William H. Rehnquist: We'll hear argument now in No. 96-738, Mario Salinas v. United States. Mr. Enriquez.
Francisco J. Enriquez: Mr. Chief Justice, and may it please the Court: This case involves the interpretation of the RICO statute and the Federal theft, bribery and embezzlement statutes. Concerning the Federal bribery statute, this case presents the issue of whether this prosecution in Federal court, of State officials, is within the scope of the statute, even though it does not... the conduct complained of does not impinge upon... upon, affect or divert Federal or even State or even any local funds whatsoever. Concerning the RICO statute, this case presents the issue of what are the elements of a RICO conspiracy and how that should be charged to a jury. Because of the nature of the prosecution in this case, State officials being tried for primarily State law violations in Federal court, it raises great issues concerning Federalism and the federalization of State crimes. As to the Federal bribery statute, it is our position that the statute itself does not reach as far as a prosecution in this case. Of course, the... the funds which funded the bribery did not involve any State, Federal or local funds; but, more importantly, no Federal funds, no local funds, no State funds, whatsoever, were diverted. 18 U.S.C., Section 666 contemplates the kind of transaction where, for example, money is embezzled from the government, where there is a theft of government property, or, in the bribery context, where government funds are diverted as a result of the bribe. And what I mean by this, for example, is where money is, for example, paid to a government official, and then a... a bid is awarded or a contract is given or a lease is awarded or a grant is made or a job is given, something of that nature.
John Paul Stevens: Of course, it's clear the statute would apply in those cases. But are you suggesting there is no Federal interest in how Federal prisoners are treated when they're housed in State facilities?
Francisco J. Enriquez: Not at all, Your Honor. I am saying that there... I do recognize that there is a Federal interest in how the prisoners are treated. And... and I think that could be vindicated probably in a properly worded statute that is directed to that. But this statute is not directed to that. Additionally, if I may point out, the government's interest is... is probably satisfied if, for example, it makes sure that the grant that it's giving or... or the Federal funds that... that it is awarding are to an organization that, for example, shares it views... shares its views or its policies.
William H. Rehnquist: But our... our inquiry, really... we think probably that Congress is the one to decide whether the government's interest is satisfied. So I don't think there's any separate inquiry. If... if the statute covers this, then the government's interests would be satisfied by an application of the statute, I take it.
Francisco J. Enriquez: Well, yes, it would be, Justice Rehnquist, Mr. Chief Justice. It would be, but it's our position that the purpose of this statute is a protection of property statute. That's what this statute is directed at. That's the focus of it. That is what the government is... is trying to take care of.
Stephen G. Breyer: Then why... why... why is this statute... I gather the government gave 860... or $850,000, and about 915,000 a year, to house 100... 100 Federal prisoners... up to 100.
Francisco J. Enriquez: Yes, Your Honor.
Stephen G. Breyer: That's about $9,000 or $10,000 a prisoner.
Francisco J. Enriquez: Yes, Justice Breyer.
Stephen G. Breyer: To create a certain kind of a room, a cell.
Francisco J. Enriquez: Right.
Stephen G. Breyer: And now that room or cell was misused. So why doesn't it affect the... exactly the... the very, very expenditure that the Federal Government made? We'll give you a thous... we'll give you this prisoner, $10,000, to create a certain kind of cell that is to be used in a certain kind of way. And now, this... your client took a bribe to use it in a different way. So why does that not directly affect the Federal expenditure that was at issue?
Francisco J. Enriquez: Well, because in... in... in the trial court level, the judge faced the issue of whether this conduct in this case, the... the conjugal visits or the contact visits, were... were illegal. And the jury was not asked to find whether that was improper conduct in this situation. And what they were asked were whether bribes were paid for contact visits. The... the purpose of the statute, as we see it, is a protection of property statute. We see it from... from the internal structure of the statute.
Ruth Bader Ginsburg: I'm... I'm sorry, I didn't... I didn't quite grasp the... the answer to your question. Is there... is there a doubt, is it disputed that conjugal visits are unauthorized for... for Federal prisoners housed in this jail?
Francisco J. Enriquez: Yes... yes, ma'am.
Ruth Bader Ginsburg: So why would that have to be put to the jury? That's a given, right?
Francisco J. Enriquez: No... no, ma'am. The... the judge, in instructing the jury, said that the question of whether there were conjugal visits or contact visits... and that was disputed in the evidence... was not the issue. The question was, was their payment for these visits, whatever their nature may have been.
Stephen G. Breyer: Well, why would there have been a need for the briber to bribe if the conjugal visits were lawful?
Francisco J. Enriquez: I... I think it's because it was a policy of the sheriff's department not to allow conjugal visits. And... and, of course, the sheriff indicated that the visits that occurred were not conjugal... conjugal visits. Although they were very liberal, as far as the number of contact visits that were allowed, he denied that conjugal visits occurred.
David H. Souter: Well, wouldn't there also be a Federal interest in... in not wanting its... its contract jails to be used for bribery, even if in fact the briber gets a very bad deal?
Francisco J. Enriquez: Yes, I... I think there is--
David H. Souter: So, if that's the case, then what difference does it make whether, in fact, these visits were, in fact, lawful or not lawful?
Francisco J. Enriquez: --Well, because this statute is directed to the protection of property. That is the... the structure of the statute. That is the history of the statute. For example, this... this statute is not limited to bribery. It is... it also deals with theft of government property. It deals with embezzlement of government funds. And... and it's talking about something... something of value, something monetary, something that can be measured, being taken away as a result... or being given out... the government largess being given out as a result of a bribe given to a government official. That didn't occur--
Anthony M. Kennedy: Well, suppose... suppose the jail official charged with purchasing the food for the prisoners is taking a... a bribe and a kickback, and siphons off $10,000 a month. And, as a result, the prisoners get much worse food.
Francisco J. Enriquez: --Yes.
Anthony M. Kennedy: Is that covered by this statute?
Francisco J. Enriquez: Yes, it is covered by that statute, because then there is... is something that was taken from the Federal funds or from the State funds, but not the local funds.
Anthony M. Kennedy: No... no; these are State funds. These are State. It just is in the Federal facility.
Francisco J. Enriquez: Yes, sir, it... it is... Justice Kennedy, it is covered by this statute, because the statute, in my reading of it, says, not only are we protecting Federal funds, but state, we're going to protect your funds, we're going to protect your property, we're going to protect you from bribery. So, yes, from the plain reading of the statute, it does cover that situation.
Stephen G. Breyer: Suppose the Federal Government gives money for a museum or for a dam, and a State official improperly says to the public, I'll charge you to use the dam, and keeps the money. Or, I'll only let you use the dam if you bribe me.
Francisco J. Enriquez: Mmm-hmm.
Stephen G. Breyer: Is that covered by the statute?
Francisco J. Enriquez: I... I think it would be probably not covered by the statute, because nothing was taken from the Federal Government or the State government or the local government. The... there was no taking of funds from these entities. And so I don't think it would be covered by the statute. And I don't think this statute is intended to cover all of those situations. For example, from the legislative history, it... and from the reading of the statute, it makes it clear that not all prohibited transactions are covered, even if the agency receives--
William H. Rehnquist: Well, that... that... that's a bit tautological to say that not all prohibited transactions are covered.
Francisco J. Enriquez: --Yes.
William H. Rehnquist: Where... where in the statute do you find the language that would make it not applicable, say, to Justice Breyer's question?
Francisco J. Enriquez: I find it in... in the bribery portion of the statute that says that in order for it to be a violation, there has to be... it has to involve a transaction... business transaction or series of transaction of government, involving more than $5,000. That $5,000 figure is something that is carried through, throughout the statute, not only in the bribery provisions, but also in the theft and embezzlement provisions.
William H. Rehnquist: So you say the amount of the bribe would have to be $5,000?
Francisco J. Enriquez: No, Your Honor, I do not. Under the terms of the statute, the amount of the bribe can be any amount.
William H. Rehnquist: Then what does the $5,000 refer to?
Francisco J. Enriquez: It refers to the value to the Federal Government or the State government or the local government of what was taken away from them. Similar to the embezzlement and theft provisions that say, if... if money is taken from the Federal Government, embezzled, and it's $5,000, then it's a violation under the statute.
Antonin Scalia: But you don't tie it into the text of this provision, Mr. Enriquez; that... that... that's what troubles me. Why not... I... I find it difficult to... to see that there's any business transaction or series of transactions involved here. What... what is the business? You... you... or you've conceded that point, haven't you--
Francisco J. Enriquez: I... I don't... I don't--
Antonin Scalia: --there's no business?
