John G. Roberts, Jr.: We'll hear argument first this morning in Case 18-6662, Shular versus United States. Mr. Summa.
Richard M. Summa: Mr. Chief Justice, and may it please the Court: Mr. Shular has prior convictions for drug offenses lacking the mens rea element necessary to distinguish between blameworthy and otherwise innocent conduct. In 1986, one state, North Dakota, had dispensed with the element of guilty knowledge for its drug trafficking crimes. Today, Florida is the only state lacking a guilty knowledge element. Florida's law is an aberration. The question here is whether Congress intended convictions under such an aberrational law to support the extreme sentencing enhancement of up to life in prison under ACCA. The answer is no for a variety of reasons. First, the state offense provision presents a list of generic crimes which all include a mens rea element. Second, the text of the state offense provision itself implies a mens rea element irrespective of any generic offense analysis. Third, Congress described the qualifying state offenses by tracking almost verbatim the language of the federal drug trafficking statute. Congress used the same terms and even in the same order as the federal statute. We know that when Congress transplants language from one legal source to another, the language carries the old soil with it. And here the old soil includes a mens rea element. While tracking the federal statute, Congress used the term "involving" to sweep in similar crimes described with different terminology, such as promoting, producing, or furnishing a controlled substance. And Florida uses the term "sale," which we agree comes under the umbrella of the term -- the federal term, "distribution." Finally, since Congress legislates against the background of the common law even in the sentencing context, the requirement for prior convictions for felony offenses itself carries a presumption of mens rea for all the serious drug offenses, federal and state, and shows moreover that the state predicate provision is offense-driven and not based upon discrete conduct or activities. That's a summary of our argument, but I can be more specific. Here we have a phrase "manufacturing, distribution, possession with intent to manufacture or distribute a controlled substance." This phrase incorporates well-known drug trafficking crimes under the federal code. And virtually identical language is used to describe the -- the -- the drug trafficking crime -- crimes under the Uniform Controlled Substances Act. In 1986, Congress knew that every state had adopted the Uniform Act to a substantial degree. It is only natural, therefore, that Congress would use this same language to identify drug trafficking offenses and not discrete conduct or activities under the state offense provision.
Samuel A. Alito, Jr.: The difference between the Florida statute and the federal statute, as I understand it, is the following, but you'll correct me if I'm wrong: Under the federal statute, the prosecution has to prove that the defendant knew that the substance in question was a controlled substance; whereas under Florida, that is an affirmative defense, so if the defendant raises the affirmative defense, then the state has to prove beyond a reasonable doubt that the defendant knew it was a controlled substance. Is that the -- the substance of the difference between the two?
Richard M. Summa: Well, I think that's the correct conclusion based upon a Florida jury instruction. However, even -- in Florida, even if a defendant were to raise that affirmative defense, a verdict of guilty would never, under any circumstance, incorporate a specific finding that the defendant had guilty knowledge because the Florida law also places upon the defendant a burden of production of evidence.
Samuel A. Alito, Jr.: Right. But if --
Richard M. Summa: And --
Samuel A. Alito, Jr.: -- if the affirmative defense is raised, then the situation is the same as it is under federal law? It has to be proven beyond a reasonable doubt?
Richard M. Summa: That is a reasonable assumption, but the Florida Supreme Court has never actually ruled which party has the burden of -- ultimate burden of proof.
Ruth Bader Ginsburg: But, in any event, I think it was an exaggeration to call this a strict liability crime.
Richard M. Summa: It -- it may be an exaggeration. It depends on how one defines a strict liability crime. If one says the elements of the offense do not include a mens rea element, then it's a strict liability crime, but many people think if an absence of guilty knowledge is not a defense, that's a strict liability crime. So there's a difference --
Samuel A. Alito, Jr.: Well, there's a mens rea. You repeatedly say in your brief that there's no mens rea for the Florida defense -- Florida defense. There is a mens rea. It's not the mens rea you would like, but there is a mens rea, is there not? You must intend to do the act, right?
Richard M. Summa: Yes, but the -- the Florida decisions are clear that the intent of doing the act is -- they do not consider that a mens rea. It's only if one knows that the substance that is delivered is a controlled substance, that that qualifies as a mens rea of guilty knowledge.
Ruth Bader Ginsburg: What about knowing what you're selling? In -- in other words, doesn't the state have to prove that it was cocaine that was being sold, not sugar?
Richard M. Summa: No, Your Honor. The Florida law is so broad that even the defendant who does not know the substance that was delivered or sold is still guilty. For example --
Ruth Bader Ginsburg: Because if he -- he has no idea that it's cocaine, he think it's an innocuous substance, the -- the prosecution doesn't have to show that, you say?
Richard M. Summa: That's correct, Your Honor.
Ruth Bader Ginsburg: What I think is --
Sonia Sotomayor: Can I go back to --
Ruth Bader Ginsburg: -- odd -- odd about this case -- you -- you're claiming the interest of uniformity is served by your approach, and yet in every other state, someone who did exactly what this defendant did would not escape from -- under ACCA, so he gets to avoid ACCA, although he is similarly situated to people in every other state who couldn't.
Richard M. Summa: Your Honor, it depends on how you define the term "conduct." When I think of conduct, I think of criminal conduct. I think the elements of the crime. If the elements of crime include a mens rea element of guilty knowledge, then the person convicted under the Florida law does not have that element -- is not found to have acted with guilty knowledge.
Ruth Bader Ginsburg: I'm talking -- I'm talking about the actuality of the situation. People in other states who did exactly what this defendant did would get the ACCA enhancement.
Richard M. Summa: But the Florida statute does not involve the same conduct because the Florida -- the conduct in the Florida statute does not include a guilty knowledge. So the -- the -- the defendants in Georgia and Florida are not similarly situated and not convicted of the same conduct.
