to Federal court, not to be subjected to the discretion of the Idaho supreme court where they may not--
Sandra Day O'Connor: I had though maybe the closest case supporting petitioner was Felder v. Casey. How do you distinguish that case and the reasons for it with the situation here?
W. B. Latta, Jr.: --I take solace in the language of Felder v. Casey, because it talks in that case of the natural and permissible consequences of the otherwise uniformly applicable State rule. Felder does not dictate that there shall be an interlocutory appeal rule in State court. This finality rule--
Sandra Day O'Connor: Well, it wasn't dealing with the appeal problem, it was dealing with a notice problem.
W. B. Latta, Jr.: --That's correct.
Sandra Day O'Connor: But the principle, at least, there was that there were times when we were going to impose certain requirements on State courts in connection with 1983 suits.
W. B. Latta, Jr.: That's right. The... but those burdens that you impose on State courts under Felder are the burdens on the plaintiff's exercise of her rights as opposed to the State actors.
David H. Souter: That was... I mean, what's sauce for the goose is sauce for the gander. I really don't see how you can say, well, those were plaintiffs and these are defendants. So what? I mean, the... if that's all it is, if they're plaintiffs and here's the defendants, when I read Felder... but you're going to agree with what I say is the problem, and you'd better not agree with it because it will turn out it's wrong. I want to know why... I mean, when I read Felder, I thought that Felder follows from Rose, because Rose is a case that says you can't just kick a 1983 actions out of your court.
W. B. Latta, Jr.: That is correct.
David H. Souter: And Felder was a case where they said the plaintiff has to show that he's hurt within 120 days, and they say that's such a short time, 120 days to notify that you're hurt, that it's about the same thing, kicking it out. All right. I don't know if that's a correct distinction or not, but if you're just going to distinguish... unless you find something like... I mean, can you say a little more about well, we're plaintiffs and they're defendants? I mean, that, to me, doesn't work.
W. B. Latta, Jr.: Well, the State interest that's being protected by the immunity rule belongs to the States, not to the individuals, as has been offered by petitioners as a reason for applying this Federal rule and this Federal procedure in State court. The--
David H. Souter: Well, I suppose that would be true if everybody knew that the State was going to pay the judgment. Suppose the individual's going to pay the judgment? Can the Federal Government not condition the terms on which a person is liable for a violation of the Constitution of the United States under a Federal statute and say we're not going to make you liable if the law was not clear?
W. B. Latta, Jr.: --The choice of how the State is going to exercise its actors' immunities is up to the State.
David H. Souter: Well, I'm sure that's true if it's a State... if it's a State liability scheme, but this is a Federal liability scheme. The Federal Government has said you as a person are individually liable for violating 1983, but we'll give you a defense.
W. B. Latta, Jr.: And the State can elect to expand on that defense by paying for the Office of the Attorney General to defend them or indemnifying them, or, as was suggested earlier, telling the State actors when they come to work, you may be subject to a civil rights case.
David H. Souter: Well, but suppose the State doesn't indemnify the persons, or the State treasury is insufficient? I don't think the State can abolish a Federal defense that this Court and the Congress by inference have granted to a defendant, an individual defendant.
W. B. Latta, Jr.: The State has not abolished the Federal defense in this case. If the Federal defense is immunity from liability, that has to be distinguished from immunity from the burdens of trial that they're trying to obtain by imposing this interlocutory appeal rule on the Idaho appellate system.
William H. Rehnquist: Well, but the State of Idaho does recognize the doctrine of qualified immunity, doesn't it?
W. B. Latta, Jr.: Very much so, yes.
William H. Rehnquist: So that all Idaho is denying that the Federal courts give is the interlocutory appeal.
W. B. Latta, Jr.: That is correct, and the distinction that's of importance here is the manner in which the interlocutory appeal is taken in the Federal system compared to the State system.
Stephen G. Breyer: Then you... I don't want to interrupt. Are you finished? I want you to finish.
W. B. Latta, Jr.: I wanted to answer... excuse me. The interlocutory appeal under the Federal system is pursuant to 1291 and to the Cohen collateral order doctrine, and those are first ideas that a statute that doesn't apply, an idea that does not... has not been accepted by the Idaho courts for application in State courts, and that provides the complete remedy that the petitioners seek, because there's a court system that allows for the interlocutory appeal that this case... excuse me, this Court has created in Mitchell. So if they're objecting that... if their objection is that we want our interlocutory appeal, the whole answer is, the case can be, should have been removed because that's where you know you're going to get your interlocutory appeal.
William H. Rehnquist: But why wasn't it a complete answer in Felder, then, to say well, you could have filed in the District Court for the Eastern District of Wisconsin, rather than in the circuit court?
W. B. Latta, Jr.: My understanding of the distinction here would be that if you could have filed in the Federal district court in Wisconsin you would have still been subject to the 120-day rule, and that was what... that limitation on bringing the State's rights was what was fatally wrong with the Wisconsin notice of claim statute.
Stephen G. Breyer: I thought what was wrong in Felder was that in the State court, by imposing the time requirement, the right in effect was shrunk a little bit, and they said you can't shrink these rights against the wishes of those who assert them. In this case, the party that is protected by the appealability rule in a qualified immunity case is the State, and the State says through its official agencies, I don't care. It's okay with me. I don't want that right. Isn't that a distinction between this case and Felder?
W. B. Latta, Jr.: It has been exercised, yes. The State's position, as reflected in Idaho Appellate Rule 11, is that it does not want to hear interlocutory appeals, and it may exercise that right with respect to the State's interest.
Antonin Scalia: Well, if this is an optional thing with the State, then I suppose the State could decide not to accept the qualified immunity doctrine at all, if it thinks its officers don't need it, right?
W. B. Latta, Jr.: That is correct. They could do that. They could direct the Attorney General, perhaps through legislation, likely through legislation, not to assert the defense, and--
Antonin Scalia: Well, I suppose-- --If a 1983 action were brought, the defendant would... I mean, he could tell the Attorney General not to, but he couldn't tell the individual who's being sued for his private fortune not to assert a defense that he has. You think the State could do that, say you offered us this. It was for the benefit of the State, and we don't think we need it so we're not going to let our State officers do it. You don't think they could do that, do you?
W. B. Latta, Jr.: --They could direct or make a policy decision not to use the benefit of the qualified immunity defense.
Antonin Scalia: I'm not talking about the executive. I'm talking about the State courts.
W. B. Latta, Jr.: In the State courts.
Antonin Scalia: In the State courts? The State courts could say, the Federal Government's been very kind to offer us this immunity defense, but speaking for the State, thanks but no thanks, and you're liable under 1983 without any immunity? That's your position?