Francisco J. Enriquez: --I think that's... that's our point, Your Honor, that... that these--
Antonin Scalia: Well, you didn't put it that way in your brief. I... I wish you had focused on the... on the text, "in connection with any business transaction or series of transactions. " That does seem to... to call to mind that there have been a deal. Transaction doesn't... I wouldn't call assigning someone to a cell a transaction--
Francisco J. Enriquez: --I... I wouldn't either, and even--
Antonin Scalia: --or a business.
Francisco J. Enriquez: --That's right. I... I don't see it that way, Your Honor. We feel, Justice Scalia, that the statute applies when... for example, more appropriately, let's someone comes to an official, who has the power to disburse Federal funds or Federal largess, and... and they pay him something, and then he gives the contract.
Antonin Scalia: He gives the contract or he gives--
Francisco J. Enriquez: A bid.
Antonin Scalia: --or gives the business--
Francisco J. Enriquez: Or the grant.
Antonin Scalia: --Or the grant or whatever, yeah.
Francisco J. Enriquez: Or things of that nature.
Sandra Day O'Connor: Are you saying that-- --Well, why isn't the transaction the housing of Federal prisoners under the contract with the government? It's in connection with the agreement to house Federal prisoners.
Francisco J. Enriquez: I... I think that's... there's a possibility of that reading. But I think when you look, Justice O'Connor, at the structure of the statute that talks about the other parts, embezzlement and theft of property, they're talking about taking it... taking it from the government.
Sandra Day O'Connor: Well, but we're looking at (B), somebody who corruptly solicits or demands for the demand of any person... that could be for the benefit of Beltran... or agrees to accept anything of value from any person... and he agreed to accept money from Beltran... intending to be influenced or rewarded... which he was... in connection with a transaction of the government or agency... the transaction being the housing of Federal prisoners, pursuant to the contract. I mean, I could read it, and it seemed to fit. Am I missing something?
Francisco J. Enriquez: I... I guess our position, Justice O'Connor, is that the... the only transaction there was a transaction between the marshal's office and the County of Hidalgo to establish this agreement. And... and I don't think that... unless it be under some kind of third-party beneficiary theory or some other kind of... of theory, that that would bring Beltran--
Sandra Day O'Connor: It isn't that complicated. The jail agreed to house the Federal prisoners. This Petitioner worked at the jail. And he agreed to take money to allow contact visits.
Francisco J. Enriquez: --That's right. But it... it didn't have anything to do with, for example, whether he should be in the jail or not. That was something that was strictly the marshal's... the U.S. marshal's decision. He's the one that decides how many people... Federal prisoners... are going to be in that jail or whether they're going to be housed in that jail or another jail.
Sandra Day O'Connor: Well, the reason the government wants a statute like this is to avoid the unseemliness of giving large sums of Federal money for services to the Federal Government that are being carried out in a corrupt fashion by the entity and the employees charged with conducting it.
Francisco J. Enriquez: Yes, ma'am. And... and, Justice O'Connor, I don't think that... that that's the basis for this particular statute. The basis for this statute is to protect property, to avoid funds leaving the--
Sandra Day O'Connor: Well, but the language of (B) is broader than that. I mean (A) talks about property; (B) doesn't.
Francisco J. Enriquez: --Yes, Your Honor--
Sandra Day O'Connor: I mean, we... we look at the language of the statute.
Francisco J. Enriquez: --Yes. And... and I think we also look at the... at the history of the statute, the legislative history, because it is unclear.
Sandra Day O'Connor: Convince my colleague, Justice Scalia, of that, would you? [Laughter]
Francisco J. Enriquez: I will try. If I could, another indication--
John Paul Stevens: May I just ask this? I... I... I guess I didn't read it the same way Justice O'Connor did. I thought the transaction was the conjugal visit, and that that had a value of over $5,000. Isn't that what the court below relied on, the conjugal visit?
Francisco J. Enriquez: --That's what... that's what--
Speaker: And... and--
Francisco J. Enriquez: --that's what both courts below relied on.
John Paul Stevens: --and is it not... is not correct that the... the transaction term is broader than business? There's a comma between "business" and "transaction"... so presumably it applies to any... in connection with any business or any nonbusiness transaction?
Francisco J. Enriquez: Yes, sir. But then--
John Paul Stevens: And this is surely a nonbusiness transaction.
Francisco J. Enriquez: --Justice Stevens, yes. But then you would have a situation where, within the bribery context, there's a portion of the bribery statute that says that the bribe can be of any value--
John Paul Stevens: Yeah, but the... but the transaction has to have value of more than 5,000. They said the visit was worth more than 5,000, using market value in the... in the relevant market area.
Francisco J. Enriquez: --Well-- [Laughter]
Antonin Scalia: Mr.--
Francisco J. Enriquez: --Justice Stevens--
Antonin Scalia: --Mr. Enriquez, you--
Francisco J. Enriquez: --Yes.
Antonin Scalia: --you would call allowing somebody a conjugal visit in exchange for a bribe a transaction. But that's not what they said was the transaction here.
Francisco J. Enriquez: No. That's correct.
Antonin Scalia: What they called a transaction was allowing the conjugal visit. And that does not seem to me a common way in which to use the word "transaction".
Francisco J. Enriquez: And I think it--
Antonin Scalia: Doesn't "transaction" usually mean a deal between two people?
Francisco J. Enriquez: --And--
Antonin Scalia: Transaction?
Francisco J. Enriquez: --Yes, sir. And... and the statute seems to be stretching that definition to fit this set of circumstances.
Stephen G. Breyer: It seems to be stretching it. Well, what does... what does the legislative history say?
Francisco J. Enriquez: The legislative--
Stephen G. Breyer: I mean, and specifically on the point of--
Francisco J. Enriquez: --Yes, Your Honor, the legislative history--
Stephen G. Breyer: --as you're reading... as you are reading it.
Francisco J. Enriquez: --Yes.
Stephen G. Breyer: It's like a commercial bribery statute. And that's it. When they have a transaction in the government... they're awarding contracts or whatever it is... that's what you look to. The opposite in that will immunize--
Francisco J. Enriquez: Right.
Stephen G. Breyer: --and misuse of government property?
Francisco J. Enriquez: Right.
Stephen G. Breyer: If... if what we're after is a bribe to obtain misuse of government property, this doesn't count, right?
Francisco J. Enriquez: That... that's correct.
Stephen G. Breyer: Okay. Now, there's something in the legislative history that's going to support that?
Francisco J. Enriquez: There's something in the legislative history that... that talks in terms of bribery, which influences Federal funds. Additionally, another indication that this is its purpose is illustrated by reference to what is, in essence, what... what I consider the com... the companion statute to 666, which is 18 U.S.C., Section 201, which is also a bribery statute, and which, it can be said, was the impetus for the creation of Section 666. And Section 201 is referred to in the legislative history. Section 666 was enacted because, in interpreting Section 201, many courts had given a narrow definition to agents of government, or who was acting on behalf of the government, to come within the scope of that bribery statute. However, this Court interpreted Section 201, in... in the case of Dikson v. United States, and stated, quote, the regulation and oversight of the funds is aimed precisely at the harm that occurred here: diversion of Federal money to unauthorized purposes... diversion of Federal money to un... unauthorized purposes.
William H. Rehnquist: When it says it's aimed precisely, that doesn't mean it's only aimed.
Francisco J. Enriquez: That... that apparently is the intent of this statute. I see it as a protection of property statute.
Sandra Day O'Connor: Well, how about the title? It says theft or bribery concerning programs receiving Federal money. This is a program receiving Federal money--
Francisco J. Enriquez: Yes, ma'am.
Sandra Day O'Connor: --and it's bribery. It just fits like a glove, if you read (B).
Francisco J. Enriquez: Well, it... it... it does, Your Honor, if we ignore the structure, I think, of the statute in its entirety, and we ignore the fact that concerning the bribery, what amount--
Sandra Day O'Connor: You mean if you ignore the literal language in the title, you have an argument, is that it?
