Warren E. Burger: We will hear arguments next in number 70-7, Sarno against the Illinois Crime Investigating Commissioner. Mr. Whalen, you may proceed whenever you are ready?
Frank G. Whalen: Mr. Chief Justice and may it please this Court. Two questions are presented here for the Court’s consideration. First question is considering the implication of the questions, the circumstances, and setting under which they were asked, where the petitioner is justified in pleading the Fifth Amendment under a State Immunity Statute according to the -- to afford transactional immunity. And the second question, must the State affirmatively demonstrate to respondents when testifying and pursuant to the Illinois Immunity Act, that an immunity is brought in scope as the Fifth Amendment privilege is available and applicable to them. In 1963, the Illinois legislature created the Illinois Crime Investigating Commission. The sole purpose of which was to investigate organized crime in the State of Illinois. In 1968, petitioners, Sarno and McCarty, where ordered to appear and give testimony before this Commission. They appeared and refused to testify, pleading the Fifth Amendment. Now, as to the circumstances and the studying that were found at the time they appeared, the first would be that Illinois at this time had a double standard of Immunity Act. There was the Grand Jury Act, which applied to proceedings before Grand Juries and to -- and before Trial Courts. Under this the Grand Jury Act, a witness was given immunity from prosecution for any offense shown in whole or in part by such testimony. Further, this Act, the Grand Jury Act had been interpreted by the Illinois State Supreme Court in People versus Walker, 28 Illinois 2nd 585 and there the Supreme Court in very strong language upheld the constitutionality of that Act. In fact, the Court there said that the statue eliminates the constitutional privilege against self incrimination. Now, the State of Illinois Immunity Act which we are concerned here with, provided a witness shall not be prosecuted or an account of any transaction, matter or thing concerning which he gave answer. The Act further contained this provision. The Court shall not order any such person to testify or produce evidence if it reasonably appeared to the Court that such testimony or evidence would subject such witness to an indictment, information or prosecution under the laws of another State or of the United States. This statute had never been interpreted by the State Supreme Court and was first interpreted on this offensive appeal. This was a public hearing without the privacy in terms of Grand Jury proceeding, and it became obvious to the petitioners that the questions asked were based upon records that had been at a prior time, illegally seized from the home of the petitioner McCarty.
Warren E. Burger: Is this Commission a Legislative Commission, Mr. Whalen?
Frank G. Whalen: Yes, it is.
Warren E. Burger: It is much like I suppose arisen now, but it is not much like a Congressional Committee conducting an inquiry into this particular subject?
Frank G. Whalen: I would like commit to --
Potter Stewart: What are duties in the event that does as -- it does has what it is before that do answer questions, what does it do with him?
Frank G. Whalen: Well, I can only assume Mr. Justice that it is to report as to the various prosecuting agents.
Potter Stewart: Not just to the State Legislature?
Frank G. Whalen: No and then, I am really not sure of my answer, but it is my understanding that that would be the function.
Potter Stewart: So, it appeared correctly, you are understanding that this agency is a kin to the New Jersey Commission from which we have just heard?
Frank G. Whalen: Oh, I believe very much so.
Potter Stewart: Rather than just a legislative?
Frank G. Whalen: Yes sir, yes indeed.
Potter Stewart: (Inaudible)
Frank G. Whalen: That is my understanding, Sir.
Warren E. Burger: If there is nothing that will prevent, if the committee of the Congress conducted an investigation, it is traditional, is it not, that all those reports are made available to the Attorney General of the United States, if they seem to disclose violations of law?
Frank G. Whalen: I believe so.
Warren E. Burger: It is routine?
Frank G. Whalen: Yes sir. Yes Mr. Chief Justice?
Warren E. Burger: In the first instance does this Commission report back to the legislature, do you know?
Frank G. Whalen: It is my understanding that it does for the purpose of the legislature enacting further laws.
Warren E. Burger: Is its report made public?
Frank G. Whalen: Its report is made public, its hearings are public, in every sense of the word public, that is advertised in other words, its -- It is a very public proceeding and under these conditions, to petitioners it became apparent that the questions were based on records that had been illegally seized from the home of the petitioner McCarty on a previous occasion. These records had been ordered suppressed in the Trial Court and returned to the petitioners. However, they latter at this time found -- brought it to them. Further, at this time, Illinois had six statutes of carried immunity provisions and contained the phrase “or subjected to penalty or forfeiture.” State of Illinois at this time had a malice is the just of the action statute, providing six months imprisonment in the County Jail and had at this time enacted a law making criminal usury a felony. Further as to the sudden circumstances, the State of Illinois at this had more provision for discovery in criminal cases. In the same and under these to circumstances then, the petitioners where examine concerning more than 200 transactions. And, it was apparent that in the event of future prosecutions it would be impossible to ascertain whether or not the prosecution was based upon evidence independently obtained or upon the fruit or the links of the compelled testimony. The questions that were oppose to the petitioner’s fell into five separate categories. They have been abstracted in our brief and I would refer to one that question at abstract 42, question 12 and ask, suppose in the petitioners had been asked only this question. The question, at what places in Cook County have your dues customers met you to make their weekly payments and petitioners gave answers to the question. Assume then that the State went to these places interviewed all those found there and learned from them that petitioners had committed anyone of the offenses, punishable under the criminal code. Whether committed against the particular persons that they interviewed or against some persons known to them. Well, petitioners then would be in a position where they have no asked, they had not been asked to give answer to any act of violence. Nevertheless, the answer to the question would be the link, necessarily to prosecute them for offense of violence. They further believed that the Illinois State Legislature when creating this commission did not intent to afford or did not intent for it to afford an immunity as broad in scope as the Fifth Amendment privilege. The Courts two years after the opinion of the Illinois Supreme Court in People versus Walker in which they upheld the constitutionality of the Grand Jury Act, this Immunity Act was amended, but the pertinent language to which I have referred remain untouched, which indicates to me certainly and to the petitioners that the legislature under this act, the Immunity Act did not intend. Certainly, they did not afford an immunity as broad, but petitioners believed that was not even intended.
Warren E. Burger: Well, what has the Supreme Court of Illinois held with respect to whether the statute is co-extensive with Fifth Amendment?
Frank G. Whalen: This -- it was first interpreted upon this instant appeal and there the Supreme Court held that under this statute, the Court did not have power to grant express immunity, but that Murphy Work versus The Waterfront supplied the necessary compliment and held it constitutional. Now --
Warren E. Burger: Now, how did, co-extensive with the Fifth Amendment?
Frank G. Whalen: Co-extensive, yes.
Warren E. Burger: Well then, let us pursue a particular case. You are concern about this client that you represent here. Suppose he should be prosecuted in the future, assuming hypothetical this Court it will then take same position as the Supreme Court of Illinois and then he was prosecuted for something, and you claim that it was derivative from the questions and answers and not to inquiry. Would not the Supreme Court of Illinois be bound under its holding to afford him whatever protection the Fifth Amendment would have afforded him?
Frank G. Whalen: Provided Mr. Chief Justice that he could establish that that evidence was independently obtained. We -- I do not believe that it was intended nor do I believe that under the language of the statute, this Fifth Amendment privilege was extended and certainly not an immunity as broad as a privilege.
Warren E. Burger: From the States, the Supreme Court of the State of Illinois treating the question has said that it is co-extensive with the Fifth Amendment. Now, that is clear is not it?
Frank G. Whalen: Yes.
Warren E. Burger: But, whether they are not being obliged in reviewing any future conviction, would they not be bound to see to it that he got that degree of protection by whatever steps?
Frank G. Whalen: Illinois has never decided that the burden is upon the prosecution or who upon whom the burden was placed. I could only answer that there would be no way for the petitioner to bring it to the attention because could not tell. He could not tell. Because you see, they are only asked, they are referring to any answer -- 20 question he gave answer, and that leads, leads and leads to others that he did not give answer. I cannot conceive Mr. Chief Justice how as the Defense Attorney, how the petitioners in a subsequent prosecution could ever determine whether or not this prosecution was based on independently obtained evidence or was the fruit of the links. And in addition, in Illinois at that time, we do now have by rule of the Supreme Court, not by statute, not by any Act, we do have a limited discovery, but at this time, there was not discovery in the State of Illinois, in criminal cases and, I do know how counsel could of be of assistance to a petitioner faced with the subsequent prosecution and ascertaining that fact.
Byron R. White: Did you present the Supreme Court of Illinois the issue or the claim that this statute was unconstitutional because it did not grant absolute immunity, but only use immunity?
Frank G. Whalen: I did Mr. Justice White.
Byron R. White: And it decided that the statute granted as much as Murphy required, and that that was enough?
Frank G. Whalen: We were concerned there with the provision that where the Court -- recently approve the Court.
Byron R. White: I understand that that is a different issue?
Frank G. Whalen: Yes.
Byron R. White: That is a different issue?
Frank G. Whalen: Yes.
Byron R. White: And I ask you, did you also present the issue of absolute as against use immunity to the Supreme Court of Illinois?
Frank G. Whalen: No, it was not raised in that manner Mr. Justice White.