W. B. Latta, Jr.: The... if the question, if I understand the question, if it's collapsing the interlocutory appeal rule into the qualified immunity issue, then--
Antonin Scalia: Oh, I mean... they go together, it seems to me. If you... you're asserting a doctrine of waiver, I guess, or... I don't know, declination of offer, and you say that the Federal Government has essentially offered the State the advantage to its officers of having an immediate interlocutory appeal, and the State is saying we don't think we need it. Well, if they could do it for that element of qualified immunity, why can't they do it for the whole doctrine and just say, we will not allow that as a defense to a 1983 suit. I think your position is, yes, they can do that.
W. B. Latta, Jr.: --At the fullest extent the answer is yes.
John Paul Stevens: You certainly don't have to take that position to defend this case, because there's a vast difference between giving up a procedural right that does not affect the ultimate outcome of the case and giving up a defense that would change the outcome in many, many cases.
W. B. Latta, Jr.: I would agree with you, Justice--
John Paul Stevens: And in Felder, of course, part of the analysis was that the statute affected the outcome in a significant number of cases, and that's not true here.
W. B. Latta, Jr.: --That's why I looked at the distinction between qualified immunity as a defense and the interlocutory appeal, because irrespective of not being able to exercise the interlocutory appeal that they seek by imposing 1291 on the State, the immunity defense will never go away, and it wouldn't matter what kind of a recovery the plaintiff would obtain down below if the State was, in fact, immune from suit the Supreme Court would so hold.
John Paul Stevens: Yes, but in one respect it does go away, because the one element of the immunity defense is the element not to have to stand trial, and that does go away. If the only time you can raise qualified immunity is after trial, then you have lost that element of the immunity, and that... to that degree it is outcome-determinative.
W. B. Latta, Jr.: If... I would disagree. We've looked at that outcome-determinative issue as hard as we can, and if the answer is, does it determine the outcome of the lawsuit, the answer is no--
David H. Souter: No, but it determines the outcome of whether they have to stand trial or not.
W. B. Latta, Jr.: --Exactly.
David H. Souter: In that respect there is a determination--
W. B. Latta, Jr.: There is--
David H. Souter: --that the bell cannot be unrung.
W. B. Latta, Jr.: --With respect to the trial bell, yes, it cannot be unrung, and if you don't want to hear that chimed in the background, either change Rule 11 or remove it to Federal court where you're guaranteed to be in a position to take the interlocutory appeal that they seek.
Antonin Scalia: Well, it really doesn't deny the right not to stand trial, does it?
W. B. Latta, Jr.: No.
Antonin Scalia: The person has that right not to stand trial. The only issue is, when the district judge makes a mistake in the course of adjudication and finds that right not to be applicable, what is the procedural remedy? You don't have to concede that the right not to stand trial has been abrogated by the State, do you?
W. B. Latta, Jr.: No, not at all.
Speaker: Well--
W. B. Latta, Jr.: But you--
William H. Rehnquist: --The district court here, the District Court of Bonner County, entertained a motion for summary judgment at the beginning of this case, didn't it?
W. B. Latta, Jr.: --Yes, it did.
William H. Rehnquist: And one of the grounds for summary judgment was qualified immunity.
W. B. Latta, Jr.: That's correct.
William H. Rehnquist: So it's not as if Idaho said, we will never recognize any qualified immunity defense until the day before trial. The district court heard the claim and simply decided against you, and all the other people are being denied, the State people, is the right to appeal that decision before trial.
W. B. Latta, Jr.: The district court decided the issue in our favor, thinking that there had been a violation of clearly established law, and at this juncture what the petitioners want is to take their interlocutory appeal, but they're not in a court system that's otherwise available 200 miles to the south in Moscow to take that appeal, and that's the... the problem that they're faced with is having made the decision, they're now objecting to the effect of staying in the State system.
Ruth Bader Ginsburg: I suppose your case would be harder if Congress had written into 1983, made it a nice neat package with a substantive right and a procedural right all rolled into one, but the interlocutory appeal that we're talking about comes not from the Bivens claim or the 1983 claim, it comes from the standard 1291, the collateral order that applies as a matter of Federal procedural law to all Federal courts on all questions.
W. B. Latta, Jr.: That is exactly--
Ruth Bader Ginsburg: Nothing unique to 1983 about 1291 and the collateral order rule.
W. B. Latta, Jr.: --That is correct. Johnson v. Jones shows us that very explicitly. Qualified immunity is not an issue... excuse me. The interlocutory appeal is not an issue of 1983. It's a creature of 1291, and in your analysis, we see it the same way. When the statute was passed there were rights and immunities, and at some point... I believe it's 114 years later... Mitchell comes down from this court, and now we have interlocutory appeals under 1292 and under Cohen that apply in State court, and if the Office of the Attorney General wants to take advantage of the second benefit offered along with the immunity itself, and that is the interlocutory appeal recognized by this Court, they can do so by removal. We don't think that they can do so by engrafting 1291 into Idaho Appellate Rule 11.
Sandra Day O'Connor: Well, you might even go so far, I suppose, as saying there's no right to even have an appellate structure at all in Idaho for a civilian civil dispute like this.
W. B. Latta, Jr.: This Court earlier in the MLB decision acknowledged that there was no right, there's no requirement that the State provide civil appeals, and so the answer to your question is that is correct. We could go that far. The practicalities are is that is not what has happened here. We do have a civil system, but that civil system has chosen to look at the finality rule, and we can look at this case in the Federal court system the same way. If Congress were to amend 1291 and make it a final judgment order decree rule as opposed to a final decision rule, then the underpinnings in Mitchell for allowing interlocutory appeals for statutory underpinning at least, would go away.
Antonin Scalia: Mr. Latta, do you think your case might be weaker if Cohen hadn't decided that there are exceptions which this Court can carve out to the final decision rule? In other words, suppose the Federal statute were categorical and this Court had said, well, yes, the procedural statute is categorical, but it seems to come into conflict with the right set forth in 1983, and since it comes into conflict with it, we think the rights set forth in 1983 must prevail, and despite a final judgment absolute rule, we think that statute prevails. If it would prevail over the Federal statute, wouldn't it prevail over the State statute as well, if it were that strong a Federal policy?
W. B. Latta, Jr.: It would be a much more difficult case for us to argue here. Interestingly, under Cohen, of course, the number of things that now fit into final decisions that this Court is going to look at keeps growing. It's not shrinking, and there's no hint that the Congress is going to move to a stricter rule than the final decision.
Antonin Scalia: I suppose another-- --It's moving at a slower rate, though. Yes, I think we're not leaking quite as much as we used to. I suppose another way of phrasing Justice Scalia's question is whether the appealability rule adopted in Mitchell is a construction of 1291 or a construction of 1983, and I suppose the answer's obvious because Mitchell wasn't even a 1983 case.
W. B. Latta, Jr.: That is correct. When we look at the Idaho State structure, the two opportunities that the State had to take their interlocutory appeal first as a matter of policy and second as a matter of tactics that are to be applied in this case, we suggest that the Court decline the invitation to apply 1291 to Idaho Appellate Rule 11. Congress provided a complete remedy in the removal statute. It left to the State their choices on how to conduct their business and balance these competing State interests, and the balance is to be struck for the States, not in favor of engrafting a Federal statute. Thank you very much.