Francisco J. Enriquez: --No... no. Additionally, within the bribery... the bribery provisions, itself, it has two elements in there. What is the amount of the bribe? It can be any amount. And, then, what does it have to deal with? It has to deal with a transaction involving $5,000 or more. And... and that is something that is carried out throughout the terms of the statute, not only in this bribery provision, but in the theft and also in the embezzlement provisions. May it please the Court: Concerning RICO, it's our position that in order to be found guilty of a RICO conspiracy, the government has to prove that the defendant either committed two predicate acts or agreed to commit two predicate acts. We believe this is so, first of all, because it's a natural reading of the RICO substantive, which states that the essence of the violation is to conduct or participate, through a pattern of racketeering. That is, the performance of two predicate acts. It doesn't speak in terms of joining a conspiracy or simply joining an enterprise. Indeed, the indictment in this case read in that fashion. It alleges that the defendant conspired to conduct or participate. It says nothing about conspired to join an enterprise. Even the case law cited by the government indicates that in reading RICO substantive and the RICO conspiracy statutes together, that that's the natural reading... conspire to conduct or participate... not simply to conspire to join. Well, we... we feel that this pattern of racketeering element is what makes this RICO statute so unique. This is the core of the statute. And that conduct or participating in a pattern of racketeering is what brings one within the scope of this statute. And we feel that the government is seeking to circumvent this core requirement in the statute. In... instructive on this issue, again, is the legislative history of the statute, where the principal sponsor of the bill pointed out that even to come within the proscription of... of Title IX of the Organized Crime Control Act, which is RICO, and which contains the conspiracy provision, to even come within its prohibition, the individual has to commit the crimes, the predicate acts. And if he doesn't do it, then he's simply not within the scope of the statute.
Sandra Day O'Connor: Well, now, at common law, suppose somebody is accused of a conspiracy to commit robbery.
Francisco J. Enriquez: Yes, ma'am.
Sandra Day O'Connor: Now, I suppose that you don't have to find that the defendant agreed to personally commit the robbery. That's not the common law definition of conspiracy. You just have to agree that the offense will be committed. The government doesn't have to prove--
Francisco J. Enriquez: I... I think it depends--
Sandra Day O'Connor: --that the defendant intended to personally do it.
Francisco J. Enriquez: --Justice O'Connor, I think it... it varies from statute to statute, crime to crime, as to what the specific intent is; and, in some instances, you probably do. I know that the government has cited the Pinkerton case. That has been rejected in the context of... of RICO. But, regardless, the argument of whether you bring--
William H. Rehnquist: Who... who... who has rejected it in the context of RICO?
Francisco J. Enriquez: --It has been rejected by the government's own decisions in, for example, the Neapolitan case, where it held against our position, but they discussed the idea of whether Pinkerton would apply in the RICO conspiracy context, and the court... the court--
William H. Rehnquist: Well, what court was... was the Neapolitan?
Francisco J. Enriquez: --It was the 7th Circuit, Your Honor. And... and, in addition, in that discussion, they pointed out that the Department of Justice manual indicates that Pinkerton should not be used in this context. Additionally, if we get into the... the... the question of traditional conspiracy law, which rules do we import from traditional conspiracy law into what is admittedly a new and drastic statute? I think if we look, like, for example, in the Pinkerton case, it talks about an agree... that if you... if the substantive statute requires an agreement of... of two people or more, then you can't have a conspiracy violation. That is traditional conspiracy law.
Ruth Bader Ginsburg: Mr. Enriquez--
Francisco J. Enriquez: Yes.
Ruth Bader Ginsburg: --this... this question puzzles me. I thought one of the aims of RICO was to get after organized crime, including the top people. And the top people may plan, agree to, but ordinarily don't themselves perform the predicate acts. They don't engage in the robberies, the murders and the rest. So it... it would not seem a... a logical reading--
Francisco J. Enriquez: Justice--
Ruth Bader Ginsburg: --to say that... that it has to be... that you have to agree to do the act, instead of that the act will be done.
Francisco J. Enriquez: --Justice Ginsburg, I would suggest to the Court that that is a logical reading, because if you can't get them under RICO substantive, how can you get them under RICO conspiracy? And... and so I think, under RICO substantive, this Court has instructed us that... in the Reves v. Ernst B. Young case, that in order to be within RICO, it's not simply enough to be somehow associated with the enterprise, but, rather, you've got to participate by management or control of the enterprise. And so, in... in your hypothetical, if they can't get you for RICO substantive, then I think it may be fair that they can't get you for RICO conspiracy. And as a practical matter, in the cases that... that are charged below, I... I... I've never seen a case where they don't charge RICO substantive and RICO conspiracy also, anyway.
Antonin Scalia: You can... you can-- --The reason you have to be a manager is... is because the statute requires that you participate directly or indirectly in the conduct of such enterprise's affairs.
Francisco J. Enriquez: That's correct, Justice Scalia.
Antonin Scalia: And it's the word "conduct" that... that brings in that requirement, not... not any... any... any implication that you're not liable for the acts of coconspirators.
Francisco J. Enriquez: Yes, Your Honor. But... but that, again... that is true... but, again, that incorporates some pretty stunning language in the Pinkerton case. The Pinkerton case being, of course, where someone was charged with a conspiracy, and they proved a conspiracy, but because somebody else committed a substantive crime, he was also charged and found guilty of that substantive crime under the partnership of crime theory. And... and that's been highly criticized and... and criticized even by the cases that... that support the government's position.
William H. Rehnquist: But the government doesn't need that part of the Pinkerton case here. It seems to me it just needs what... what you apparently agree with the common law idea. That if you agree that a robbery should be committed, the agreement doesn't have to provide for you personally com... committing the robbery.
Francisco J. Enriquez: As I indicated, Mr. Chief Justice, I... I think that it depends on a crime-to-crime basis. I don't think that, across the board--
William H. Rehnquist: Well, how about robbery? Take that for a crime.
Francisco J. Enriquez: --Well, I think it's a specific intent, and you have to agree that... that a robbery is going to be committed, and you've got to do something in furtherance of it. Drug crimes--
William H. Rehnquist: But... but are... are you... are you saying that you would have to personally commit the robbery in a situation like that?
Francisco J. Enriquez: --No. I... I think agree to commit elements of the robbery, yes. If it please the Court, I would like to reserve my remaining time for rebuttal.
William H. Rehnquist: Very well, Mr. Enriquez. Mr. Wolfson, we'll hear from you.
Paul R. Q. Wolfson: Mr. Chief Justice, and may it please the Court: The first statute before the Court, the bribery offense, which is stated in Section 666, specifies four elements. First, the defendant must be an agent of an entity that receives Federal benefits. Second, the Federal benefits received by that entity must exceed $10,000 in a 1-year period. Third, during that 1-year period, the defendant must accept something of value, intending to be influenced in a transaction of the entity. And, fourth, the transaction must involve something of value.
Sandra Day O'Connor: What was the transaction?
Paul R. Q. Wolfson: The transaction in this case was allowing con... was allowing conjugal visits. That was the theory on which the case was submitted to the jury. The jury instruction is found on page 127 of the joint appendix. And the judge says, now... says, now, what are the transactions? The transactions are allowing contact visits, I... I should say. And the Court of Appeals, basically, took the same... the same view.
Antonin Scalia: If I took a bribe for... for allowing the prisoner to open his window, would... would opening the window be a transaction?
Paul R. Q. Wolfson: I think that if the... it could be. I think that if the... if the person who is taking the bribe is a jail guard, who... you know, I think that you have to say that.
Antonin Scalia: Yeah, I think you're using "transaction" in... in a... in a broad sense that I really don't recognize. I think--
Paul R. Q. Wolfson: I do think that what--
Antonin Scalia: --the word really has, to me, a... a, you know, a flavor of a deal between two people--
Paul R. Q. Wolfson: --Well, let me first--
Antonin Scalia: --as "business" does.
Paul R. Q. Wolfson: --let me first say, this is not a point that's discussed in the briefs. But I... I have to say--
Speaker: No, I know that.
Paul R. Q. Wolfson: --whatever it... as a transaction, it can't be limited to a deal, because I do think that the statute does... whatever else it does get at... and I know that's been a subject of disagreement... it does get at situations where a... a recipient of Federal funds just simply hands out money to other... other people, without something necessarily in exchange... a kind of a grant program. And I think, in many cases, in that situation, the... say, the government gives money to a local agency, in turn, to hand out money, the local agency won't be getting... won't be getting a deal for it. But I think, clearly, one thing that is within the statute is if someone bribes a... an agent of a local agency, you know, to send... send the grant money my way, rather than to somebody else. I think... so--
John Paul Stevens: Mr. Wolfson, on Justice Scalia's example of opening a window, it would have to be worth $5,000, that... to... the market value of opening a window.
Paul R. Q. Wolfson: --That... that's right. And--
John Paul Stevens: And if it was letting him out in the--
Paul R. Q. Wolfson: --Right.