Byron R. White: And the Supreme Court of Illinois did not pass on that?
Frank G. Whalen: I would say they did not.
Byron R. White: What is the issue doing here?
Frank G. Whalen: Whether or not the statute affords an immunity, as brought in Fifth precede --
Byron R. White: Yes.
Frank G. Whalen: It is our contention that under these circumstances, it does not and that it was not intended to.
Warren E. Burger: Would you disagree with the Supreme Court of Illinois then?
Frank G. Whalen: I certainly do Mr. Chief Justice.
Warren E. Burger: Well, would that and I repeat would that Court not be found in the future case against your particular client which you claim was derivative from this investigation? Would they not be bound to give them all the protection that the Fifth Amendment gives him as it is construed --
Frank G. Whalen: Yes, sir, provided --
Warren E. Burger: -- defined in the Murphy among other cases?
Frank G. Whalen: Provided Mr. Chief Justice that he could establish that this was the fruit or the links and he alleges that under these circumstances, he could not and of course when you rely on Murphy --
Byron R. White: You say, I take it that they must got absolute immunity?
Potter Stewart: Transactional Immunity?
Byron R. White: Transactional Immunity?
Frank G. Whalen: Yes. I say that while statute -- while the statute purports to grant transactional immunity it does not.
Potter Stewart: Well, the Illinois Supreme Court did not toll one way or the other on it --
Frank G. Whalen: It did not, sir
Potter Stewart: -- question as I read their answers and you said that you say constitutionally, you are entitled to transactional immunity of your client?
Frank G. Whalen: Yes Mr. Justice.
Potter Stewart: And, I would suggest off hand that at least a casual reading of the first part of 203-14 seems to grant your client transactional immunity, does is not? Using the very word, transaction?
Frank G. Whalen: It does use the word transaction, but it also uses the language to which he gave answer and we do not believe that that affords them Transactional Immunity.
Potter Stewart: To which he gave answer or produced evidence?
Frank G. Whalen: Yes, because the example that I have given and which is abstracted and the question, where in Cook County do your costumers need you to make your dues payments. Now, he is not asked for anything, any question, he gives no answer with regarding the crime of violence. However, if he answers this question and the State Authorities go to these places and interview whoever is there and learn of a crime of violence, he would be absolutely unable -- in other words what we believe is that if this statute be only is designed to represent an exchange for the privilege, it is a poor exchange because the petitioner winds up much the worst for it.
Potter Stewart: Well, the fact is that the Illinois Supreme Court really has not been construed (Voice Overlap)?
Frank G. Whalen: That is true Mr. Justice.
Potter Stewart: I have the idea that you are also objecting in this case to the second part of the 203-14 that part of it that purports to give some kind of immunity against the released or at least required -- at least directs the commission not to require with a witness to answer with respect to prosecuted, could lead to the danger of prosecution in another jurisdiction, are you objecting to that?
Frank G. Whalen: I am objecting to that sir. It not -- it directs the commission, it directs the Court who enters the order.
Potter Stewart: Right, it has actually had the information.
Frank G. Whalen: Not to -- not to grant immunity if it reasonably appeared to that Court that the answer could involve prosecution in another State or under the law --
Potter Stewart: Right.
Frank G. Whalen: -- of and we say that a witness confronted with this situation is misled or at least he does not know, they will be doubt in his mind because he cannot tell -- he cannot tell under those circumstances just to extent of the immunity is being granted. And, which leads to the second question of --
Potter Stewart: Well, He really is not being granted any immunity, is he, in the second part against the prosecution by another sovereign because it is just the direction to the Court and it is --
Frank G. Whalen: It is a direction to the Court.
Potter Stewart: And the Court tells him to answer, that is it. And then --
Frank G. Whalen: Yes, except that the petitioner faced with the statute does not know. Certainly, he could not be in contempt for refusing to obey a void order and he does not know now under these circumstances, under these questions had been asked, whether or not, it should reasonably appear to the Judge that the answers might involve him with a prosecution in another State or --
Potter Stewart: Or is that already that he contests on that against citation for refuse to answer?
Frank G. Whalen: Yes Sir.
Potter Stewart: Can he?
Frank G. Whalen: Yes. He can do that and he does that at his peril.
Thurgood Marshall: Mr. Whalen, way or way back, you said that these questions came from material that was illegally seized from of the defendant?
Frank G. Whalen: Yes, Mr. Justice.
Thurgood Marshall: And, if the Government used that information to go to each one of these dues joints, what could you do about it?
Frank G. Whalen: This of course was a -- at the time of these were seized, this was at the indictment level. They were suppressed and ordered return in the Trial Court. Now, had the Government -- the petitioners here would have no way of -- they would assume and believe that the Govern -- that the Local Officials did go to the places.
Thurgood Marshall: But what is the difference?
Frank G. Whalen: What would be the difference? Only served at -- if they placed a future prosecution, they would have known and certainly there, the difference is that they were not granted any immunity. There was not even any question about immunity being granted. That was a strictly a Fourth Amendment question.
Thurgood Marshall: I still do not understand why they had asked him the question if they already had the information?
Frank G. Whalen: Perhaps, I do not make myself clear. Mr. Justice, these records were seized by the City of Chicago Police Department. Now, this is prior to this commission -- those orders where ordered -- those records were suppressed at trial and ordered to be turned and were returned. We assume of course that they recall the standard one jurisdiction gave up to the inquiring commission. That is we cannot prove that, it is only logical conclusion. In fact, this is never been denied by the State in any of the proceedings.
Warren E. Burger: Let me get clear if I can. Your view of what the Illinois Supreme Court held, in your brief you say, the Illinois Supreme Court held with the certain omissions, that the immunity referred to in Section 203-14 was co-extensive with the Fifth Amendment?
Frank G. Whalen: Yes.
Warren E. Burger: That is your position as to what Illinois has held?
Frank G. Whalen: Yes and Illinois then referred to Murphy versus -- the Illinois Supreme Court referred to Murphy versus Waterfront Commission, but it is our position that that applies only where in the State proceeding, a State witness hears Federal Prosecution and here we are talking about further State Prosecution. It is not argued by the petitioners here that the Fifth Amendment privilege embraces civil suits or punitive damages, but in conjunction with a analysis with the gist of the statute where they can be imprisoned for six months on a great number of judgments, that is then it becomes penal in nature of penal and character. What they are simply contending here is that under these circumstances and the setting, the State of Illinois denied them their Federal Privilege. The Federal Privilege being that they should have received an immunity in exchange for their testimony, they should have received an immunity as broad and scope as the privilege and it is supplanted. They did not.
Warren E. Burger: How do you really test that in the case like this Mr. Whalen? That is my -- it is my problem. Do not you have to test the scope with this immunity by a prosecution for a subsequent crime in light of the Supreme Court -- Illinois Supreme Court’s view of the matter?
Frank G. Whalen: I would say Mr. Chief Justice that it would be impossible to do so, even at the trail of other subsequent crime. I know of no matter in which it could be tested.
Warren E. Burger: But first, you have a number of alternatives that he may never be prosecuted in which case, there will be no problem is assuming he went on and answered or if he prosecuted, you could assert that the Supreme Court of Illinois has said that his immunity is freedom from prosecution and was co-extensive with Fifth Amendment protection and that issue would be presented by that case, would it not?
Frank G. Whalen: Except that the -- he would still be, and I do not know how to answer otherwise, he would still be absolutely unable to ascertain this or to establish this fact.
Warren E. Burger: Or what if hypothetically the burden is on the prosecution to establish that the case rested on information from an independent source? Would that give you the protection that you need?
Frank G. Whalen: No, Mr. Chief Justice it would not. While that burden -- while that burden would be upon the prosecution to show that it was independently obtained, I know of no manner in which the petitioners could controvert it because they have not an immunity as to the subsequent, as to the fruits under this Act.
Potter Stewart: As I understand, your argument is simply this Mr. Whalen if your client is entitled under the Fifth and Fourteenth Amendment and he continued to refuse to answer these questions until or unless the State makes clear to him that he is given transactional immunity, is it not?
Frank G. Whalen: It could be stated -- formally
Potter Stewart: And it should probably in that right here in this case?
Frank G. Whalen: Yes Sir.
Potter Stewart: And so far the State has not tolled any (Inaudible)?
Frank G. Whalen: Yes, sir. I believe that and I believe that the State must, duty is upon the State to affirmatively demonstrate at the time petitioners wherein that that --
Potter Stewart: Now, if the Supreme Court of Illinois had said in this litigation that this immunity statute extends transactional immunity to your client, the Councilman against Hitchcock Immunity, that is -- you would be satisfied, you could have won your case, and you concede then that your client’s would have the ability to answer, do you not?
Frank G. Whalen: Certainly Mr. Justice. However, of course as I said, this was interpreted on this appeal for the first time, that we do not have the benefit of any such holding, a lot of time.
Potter Stewart: The answer is -- the Illinois Supreme Court did not give you an answer in this case?
Frank G. Whalen: That is right Sir.