William H. Rehnquist: Thank you, Mr. Latta. Mr. Gilmore, you have 3 minutes remaining.
Michael S. Gilmore: Thank you. The State court balance has already been upset. This case is in the State court. It would not be in the State court but for Felder v. Casey, and I think we've really got a core issue. What's sauce for the goose is sauce for the gander.
Ruth Bader Ginsburg: But Felder v. Casey just matches what happens on the diversity side, doesn't it? You've got Rule 3 that says the case commences when you file the complaint, but if the State law says that's not good enough, you have to serve it. That State rule will apply in the Federal court in a diversity case, so Felder's just the match for that, isn't it?
Michael S. Gilmore: I think not. When you talk about Rule 3, you're talking about something that can be complied with that does not extinguish a substantive right. In this case, the substantive right at issue, the right not to go to trial, will be absolutely extinguished if there's an erroneous--
Ruth Bader Ginsburg: Not the immunity.
Michael S. Gilmore: --The immunity.
Ruth Bader Ginsburg: Not... and the difference in Felder is, if you didn't give that notice that the State had, you don't get your foot in the door in court at all. It's quite different.
Michael S. Gilmore: I would contend that it's just the same. You don't get your foot in the door for appellate review to protect your immunity, there's no procedure you didn't comply with. In Felder at least, you could have made it there in 120 days. The way the Idaho supreme court has ruled, there's nothing that could have been done to get you there as a matter of right. In Federal court, this Court has never said you must try to go under 1292 rather than 1291 if you want to get a review of a qualified immunity order, and there's no reason to impose that possibility of having an opportunity, maybe, for appellate review in the State courts. It should be the same in both court systems in order to preserve the benefits of the immunity.
Ruth Bader Ginsburg: The extent to which these finality notions are tied into Federal substantive rights is strained, isn't it, when one of the threads that you're tugging is the collateral order rule comes out of Cohen v. Beneficial, which I think was a diversity case.
Michael S. Gilmore: It was a diversity case. But the finality is tied to the substance of what is going on, and in here it's the Court's characterization of qualified immunity that determines whether it's final. 1291 doesn't tell you whether it's final. It's the Court's characterization of the qualified immunity, the immunity not to go to trial, that is the key to finality. 1291 doesn't tell you what's final. The Court's 1983 precedents tell you what's final, and this is a final order under those precedents. Just one or two other points... oh, I see my time is up.
William H. Rehnquist: Thank you, Mr. Gilmore. The case is submitted.
Speaker: The Honorable Court is now adjourned until Monday next at ten clock.


William H. Rehnquist: We'll hear argument next in No. 91-8199, Thomas Lee Deal v. the United States. Ms. Young, you may proceed.
Dola J. Young: Mr. Chief Justice, and may it please the Court: Thomas Lee Deal, the petitioner, committed six bank robberies in the Houston, Texas area during a 4-month period. In addition to being found guilty and sentenced for those bank robberies he was found guilty and sentenced for six counts of using a firearm during a crime of violence and for being a felon in possession of a weapon. At issue in this case is whether Mr. Deal was given notice that he would receive 20-year sentences on five of the six counts for using a firearm during a crime of violence pursuant to 18 U.S.C. 924(c). Mr. Deal contends that his Fifth Amendment due process rights were violated because the rule of lenity was not applied when imposing the 20-year sentences under section 924(c).
William H. Rehnquist: It's your position, Ms. Young, that the rule of lenity is required by the Fifth Amendment?
Dola J. Young: No, Your Honor, it is required by the rulings of this Court when a statute is ambiguous. So for that reason petitioner is asking this Court to construe the statute as imposing a 20-year sentence only if the offense is committed after a previous 5-year sentence has been, has become final. Such a construction is necessary because the language of section 924(c), specifically in the case of his second or subsequent conviction, is ambiguous for several reasons when both the language of the statute and the structure and operation of the statute are considered. Turning to the language of the statute, the specific language at issue has two meanings, one of two meanings. It can be construed as multiple convictions occurring at the same time, or it can be construed as multiple convictions occurring in chronological sequence. Also--
Harry A. Blackmun: Ms. Young, if you prevail here what will be the ultimate outcome? 30 years instead of--
Dola J. Young: --Of 105, yes, sir.
Harry A. Blackmun: --105. So he is put away for 30 years anyway?
Dola J. Young: Well, 30 years on the 924(c) counts, plus he received approximately 14 years on the bank robberies which was to run concurrently with 10 years for being a felon in possession of a weapon. So the total sentence would be approximately 44 years.
Byron R. White: But the six counts were bank robbery, was it?
Dola J. Young: Yes, sir, that was the crime of violence.
Byron R. White: They were different dates and different places, I suppose?
Dola J. Young: Yes, sir, they were. There were six bank robberies, there were four different banks, and two of the banks were robbed twice but at different dates, on different dates.
Byron R. White: So if there had just been, if there had just been separate indictments for the six bank robberies, one indictment for each bank robbery, you wouldn't be here, I suppose?
Dola J. Young: Yes, Your Honor, we would still be here because looking at the operation of the statute, the statute is in two parts. The first part, which calls for a 5-year sentence when a firearm is used during a crime of violence, is clearly an enhancement statute. That is the penalty is imposed for violation of another statutory provision.
Byron R. White: But suppose the, there was a bank robbery by your client and he was indicted and convicted for it?
Dola J. Young: Yes, sir.
Byron R. White: And similarly for the other five. Wouldn't the statute apply, the enhancement apply there?
Dola J. Young: No, Your Honor, because the second part of the statute, in the case of his second or subsequent conviction, is a recidivist statute, and that language, in the case of, is linking the second part of the statute to the first, and it's--
Byron R. White: Well, when would enhancement ever apply?
Dola J. Young: --When the offense occurs after a previous sentence has become final.
Byron R. White: Well, that's... I thought I was posing that in my last hypothetical.
Dola J. Young: The offense would have to occur after the previous 5-year sentence had become final. The hypothetical--
Byron R. White: Oh, after, you mean after he had served the 5-year sentence?
Dola J. Young: --Yes. And that's because of the language in the case of, because it's referring back to that part in the first clause, that use of a firearm and receiving a 5-year sentence.
David H. Souter: Wouldn't your argument be served going back to Justice White's hypo? If he had been sentenced to the 5-years enhancement and if for some reason he escaped from custody before being sent to prison and committed another bank robbery, wouldn't he be subject to the second enhancement for that even though he had not served the first one?
Dola J. Young: Well--
David H. Souter: Even on your theory that it's a recidivism statute?
Dola J. Young: --Well, I think we would have to look at the general policy of recidivist statutes, and that is for--
David H. Souter: Well, I don't mean to cut you off there, but I just thought on your own argument that in the case that I give he would be subject to the second enhancement. Did I misunderstand you?