John Paul Stevens: --out in the open, in the--
Paul R. Q. Wolfson: Right.
John Paul Stevens: --public park every Thursday, Friday and Saturday, instead of staying in prison, that would be the same kind of transaction as opening the window, and it might be worth a little more.
Paul R. Q. Wolfson: I... I think that's right. And I think that--
John Paul Stevens: How do you think that helps you? I mean--
Paul R. Q. Wolfson: --Right.
Antonin Scalia: --the... the... the notion that we have to place a dollar value on such things as opening a window or having a visit from... from your wife--
Paul R. Q. Wolfson: Right.
Antonin Scalia: --I mean, I... I can place $5,000 on most business transactions. I... I can place a monetary limit on it. But... but the interpretation you're giving the statute makes you say, how much is it worth to open a window? That's ridiculous. I--
Paul R. Q. Wolfson: Well, I--
Antonin Scalia: --people don't write statutes that way.
Paul R. Q. Wolfson: --I think that... well, the--
Sandra Day O'Connor: Why shouldn't the transaction be the housing of Federal prisoners?
Paul R. Q. Wolfson: --Well--
Sandra Day O'Connor: I mean, that looked like the most normal reading of it. What's the matter with that?
Paul R. Q. Wolfson: --I think that could be--
Anthony M. Kennedy: And I... and I might add, on that very same point, that that's the way I think your indictment is... is better interpreted--
Paul R. Q. Wolfson: --Well, I think that the... I think that the business of the jail could have been... the ongoing housing of Federal prisoners. But here, the... I mean, I think the--
Anthony M. Kennedy: --Well, now, it seems to me, under Justice O'Connor's question, it's either one or the other. It's either the Federal program of prisoners or the conjugal visits.
Paul R. Q. Wolfson: --Well, the... the case was--
Anthony M. Kennedy: And you can't say it could be one or the other, because the statute doesn't permit you to read it "one way or the other". So which is it?
Paul R. Q. Wolfson: --Well, the case was certainly submitted to the jury on the theory that the transaction--
Anthony M. Kennedy: What... what is the government's position as to what the transaction is in this case?
Paul R. Q. Wolfson: --Allowing the conjugal visits.
Anthony M. Kennedy: All right. So, then, you're saying that the statute can't be interpreted, as Justice O'Connor suggested, so that the business or transaction is the program of... of keeping the prisoners?
Paul R. Q. Wolfson: I... I think it can't be applied that way in this case, because the... the statute requires a payment from the briber... you know, intending to be influenced--
Sandra Day O'Connor: In most cases, it would make a lot more sense. The title of the statute is theft or bribery concerning programs receiving Federal money. That's why Congress wanted to enact this. They don't want to support some program that's being corruptly administered.
Paul R. Q. Wolfson: --I... I think that the case... I think that, certainly, one could have tried this case on the theory that the ongoing treatment of the prisoner... you know, if the prisoner received just, generally, day to day, more favorable treatment than somebody else, and gave money in return for that, that that could have been a business, which is the... the conditions under which the prisoner was housed at the jail.
Antonin Scalia: But the $5,000 has... has to be given in connection with.
Paul R. Q. Wolfson: Right.
Antonin Scalia: Now, by "in connection with", I assume... don't you take that to mean in payment for?
Paul R. Q. Wolfson: I... there... I think there is an element, yes--
Antonin Scalia: Otherwise, the statute has a wild breadth to it.
Paul R. Q. Wolfson: --Yes. I think there is an element of exchange.
Antonin Scalia: Of exchange.
Paul R. Q. Wolfson: Yes.
Antonin Scalia: And... and he's not exchanging $5,000 for the whole business of the prison--
Paul R. Q. Wolfson: That's--
Antonin Scalia: --and housing Federal prisoners.
Paul R. Q. Wolfson: --But I... but I don't... but I don't think that the payment... I don't think that the transaction requires an exchange.
Antonin Scalia: He's exchanging it for the window... for the opening of the window or for the conjugal visit.
Paul R. Q. Wolfson: At... at any rate, I... I do want to point out that the issue of transaction is not in the briefs.
Ruth Bader Ginsburg: Mr. Wolfson, maybe... maybe... maybe this would clarify it. When the government says it's a conjugal visit, suppose Beltran was a State prisoner. Would you say the statute still applied? Because there is Federal funding to help on the construction. There is Federal funding to house prisoners. This prisoner happens to be a State prisoner, but there is... there is a sheriff or an assistant that is taking bribes. Would the statute, in... on your reading, cover this case if Beltran had been a State, and not a Federal, prisoner?
Paul R. Q. Wolfson: Yes, it... it would. It... it's because the... the... all of the four elements of the offense are... are stated in the hypothetical--
Anthony M. Kennedy: And because the... because the transaction is that there's a previous Federal grant to the prison?
Paul R. Q. Wolfson: --No, no. The... the trans... the transaction is... let's suppose there was a State--
Anthony M. Kennedy: What's the... what's the Federal grant transaction that's involved in--
Paul R. Q. Wolfson: --The Federal grant--
Anthony M. Kennedy: --in Justice Ginsburg's hypothetical?
Paul R. Q. Wolfson: --The Federal--
Ruth Bader Ginsburg: The transaction, you have told me, is the conjugal visit, which is not... is not related to the Federal grant.
Paul R. Q. Wolfson: --Well, the Federal... the Federal Government is giving... on the hyp... I... I hope I'm understanding the hypothetical correctly... the Federal Government is giving the jail money to house a Federal prisoner. Now, it so happens that at... during that 1-year period, there is a State prisoner in the jail cell next to Beltran--
Speaker: Right.
Paul R. Q. Wolfson: --who is giving bribes--
Speaker: Right.
Paul R. Q. Wolfson: --in return for the... the privilege of receiving conjugal visits.
Speaker: Right.
Paul R. Q. Wolfson: The statute clearly does cover that--
Speaker: Yes.
Paul R. Q. Wolfson: --that situation. Because--
Ruth Bader Ginsburg: But there you... regarding the transaction, is the conjugal visit--
Paul R. Q. Wolfson: --Yes.
Ruth Bader Ginsburg: --for which the bribe was paid?
Paul R. Q. Wolfson: Yes. That's right.
William H. Rehnquist: Was there any objection at the trial court to the charge on what trans... what "transaction" meant?
Paul R. Q. Wolfson: I... I'm not aware of any. But, certainly... certainly, that's the way in which the... as I read the jury instruction, that's the way in which it was submitted to the jury. And that hasn't been challenged in this Court, at any rate. And the... the whole point hasn't been briefed at all.
Stephen G. Breyer: Does it help to focus on business?
Paul R. Q. Wolfson: Excuse me?
Stephen G. Breyer: If the statute is primarily aimed at commercial bribery... that's the normal situation... they're selling something or they're buying something, and that's the transaction with the government, that's the heart of the statute... you want to apply it, as well, to misuse of government property, let's say, that was bought by the government... the Federal Government... and why doesn't the word "business", then, come into play? I mean, there is no transaction here, but this is bribery in connection with the business of this organization, which is to house prisoners. And, moreover, it affects... that word, in connection with, is very loose... it affects that business... or $5,000, or more, worth of that business... because it's misuse of that property for a period of a year, and the single cell cost 10,000 for the year.
Paul R. Q. Wolfson: I... I think it could be... I think it could be applied in that situation. I don't think that the statute covers only a situation where Congress gives an entity money and then sets that entity loose in the world to engage in... with that money... to engage in a commercial transaction. I think that it... it clearly covers... it clearly covers broader--
Antonin Scalia: Well, it seems to me that the criminal statute-- --Do you consider the Justice Department a business, Mr. Wolfson?
Paul R. Q. Wolfson: --Excuse me?
Antonin Scalia: Do you consider the Justice Department a business?
Paul R. Q. Wolfson: I think that the business... it could be said that the business of the Justice Department is to... is to bring cases... the business of--
Antonin Scalia: It could be said analogously, I think--
Paul R. Q. Wolfson: --Right.
Antonin Scalia: --but I wouldn't... that wouldn't be the normal use of "business". I don't--
Paul R. Q. Wolfson: It's the... but it's the business--
Antonin Scalia: --regard Federal agencies as being in business.
Paul R. Q. Wolfson: --It is... what it says, it is the business or transaction of... of an... of an organization, agency or government. And it doesn't--
Anthony M. Kennedy: I'd like to get just one point clear. Are... are you saying that, under this statute, business transaction or series of transactions can be, depending on the way the government charges in the indictment, either the business of keeping Federal prisoners that Justice Breyer asked about or the conjugal visit?