Potter Stewart: So you still have an area there --
Frank G. Whalen: I am still --
Potter Stewart: Got an assurance of transactional immunity and assured your point that the constitution accords you that. In exchange for the answers to the questions asked by your client, is that your point?
Frank G. Whalen: That is exactly the point Mr. Justice. We believe that the -- that any supplants to privilege or bridges the privilege must give. In that camp, it must give immunity then it is brought with the privilege taken. That is our.
Potter Stewart: Yes, but for a Court to say the immunity given is as broad as the constitutional protection is double talk, is not it?
Frank G. Whalen: I believe so. I believe so Mr. Justice.
Potter Stewart: You got me that to say what the immunity is and you are entitled in answer to your -- the issue you present, it that your point?
Frank G. Whalen: That is our point. Point to the point of whether a state must affirmatively demonstrate to the respondents, the respondents would not testify, we have a situation here now where a -- an Immunity Act contains the provision that the Court shall not grant immunity if it reasonably appears that the witness may fear prosecution by another State or the United States, we come to the situation where it somewhat like the situation in Reilly versus Ohio where a witness maybe misled, and we have the language used by this Court in Steven versus Marks in which they said until at such time, the witness has a right to stand on his Fifth Amendment privilege. Certainly in this instance, it was never demonstrated. How can the State of Illinois argue that they ever demonstrated to the petitioners that a privilege was available to them, where they engaged in, were part of the very act, it contains the language of complainant. This is no longer in the Illinois Immunity Act. This has been amended and has been removed. However at that time, it was a pertinent part of it.
Potter Stewart: Right, this act before us has now been amended?
Frank G. Whalen: Yes, Mr. Justice.
Potter Stewart: In what respect?
Frank G. Whalen: The provision of -- the provision that the Court, if the reason it appeared to the Court that --
Potter Stewart: That part of it?
Frank G. Whalen: That has been eliminated.
Potter Stewart: Eliminated entirely?
Frank G. Whalen: No, it has been eliminated. Yes, sir.
Potter Stewart: And there no substitute to this?
Frank G. Whalen: No. I believe they would say that if -- now, it would be department or to the decisions in the later cases. What we urge the Court to consider is that when a witness appeared before an investigative committee under such Immunity Act, there should be no doubt in the minds of the witness as to what immunity he is getting. We believe that the State of Illinois has that duty, we believe that State failed. In throughout their briefs, in all these proceedings and here in this Court, the State argues that they manifested -- the State manifested its intent not to prosecute further. And, we do not believe that answers supply this. It is not the intent, the present intent of the State not to prosecute further. The assurance that a petitioner should receive and what is guaranteed by the Federal Constitution is that the State be unable to prosecute him further. Thank you.
Warren E. Burger: Very well, thank you Mr. Whalen. Mr. Flaum?
Joel M. Flaum: Mr. Chief Justice and may I please the Court. There is no double standard in Illinois. Illinois is a transaction State. It has been so for at least to half the century and some of the strongest language contains in the State Court cases.
Potter Stewart: You characterize the Illinois Supreme Court’s opinion in this case as being containing you strong or an ambiguous language with respect to the question of whether or not this statute gives transactional immunity?
Joel M. Flaum: Frankly Mr. Justice Stewart, it is not as strong at some of the language contained in the cases preceded.
Potter Stewart: It does not even address itself to the question, does it?
Joel M. Flaum: Well, I would submit it Justice Stewart that it does say that Section speaking of the specific Section involved here grants immunity to defendants from further prosecution.
Potter Stewart: Well, that does not answer the question.
Joel M. Flaum: No, I appreciate it does not carry that kind of language. If I might just amplify on it a little bit. Illinois in cases starting in 1924 right up until 1963 constantly referred to Federal precedent, the Councilman cases, the Barnes (ph) cases. It spoke in terms of complete substitute protection against all future prosecutions. Our State is never had a history of a use statute.
Potter Stewart: Of course, that was under a different statute?
Joel M. Flaum: Yes.
Potter Stewart: And, that was at the time when it was not clear that the Federal Constitution guarantee against compulsory self incrimination without the approval of State because it is prior in the law, against them?
Joel M. Flaum: Well, Your Honor, in 1953, the Illinois Supreme Court had occasion to consider the identical language in the Cigarette Tax Act, the Immunity Section of it, the identical language. As has this Court, in Norman and in Brown in 1956 and 1959, the language in the 1953 case from Illinois (Inaudible) in 415 Illinois said and this identical to that holding, in order to hold valid a statute requiring a person to give evidence which might tend to incriminate him, the immunity afforded must brought enough to protect him against all future punishment for any offenses to which the evidence relate. That is on identical language. I wish it would found --
Potter Stewart: That was identical language or statutory language?
Joel M. Flaum: Statutory language, interpreting statutory language.
Potter Stewart: Not the same statute?
Joel M. Flaum: Not the same statute.
Potter Stewart: Okay, but some of the statute from which the statute borrows the language?
Joel M. Flaum: Exactly, and I just to reiterate again, this going to stand in the Immunity Act of 1954 which is Court Upheld as granting complete immunity.
Potter Stewart: You are talking about 1953-54, that was prior to law against Hogan (ph) and it was any business with this Court would be, was it, what kind of immunity Illinois gave because Illinois did not have any Federal Constitutional obligation to --
Joel M. Flaum: No, but we follow --
Potter Stewart: Protect somebody from compulsory self incrimination because that was the regime of Twining against New Jersey, was not it?
Joel M. Flaum: Right, but we follow Mr. Justice Stewart, all the Federal precedent is involved and while it was not binding prior to 1964, it is found, we -- our language speaks of that as being complete as to the type of immunity grant within (Voice Overlap)
Potter Stewart: (Inaudible) it is not a state constitution law?
Joel M. Flaum: Yes, we do. It is identical in effect in the United States Constitution. I am not just to make one mention with regard to the structure of Illinios Crime Investigating Commission. At the time of its creation and in the time when these questions went on, it was mixed Commission. It had four from the House, four from the Senate and four private members appointed by the Governor. It is now totally legislative Commission and reports directly to that body, but that is the question arose as to with -- as to its competition.
Warren E. Burger: But everything it does is open to the news media and therefore to all prosecutors?
Joel M. Flaum: Yes, it is.
Warren E. Burger: That there will be no secret to the reports here?
Joel M. Flaum: No. no, there are not. In fact it as required Mr. Chief Justice, to submit in the annual report to the State Legislature and that is required in the public. If our argument prevails that we have full transactional immunity, Fifth Amendment was never aimed towards avoiding social appropriance (ph) or the acknowledgment of one’s right. It just is the guarantee that no criminal process would be brought against him, the State of Illinios shall ensure, we believe.
Byron R. White: Well, I think you argument is based on the Illinois -- is rather compelling except for the fact that the court in this case did sight Murphy against Waterfront and said that the immunity statute, that is all that Murphy against Waterfront requires which is use immunity?
Joel M. Flaum: Mr. Justice White, I would suggest that upon a reading of the cases prior (Inaudible) Illinois Supreme Court that if a meaningful deviation --
Byron R. White: Yes.
Joel M. Flaum: -- were to occur?
Byron R. White: It would never occur like this.
Joel M. Flaum: Never occur like this. Its language and it is not as expensive. I would like to be here, but I frankly think any deviation from a history that we have had would not be much more significant. Speaking specific on that, I want to dwell on it that for and account of, we feel -- there should be no question on it. If this Court would have forget about how Illinois has interpreted, just changes mind on --
Speaker: Well, it is time. It seems to be a (Inaudible)
Joel M. Flaum: That is our position. On the affirmative showing, frankly, we feel a complete affirmative showing, maybe a fact from possibility short of Appellant review and every time they grant the immunity is conferred. However, the references and the petitioner’s brief to Marks and Reilly have no analogy to this case at all. There is actually no evidence of intentional misleading of any citizen when called before the Commission. The requirement as we read in Reilly is that the affirmative showing in the State may not mislead the witnesses as to the consequences of his answer or his refusal to answer. The State cannot be required to meet him a possible substantive argument which later maybe promulgate by the witness is on appeal, and which intents conviction which we feel the case here. Illinios met that test that we feel in this case. Unlike Marks for example, petitions were represented at all times by counsel. After the first refusal, the commission, first reviewed and testified by the petition, the Commission filed verbatim transcripts with the Court requesting an order to grant the immunity. Both men filed responsive pleading and I might point up to the Court if I may, that at no time really has this Act ever been challenged as being a use plus fruit. It is just been charged with being a defective transaction. There was always an acknowledgment by the petitioners below that the state was attempting to confer transactional immunity, only that if had a defective statute in which he was working. Both men filed responsive pleading then accepted that basic premise. After the grant of immunity, both men again appeared and refused to testify. Thirdly, really fourthly, after the second questioning of both parties, counsel for the Commission read the order of immunity, gave an opportunity, a third opportunity, spelled out specifically what the counsel would do if and by, that I mean recommending to the Commission that they go to Court and seek contempt, so that if this is not constitute the affirmative showing. The willingness to confer transaction immunity is -- has spoken through both the order of the Court which granted the immunity, and the counsel for the Commissions, frankly, I see no collateral remedy that would suffice you order an instant review on appeal and then I will return to that. We fill that there are -- this in not at all a case where there is any misleading. They were suggesting in the opinions in Reilly and Marks that the defendant did not even know of the existence of the immunity statute. That just did not occur here. This has been a contested with counsel type litigations for several years. I can only say that there is no evidence on any statute in the State of Illinois where there has been a subsequent prosecution which would lead one to the believe that there has been an attempt to use the use plus fruits approach with any of its immunity statute from our State, and we feel that clearly reading of the Illinios history would indicate, if that is the case.