Dola J. Young: --The position is that the offense would have to have become final, the offense would have to occur after. And you are correct, because your hypothetical said that if he had been sentenced, he was in prison and he escaped. Then yes, you are correct, then for the bank robbery that occurred after the escape the 20 years would apply.
Antonin Scalia: Okay. Ms. Young, do we know that... how do we know this is a recidivist statute? Maybe it's just a habitual criminal statute. You seem to think that the only reason for imposing greater sentences for the later crime is that this guy just doesn't learn from being in jail. Maybe another reason is, whether he has been in jail or not, people who are habitual criminals are worse than people who on one occasion robbed a bank. This guy robbed six banks, one after another.
Dola J. Young: Well, we don't know that Congress intended this to be a habitual--
Antonin Scalia: We don't know, so we have to look to the text, I assume. And what the text says, in the case of his second or subsequent conviction. It seems to me the most you can make out of that, the very most is that the first conviction has to have been final before the second, which means in Justice White's hypothetical you would have to say so long as he has been sentenced on the first count, when he is sentenced for the second count you are dealing with in the case of a second conviction and he should get the enhanced sentence.
Dola J. Young: --Well, given that situation we don't know which of the counts would be the second conviction. There is no notice of where the second conviction occurs.
Antonin Scalia: Well, it means second in time, don't you think? What else could it mean? Second or subsequent. Subsequent--
Dola J. Young: It could mean second in order or it could mean subsequent, take the meaning of subsequent, which would refer to later in time. But he had... the problem is that Mr. Deal, a person in Mr. Deal's position would not have any notice of when that enhancement would apply, the 20-year sentence would apply. The respondent I think concedes the ambiguity of this language by rewriting the statute in a manner that changes the language. Respondent's construction of this statute, which as I said is a rewrite, is that there would be 20 years for any subsequent offense, and that does not give effect to every clause and word of the statute. If we look at the operation of the statute because the language itself is ambiguous, I would also... I need to back up a minute to the language of conviction. That also goes to the ambiguity of the language because conviction, as this Court has noted in previous opinions, that the word conviction carries two different meanings and Congress has attached different meanings to different statutes. And there is no definition of the word conviction in the statute, so we would have to construe conviction as meaning a final judgment and not simply a finding of guilt, as the respondent would have us do. Now, turning to the structure and operation of the statute, although the language is unclear we can glean some help from the structure in support of petitioner's construction. The first part is the sentence enhancement, that is it imposes an increased punishment for one convicted under another statutory provision. The second part is a recidivist statute because of the words in the case of, which clearly refer to a legal proceeding which introduces a stiffer penalty for one who has ignored a previous notice by way of a conviction. The--
William H. Rehnquist: --You say... what meaning is it you attach to the words in the case of?
Dola J. Young: --A legal proceeding.
William H. Rehnquist: Well why, don't we use the phrase in the case of very often just to identify a particular episode that doesn't necessarily have anything to do with a legal proceeding?
Dola J. Young: Yes, we do, but as this Court has noted, when a term has more than one meaning and there is a meaning that is applicable in a legal sense, then the legal sense is the one that governs, and that would be the reason for construing in the case of as a legal proceeding.
William H. Rehnquist: And what case would you cite for the proposition that you just stated?
Dola J. Young: That case comes, that comes from the case... I don't have it on the tip of my tongue right now, but there is a case and it is cited in our brief for that proposition. The dependence--
Anthony M. Kennedy: So you would read the statute as if it said after conviction in a second or subsequent case?
Dola J. Young: --I would--
Anthony M. Kennedy: That's the way you would have us interpret the statute?
Dola J. Young: --I would read it after conviction--
Anthony M. Kennedy: In a second or subsequent case.
Dola J. Young: --If an offense after conviction, an offense that is sentenced in a proceeding after conviction would receive a 20-year sentence.
Anthony M. Kennedy: Well, actually you would say after conviction and after the sentence has been served?
Dola J. Young: Yes.
Antonin Scalia: Yes. But what you're applying that after to is not the later case. You're really reading it to say in the case of... not in the case of his second or subsequent conviction, but you're saying in a case involving criminal activity, alleged criminal activity that occurred after his first conviction.
Dola J. Young: That's correct, Justice Scalia.
Antonin Scalia: You insist not just that the case be second, but that the criminal, alleged criminal activity upon which the case is based be second.
Dola J. Young: That's correct.
Antonin Scalia: That's... I mean, I can follow you the first step, that the case has to be second, although I can't see why anyone would want such a disposition, why you would insist on six separate trials instead of one trial in order to get the enhancement. It makes no sense. Your disposition makes some sense, it turns this into a recidivist statute, but I don't see how you can get it out of the language. All it says is in the case of his second or subsequent conviction.
Dola J. Young: That's exactly the point, Justice Scalia, that we don't get it from the language. We look at the operation of the statute and we look also at the fact that there are different sentences imposed, because it makes no sense to impose 5 years and 20 years at the same time. If Congress had wanted something like that to apply, Congress could simply have said 20, or 10 or 20 years for any offense where a firearm is used during a crime of violence. There is no real reason, it just doesn't make sense to have those different sentences imposed at the same time.
Sandra Day O'Connor: Well, it certainly could, I suppose. I mean, the district judge at sentencing in this case might say, after having sentenced on the first count, now I'm about to enter a second judgment of conviction. Therefore this is a case of a second judgment of conviction and therefore the 20-year provision applies. I mean, you can certainly read the statute that way.
Dola J. Young: That is one possibility, but I think, as this Court has recognized, that a mere possibility, a mere construction is not sufficient to provide a person with notice. That is one possible reading of it, but again the issue is whether there is notice that the defendant, when he knows that he will be subject to the 20-year sentence-- Respondent points--
Byron R. White: Do you think the conviction word used in this enhancement provision refers to a criminal judgment?
Dola J. Young: --Yes, sir, I do. And that's for two reasons.
Byron R. White: It's not return of the jury verdict?
Dola J. Young: Not, absolutely not. For two reasons. One, the last part of the statute refers to convicted. The court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection. So therefore we would have to refer to that as a judgment. A finding of guilt also does not, a finding of guilt requires some indicia of finality, and just a simple finding of guilt does not require, it does not give a defendant any, it does not give the sentence... excuse me. A simple finding of guilt does not provide an indicia of finality.
William H. Rehnquist: How about a finding of guilt plus a sentence?
Dola J. Young: There there would be an indicia of finality.
William H. Rehnquist: Well, then if the judge, on the basis of the jury's verdict, says with respect to the first count, you know, I sentence you to 5 years, why isn't that then final if you agree with the question that I just asked you? So that when the time comes to impose the sentence on the second count, it is final since there has been not only a finding of guilt but a sentence.
Dola J. Young: Then yes, you're correct, then it's final because the sentence has been imposed. But, as I stated earlier, the requirement to then turn around and do, impose a 20-year sentence, there is no notice and there is nothing in the language to support that.