Paul R. Q. Wolfson: --I think it can. I think the business... I think--
Anthony M. Kennedy: It seems to me that that is a very strange way to interpret a criminal statute.
Paul R. Q. Wolfson: --I think that--
Anthony M. Kennedy: It seems to me it has to be either one or the other.
Paul R. Q. Wolfson: --I think that business... that business could be... could reach... that business or transaction could reach different... different points. I mean, business, for example, could reach the broad programmatic... the broad programmatic purpose, such as, you know, the... the general business of housing prisoners. Transaction is one implementation of that... of that business, such as allowing... allowing a prisoner to have more privileges than he would normally, under the generally applicable rules. There are also situations, I should say, where the courts have held "business" to cover situations where one local agency is an intergovernmental entity, where it... where the local agency doesn't have the authority to do something on its own, and they've said, well... and, say, one entity's representative votes on an intergovernmental board... and they say, well, this is clearly a business, because it's... it's engaged in a... you know, in a relationship with another entity. I think--
Anthony M. Kennedy: I... I'm just trying to clarify my... you could have charged and... and convicted the defendants, in your view, in this case, by interpreting "transaction" in either of these two ways? You had the option to charge, and you would prevail on either interpretation?
Paul R. Q. Wolfson: --I... I don't know that we would have... I think if we had charged... I think we might have charged by saying that he offered a bribe and a bribe was taken in connection with a series of transactions. But I don't know that we would have charged in connection with a business of the jail. But, as I... again, this has not been... we... we're bound by the theory which we took in a lower court, which was that the transaction is the... is the conjugal... is... was the contact visits that were allowed. Because that was basically an exercise of the... of the authority, or of the discretion, of the sheriff and the deputy sheriff of the county, who had the... whose job it was... whose official function it was to decide when and under what circumstances the door of the jail cell would be allowed open so that the... a prisoner could be allowed to see his family or... or whatever. And that's how we viewed the... the transaction.
Stephen G. Breyer: What is your response to Justice Kennedy's... at the end, he said, I think, if business... the word "business" fits pretty uneasily here, and the word "transaction" also fits pretty uneasily. And it's a criminal statute?
Paul R. Q. Wolfson: I think that the... I think that there are situations where a word "business" could apply. I'm not sure that it would apply to the... the treatment... I... I'm not sure that it would apply to the... to the... the various exercises of discretion in which a prisoner is treated. But I... I think the word "transaction" clearly does fit it. I... I guess I... it doesn't seem to me to be... to be that ambiguous.
Antonin Scalia: Of course, none... none of this leads you to the precise thing that the Petitioner here is complaining of, which is the fact that there is no Federal money directly involved. None of this really goes to--
Paul R. Q. Wolfson: Right.
Antonin Scalia: --whether it's a business or a transaction or not a transaction. It doesn't speak to the question of whether you have to re... and... and how... how is the question presented, again?
Paul R. Q. Wolfson: Well, the... the question... the question presented is clearly whether there has to be a nexus shown to the treatment of... well, it says what kinds of cases involving State employees are subject to prosecution under 18 U.S.C. 666. But then it goes on to say, do such cases include cases where no Federal funds are di... disbursed or impinged.
Speaker: Right.
Paul R. Q. Wolfson: Now, having said that, I think that the statute... I mean, the statute clearly covers cases like this one, where there is a strong Federal interest in the integrity of... there is an... there is an important Federal interest in cases like this, where the... the recipient of the Federal funds is housing Federal prisoners, is responsible for their custody and their safekeeping and is obligated to... to keep them under certain conditions, but also to keep them under certain privileges. And--
William H. Rehnquist: Well, what... what if... what if Congress had simply provided for grants to allow the State prisons, without requiring that the house State prisoners. Now, would this statute still apply? With... with Federal prisoners.
Paul R. Q. Wolfson: --If Congress... I mean, if Congress gave the Federal... gave the States or local governments just money to house State prisoners, yes, I think that--
William H. Rehnquist: The statute would still apply.
Paul R. Q. Wolfson: --Yes. The statute does not require a nexus to the implementation of the Federal program.
William H. Rehnquist: Nor does it require any special Federal interest.
Paul R. Q. Wolfson: I think that's correct, on the terms of the statute. I think, though, that... I mean, Congress could, for example, give a local government a... an unrestricted block grant, sort of a... a revenue-sharing grant in aid program. And I think that Congress could... under the Spending Clause, Congress could have restrictions such as this follow the grants and... the grants and their funds.
Anthony M. Kennedy: So that for the next 30 years, any bribery... if it's more than $5,000 involved... in conjunction with the ordinary, day-to-day running of a prison that's been built with Federal monies, is under this statute--
Paul R. Q. Wolfson: No, the bribe has to... the bribe has to take place during the... the 1 year... a 1-year period surrounding the... the receipt of Federal benefits. So it's not... it's not as though once you get Federal... once you get $10,000 of Federal money, you... you're on the hook forever. It's... the... the statute is--
Sandra Day O'Connor: --Well, subsection (B) says that the statute applies where the organization, government or agency, gets, in any 1-year period--
Paul R. Q. Wolfson: --Right.
Sandra Day O'Connor: --benefits in excess of $10,000 from the Federal Government.
Paul R. Q. Wolfson: Right. But 1-year period is then defined... this is on page 3a of our... the appendix in our brief... the term, 1-year period> ["] means a continuous period that commences no earlier than 12 months before the commission of the offense and ends no later than 12 months after the commission of the offense. So... I mean, it has... the bribe has to be roughly contemporaneous with the... with the receipt of Federal funds. And the... so, after the 1-year period is over, if the agency doesn't get or take Federal funds--
John Paul Stevens: That doesn't say that. I don't... I don't read the 1-year period to impose that requirement. It just describes... that just defines the period in which the $10,000 or more has to be received. It doesn't say anything about when the crime has to be committed.
Paul R. Q. Wolfson: --Well--
Antonin Scalia: Before the commission of the offense. Oh.
Paul R. Q. Wolfson: --Yeah. I mean, it's... you see, the statute--
Speaker: Oh, I see.
Paul R. Q. Wolfson: --is... is somewhat of a... of a... of an acrostic. If you... if you look at Section (B)... well, let's... let me start with Section (A). Whoever... if the circumstance described in Section (B) exists, then you have to look at (B). And it says, the circumstance referred to in subsection (A) is that the--
Speaker: Beautiful.
Paul R. Q. Wolfson: --is that the organization received benefits in any 1-year period. And then you go on to (D)(5), and it says what the term 1-year period> ["] means. So, although--
John Paul Stevens: So that is related to the time of the offense?
Paul R. Q. Wolfson: --Right. That's right.
Antonin Scalia: And if I read it correctly, you... you... you can take a bribe, and if you're unfortunate enough that the prison you take the bribe from, later, within less than 1 year after you commit the offense, gets Federal money, they got you under the statute; is that right? You... you are retroactively--
Paul R. Q. Wolfson: I think that is... I think that is--
Antonin Scalia: --sucked into the vortex of--
Paul R. Q. Wolfson: --Yeah. I think that is the reading of the statute. But I think that it... it-- [Laughter] --the... the... it operates on the... it operates on a prophylactic principle, which is that... which is that Congress is entitled to insist that any entity to which it gives money be free of significant corruption. And even if the... even if the corrupt act takes place before the money is actually in the hands of the recipient, it... you know, the--
Antonin Scalia: --It's perfectly reasonable from Congress' point of view, you know. But I'm not sure it's still reasonable from the poor defendant's point of view. He... he thinks he's stealing the money from... from... from an agency that hasn't gotten any Federal aid. And, all of a sudden, within a year, it gets Federal aid. That doesn't seem fair.
Paul R. Q. Wolfson: --Well, the... the receipt of Federal funds is a... is a... is... was seen by Congress as a jurisdictional... as a jur... and... and has been seen by the courts as a jurisdictional requirement that brings Federal authority along with it.
Stephen G. Breyer: But there is a simpler way that's consistent with the words "business transaction". The Federal Government gives almost everyone in... you know, not almost everyone, but an awful lot of people money. And many of them are businesses or, many that aren't businesses, buy things and sell things with the money. And they may, even before they get the money, make contracts that have to do with the money they're going to get. And commercial bribery often involves bribing a selling agent or a purchasing agent in respect to such money and the use thereof. And that would be a natural reading of the words. We wouldn't have to struggle with business transaction, et cetera.