Potter Stewart: I say, yours is the Picarello case that even though they -- even know it maybe determined in the companion cases today, that the Constitution of the United States does not require of the State of Illinois to grant transactional immunity but nonetheless, you do so?
Joel M. Flaum: Yes. The State of Illinois has adapted for that higher standard. If this Court be stepped to adopt the use plus fruits, Illinois apparently --
Potter Stewart: It may re-consider --
Joel M. Flaum: May re-consider but it has committed itself to transaction. If this statute falls it falls within effectiveness in structuring. It does not fall through the intent that we believe of the legislative.
Warren E. Burger: I think your time is up, Mr. Whalen?
Frank G. Whalen: Thank you Mr. Chief Justice.
Warren E. Burger: Thank you gentlemen. The case is submitted.


John G. Roberts, Jr.: We'll hear argument first this morning in Case 14-8358, Lockhart v. United States. Mr. Zas.
Edward Scott Zas: Mr. Chief Justice, and may it please the Court: This case concerns the ten-year mandatory minimum prison sentence that Section 2252(b)(2) sometimes requires Federal judges to impose. The statutory language in dispute reserves the severe punishment for a defendant with a prior State conviction for an offense relating to any kind of sexual abuse involving a minor or ward. Because Petitioner's prior offense did not involve a minor or ward, the statute's mandatory minimum penalty does not apply to him.
Ruth Bader Ginsburg: Suppose the conviction had been, under Federal law, the -- the conviction for sexual abuse of an adult and we have the same question: Does the mandatory minimum apply? I take it if it had been under Federal law, then the mandatory minimum would apply.
Edward Scott Zas: That's correct. If the conviction had been under Chapter 109A of Title XVIII, which covers sexual abuse offenses, then it would trigger the mandatory penalty. But Congress, in this statute, since the time it was first enacted in 1978, has never sought to create symmetry or parity between the Federal predicates and the State predicates. This may be most clear now in Subsection 2252(b)(1), where you can see that a prior Federal conviction for sex trafficking of anyone, which is a violation of Section 1591, the corresponding State analogue, is textually limited to sex trafficking of children. So this decision to treat prior State and Federal predicates differently is inescapable, and it's been true ever since the first statute. So from 1970 --
Anthony M. Kennedy: I -- I don't -- why -- why is it in this case -- it -- it does seem to me that Congress, eight years later, when it wrote the -- the second statute, used the -- the -- the same style and that this very much favors the government. But then you say that that's inapplicable, because?
Edward Scott Zas: Because when this language was first added -- first, it was added in 1994.
Anthony M. Kennedy: Yes.
Edward Scott Zas: The Federal predicates. At that time there were still no State law predicates at all. In 1996, when the language was first introduced, and it was then introduced in Section -- Subsection (b)(1), which applies to the distribution and receipt offenses, even then the penalty for simple possession of child pornography was the only Federal predicate. So someone in Mr. Lockhart's position at that time would not have faced the mandatory minimum penalty even if people who -- who committed the distribution offenses would or even if -- even if he had a conviction for -- under Chapter 109A. So -- and then in 1998, when this language in dispute was then added at the government's urging to Subsection (b)(2), even at that time Congress clearly wasn't aiming for parity because then they added a new Federal predicate, Chapter 117 offenses, which are violations of the Man Act: Transportation for illegal sexual activity. But at that time it didn't add any State law -- State offense analogue for that offense. This has continued up to the present day. So in 2003, there were amendments to add the obscenity offenses, the Federal obscenity offenses in Chapter 71 to the list of Federal predicates, but no corresponding State crime for obscenity offenses. The --
Ruth Bader Ginsburg: How do you say it works now for the manufacturing and distribution offenses? We have your position on the possession -- well, you said there's a disparity between a Federal conviction and a State conviction. How about a conviction, either the manufacturing or distribution?
Edward Scott Zas: Yes. So -- so that offense is covered by the different provision of Section 2251(e). That's the penalty provision for the much more serious crime of actually using minors or children to produce this material. The language in 2251(e) as amended in 2006 is -- it does seem to track, to qualify the predicates to include State-law abuse offenses that involve adults as well as children. But that's because there's an important textual difference between Section 2251(e) and the statute we're talking about. So if you go back to Section 2252(b)(2), you'll see an important textual point here, which is the word "or." This may be easier to follow if you actually look at the statute if you don't have it open in the statutory appendix to the blue brief at pages -- at page 10A. You'll see that the list is written as aggravated sexual abuse, sexual abuse, abuse of sexual -- I'm sorry, or abusive sexual conduct involving a minor or ward or a bunch of other offenses. The "or" before abusive sexual conduct would not be there on the government's reading. That is, if abusive sexual conduct involving a minor or ward were an independent stand-alone offense, the "or" does no work. It's unnatural to be. Then the list would just read, aggravated sexual abuse, sexual abuse, abusive sexual conduct involving a minor or ward, or -- and it would continue.
Samuel A. Alito, Jr.: Well, there's another possible explanation for that, because the last item in the list itself involves a great many -- itself involves a list. So the second "or" could be a substitute for a semicolon. But let me ask you another question about the language that you just read. As I understand your argument, this provision would apply to sexual abuse involving a minor and also abusive sexual conduct involving a minor. Is there any difference between those two things?
Edward Scott Zas: No, Your Honor. We --
Samuel A. Alito, Jr.: So why did Congress put them both in?
Edward Scott Zas: Well, because I think the first point here is it must be for the same reason it used aggravated sexual abuse at the beginning of the list, which -- which I think both sides agree does no independent work. It's already covered.
Samuel A. Alito, Jr.: Well, there's something that jumps out. It's a strange list, aggravated sexual abuse, sexual abuse. Sexual abuse would include aggravated sexual abuse. So that seems to be -- the reference to aggravated sexual abuse seems to be redundant. And abusive sexual conduct, if understood in ordinary -- in the terms of ordinary language, does seem to duplicate sexual abuse. But there's an explanation that jumps out, and that is that this -- almost this precise terminology appears in Sections 2241, 2242, and 2243. And in those provisions, all those terms are defined so that they mean something different. So it seems to jump out at the reader that that's what Congress was doing in this list. Why is -- what is wrong with that?
Edward Scott Zas: Well, first, if you go back to the time this -- this language we're talking about was first added in 1996, that Congress not only knew how to -- how to do what Your Honor is suggesting, that is, to be tracking the Federal predicates exactly. Because in a different provision, the provision that became 2241(c), it did exactly that. It -- it describes State offenses whose conduct would constitute a Federal crime if committed within Federal jurisdiction. So they didn't do that here, and they didn't do it again when they added the particular language in 1998 to (b)(2)again.
John G. Roberts, Jr.: I'm sorry, I don't follow that. I --
Edward Scott Zas: Yes.
John G. Roberts, Jr.: As I see it, they did, as Justice Alito said, track pretty much exactly 2241, 42, and 43 in developing the list that they -- they add -- that's before us today. I didn't understand your response.
Edward Scott Zas: Mr. Chief Justice, there are really two responses. One, the one I gave to Justice Alito is that this Congress, in 1996 and '98, knew how to track when they wanted to track. They did so explicitly in other provisions of the same legislation. In 1996, the other provision was 2241(c) In 1998, the other provision was 2426(b) So it knew -- it knew how to do it, and didn't do it, and has never done it.
Samuel A. Alito, Jr.: Well, it could have done it more clearly. That's certainly the answer to this whole case. They could have handled this issue a lot more clearly. But that is the -- the idea that they were picking up the definitions in the Federal provisions is one explanation for this rather -- this list. The other makes the list terribly redundant, and I haven't heard your explanation as to why they would do that. Why include both sexual abuse and aggravated sexual abuse? Why include sexual abuse and abusive sexual conduct?
Edward Scott Zas: Two responses, Your Honor. First -- and this goes to the Chief Justice's question as well -- this list does not track the Federal predicates as precisely, I think, as some have suggested. The Federal list of predicates has four crimes, sexual -- aggravated sexual abuse, sexual abuse, sexual abuse of a minor or ward, and abusive sexual contact. If Congress had meant to track those, they surely would have used the same four-prong list. They didn't do that. Instead, they used a different term, "abusive sexual conduct."
Anthony M. Kennedy: I don't understand how that answers the redundancy question. There's redundancy in both interpretations, but much more in yours than in the government's.