William H. Rehnquist: Well, to what was your argument about lack of finality addressed, Ms. Young, because I assume from your answers that you have just given that you do not think that a jury verdict of guilt plus a sentence indicates lack of finality?
Dola J. Young: It does not.
William H. Rehnquist: So wherein does the lack of finality occur that you object to?
Dola J. Young: I don't recall which justice it was, but asked me if a conviction would refer to a finding of guilt, and that's when I responded that a conviction would not refer to a simple finding of guilt.
William H. Rehnquist: But a conviction would refer to a finding of guilt plus a sentence?
Dola J. Young: Yes.
John Paul Stevens: And in this case, Ms. Young, how many judgments were entered?
Dola J. Young: One single judgment.
John Paul Stevens: One judgment including, all the sentences on all the counts were incorporated in a single judgment?
Dola J. Young: Yes, sir.
John Paul Stevens: So you say in this case there was one conviction, as you define the term?
Dola J. Young: That's correct. Respondent--
William H. Rehnquist: But the trial court could have changed all that on the basis of the same jury verdict had he simply entered six judgments?
Dola J. Young: --That would not be proper, Your Honor. I don't think that that would solve--
William H. Rehnquist: Well, should it then depend on whether or not there was one judgment based on six convictions or six different judgments based on six findings of guilt?
Dola J. Young: --I'm sorry, I did not follow your question.
William H. Rehnquist: Well, ought the outcome in this case, whether your client is sentenced to 40 years, as you say he should be, or 105, ought it to depend on whether the trial court says I am going to enter six different judgments here because there have been six different findings of guilt by the jury, or if he says there have been six different findings of guilt by the jury but I am going to enter just one judgment?
Dola J. Young: No, because then that still does not take care of the notice requirement that a defendant would not know when he would be subject to that 20-year sentence. And I think, as respondent has pointed to 21 U.S.C. section 962(b) as an example of what Congress can do to overcome this particular problem, and that is an example of what Congress can do, but that statute was enacted 2 years after 924(c), and 924(c) was the first attempt that Congress made to resolve this issue. And Congress made a deliberate choice of words to say subsequent conviction and not subsequent offense, as it had in other statutes earlier, and I think this is because Congress was struggling with a different situation. And also the fact must be noted that this statute was passed in great haste when compared to other recidivist statutes.
Antonin Scalia: Subsequent offense would be better for your position, wouldn't it, I mean if it had read subsequent offense it would make your argument easier, I assume?
Dola J. Young: If it had read subsequent offense, I don't think so, because that's the exact structure that the Government is relying on in order to get this 105-year sentence, because the Government says for any subsequent offense then it's 20 years. And so then no, it would not help my position.
John Paul Stevens: May I ask you, following up on the Chief Justice's question, what is your experience? Do the trial judges normally enter separate judgments on each of several counts or do they generally enter one judgment covering the whole case?
Dola J. Young: It has been my experience one judgment covering the whole case.
David H. Souter: Isn't your strongest argument that the ambiguity simply in here is in the word, in the referent to the word subsequent? You don't know whether it means subsequent to, an offense subsequent to another offense or an offense subsequent to a prior conviction. That's your ambiguity argument, isn't it?
Dola J. Young: Yes, sir. Another--
Antonin Scalia: Well, but no. You want to go further than that. You want to say it has to be subsequent to serving a sentence. The options are not conviction or offense, subsequent to a prior conviction or subsequent to a prior offense. That won't satisfy you. You insist that it be subsequent to serving the sentence from the prior conviction. Isn't that your position?
Dola J. Young: --No, because as one of the other justices pointed out, if the person had been incarcerated and escaped and committed an offense, then the 20 years would be applicable in that situation.
Antonin Scalia: You have to have at least begun to serve your sentence, is that it?
Dola J. Young: That's correct, Your Honor, because that puts you on, the imposition of the sentence puts you on notice for any subsequent offenses.
Antonin Scalia: Not the imposition of the sentence, the serving of the sentence.
Dola J. Young: Well, correct. Well, I am assuming that once it's imposed you begin to serve it. But--
Antonin Scalia: Immediately. You're immediately in custody. Well then, then if you sentence the person in six separate counts, one after another, he immediately begins serving the first count as soon as you sentence him.
Dola J. Young: --But then the offense has not occurred--
Antonin Scalia: The offense hasn't occurred yet.
Dola J. Young: --Another aspect--
Anthony M. Kennedy: Of course that is inconsistent with your own interpretation of the second use of the term conviction, where the statute directs that the sentence not be suspended. It's a very odd result to say you can't suspend a sentence until after the sentence has been served. I mean, that doesn't make any sense.
Dola J. Young: --You could not suspend--
Anthony M. Kennedy: Well, you were arguing that the second use of the word conviction in the statute, which says that the judge shall not place on probation, the court shall not place on probation or suspend the sentence of any person convicted, has bearing on the definition of the word conviction in the statute. It's a very strange construction to say that he cannot suspend the sentence until after the sentence has been completed. So therefore the use of the term conviction cannot comprehend the serving of the sentence or that sentence just doesn't make any sense.
Dola J. Young: --That's... I did not say it would require the serving of the sentence. I thought that I was saying that the imposition of the sentence in response to Justice Scalia's question.
David H. Souter: Yes, because you answered an earlier question of mine in which I posed the situation in which the individual is sentenced and immediately escapes. He runs out of the courtroom and commits another robbery. In that case you agreed that the 20-year enhancement could be applied when he was convicted for the second offense.
Dola J. Young: Yes, sir, I did.
Speaker: Okay.
Dola J. Young: Another aspect of the structural ambiguity lies in the fact that it was almost 20 years before prosecutors leaped to this interpretation. The statute was enacted in 1968 and it was 1987 before we saw an issue of this type come before the courts. Prosecutors across the country conceded to two or three consecutive 5-year sentences being imposed even as late as 1991. There are some cases cited in the brief to that effect. The split in the circuits also attests to the structural ambiguity. And finally, the respondent concedes by asking this Court to construe this statute in a manner that no other recidivist statute operate, and it would make this statute very different from any, the operation of any other statute of its kind. Respondent's construction is an anomaly for five reasons. One, it changes the language of the statute. It changes, substitutes offense in for conviction, and substitutes any subsequent for second or subsequent. Two--
Byron R. White: Why isn't it enough for you to say, well, second or subsequent conviction means second or subsequent judgment? And there was only one judgment here so why shouldn't you win?
Dola J. Young: --That we would also win if it said second or subsequent judgment, because there was only one judgment.
Byron R. White: Well, it does say second or subsequent judgment because it says second or subsequent conviction.
Dola J. Young: But then it does not take into effect the relationship to the first part--
Byron R. White: But I don't know why you want to win more than you have to to win your case here. There is only one judgment. There is not a second or subsequent judgment on which there can be an enhancement. Why isn't that enough to solve your case?