Paul R. Q. Wolfson: Well--
Stephen G. Breyer: So why not read it as a commercial bribery statute, basically, which those words, "business transaction", et cetera, seem to suggest?
Paul R. Q. Wolfson: --Well, in this--
Stephen G. Breyer: I'm not saying I would; I just point that out.
Paul R. Q. Wolfson: --I mean, in this regard, I do think it is actually useful to remember that the statute was enacted while the Dikson case was... while the Dikson case, under 18 U.S.C. 201... while that issue was percolating in the courts. And there were many cases that have been prosecuted under Section 201 that would not fit a commercial bribery situation, where the Federal Government gave community organizations grants, and said to the community organizations, you go out and relieve poverty with this money. And... and--
William H. Rehnquist: There are different ideas of how to do it.
Paul R. Q. Wolfson: --Yes. Well, I do want to point out, there is another... there is a limitation... there... there is a limitation that is in the statute, which is that the... which is that the... there are two limitations I do want to point out. First of all, the... the defendant has to be an agent of a local organization. And he has to be able to act on behalf of the organization. So it may not be that every single employee of every organization is covered. There is a level of, I think, responsibility, official responsibility, that is covered... captured in the term "agent". And the other point is that the statute covers... this is in subsection (B)... benefits under a Federal program that covers a variety of forms of Federal assistance, and that... the legislative history and the courts have... have... do point out that there are some purely commercial transactions between the government and, say, somebody who the government buys computers from, just without any kind of Federal programmatic aspect. I mean, if the government just goes out into the open market and spends $10,000 for fungible equipment, that's not necessarily ben... that's not benefits under a Federal program or form of Federal assistance. There is a... there is an aspect of the implementation of a Federal policy that comes with those words. I want to turn at this point to the... the other issue before the Court, which is the RICO conspiracy issue. Our posissue... our position on that issue... excuse me... is... is quite straightforward, which is that the RICO conspiracy provision follows traditional principles of conspiracy law. And under the traditional principles, the government is not required to prove that the defendant... the conspiracy defendant agreed personally to commit the offense that is the object of the conspiracy. The government needs to prove only that the conspirators agreed among themselves that the offense would be committed by one or more of them, and that the defendant associated himself with that... with that agreement. Nothing in the RICO conspiracy statute suggests that Congress intended to depart from this well-settled rule. Congress used, really, a term of art, 1962(D). And that term has a settled common law meaning, and there is no indication in the statute that there are any additional elements of proof.
Antonin Scalia: I'm not sure that I know of another statute which requires, you know, multiple acts by the same person. I mean, it can be argued that you cannot conspire to violate (C) unless you conspire to have a person... it may not... it may not be the person you're prosecuting.
Paul R. Q. Wolfson: Right.
Antonin Scalia: But you have to conspire to have one particular person commit a pattern of... of racketeering activity.
Paul R. Q. Wolfson: I... I think that may be right. That is, let's say a group of people get together and say, you know, we want to have a... a... a conspiracy of some kind. It may be that the conspirators must foresee that a person carry out... a... one person carry out two predicate acts of racketeering.
Antonin Scalia: Right.
Paul R. Q. Wolfson: And, of course, two people could carry out four or three carry out six or whatever.
Antonin Scalia: Yes.
Paul R. Q. Wolfson: But I think that the--
Antonin Scalia: That's not the argument here, though?
Paul R. Q. Wolfson: --Right. No. But I think that the... but what... I think it is important to point out, as I think what Justice Ginsburg's colloquy with my colleague pointed out, one thing RICO clearly was intended to get at was the... the person who sits at the top of the organization, who effectively insulates himself. And to... to use, sort of, that classic example, suppose the... the middle people in the organizations go to the top... the organized crime chieftain and the say, you know, we really want to get into the business of arson. And we... we... you know, we have a plan... you know, we're going to start burning down buildings for... you know, for... for hire. And the head of the organization says, you know, that sounds good, you know, do you have any particular plans in mind? They say, no, but, you know, we think we've got it. I think that, in that situation, you know, it falls squarely within the... the coverage of the statute. And by agreeing to that... I mean, the... the chief has really, you know, has really allowed the... allowed the thing to go forward. And his agreement is... is essential, in that case, to the... to the achievement of the... of the enterprise, which have the necessary structure. As the plan is presented to him, there clearly is a pattern, because there is to be continuity, plus relationship. And the... the... the requirement is satisfied that there be two predicate acts of racketeering.
Antonin Scalia: By a person.
Paul R. Q. Wolfson: By a person.
Antonin Scalia: By a person.
Paul R. Q. Wolfson: Right. But... but I think, under the... the rule that is suggested by the defendants, really, the... it would hamper the government's ability to... to effectively prosecute racketeering. If there's nothing further, I'd just like to close by saying we... we submit that the judgment of the Court of Appeals should be affirmed.
William H. Rehnquist: Thank you, Mr. Wolfson. Mr. Enriquez, you have 5 minutes remaining.
Francisco J. Enriquez: Mr. Chief Justice, and may it please the Court: It... the discussion that General Wolfson engaged in with this Court concerning RICO conspiracy, the great debates that went on in Congress concerning the enaction of this statute, the legislative history, all of that was directed to RICO substantive. RICO substantive, itself, is directed to the heads of the enterprises, the people that manage or control. Ernst... Reves v. Ernst & Young indicates that... that that's the idea. So it... it just doesn't seem unfair that if you can't get them under RICO substantive, that there's apparently a great discussion in the legislative history that... that would indicate, well, we... we can get them under RICO conspiracy. The... the focus here is, what is the object of the conspiracy? And the object of the conspiracy, in... in our view, is not simply to join an enterprise that... that operates in that fashion, but to... to personally agree to commit two specific acts of racketeering. That's what the whole discussion in the legislative history was about, not limited RICO substantive or RICO conspiracy... just to when the statute would or would not apply. I would suggest to the Court, concerning both of these statutes, Section 666 and... and the RICO statute, that there are certain areas of government which historically this Court has indicated to us, under the Constitution, have been deemed within the province, or primarily within the province, of States. For example, education, domestic relations, State officials and criminal law. This case has two of those areas: State officials and criminal law. And it has been established, in the context of State officials, that before it can be said that Congress intended to reach their conduct or regulate their conduct or affect their status or qualifications of State officers, it must be clear that the officers, under the circumstances of the case, are within the scope of the statute. And that's the clear statement rule. Unless... under that rule, unless the officers are clearly within the scope of the statute, they're not. And even if they are arguably--
William H. Rehnquist: Well, Mr.... Mr. Enriquez, the statute here says, whoever being an agent of a State, local or Indian tribe, so there's no doubt that Congress meant to include those... those persons, is there?
Francisco J. Enriquez: --Mr. Chief Justice, that is correct. The question is, under the circumstances of the case. For example--
William H. Rehnquist: So you say we must read each clause in the Act with... with that in mind, even though it was clear that Congress intended to include State officials?
Francisco J. Enriquez: --Yes, because, all... all of a sudden, we have a situation here where Congress is indicating that it wants to work upon or... or affect State officials. And when you... when that happens, then it becomes an issue of Federalism. And it's, I feel, to be determined under those rules.
Ruth Bader Ginsburg: Are you suggesting there's a Tenth Amendment--
Francisco J. Enriquez: Yes, ma'am, I do.
Ruth Bader Ginsburg: --and that this is... that... that it would be unconstitutional for the Federal Government to say, now, when we give our money to State operators, we want that agency, in all of its parts, to be clean, because if there's bribery going on with the State program, the... there's the risk that the same officers that are dishonest with regard to the State program are going to be dishonest with regard to the Federal program?
Francisco J. Enriquez: I... I think the Federal Government can do that, ma'am, if... if it is couched in terms of protecting its property or if it's couched in another jurisdictional element, such as it affects interstate commerce, or one of the jurisdictional elements--
Ruth Bader Ginsburg: Well, what's wrong with Federal money... that seems to be a big Federal peg... we're giving you Federal money--
Francisco J. Enriquez: --Yes, ma'am.
Ruth Bader Ginsburg: --to make conditions on it?
Francisco J. Enriquez: And I understand that... that the... the government's position on this is that it's under the Spending Clause and that, by virtue of spending, they can go ahead and regulate. But I... I think this goes beyond the cases that they've cited. None of the cases that they have cited on this regulation issue are criminal law cases. All of the cases that they have cited speak in terms of... of conditions or... or incentives to the States. None of them speak in terms of... of something as coercive as, we're going to put your... your officials in jail. So I... I think, when you get to that point, then we run into a Spending Clause problem. It doesn't seek to justify itself under the terms of... of the Commerce Clause, and so I think it does exceed the scope of the Constitution, as applied in this case.