Edward Scott Zas: Well, I -- I disagree with that. I think the government reads the modifying clause out of this statute in terms of doing any operative work at all. But -- but let me respond --
Anthony M. Kennedy: I'm not sure how your answer was responsive to Justice Alito's redundancy question.
Edward Scott Zas: It wasn't. But that's the second part of the answer. The redundancy here was meant to go very broadly, to pick up, not the Federal predicates, but any terms or crimes that the States might create. So we cited this in the yellow brief in reply. You'll see that the States call sexual abuse a variety of different things, including aggravated sexual abuse of a minor, sexual abuse of a minor, abusive sexual misconduct. So Congress is using these redundant terms as it sometimes does to emphasize inclusiveness. Whatever the label is, Congress wanted to protect children by picking those up. But it limited. It limited the reach of the terms by setting a bright line floor. And that floor was at children. The statute, after all, its principal purpose as its title, as the title of Chapter 110 suggests, is about protecting against sexual exploitation and other abuse of children.
Elena Kagan: Mr. Zas, is it possible when you read these three terms, as you say, Congress might have meant to be just trying to pick up every conceivable State statute it could think of. But it's possible also to think of these as the aggravated sexual abuse is the worst offense; the sexual abuse is the medium offense; and the abusive sexual conduct is actually somewhat a more minor offense, in other words, might include things that are not sexual abuse themselves. Let's say indecent exposure or something like that. And if you understand the provisions in that way as sort of going from the top to the bottom and meant to pick up everything, then it would seem that the involving a minor or ward really ought to refer to all of them. Right? That there's no reason why the involving a minor or ward would -- would refer only to the most minor offenses as the others.
Edward Scott Zas: Well, I think -- I think Your Honor makes a good point. We have not been able to --
Elena Kagan: Maybe I said that wrong. I think I said the exact opposite of what I meant. (Laughter.)
Antonin Scalia: It makes sense to me, though. (Laughter.)
Elena Kagan: What? If you read -- if you read them going -- going down, right -- well, what do you think would follow? (Laughter.) What do you think would follow from that understanding of this list?
Edward Scott Zas: Well, Your Honor, we have tried to figure out what -- what in the world the difference is between sexual abuse and abusive sexual conduct when you give these terms their ordinary meaning. There is no meaningful difference. Sexual abuse, as ordinarily defined, is just the misuse, physical or nonphysical, of another --
Elena Kagan: But just presume with me that abusive sexual conduct is supposed to be -- is supposed to include some things that sexual abuse would not. What do you think follows from that?
Edward Scott Zas: Well, again, first, even with that assumption, you have this prefatory language to the list here, "relating to," which this Court has -- has defined, has interpreted to be very broad. It only means "to stand in some relation to."
Antonin Scalia: When I think -- what I think you would say is that if it's in descending order like that, you don't have to make the third one, which is already less than the second, which is less than the first. You don't have to make the third one a teeny, teeny, teeny third one by tagging on children only to the third and not to the other two. It seems to me much more regular to assume, as you do, that the limitation to children applies to all three of these descending crimes. And -- and isn't that the answer?
Edward Scott Zas: Yes, Your Honor.
Antonin Scalia: Your answer.
Edward Scott Zas: It -- it is the answer. And -- and it is essentially an instance of the principle that has -- that has come to be known as the series qualifier.
Antonin Scalia: But -- but the -- the problem with that is -- maybe I'm wrong, but I think you have conceded that there is no difference between the last two, that it -- it's -- it's not descending. I mean, it's -- it's Justice Kagan who's suggested that abusive sexual conduct could mean exposure, for example, indecent exposure, which would probably not fit the second -- the second term. Haven't you conceded that the two are the same?
Edward Scott Zas: Yes, we have, but we don't view it --
Antonin Scalia: What did you do that for?
Edward Scott Zas: We do not view it as -- we don't view it as a concession. We have allowed for the possibility, as -- as Justice Kagan, I think, is trying to do, of trying to come up with some fine distinction in meaning between the last two terms, but whether there is or isn't a little bit of daylight between those terms, it's all overcome by the terms "relating to." Anything relating to one is going to relate to the other. And pity the poor district judge who would have to decide in cases around the country, does this offense relate to sexual abuse, in which case on the government's reading, it doesn't matter whether a minor or ward was involved; or does it relate to this other category of abusive sexual conduct, which as far as we can --
John G. Roberts, Jr.: But just to be clear, it's abusive sexual contact, right?
Edward Scott Zas: Not in our list. That's the language from --
John G. Roberts, Jr.: (e)?
Edward Scott Zas: -- the Federal predicates. The separate crime in 2244 is abusive sexual contact.
John G. Roberts, Jr.: I see.
Edward Scott Zas: Our list is abusive sexual conduct. As far as we can tell, no one has ever explained what in the world the difference is.
Stephen G. Breyer: Well, we might be -- when did they write? We're looking at, call it "your section," which is (a)(4); is that right? Or what is it? It's -- for the three things in it. The one you're interested in is -- let's -- I don't want a name for it.
Edward Scott Zas: Yes. It's --
Stephen G. Breyer: I call it "your section."
Edward Scott Zas: It's the penalty provision.
Stephen G. Breyer: All right. I'm going to call it "your section."
Edward Scott Zas: You can, Your Honor.
Stephen G. Breyer: Your section. Then think of several other sections, which are the one I hadn't thought about which Justice Alito raised. That's really suspicious the way that looks there. 41, 42, 43. Now, when you pull up 41, 42, 43, law or written before the relevant parts of your section were written.
Edward Scott Zas: They were, Federal predicates prior to --
Stephen G. Breyer: Okay. If that's so -- and I don't know if this helps you or hurts you, but it seems to me that there is a ready-made right there for a drafter explanation of why he uses these words. Because we first look to 41, and that's aggravated. And then we look to 42, and that's sexual abuse without aggravated. And conduct is just the same as contact, but the drafter is thinking maybe we should go a little bit bigger. Now, the difficulty is in each of the sections I've mentioned, there is a special related section for children. So the difference between the two for adults is the nature of the force requiring a person to perform a sexual act. A threat of violence, et cetera. That's one. Right? And then the next section, abuse, it can be some other kind of threat. Then we get to the way it deals with children, and it deals with children under the 12 -- under 12. That's one. And it deals 12 to 16. That's the next. And then we have a section called contact, and that has to do with sex acts basically that really weren't sex acts but for a certain kind of conduct which is defined. All right. So I read this, I say, hey, that's what they picked up. They just -- a drafter just picked it up and changed a little bit, but that's what he had in mind. Then the question is: Your question. And in your favor, I think, is the fact that each of these earlier sections does have a special section dealing with children under the same number. Now, don't tell me I'm right if I'm not right, but that's what I suddenly saw when Justice Alito asked his question. Just tell me your reaction.
Edward Scott Zas: Well --
Antonin Scalia: You're not going to tell him he's right. (Laughter.)
Edward Scott Zas: I wouldn't do that, Your Honor. The courts of appeals that have addressed this precise question, just -- just so it's clear, none of them -- they've all rejected the idea that I -- that I think starts the premise here, which is that Congress meant to -- meant for courts to interpret these terms by reference to the Federal predicates. In fact, that's the government's position here as well. So the parties are on common ground in saying that these weren't meant to track the Federal predicates. And as I pointed out earlier, Congress not only knew how to do it when they wanted to, they did it in these two pieces of legislation in '96 and '98. Now, it's true that these terms existed in the Federal predicates before they were added to this section. But they also exist all around the country in the 50 States. So Congress wasn't -- wasn't trying to track them. It could have just said, any State offense that would be a violation of Federal law if -- if in Federal jurisdiction. It -- it -- it didn't do that. It was recognizing that States do all kinds of things. And it's using these terms to say, anything relating to it. It doesn't have to even be sexual abuse; it just has to relate to sexual abuse. But because that could pick up misdemeanor sex offenses around the country, committed only against an adult. Public lewdness would be an example. That -- that crime, we cited one statute in the briefs. That's -- the statutory maximum is 30 days in jail. But if that were picked up, suddenly someone who is in Federal court with their first offense, the first Federal offense of possessing child pornography, is suddenly going to have their sentence go --
Samuel A. Alito, Jr.: But your -- your argument is that it is just a coincidence that Congress came up with this list of three terms that are redundant and that just so happen to be almost exactly the same three terms in the same order that appear in the Federal provisions.
Edward Scott Zas: No, I -- I -- I don't mean to say that. It's -- it's not a coincidence. Congress would naturally use terms that it is familiar with, that are in the Federal -- the Federal -- Federal chapter, but that's very different.
Antonin Scalia: They didn't use the same terms.
Edward Scott Zas: That's -- that's right.
Antonin Scalia: The third term is different.
Samuel A. Alito, Jr.: But they used -- they used --
Antonin Scalia: Do you think it was an accident that the third term was different?
Edward Scott Zas: No. I think the court presumes that when Congress uses a different term, it -- it acts deliberately -- and I -- I think --
Samuel A. Alito, Jr.: When they use "sexual abuse" and "sexually abusive conduct," they were not -- they -- they had in mind the Federal provisions, but they didn't want those terms in this provision to mean the same thing as they mean in the Federal provision, even though, according to you, there is no generally accepted understanding of the difference between sexual abuse and abusive sexual conduct.