Dola J. Young: --That is true in this case, Your Honor.
Antonin Scalia: Maybe you haven't argued that because it makes it really a very silly statute. It means that you can give this person 100 years if you bring six separate prosecutions, but you can't if you join them all in one. That doesn't make much sense at all.
Dola J. Young: No, it does not, and that... in construing the statute I think the Court would need to be, we'd need to look at that. That is not the situation that Mr. Deal faced, but it is, it sort of makes it irrelevant that we're even here if that is the construction that the Court gives the statute. If there are no other questions, I'd like to reserve my remaining time for rebuttal.
William H. Rehnquist: Very well, Ms. Young. Mr. Estrada, we'll hear from you.
Miguel A. Estrada: Thank you, Mr. Chief Justice, and may it please the Court: Mr. Deal was found guilty of using a gun in six different bank robberies on six different dates. The district court sentenced him to 20 years on each count on which he was found guilty of using a gun, save for the first, finding that each of those counts was a second or subsequent conviction under section 924(c). Eight of the nine courts of appeals that have considered that issue have agreed with the district court--
Byron R. White: What do you think a conviction is?
Miguel A. Estrada: --A conviction is a finding of guilt by a court or jury, Justice White.
Byron R. White: Or jury, you think.
Miguel A. Estrada: Yes.
Byron R. White: So that the conviction happens when the jury verdict is returned?
Miguel A. Estrada: That is right, or when a plea of guilty is entered.
Byron R. White: You don't have to enter a judgment on it before there is a conviction?
Miguel A. Estrada: Not as the word is used in context in this case.
Sandra Day O'Connor: Well, what did we say in Dickerson?
Miguel A. Estrada: In Dickerson the Court was dealing with section 922(g), which is part of the same chapter where section 924(c) is now. And the term in Dickerson was that someone who had been convicted of a felony was not allowed to have a firearm. The word--
Sandra Day O'Connor: Well, and we said conviction meant it didn't occur with the entry of the plea, but only after the sentence and judgment were imposed.
Miguel A. Estrada: --With all respect, Justice O'Connor, that is in fact not what the Court said. The Court at page 111, if I recall, said that all that was necessary was the entry of the plea and more was not required, and those were the words that the Court used. As it happens--
Byron R. White: Well, even if you say the conviction occurs with the return of the jury verdict, there was only one conviction here. The, there was only one verdict. One verdict came in. There wasn't a second or subsequent conviction in the sense of a second or subsequent jury verdict, was there?
Miguel A. Estrada: --No. That is not right, Justice White, for the following reason. The statute uses the word conviction under this subsection, which means a finding of guilt under this subsection, and there were six different findings of guilt by the jury under section 924(c). Each of them was a conviction under the statute.
Byron R. White: Yes, but it wasn't a second finding, was it?
Miguel A. Estrada: Well, the word second in this--
Byron R. White: So you rely on second rather than subsequent?
Miguel A. Estrada: --No, we think that each of the two terms has a distinct meaning in the statute, Justice White. The word second in everyday language means the number two in a countable series or what follows the first, either in time or in number sequence. The word subsequent in this context means what follows the second, either in time or in number sequence, and it is just a proxy for Congress to have said third, fourth, fifth, sixth, et cetera.
Byron R. White: So the jury must have, the jury couldn't have considered all counts at the same time, so at least they had to consider them separately and so their finding of guilt on each, for each bank robbery, they were... some were later and some were earlier.
Miguel A. Estrada: The significant point is that they made seven different findings of guilt under section 924(c), and that is all that the statutory language calls for in this case, Justice White. Those are, five of those are second or subsequent convictions under the plain terms of the statute. I think the most significant and salient point about the case is that this is a dangerous person statute. It is not in anyway a recidivist statute. The structure of the language, and especially the scale of penalties in section 924(c) make that very clear.
David H. Souter: Why wouldn't that be clear if the enhancement were the same in each instance, but in this case the enhancement is 4 times for the second or subsequent what it is in the first, which indicates that it's something other than just a dangerous person statute, isn't it?
Miguel A. Estrada: That is not right, Justice Souter, because the first sentence of the statute makes clear that what Congress is doing in the statute is two things. It is looking to identify persons who do even one crime with especially dangerous weapons, and also looking to identify those who do dangerous or even more dangerous crimes more than once. Even a first--
David H. Souter: Well, when you get into comparative danger you are getting into recidivism, aren't you? In other words this is a person who does not learn from his offense.
Miguel A. Estrada: --That is not necessarily so as a general matter, Justice Souter. That is not so in this statute. Under this statute even a first crime carries a mandatory penalty of 30 years imprisonment if the firearm used is equipped with a silencer, if it is a machine gun, or under the most recent changes, if the firearm is a bomb or any similar explosive. And Congress has made a judgment that those types of activities are so dangerous that even someone who does that only once, and for the very first time in his life, should be subject to the 30-year mandatory sentence. We think that the second or subsequent clause that immediately follows is written in the same vein, and simply seeks to identify a particularly dangerous class of criminals, those who would use a gun to do a crime more than once and who thereby place at risk the lives of other people every time they do so. What Congress in effect is saying to those persons is if you are the type of person who would do a crime with a gun more than once you are just too dangerous to have around and you must be separated and incapacitated from society.
John Paul Stevens: Mr. Estrada, is Ms. Young correct when she told us that from 1968 to 1987 the prosecutors did not read the statute this way?
Miguel A. Estrada: That is not right in the sense that the issue did not come up in a litigated case until 1987.
John Paul Stevens: You mean in all those years there were no charges where the defendant had robbed more than one bank?
Miguel A. Estrada: The issue wouldn't be really--
John Paul Stevens: I mean, obviously it wasn't appealed on this issue if the practice was always to do as she says the right reading of the statute is. But was that, I'm asking you do you think that was the practice or do you know?
Miguel A. Estrada: --I don't know, and I think that the reason it did not come up is because until the mid eighties the penalties for a first and/or second were quite close to one another. They were 5 and 10. And in fact there were--
John Paul Stevens: But you're telling me you really don't know what the practice was?
Miguel A. Estrada: --That's correct.
John Paul Stevens: But she is correct that it wasn't litigated until 1987?
Miguel A. Estrada: It was not... the first court of appeals case dealing with the issue was Rawlings coming from the circuit in Florida, the--
John Paul Stevens: Eleventh Circuit.
Miguel A. Estrada: --Right.
John Paul Stevens: In 1987.
Miguel A. Estrada: In 1987.
John Paul Stevens: 19 years after the statute had been passed.
Miguel A. Estrada: 19 years. And for most of that time, Justice Stevens--
Byron R. White: Rather strange.
Miguel A. Estrada: --the important point is that the penalty ranges with the first few years were overlapping.
John Paul Stevens: Were not sufficient to justify a defendant having an interest in appealing if he wanted to challenge this statute.