Ruth Bader Ginsburg: Did you make that argument somewhere else along the line, or did you just today?
Francisco J. Enriquez: No, ma'am. I... I did make that argument. The government has in fact tried to justify--
Ruth Bader Ginsburg: You made that argument in the lower courts?
Francisco J. Enriquez: --I... I don't know that we argued it in terms of Commerce Clause, but we argued it in terms of property of the government; that this was a protection of property statute, and... and that it could be just... it could be justified only on that basis.
Ruth Bader Ginsburg: But the Tenth Amendment argument that you're presenting to us now--
Francisco J. Enriquez: Yes, ma'am.
Ruth Bader Ginsburg: --did you make that in the lower courts?
Francisco J. Enriquez: We didn't specifically come out and say Tenth Amendment, Your Honor.
William H. Rehnquist: Thank you, Mr. Enriquez. The case is submitted.
Francisco J. Enriquez: Thank you.


Earl Warren: -- Kennedy, Attorney General of the United States, versus Francisco Mendoza-Martinez. Mr. Davis, you may continue with your argument.
Thomas R. Davis: Thank you Your Honor.
William J. Brennan, Jr.: Mr. Davis, before you begin, I think you told us yesterday that you submitted to Judge Jertberg, a court order which included the provisions for injunctive relief and that he refused to enter it, but under the order he did. Did the Government make any objection to your order?
Thomas R. Davis: Yes. Judge Jertberg did that because the Government objected.
William J. Brennan, Jr.: And what was the Government's objection?
Thomas R. Davis: The Government objected it was beyond the scope of the action and if the Court please, there is additional reason for the Government's having objected which I wanted to bring out exactly at this time. Under the general prodding I must say of Mr. Justice Whittaker, I should point out that we went through a pretrial procedure in this case pursuant to Rule 16 of the Federal Rules of Civil Procedure and as I think Mr. Justice Brennan is well aware, that Rule explicitly provides for amending the pleadings to correct earlier errors and as does Rule 15 of course also provides for amendment. But what is important about Rule 15 which relates specifically to amendment is that it provides that any amendment which is accomplished relates back to the original pleading. In other words, the Rule says in just about so many words, the pleading as it is amended shall be deemed a pleading which was originally before the court so that the excessive zeal which I exhibited in drawing this prayer was cured by virtue of the explicit terms of Rule 15. And on that ground, in addition to the inherent ground that it was beyond the scope of the action per se, but on the ground of the pretrial stipulation as well, the Government rightly objected to any additional ancillary relief being granted in Judge Jertberg's order, and Judge Jertberg correctly refused me the additional ancillary relief which I sought. Therefore Your Honor, I submit that under Rules 15 and 16, the Court correctly proceeded and what is more important, the correction that it made and in -- contained in its final judgment was a correction which by virtue of Rule 15 related back to the original pleading. I have returned again today to take up the additional time of the Court because we did not reach at all the -- neither Mr. Davis nor myself reached at all the ultimate question, the constitutional question and in any time I take up, I realize that it has been many times argued here and argued by men of far greater experience and wisdom than I have. Nonetheless, perhaps the Mendoza case is destined to be the bellwether case and it would be improper for me not at least to make some brief contentions on the basic question of constitutionality. Without rehearsing the briefs, I would like to invite the Court's attention to one specific question. It is possible on one theory or another with a very sharp knife to divide Trop versus Dulles from Mendoza. But there is one basis on which it cannot be divided and that is the question of whether it would be possible to say that in Mendoza, there is no punishment involved whereas in Trop, 401 (g), there is punishment involved. That I submit is an indefensible distinction. Every bit of the legislative history of this statute originating as it did with the Attorney General and proceeding through legislative argument in the citations that we have given to the Court shows that it is plainly coercive statute. And this I submit is a pivotal question because if it is punitive, if Section 401 (j) is a punitive statute, I submit that it plainly violates procedural due process of law. And this is of crucial importance because of the often repeated inclination or in the determination of this Court not to limit or affect the power of Congress if it can conceivably be avoided.
Felix Frankfurter: Let me ask you this.
Thomas R. Davis: Yes sir.
Felix Frankfurter: Could Congress make it an offense punishable heavily, say, five years, a sentence of five years, a mandatory sentence for five years for leaving the country to escape the draft?
Thomas R. Davis: It could've hung him Your Honor.
Felix Frankfurter: It could've hung him?
Thomas R. Davis: Yes.
Felix Frankfurter: Wouldn't that -- that wouldn't be coercive?
Thomas R. Davis: I think it is extremely coercive but it --
Felix Frankfurter: All I'm suggesting is that when you use words like coercive and slide from coercive to punitive, and slide from punitive to the constitution, you're doing a lot of sliding, more than three bases I think.
Thomas R. Davis: I didn't mean to slide at all, I meant them as a --
Felix Frankfurter: I didn't say you're meant to slide. I'm saying you first used the word coercive and in the next sentence you used the word punitive, in the next sentence you've said it's unconstitutional.
Thomas R. Davis: May I then use the word penal and --
Felix Frankfurter: Well, you (Voice Overlap) --
Thomas R. Davis: -- suggest that that reaches the question --
Felix Frankfurter: I'm just indicating that if what you say goes and Congress couldn't impose a sentence of five years, so you say hang him.
Thomas R. Davis: No. Your Honor, I'm not suggesting that at all because I'm suggesting indeed that they could've hung him. But they couldn't have hung him on the statute like 401 (j) because there is no criminal procedure provided for. It --
Felix Frankfurter: I'm not suggesting it could. I'm not -- I've expressed no opinion on this statute. I'm merely saying, you throw around words like coercive and punitive doesn't help me in the slightest to analyze the problem.
Thomas R. Davis: I understand Your Honor and for that reason, I adopt and henceforth intend to use the word penal hoping that it is as unambiguous a word as I could select. I submit that this is --
Felix Frankfurter: The Constitution doesn't say Congress couldn't make it -- couldn't have -- affect penal consequences for leaving the country to obey this, does it?
Thomas R. Davis: It -- Your Honor, it could not impose a penal sanction like 401 (j) because 401 (j) is procedurally defective aside from the power. Now, that's another question and I'm aware of Your Honor's views on the question of whether Congress ultimately has that power. What I'm trying to reach now is the question of whether Congress went about it right.
Felix Frankfurter: Alright. I understand that.
Thomas R. Davis: And I submit that 401 (j) --
Felix Frankfurter: (Voice Overlap) -- but using adjectives -- using adjectives, it doesn't settle complicated constitutional questions.
Thomas R. Davis: No Your Honor and I hope that the selection of the word penal eradicates any ambiguity that might otherwise have existed. I submit that this if the statute in Trop is penal, this is a penal statute. If it is a penal statute, it is violative of procedural due process of law because it provides for loss of citizenship instantaneously per se, a United States attorney may ordain if this happened and the only remedy in effect is to come in and say, “Alright. You say I'm an alien. I'm pleading as an alien but you're wrong, I'm a citizen.” It's a civil proceeding in declaratory relief. It is not a criminal proceeding which guarantees to the defendant those protections which are fundamental to due process of law, to procedural due process of law.
Speaker: (Inaudible)
Thomas R. Davis: Yes Your Honor and those other protections which are elementary in which I don't think the Court wants me to rehearse here which are necessary in a criminal proceeding.
Potter Stewart: Why wouldn't that have been equally true in Perez against Brownell?
Thomas R. Davis: Your Honor, I would've thought that it was of course, to all of us who have labored on this side of the wall thought so. But I think that there is a valid distinction to be made now that Perez has been decided in that this Court has held that there is vested in the Government an inherent right by virtue of its sovereignty or by virtue of the foreign affairs power, it doesn't really matter very much which you say it is, but in any event, the Government has the power to separate its citizens from its non-citizens. To set out certain acts which -- whether the person subjectively intended it or not, nonetheless are of such a character that must necessarily result in a divestment of their citizenship. That is the Acts have a rational nexus to the abandonment of citizenship. In a sense, Perez is not divorced from Perkins versus Elg in the older cases which said in effect that expatriation is the voluntary relinquishment of nationality. Perez says as Savorgnan said that the standard must be objective, the petitioner will not be hurt to come into court and say, “Well, I didn't really mean to do that” and there's a lot of sound ground for that Mr. Justice Stewart because suppose the Act were a voluntary signing of a pledge of allegiance to the British flag and then the petitioner later came in and said, “Well, I didn't know what I was doing,” the Government is entitled to count on certain acts as manifesting a desire to change allegiance.