Edward Scott Zas: That's right. That's right. They -- they didn't. Sex -- I'm sorry. Chapter 110, the chapter that contains the statute, has its own definitional section. There is no definition there of any of these terms. The only potentially pertinent term that's defined is the term "minor," which is defined differently in this chapter than it's defined or used --
Samuel A. Alito, Jr.: Sexual abuse is defined, and abusive sexual contact is defined, are they not?
Edward Scott Zas: They are -- they are defined in Chapter 109A. But as Justice -- as Justice Scalia pointed out, they didn't use abusive sexual contact. They used abusive sexual conduct. So it -- it could be viewed as, that's going broader, but with a floor. We want to brightline it. If you commit any kind of sexual abuse, not -- not only sexual abuse, but anything relating to sexual abuse, you're going to face these severe penalties, so long as it involves a minor or ward. That's the focus. Congress was trying to protect children, and to punish and deter those who would harm them. There is nothing in the history or the understanding of these provisions at the time of enactment to suggest that they were also focused on sexual abuse -- State sexual-abuse crimes against adults. Now, that's a serious crime. No one disputes that. But it wasn't the focus of this legislation.
Elena Kagan: But why would they be focused on Federal sexual abuse involving adults but not State sexual abuse involving adults?
Edward Scott Zas: Because the 1996 Congress was focused on a very specific problem that they identify. And that's the link, the connection between child pornography and other sex offenses against children. So that was their focus. And given that focus and given that the other State law predicates in this statute are also limited to -- to crimes against children, they naturally limited these offenses as well to children.
Elena Kagan: No, but the -- the Federal predicate, the Section 109, I believe it is, does apply to adults as well. So why would they be focused on adults with respect to Federal offenses but not with respect to State offenses?
Edward Scott Zas: Because, I think most importantly, Congress controls the Federal -- Federal crime. It creates them, it knows what they are, they're a finite set, and it knows that those predicates are not going to change without congressional action. Once the national legislature has to consider 50 penal codes around the country which can change at any time and can cover things that may relate to sexual abuse or abusive sexual conduct, Congress reasonably may have decided that it didn't want to sweep that broadly, so it, again, created this floor. "Involving a minor or ward" was the key phrase. And our reading is the only one proposed that gives it some operative work to do. I'd like to reserve the balance of my time for rebuttal. Thank you.
John G. Roberts, Jr.: Thank you, counsel. Ms. O'Connell.
Ann O'Connell: Mr. Chief Justice, and may it please the Court: This case involves two competing canons of statutory interpretation, and there are four basic reasons why we think the government's interpretation is correct. First, Petitioner's interpretation creates an unexplained redundancy where the Court would have to conclude that Congress created a list of three things, two of which are the same. Second, our interpretation is consistent with the only possible reading of Section --
Antonin Scalia: Excuse me. Let's do them one by one. On the first one, even under your interpretation, two of the three are the same, aren't they?
Ann O'Connell: Under our interpretation, what -- what we've said is that the first category and the third category are logically subsets of the more general category of sexual abuse.
Antonin Scalia: Right.
Ann O'Connell: But there's a couple of explanations for why Congress may have done that. The first is that, when they added these State law predicates to the Section 2252(b)(1) for the first time in 1996, there already were Federal predicates on the list that included aggravated sexual abuse, sexual abuse, and sexual abuse of a minor or ward. So even though it may be true that Congress could have covered everything it wanted to cover in the State law crimes by just saying "sexual abuse," it would have opened itself up to arguments if it had just said all of those Federal crimes and then any State law relating to sexual abuse, that those other types of sexual abuse under State law were not covered. Especially with respect to the third category, sexual abuse or abusive sexual conduct involving a minor or ward, Congress made clear when it included that third category that it was picking up State law offenses where a person is deemed incapable of consenting to sexual contact or sexual conduct, because of their status as either a minor or a ward. So our interpretation can be explained. There is redundancy, and we're not asking for just an -- a straight invocation of the canon against surplusage. Both interpretations contain surplusage. But it's a reason why it doesn't make sense to apply the series-qualifier canon here, because it --
Samuel A. Alito, Jr.: Why do you resist -- why -- why do you resist the argument that what Congress was doing was picking up basically the definitions of the Federal offenses that are worded almost identically? If that's what they are doing, then it's understandable what is meant by all three terms. If that's not what they were doing, it's a strange coincidence. And not only is there redundancy, but there's ambiguity about what is meant by sexual abuse as opposed to abusive sexual conduct, and why they had to put in aggravated sexual abuse in addition to sexual abuse.
Ann O'Connell: Justice Alito, we -- we don't think that Congress was trying to pick up the exact definitions of the three Federal statutes. And we think that's most clear, as Petitioner pointed out, by the fact that there are other provision in this chapter where Congress used different language when it wanted to do so. The most clear example is the recidivist provision for the sexual abuse offenses.
Samuel A. Alito, Jr.: Yes, they could have done it more clearly, of course. The -- the statute is -- is poorly drafted. You know, we give them a "D" for their drafting of this statute. But what is the difference between sexual abuse and abusive sexual conduct? Putting aside the definitions of those -- of those terms or similar terms in Chapter 109.
Ann O'Connell: I don't think there is any difference between those two terms. And -- and Petitioner agrees, which is why --
Samuel A. Alito, Jr.: So why did they put -- why did they do that?
Ann O'Connell: I think because the --
Samuel A. Alito, Jr.: Just catchy phrases that came to their mind?
Ann O'Connell: No. I think the last category, "sexual abusive conduct involving a minor or ward," was meant to -- to indicate and make clear that Congress was picking up State offenses where a person is deemed incapable of giving consent because they are a minor or a ward. They are deemed incapable by the law even though, under a generic definition of "sexual abuse" that may apply to everyone --
Antonin Scalia: Ward -- a ward can't -- why -- why would you say a -- why would you add "ward" if -- if that was the reason for it? Why wouldn't you just say of "a minor"?
Ann O'Connell: Well, Congress added "ward." And --
Antonin Scalia: I know. Why? That's what I'm asking.
Ann O'Connell: Right. Well, we think the most --
Antonin Scalia: To achieve what -- what you say they were achieving, it would -- it would have sufficed to say "minor."
Ann O'Connell: No, I don't think so.
Antonin Scalia: No?
Ann O'Connell: A minor -- a ward is not just a person who is a minor or a foster child, or a person who's been placed under a guardianship because of mental incompetence or something like that. Those people are all wards, but as we've explained in our brief, a ward also very clearly includes a prisoner, and Congress would have known that. And the -- the Federal sexual abuse of a ward provision refers basically to --
Antonin Scalia: But that -- that's not somebody who could not -- who could not give consent.
Ann O'Connell: Under --
Antonin Scalia: You're -- you're saying the reason for it was they wanted to pick up people who could not consent to the thing. But to do that, all they had to say was "minor."
Ann O'Connell: No -- no. I think that a -- a ward is also basically deemed incapable of giving consent --
Antonin Scalia: Prisoners -- prisoners are deemed incapable of giving consent?
Ann O'Connell: The law has the same sort of operation, yes. It -- it deems the conduct abusive even if it's consensual. The Section 2243 does that, the Federal sexual abuse of a ward statute. And we've cited in footnote 14 a lot of State laws that prohibit the same thing.
Ruth Bader Ginsburg: And "concrete" would mean that, if it was a prison guard and a prisoner --
Ann O'Connell: Right.
Ruth Bader Ginsburg: -- even if the prisoner said, "Yes."
Ann O'Connell: Exactly. That that would be deemed abusive sexual conduct. It would be --
Anthony M. Kennedy: But a ward -- a ward could also be a 40-year-old person who is incompetent.
Ann O'Connell: Correct. A ward could certainly be an adult. And I think this is a -- a key point that Petitioner has never really answered is that Petitioner is trying to say that there is this clear pattern that Congress had when it was creating the -- these lists, and that the Federal crimes can involve both adults and minors, but it was always limiting the State law crimes to crimes against children. And it just isn't the case. And even under his interpretation, because "wards" are included, there is at least some adult sexual-abuse crimes against adults that are being swept up even if it applies to all three categories. And also in Section 2251(e), the -- the enhancement for child pornography production offenses, the only way that you could read that provision is to include sexual abuse offenses against adults. And so it's not the case that there is this very clear pattern where Congress was only including child victim counterparts to all of the Federal offenses that it was putting on the list.
Elena Kagan: Ms. O'Connell --
Ruth Bader Ginsburg: Is Petitioner right when Petitioner says that it was the Department of Justice's original view that involving a minor or ward, it modified all three categories? That that was -- the first position that the government took and then the government changed?
Ann O'Connell: No. I -- I -- I don't think that that is an official position that the government took. We never took that position in a brief. Any time we were confronted with actually interpreting the statute as a legal matter, we have contended that involving a minor or ward applies only to the last category.
Antonin Scalia: Where did you get that idea from, then? Where did he get that idea? What -- what had the Department said that -- that suggested the opposite?