Miguel A. Estrada: Well, there were two different issues, Justice Stevens. For part of the time the statute was written in a way where the sentence was not fixed. There were two ranges, and the ranges were overlapping. That is the first problem. So there was a measure of discretion in the district court to give a slightly different sentence. The second issue is that even when Congress changed that--
Antonin Scalia: When was that? When did it eliminate the overlapping?
Miguel A. Estrada: --I think they did that in the early eighties.
Antonin Scalia: Okay.
Miguel A. Estrada: Justice Scalia. I beg your pardon.
Antonin Scalia: I just wanted to get the date. Please finish the sentence.
Miguel A. Estrada: And following that the range was 5 under the first clause and 10 under the next, so it was not the type of issue that would be actively litigated because even though it obviously mattered it didn't matter as much as it does now. It was not until--
John Paul Stevens: You mean you didn't think a defendant would appeal a 10-year enhancement but he would appeal a 30-year enhancement? That's what you're saying in effect?
Miguel A. Estrada: --Well, I think that he is more likely to take issue with the plain meaning of the statute if more turns on it than not. I think that is right. The next point I was going to make in reference to what counsel said is that it is not the case that there were other cases in which the Government stipulated to a lower sentence by reason of any view it had of the second or subsequent clause. The cases it cites, one from the Tenth Circuit and one from the Ninth, both deal with a different problem that is not raised in this case and which is logically antecedent to the problem in this case, which is what the unit of the offense is under section 924(c), specifically whether using multiple firearms to do a single crime is a single or a multiple crime under section 924(c). And in those, based on guidance from this Court in Busic and from what the courts of appeals have told us, we have taken the view that if a person uses more than one firearm to do a single crime of violence, that is a single crime under section 924(c). Those are the cases that she is pointing to, and those raise an entirely different issue that is not raised in this case because it is conceded here that he is guilty of six different 924(c) crimes. Now, the important point about 924(c), as I was saying earlier, is that this is not a recidivist statute but a dangerous person statute.
Anthony M. Kennedy: I suppose, Mr. Estrada, that if a person robs a single bank on a single day and takes both money and Government securities as part of the hold up and there are two counts, that the consecutive sentence rule or the enhanced sentence rule would apply here?
Miguel A. Estrada: It is generally the case, Justice Kennedy, that if a person is guilty of two crimes of violence that he does as part of the same episode, it is true that two 924(c) crimes could be charged. I don't understand the facts that you gave me as really raising that, because I don't think that the separate taking of the bonds as part of the same bank robbery would necessarily be a separate crime of violence.
Anthony M. Kennedy: Well, suppose there were two counts charged. I certainly think that it would be more serious to take bonds and money than just money. Suppose two counts were charged. What would be the result under this statute?
Miguel A. Estrada: I am answering yes to your question, Justice Kennedy. If a person, as part of a single criminal episode, is guilty of more than one crime of violence or drug trafficking crime, it is in fact the case under our reading of the statute that if he uses a firearm with respect to each of those crimes and thereby makes more grave each of them, that he would be subject to two separate counts under section 924(c).
Anthony M. Kennedy: Even though it's really one episode.
Miguel A. Estrada: That is right. And in other circumstances where Congress has thought that type of a circumstance significant, for example in section 924(e), it has expressly stated that the crimes must be, must happen on occasions different from one another. And Congress knows fairly well to write, how to deal with that type of issue if it thinks it should make a difference. With respect to whether this is in fact a statute that is designed to teach a person a lesson, as I stated earlier, it is not. It is a dangerous person statute. And in fact it bears very little resemblance to a true recidivist statute. When Congress has enacted a true recidivist statute it has generally been quite explicit about the level of finality that a conviction must have attained in order for it to count under that statute. And I think all of the several statutes that we have cited in title XXI in the narcotics area are fairly instructive on that score. In addition, it would be an odd recidivist statute that asks not only whether the defendant had served time in jail before for any crime or whether he had served time in jail for a state or Federal crime of the same general type as he is now charged with, those are clearly the case here, but which asks whether he had served that time in jail under this subsection of this statute and no other. And that is a very strange version of a recidivist statute.
Sandra Day O'Connor: Mr. Estrada, do you take the position that there is no ambiguity whatever in this statute?
Miguel A. Estrada: Well, there is none as to the issue raised in this case, Your Honor. It is certainly--
Sandra Day O'Connor: Well, I'm asking you about the statute. Is it, is there no ambiguity in the meaning of the term conviction?
Miguel A. Estrada: --None as used in this statute. We readily concede that with every other word, that as with every other word in the English language it is possible that each of the words used conceivably might have a different meaning. What is important and dispositive in this case--
Sandra Day O'Connor: How about the term in the case of a second or subsequent?
Miguel A. Estrada: --There is no ambiguity whatever in those words. The thought that in the case of, for example, might mean in the legal case of makes no sense for three reasons. The first one is that the most natural reading of the words in the case of is simply in the event of, and that is how the expression is used in everyday language. The second one is that even reading the word case to mean legal case doesn't really do anything for Mr. Deal's case unless he also adds words like involving or similar words, as he does in his reply brief I think at page 7, whose purpose is essentially to nullify the choice of tense that Congress placed into the statute. It is those words, which are in essence fudge words, that really do the work for the alternative version of the statute that is being urged. And finally, that reading wouldn't make sense as well because saying that case means legal case would turn the result of each case on how counts are joined in that case by the Government. That would be an unusual reading of a sentencing statute because sentencing statutes usually deal with the defendant's conduct, to what he did, not to how he was charged and tried. And all of those reasons I think clearly indicate that the plain meaning of the words in case of is simply in the event of.
Sandra Day O'Connor: How about the word subsequent?
Miguel A. Estrada: Again, I think it is possible to read the word subsequent in isolation to have more than one meaning. Our submission in this case, Justice O'Connor, is that each of the words second or subsequent take meaning from the other and make the context clear. For example, it is a possible meaning of the word second that it is the sixtieth part of a minute. No one has ever said that that might be the meaning in this case for the obvious reason that everyone understands that in this context that can't be the meaning. Again, we think that as used in the statute the expression second or subsequent really means another finding of guilt at any time after the first. Finally, as to the word conviction--
Antonin Scalia: Excuse me, after the first in time? It must be after the first in time, and not just in addition to the first?
Miguel A. Estrada: --No, I think it can mean in addition to the first. In order or in time, or at any time. But I think that given our reading of the word second to mean what its plain language says, something that follows the first either in time or in number sequence, or simply the number 2 in a countable series, it is the case that it can be in time or in order and the statute clearly encompasses both. As I was about to turn to the following... excuse me, to the final word that is of consequence here, Justice O'Connor, which is the word conviction, again we readily concede that there may be other contexts in which the word taken in isolation might mean a judgment of conviction. In this case it is clear from the context that its ordinary rather than its technical meaning is intended. The statute by its plain terms sets forth a chronological order in which events are to occur. Before a 20-year sentence may be imposed there must be a second or subsequent conviction. The statute therefore makes it clear that the, excuse me, that the conviction must come before the sentence, and therefore conviction cannot mean a judgment which already incorporates a sentence. Now, I think the Government--
Antonin Scalia: I assume that would only be a problem for the second one. After the second one you would be okay, right?