Potter Stewart: It seems to me that everything you'd said is of extraordinary applicability to this case. The highest duty of citizenship is to serve the nation, the United States in time of war and somebody who flees to another country to evade that obligation is an objective matter certainly I should think under the very criteria that you've been discussing to be considered somebody who's abandoned his citizenship.
Thomas R. Davis: Well --
Potter Stewart: Surely as much as Perez by simply voting in a Mexican election.
Thomas R. Davis: Your Honor, I don't think that in Perez the petitioner was being punished. He was found to have --
Potter Stewart: The same sanction was imposed in that case as the Government would impose --
Thomas R. Davis: Oh, yes, indeed.
Potter Stewart: -- (Voice Overlap) loss of citizenship.
Thomas R. Davis: True.
Potter Stewart: And if it wasn't punishment there, why is it punishment here?
Thomas R. Davis: Without being discourteous, I'd have to turn the question around and say how could it be non-punitive here if it -- if it was punitive in Trop which four members of the Court explicitly held it to be and I think inevitably one must derive from Mr. Justice Brennan's concurring opinion, the same result that it was nakedly a punitive statute, but I don't mean to beg the question Your Honor. I am trying to distinguish Perez and say that although those of us who fall on the other side of this urged otherwise, nonetheless it can now still be said that Perez is a regulated statute because the Government has got to be able to go out into this world and say of its citizens or alleged citizens abroad, these are our citizens. These are the people entitled to the protection of the flag and these over here are not citizens and on the basis of that power, which seems to me stated that way to be an inherent attribute of sovereignty if it is not part of the foreign affairs powers, on the basis of that, Perez can be justified as a non-penal statute.
John M. Harlan II: Do you think it's of any significance that Mendoza was a dual national?
Thomas R. Davis: Your Honor I think it is of no significance at all because the record is utterly devoid of the slightest indication that Mendoza ever asked to be a Mexican citizen. The British Empire tomorrow, the Parliament can adjudicate everybody in this room, a subject to the British Crown if it so desires. We have no control over that Act anymore than Mendoza had control over what the Mexican Constitution said about the nature of his birth which happened to be that he was born of persons who were of Mexican nationality. Now, there's more to it than that. If we were to make such a distinction in this case, we would be creating a separate class of citizens, a set of citizens who were especially subject to a law. If this is the pivotal point --
John M. Harlan II: I'm not suggesting that there is, but I was just asking the question.
Thomas R. Davis: Your Honor, I'm suggesting that if that were in the mind of the Court, the Court should consider that it would be creating improperly a special second class of citizens who would be subject to this statute where those who had not been ordained to be citizens of the British Empire or the Republic of Mexico or whatever, those who had not happened to have fallen into that category would be relieved from the impact of the statute.
Charles E. Whittaker: Do you think it would not have a bearing upon the question, Eighth Amendment, assuming this is a penalty?
Thomas R. Davis: No. Your Honor, I would submit this and this was a matter which was specially considered this time on remand. The results of that consideration appear in a very careful language of Judge Jertberg in the specific finding on the subject in which he finds in essence that the petitioner is a citizen of Mexico according to the laws and Constitution of Mexico. What is citizenship in Mexico if the Court please? What is citizenship in Bulgaria or in Hungary or in Russia or wherever? Citizenship here, we understand and certainly when the Court has written the final chapter of this series of cases, we're going to know more about what citizenship is, but we have a pretty good idea that it means basic protections, basic protections of American rights. But, when we say that a man is a citizen of Mexico, he may be persona non grata for any number of reasons which are beyond the knowledge or can of this Court. Citizenship when it's extended to a foreign land means less than nothing. It can't equally be cruel and unusual punishment to send for example a man to Bulgaria behind the iron curtain, even though according to the Constitution of Bulgaria, he's a citizen of it. To make the distinction upon that basis Your Honor is to presuppose that citizenship in each foreign land is what citizenship is here and I don't think the Court knows that. In fact, I think the Court more than that can take judicial notice of the fact that such is very, very far from the case. He will be set adrift just as surely as well as the Court because Mexico may declare him for any number of its own reasons to be persona non grata. And I can inform the Court for the record, if the Court will indulge me that long ago we received a letter from the Mexican consul on our inquiry that he was not welcome in Mexico because he had insisted on relying on his American citizenship. It can't be before the Court. A Mexican consul can't speak for the Mexican Government and I don't think that the Secretary of State or whoever appropriate officer might make such a statement and Mexico would make it but it has been made. I say this informally for the Court's information. Citizen or not, he is not welcome.
Charles E. Whittaker: Does not Congress here have said that the very Act of leaving the country to avoid military service in time of war or national emergency is so inconsistent with allegiance as to constitute a voluntary renouncement of American allegiance?
Thomas R. Davis: Congress could've said it but I think Congress would've been --
Charles E. Whittaker: Could that not have been its basis for saying what it did in 401 (j)?
Thomas R. Davis: Well, first of all, Mr. Justice Whittaker, we know that in fact it was not, that this emerged from the Attorney General's office as an additional penal sanction for the purpose of assisting United States Attorneys and incidentally the amicus curiae brief of the American Civil Liberties Union brilliantly develops this history of the statute. We know that in fact it wasn't, but even if we didn't know where the statute came from or what its source was and how it was administered, nonetheless, I would submit that Congress, and I say this naturally with deference and respect, would have been indulging in a sophistry. A tax evader or a bank robber who goes across the border is doing the same thing to avoid this kind of sanction and the third answer Your Honor is how can we say this now of Mendoza when the Court refused to say it in Trop. Here was a man who had taken his oath, who was in military service, who was in a combat zone and who then deserted and the Court refused to uphold the constitutionality there. Now, how can we turn to a man who has not yet taken that oath and I hope everything I say here carries with it no implied suggestion that this was not a seriously criminal act, I have -- I said this earlier in 1959 to Mr. Justice Frankfurter in response to his questioning, certainly this is a dastardly despicable reprehensible criminal act. Those of us who are defending this and defending it so hard or doing so because we believe that it's an infringement upon a constitutional right, but getting back into my third point, Mr. Justice Whittaker we could not say that Congress could have made such a statute in Mendoza and upholding on that basis after this Court has held that Congress could not have done it in Trop. Because of course in Trop they didn't contain that language of deemed to have voluntary relinquished his citizenship, but hypothesizing, we could hypothesize in Trop, but this the Court refused to do. And in a five to four decision, it struck down the constitutionality of the deserter who had taken the oath of office. To make this distinction now, if the Court please, without deluding my previous contentions would be to reverse Trop. I'm virtually at the end of my time and I'd like to reach entirely across for just a moment all of the considerations which are so magnificently set forth in the amicus curiae brief of the American Civil Liberties Union, I couldn't have written that brief if I have worked on it for 50 years and I'm deeply grateful that it was filed on behalf of my client, but reaching across all of the things that have been raised, I would like to ask this Court for a moment to consider the question of ultimate power. The Chief Justice speaking in Trop expressed the feeling that this question was perhaps behind us now because of Perez, that is to say that it is now behind us whether Congress in certain circumstances has the power to take away citizenship. And of course, to the extent that Perez does that, I'm not entitled to speak on the subject at this point, but if I was correct in my earlier assertions that Perez is a regulated statute that is that there was a proper exercise of sovereignty to allow the United States to separate the sheep from the goats, there remains before this Court the question of whether Congress per se as a penal sanction has the power under any circumstances no matter how the statute is drafted to take away citizenship and I submit to the Court that it would be proper here to reach that question and to hold that Congress does not have that power. And this is why I say that. Citizenship is the status which allows the governed to contract with the Government. Citizenship was explicitly recognized in our sister French Revolution as being the status which all of the freed people attained and the status by which they entered into their -- to the great contract with their new government. Here, it was so assumed to be the case because of the tradition of British subjects that we never said it. And I submit that it needs saying now that the Court should hold as inviolable the status of citizenship because it is the status by which the governed contract to enter into government. That is to say it is the source from which the Constitution arose and if this Court should hold that Congress may not infringe upon that status because it is infringing upon the contractual status of the other party, of the people.
Charles E. Whittaker: Deserving all of these of course the right of the citizen to renounce?
Thomas R. Davis: Yes Your Honor, always. Thank you.
Earl Warren: Mr. Davis.
Thomas R. Davis: My time has expired Mr. --
Earl Warren: Oh, your time has expired.