Ann O'Connell: There was the -- this letter submitted in 1998 that the Petitioner cites where, when the -- the author of the letter -- the -- the point of the paragraph is to say, look, Congress, in the -- the sexual abuse provision or the recidivist provision for -- for receipt and distribution offenses in 2252(b)(1), you have all these State law crimes that you didn't include on the -- on the list of predicate offenses for 2252(b)(2), the possession offenses, and we think you should line them up. In summarizing that argument, the drafter of the letter referred to them as "child molestation crimes" or "child abuse crimes." It was an -- it was an underinclusive, inaccurate, short -- it -- it wasn't inaccurate. They do involve child molestation crimes. But it was just a useful way of summarizing what was there and what would have been most --
Antonin Scalia: Surely it shows --
Ann O'Connell: -- for Congress.
Antonin Scalia: -- that -- that an intelligent person could think that that's what this involved.
Antonin Scalia: I assume that the person read this and -- and thought that that's what it meant.
Ann O'Connell: And -- and, Justice Scalia, I think that's why the canons of interpretation don't get anybody a hundred percent of the way there.
Antonin Scalia: I agree. And what I worry about is the rule of lenity. You have these dueling canons, and you have a rule that when the government sends somebody to jail for ten years, it has to turn sharp corners. It has to dot every I and cross every T. It has to be clear. And, you know, I -- we've been discussing this dueling canons and so forth. My goodness, I have no -- I have no assurance what the right answer is. But I know that somebody could read this and think that it means what the petitioner says it means. And if that's the case, it seems to me the rule of lenity comes into play. That's -- that's what concerns me most about this case, not the dueling canons.
Ann O'Connell: Justice Scalia, I think if you read the text of the statute once, you may think, I don't know what this means. It could go either way. But if you just read the rest of the list of things that Congress included and take a look at it, we think there are four things that jump out that make clear that involving a minor or ward only is modifying the last category. The first is the -- the redundancy problem that Petitioner's interpretation creates.
Elena Kagan: Well, could I ask about your -- your basic theory as to that, which, if I understand it, says the reason why we shouldn't worry about redundancy you create is because Congress just wanted to make absolutely clear that the sexual abuse was also sexual abuse involving somebody who couldn't consent. That's basically your theory. And there is a very easy way to do that, and it would have completely made this -- I mean, made this a hundred percent clear. Congress would just have said aggravated sexual abuse, sexual abuse, or sexual abuse involving a minor or ward. And just by using the exact same language, it would have been clear, but the distinction was between sexual abuse and sexual abuse involving a minor or ward. But Congress doesn't do that, right? Congress changes the language of the third noun. And that's what creates the puzzlement. And -- and so it seems to me that your theory doesn't really cohere with the fact that this third term -- although, nobody can say exactly what it means that is different -- the third term is linguistically dissimilar from the second one.
Ann O'Connell: It is, but -- but under a generic interpretation of sexual abuse, any generic definition that a court has come up with, I think one that is a typical one is sexual conduct that uses or misuses or injures a victim so as to cause harm or damage. They all include sexual conduct. And so regardless of whether sexual conduct is -- you know, under the Federal law, sexual conduct could be both a sexual act or a sexual contact, anything that's defined within the Federal provision. But the term "sexual abuse" was already broad enough to cover abusive sexual conduct. I can't say that I know why Congress didn't say "sexual abuse of a minor or ward" as opposed to "abusive sexual conduct involving a minor or ward." But I think the key part of it to focus on is the fact that they use the term "involving a minor or ward." It's the same category or category of people that they are trying to pick up that's reflected in the prohibitions on sexual --
Sonia Sotomayor: Well, why not just say -- drop the "abusive"? Just say "sexual conduct with a minor or a ward"? Because now you have to deal with the adjective "abusive." So how does that get you to consent or no consent?
Ann O'Connell: I think Congress could have done this without saying abusive, but, you know, the Federal sexual-abuse statute of -- of a minor or ward is called sexual abuse of a minor or ward. They also include the word "abusive." I think it's just -- the ambiguity really is that abuse could mean different things depending on who the victim is. Something could be abusive because it's done to or in front of a child but not an adult. And so that may be -- it's not a reason why Congress wouldn't -- needed to use the word "abusive," but there -- there is a reason -- it is a reason why there could be some daylight between the two categories.
Stephen G. Breyer: What were the -- what were the other three? You said there were four reasons. I started where I think Justice Scalia did. Of course, I might more often than he think that the canons don't help us all that much. And this -- this is a poster child, I think, for that proposition. And so you said, no, there are four things here that show that this isn't ambiguous. You shouldn't end up that way. Now, one was a redundancy, which I'm not sure what it was, and then you didn't get to the other three, which I'd like to hear.
Ann O'Connell: Okay.
Antonin Scalia: I apologize for that. I jumped in on it.
Ann O'Connell: No apology necessary.
Stephen G. Breyer: No, it wasn't.
Ann O'Connell: The second reason why we think the Petitioner's interpretation doesn't make sense is because in the penalty provision for production offenses Section 2251(e), Petitioner agrees that the only way you can read that penalty provision is to include State sexual abuse offenses against adults, because Congress worded it slightly differently. They included all the same crimes, but the way that provision is -- reads, it says, "State laws relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or a ward or sex trafficking of children." So it's no longer -- involving a minor or ward is no longer a modifier that appears at the end of a list. This is at page 13A of the appendix to the gray brief. And so there's only one possible interpretation of the list of State sexual-abuse offenses in Section 2251(e), and there's two possible interpretations of the -- the same three crimes in the next provision. And so the Court would have a choice between saying that those -- the State sexual abuse offenses have different scopes in the two provisions. Third is that it ignores -- Petitioner's interpretation ignores the clear parallel between the -- the three main categories of sexual abuse offenses in Chapter 109A, the Federal offenses.
Stephen G. Breyer: Yeah. And the other?
Ann O'Connell: That's the -- and the three categories that it created for State sexual offenses.
Stephen G. Breyer: Right. And the fourth.
Antonin Scalia: Which is not a parallel if -- if you read the word, right?
Ann O'Connell: It's not exactly parallel.
Antonin Scalia: Contact is not conduct.
Ann O'Connell: I -- I think that's -- that is debatable. I mean, there's -- there's sexual conduct --
Antonin Scalia: It's debatable that contact and conduct are different words? That's not debatable.
Ann O'Connell: Not that they're different words. But I think even Petitioner points out that in the abusive sexual contact provision, sexual contact is -- they start out by calling it sexual conduct in circumstances where it didn't amount to a sexual act. It's all --
Elena Kagan: You're not suggesting this is just a scrivener's error, are you? That it was meant to be contact?
Ann O'Connell: I think the -- they both do the same job. So I don't -- I don't know why it was changed, but I don't think there is a reason why it's --
Stephen G. Breyer: Fourth, fourth.
Ann O'Connell: The fourth is that Petitioner's interpretation would frustrate the purpose of the statute because under the categorical approach, it would exclude as predicates any sexual abuse crimes that were committed against children if the defendant was convicted under a generally applicable sexual-abuse statute.
Stephen G. Breyer: Okay. So he'll say "or" is in this one and it's not in the other one for a reason. He'll say they're superfluous reading both ways. He'll say that -- I can't remember the third -- but the fourth he's going to say, yeah, it's underinclusive versus overinclusive. Yours is it would be somewhat under-inclusive for the reason you say, and you take your reading, it will be overinclusive for the reason he says. So if we're at -- this is the only place that -- if we are absolutely at equipoise, which I can't say we are now, but I think it through -- if we are absolutely at equipoise, before turning to the rule of lenity, I would like your comment on my temptation to say at least here, the legislative history helps. And indeed --
Antonin Scalia: I knew you were going to say that. (Laughter.)
Stephen G. Breyer: Indeed --
Antonin Scalia: I knew it.
Stephen G. Breyer: -- it isn't just a letter from the Justice Department. It is that the report, the way these are actually written is that a general idea is given to a person whose job it is to draft. And that drafter tries to put in words the general intention that's been described, and the report is used to describe what the general intention was. I'm not saying a hundred percent, but very often with technical statutes, that's how it works. So I read that report, and what do I discover? A repeat offender with a prior conviction under da-ta-da, or under any State child abuse law, or law relating to the production receipt or distribution of child pornography. And it is only two years later after they pass that that the Justice Department writes its letter noting that the provision they just passed involved individuals with prior convictions for child abuse. And recommending an enhanced penalty as well if they had a prior conviction for sexual abuse of a minor. Okay. So I read that and said, short, but clear. And that's what the drafter would have been looking at when -- the first one, anyway -- working with the staff of the committee when trying to translate general intentions of senators and representatives into actual language. And I think it's not contrary to popular belief to say that senators and representatives do hire staff to do such things and do not sit there with pen and pencil thinking, where does the "or" go? Okay? So what is -- what is the Justice Department's response to that?