Miguel A. Estrada: --Well, I think it's a problem for any of them, Justice Scalia.
Antonin Scalia: Well, you would have two before. I mean, with the second one... well--
Miguel A. Estrada: Certainly. We think that our submission as to the meaning of the statute is also reinforced by the history of section 924(c) because, as this Court indicated in Busic and in Lewis, the Gun Control Act of 1968 in general and section 924(c) specifically were passed in 1968 in response to an unprecedented wave of assassinations, riots, and violent crime. Since 1968 Congress repeatedly has thought, sought, excuse me, to turn the screw on armed violent crime, to single out those instances of armed conduct that give rise to intolerable risks to human life. By and large the changes that Congress has made to the scope of the statute since 1968 or to the scale of its penalties, including its 1984 decision to change the result in Busic, manifest an attitude not of leniency but of increasing severity toward this very serious problem. The second or subsequent clause in our view is a plain dangerous person statute and is not different from those other steps that Congress has taken. With the sole exception of the Tenth Circuit, every court of appeals to consider the issue that is raised here has discerned Congress' intent from the clear language of section 924(c), and because that language is indeed clear we ask that the Court affirm the judgement of the Fifth Circuit.
John Paul Stevens: --May I just ask one more question? Would you agree that if one should read the word conviction to mean judgment, that then the judgment has to be reversed?
Miguel A. Estrada: I cannot agree with that, Justice Stevens, for the reason that we have taken the view that if one were to read the word conviction to mean a judgment the statute would make no sense. And if we were not told anything more than is in your question right now we would not know what follows from that decision.
John Paul Stevens: Well, you would know there have to be at least two judgments, because it has talked about a second or subsequent conviction or judgment. I suppose one judgment could not satisfy the requirement of needing a second or subsequent judgment.
Miguel A. Estrada: On that theory, and if that were all the Court said, Justice Stevens, the judgment would be vacated and sent back to the district court where we would move to sever the sentences.
John Paul Stevens: But you would agree there would have to be some, at least have to be sent back to the district?
Miguel A. Estrada: There would have, on that reading--
John Paul Stevens: You'd have to do that in every case where the district judge made a mistake of entering just one judgment.
Miguel A. Estrada: --That's correct.
John Paul Stevens: Which is what normally happens at the end of criminal trials.
Miguel A. Estrada: Well, that is what does normally happen at the end of what happens in the district court.
Byron R. White: One piece of paper entitled judgment, I suppose, could, you could say that that really is several judgments because he has entered judgment on several counts.
Miguel A. Estrada: That is right, Justice White, and I think the, how that is treated tends to vary from district to district. Ms. Young indicated that in her district this is thought of as a single judgment. I formerly worked in a different Federal district in New York City where the document was called a judgment and commitment order, and it was thought there to incorporate several judgments as to each of the counts. So I think this is a matter that is thought of differently in every district.
David H. Souter: Because on your, if I recall, your argument is that judgment can never mean final judgment here because that doesn't occur until after the sentencing and therefore you would have the anomaly of having an addition to the sentence after the sentencing was complete and judgment had been entered.
Miguel A. Estrada: Right. That the statute as written, and especially in light of the tense Congress chose, would make no sense because whereas the statute sets forth a clear order in which events are to occur and that therefore dictates that the conviction must come before the sentence, you would be reading the word conviction to include the sentence, which in this context we think would make no sense.
William H. Rehnquist: Certainly the Federal Rules of Criminal Procedure contemplate that the judgment will occur after the sentence.
Miguel A. Estrada: That is right. Federal Rule 32(b)(1) says exactly that, Mr. Chief Justice. If there are no other questions we will rest on our briefs. Thank you.
William H. Rehnquist: Thank you, Mr. Estrada. Ms. Young, you have 4 minutes remaining.
Dola J. Young: I would begin by taking issue with Mr. Estrada's position that conviction means a finding of guilt. As Justice O'Connor questioned this Court's opinion in the Dickerson case, Dickerson does require an indicia of finality. And Mr. Estrada referred specifically to page 111 as support for his position that it's a finding of guilt. However, on that page the Court also noted that of significance was that the, that Mr. Kenneson was placed on probation even though sentence had not been imposed. There was an indication of finality from the fact that he was placed on probation.
William H. Rehnquist: What you had there, was it not, Ms. Young, was a plea of guilty? No finding of guilt and no sentence, but placing on probation?
Dola J. Young: Yes, sir.
William H. Rehnquist: And the Court said that's enough to amount to a conviction?
Dola J. Young: Yes, sir. And there was not just simply a finding of guilt in that case.
William H. Rehnquist: But there was not any finding of guilt in the case.
Dola J. Young: Well, that's true. There was not any finding of guilt because it was a deferred adjudication type case. The statute is ambiguous--
Sandra Day O'Connor: Well, I guess Dickerson does point in the direction that supports Mr. Estrada more than it supports your view that there has to be a sentence actually imposed.
Dola J. Young: --It does not require that sentence has to be actually imposed, you are correct, Justice O'Connor.
Sandra Day O'Connor: Right.
Dola J. Young: However, I think that it does not support Mr. Estrada's position that simply a finding of guilt is sufficient for a conviction. The Dickerson case, I might also note, was a civil case and not really a criminal case, so there is just some indication of support. It's not exactly on point.
Sandra Day O'Connor: Well, we do have here ultimately a determination by the judge on each count that there is guilt and the imposition of a sentence on each count. We do have that here.
Dola J. Young: This was a jury trial, and the jury found Mr. Deal guilty on each count.
Sandra Day O'Connor: Yes, but then the judge followed through and imposed a sentence separately on each count.
Dola J. Young: That's correct. Yes.
Sandra Day O'Connor: So for your purposes we just have to come to grips with any ambiguity perhaps in the case of any second or subsequent--
Dola J. Young: That's correct.
Sandra Day O'Connor: --the meaning of that language.
Dola J. Young: Yes, Your Honor. The change, Mr. Estrada referred to changes in the statute, and there have been several amendments to the statute since 1968, but I would point out to the Court that none of those amendments have dealt with this particular language and there has been no further elucidation or any changes to this specific language. Due process is required from the law and the indictment, and not just from merely splitting the indictments. So splitting the indictments still does not address the issue of the due process in this case. I would also point out the, in reference to dangerous people, 18 U.S.C. section 924(e), which is also a part of the Gun Control Act, is similar to 924(c) in that they are both designed to eliminate the use of firearms and get them out of the hands of dangerous people. 924(e) also uses the word conviction and does not define conviction. This... thank you very much.
William H. Rehnquist: Thank you, Ms. Young. The case is submitted.