Ann O'Connell: I think there are two things. The first is the response I gave before, which is just that this may have been a useful shorthand way to describe the conduct that Congress would have been most concerned about, for the person writing the report and for the Department of Justice trying to convince Congress to add these State law crimes to the child pornography possession recidivist enhancement. And I think the other response is just that, even if you think the letter is against us, you look at what Congress actually did. And they created a -- a provision that basically parallels the three Federal offenses. They included many Federal offenses that can involve adult victims. And then eight years later, when they added State law predicates to Section 2251(e), they made very clear they understood the modifier to apply only to the last category.
Antonin Scalia: Ms. O'Connell, you -- you don't think Congress can leave it to its staff to decide what a statute means, do you?
Ann O'Connell: No.
Antonin Scalia: Isn't legislative power nondelegable?
Ann O'Connell: Right. We think the -- the most important thing here is to look at the text of the --
Stephen G. Breyer: You asked a really quite broad -- I don't know what the 4,000 people over there are doing, if -- if they're not entrusted by their principals to write words on paper that would reflect the general idea. You think they can't do that?
Ann O'Connell: Justice Breyer, I think it -- as we explained in the brief, it -- it may have just been a useful shorthand way to describe the most serious conducts included in that provision.
Ruth Bader Ginsburg: Who is -- who is the author of this?
John G. Roberts, Jr.: I don't know what the hundred people --
Ruth Bader Ginsburg: Who is the author?
John G. Roberts, Jr.: -- are doing over there if they're delegating everything to the staff.
Ruth Bader Ginsburg: This -- this -- this letter that so much discussion has revolved around, who was it in the Department of Justice that wrote?
Ann O'Connell: It was the Acting Assistant Attorney General Ann Harkins.
Anthony M. Kennedy: Could you talk about the rule of lenity? Does the rule of lenity apply with the same force when the question is the substantive definition of a crime as distinct from the penalty that's attached?
Ann O'Connell: The Court --
Anthony M. Kennedy: It seems to me there's an argument that it should apply equally, but have we talked about that?
Ann O'Connell: I think the Court has typically applied the same-strength rule of lenity to both substantive provisions and penalty provisions.
Anthony M. Kennedy: That -- that makes a great deal of sense. It -- other than that rule of lenity to the extent it's based on notice, it seems to have somewhat more force when it applies to the substantive definition of the offense as opposed to the punishment. But I -- you could argue it either -- either way. But have we -- have we talked about any distinction?
Ann O'Connell: There has not been a distinction in the Court's cases. There have been a few times where criminal defendants have tried to say that there should be a supercharged rule of lenity in a case that's talking about mandatory minimums or maximums or consecutive sentence. And the Court has resisted that. And I think this would be not a -- not a good case for the Court to go down that path because the -- the guidelines range for this particular criminal defendant was 78 to 97 months. His minimum was 120. It's not actually a huge difference. And under -- under current law, the statutory maximum would have been the same, regardless of -- of whether this enhancement applied. Justice Breyer has helpfully walked me through all of my points; so if the Court has no further questions.
Elena Kagan: Well, can I go back to the -- to the language? You know, it's confusing language. And I showed it to all my clerks and -- and basically said how would you read it. And two came out on one side, and two came out on the other side. But -- but I'm sort of left with this feeling that it -- we're not in -- in a situation where there are dueling canons. We actually might be in a situation where one canon trumps the other. I mean, you have this last-antecedent rule, and it's an important rule. But it gives way when a certain -- when there is a certain quality to all the antecedents when they're all parallel and when the last modifier equally sensibly refers to them all, right? And that that's a situation, so that series-qualifier rule is in some sense a rule about when the last-antecedent rule doesn't apply. So I guess I would ask you to comment on that.
Ann O'Connell: There -- I have a couple of different responses. The first one is that the context is the most important thing. And it's not the case that the Court hasn't applied the last-antecedent rule in cases where the statute involves a list of parallel terms. I think the FTC v. Mandel Brothers is the best example of that. There's a list of a purchaser, consignee, factor, bailee, correspondent or agent, or any other person who is engaged in dealing commercially in fur products or fur. And the Court said it didn't make sense to only apply this to a purchaser who is also dealing in the -- in the fur products, and so we're going to apply it only to the last antecedent. The series-qualifier principle, you know, petitioner relies quite heavily on the explanation in -- in Justice Scalia's book that goes through all of the canons. And the book even says that the series qualifier principle more so than others is highly dependent on context and can be overcome if something doesn't feel right about the way that it -- the statute reads when you apply it. And we think the clearest indication here that it doesn't make sense for the qualifier to apply to all three of the categories is that it -- it literally renders categories B and C the same. I'll -- I'll point out just one other thing. Justice Breyer, you mentioned during the Petitioner's argument that you noticed that each of the Federal predicates, 2241, 2242, 2243, have a provision that applies to minors and wards. Section 2242 does not.
Stephen G. Breyer: No. But it's followed by what could be taken as. They just gave it a different number; isn't that right? 2243 does, in fact, deal with minors?
Ann O'Connell: 2243 is the sexual abuse of a minor or ward provision.
Stephen G. Breyer: Right.
Ann O'Connell: 2241, aggravated sexual abuse, has a special subsection dealing with very young children. Section 2242, the general sexual abuse crime, does not include any specific for minors or wards.
Stephen G. Breyer: Yes, yes, yes, yes. I -- I saw that.
Ann O'Connell: All right. Thank you.
John G. Roberts, Jr.: Thank you, counsel. Mr. Zas, you have four minutes.
Edward Scott Zas: Justice Alito, Justice Scalia, and Justice Breyer I think all echoed the same theme, which is, at the very least, this statute is not unambiguously correct, which is the standard language this Court used in Granderson for when the rule of lenity must apply. So under that rule --
Samuel A. Alito, Jr.: I don't think I actually said anything about the rule of lenity.
Edward Scott Zas: No, no. Your -- Your Honor did say --
Antonin Scalia: I don't think he ever mentioned the rule of lenity.
Edward Scott Zas: But he did say -- he did use the word "ambiguity," and he did say that the statute was poorly drafted. And I think -- I think we certainly would agree that this is -- this is not a model of the drafter's art, by any means. But --
Samuel A. Alito, Jr.: Well, you -- you are making an argument that an awful lot of this big book is -- is subject to the rule of lenity because a lot of it is very poorly drafted.
Edward Scott Zas: Well, this is -- this is -- this is not just poorly drafted. We -- both sides have gone through all the canons, all the tools, legislative history. And at the end of the day, as Justice Kagan pointed out, you can read it reasonably both ways. But we think as a matter of text we actually have the better reading. My colleague from the Solicitor General's office conceded when she was up here that there is no difference between sexual abuse and abusive sexual conduct. So the parties agree on that, and yet we draw radically different conclusions. The government says the solution is to just limit the modifier to the second term, but that doesn't eliminate surplusage. It causes the entire modifying phrase, the entire category, abusive sexual conduct involving a minor or ward, to effectively drop out of the statute. Our solution is to say, give the nonredundant portion of the statute involving a minor or ward some meaning. Congress used those words for a reason. And the reason was the problem they were focused on, which is the danger to children. So the way to preserve effect for the -- that modifying phrase is to apply it to all three terms, which makes perfect sense. If two of them mean exactly the same thing, why in the world would Congress limit only one to minors and children? They're synonyms. It makes sense --
Sonia Sotomayor: My problem is, why would they include adults as a predicate for the minimum in Federal crimes but not in straight State crimes.
Edward Scott Zas: Because --
Sonia Sotomayor: I know they have done it in other situations.
Edward Scott Zas: Yes.
Sonia Sotomayor: But why here? If they're worried about the abuse of children, why would they not capture every conceivable person or every conceivable abusive act towards kids?
Edward Scott Zas: Well, in -- in addition to the fairness and admissibility problems we've identified, Congress reasonably could have determined that people who commit abuse offenses against adults, as bad as that is, don't pose the same level of danger to children.
Stephen G. Breyer: Well, she's saying why -- but they -- they do include the sexual abuse adult when you're talking about prior conviction of a Federal crime.
Edward Scott Zas: Yes.
Stephen G. Breyer: And the answer, I guess, has to be that you -- the drafters know what they're getting into with the Federal crimes, and they have no idea what they're getting into when they're dealing with 50 State crimes. Is that your response?
Edward Scott Zas: That's --
Stephen G. Breyer: I'm not trying to put words in your mouth. I want to know what -- that's what I read in the --
Edward Scott Zas: Your Honor, that's one answer.
Samuel A. Alito, Jr.: Let's take a -- an offense as to which there isn't much ambiguity: Rape. All right? Under the -- the ordinary meaning, why would rape in a Federal enclave qualify; rape a few yards away, perhaps, in State territory, not -- not qualify?
Edward Scott Zas: Because Congress was not focused on symmetry in that way. The -- the Federal predicates were added by the 1994 Congress. They were -- they were -- yes. They were made Federal predicates. The later Congress, 1996 Congress, was the one that added the State law predicates. So it's not as if the same legislators are making this decision at the same time: Should we cover Federal and -- and -- Mr. Chief Justice, I'm sorry. I see my light is on.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.
Edward Scott Zas: Thank you.