Samuel A. Alito, Jr.: In these cases where your client was previously convicted of a Florida drug offense, did he go to trial or did he plead guilty?
Richard M. Summa: No, he pled guilty, Your Honor.
Samuel A. Alito, Jr.: All right. So in all those cases, he pled guilty. He could have raised an affirmative defense -- I didn't know what this was, I didn't know that it was cocaine -- but he didn't do that?
Richard M. Summa: No, he didn't. But as far as -- as far -- as far as the categorical approach is concerned, it is not universal in the Florida law that convictions require a -- a finding of guilty knowledge.
Samuel A. Alito, Jr.: I -- I look forward to every new ACCA case because the -- the distance between the law and the reality gets bigger and bigger. So here we have somebody who has, what, six prior convictions of either distribution or possession with intent to distribute?
Richard M. Summa: Yes, sir -- yes, Your Honor.
Samuel A. Alito, Jr.: He is in a strange situation, because he keeps selling a substance, which he thinks is legal and cheap, and, darn it, every single time it turns out actually to be something that is expensive and illegal. He just keeps --
Richard M. Summa: Yeah.
Samuel A. Alito, Jr.: How does this happen to him?
Richard M. Summa: I don't know how this happens to him, but, Your Honor, I am not trying to convince the Court that Mr. Shular himself acted without guilty knowledge. I'm trying to convince the Court that, as a matter of law, he was not found to have acted with guilty knowledge. And the Court cannot presume, however commonsense it may be, to assume that he acted with guilty knowledge, because the question whether a defendant acts with guilty knowledge is a question of fact and that has to be determined in a Florida court. And it cannot be determined by a federal sentencing judge in a collateral sentencing proceeding.
Sonia Sotomayor: Mr. Summa, could you clarify two things for me? Part of what Justice Alito said, I must say, I didn't focus in on this. The affirmative defense in the Florida jury instructions, the prosecutor bears the burden of proving knowledge if the affirmative defense is raised. Is that what your --
Richard M. Summa: The -- the --
Sonia Sotomayor: I assumed if it was an affirmative defense that the -- that the defendant had to prove the element.
Richard M. Summa: Your Honor, there are two points in the Florida jury instructions. The first point casts on the defendant a burden of production of evidence. Then there's a jury instruction that the burden of proof falls on the -- the state. However, the point I was trying to make is that the Florida Supreme Court has never actually ruled where the burden of -- of ultimate proof would fall.
Sonia Sotomayor: All right. Now, Justice Ginsburg said that there was a knowledge element. I understood there was a knowledge element just with respect to possession with intent to distribute, correct?
Richard M. Summa: That's correct. The knowledge element with -- with respect to possession offenses, of which Mr. Shular has only one, is knowledge of the presence of the substance. But in the Florida jurisprudence, under the Chicone case, the knowledge of the presence is actually not -- it is a state of mind element but not regarded as a guilty state of mind, because the knowledge of the presence is something akin to what your mailman has when he delivers a package to your door. He --
Sonia Sotomayor: I'm getting now a little confused. As I understood it, your knowledge element goes, according to the Florida courts, goes to possession with intent to distribute. They've explicitly said you need knowledge that the substance was cocaine. Correct?
Richard M. Summa: Not under the present law, Your Honor.
Sonia Sotomayor: Ah, okay. So you don't need knowledge with manufacturing or sale?
Richard M. Summa: You don't need knowledge that substance is a controlled substance with any offense under the Florida law.
Sonia Sotomayor: But does the government have to prove that the substance that you actually manufactured or you actually sold was, in fact, cocaine?
Richard M. Summa: Yeah, they would have to prove that.
Sonia Sotomayor: All right. So at least that would need. What's missing is that the defendant knew that this was --
Richard M. Summa: Exactly, Your Honor.
Elena Kagan: Mr. Summa --
Sonia Sotomayor: The -- I'm sorry, no, thank you.
Elena Kagan: Can we go back to the -- the language of the statute and -- and I'm hoping you can explain to me where exactly you see this knowing requirement coming from. As I understand the solicitor general's position, he says, yes, this is a categorical approach, but it, you know, the -- the -- the language of the statute just says "an offense involving manufacturing, distributing, or possessing with intent." And the word "knowing" is not there. So, you know, the Florida statute, I think the solicitor general would say, is a state law that involves manufacturing, distributing, or possessing with intent. What's the problem there?
Richard M. Summa: The implication of the mens rea element comes from two sources. One is the language, the prefatory language preceding the term "involving" and the second is from the language that follows "involving." When the Congress said we want prior convictions for felony offenses, I think that itself incorporates an expectation that felony offenses incorporate a mens rea element generally. And after the word "involving," Congress used the language that is parallel to the federal statute and -- and the uniform controlled substance act --
Elena Kagan: I thought the federal statute specifically says "knowingly manufacture."
Richard M. Summa: And this state provision does not, but that's -- that's --
Elena Kagan: Well, not only the state provision does not, but this provision saying what the term serious drug offense means does not. It takes out the word "knowing."
Richard M. Summa: That's exactly the situation where the presumption of mens rea applies. And I understand your concern that the omission of the mens rea -- an express mens rea element in one part of the statute must apply something different. Now, if I may refer to that as the Rosillo rule, I would say that the Rosillo rule does not apply with the full force and effect that it does, generally, because it's a very general statute that could apply to criminal law, civil law, could apply to any word, could apply to any phrase in a statute. But the presumption of mens rea is a much more specific rule. And where the omission is specifically of mens rea, that is a specific rule that applies in this context. And if the specific controls the general in the law, then this rule, the presumption of men rea -- mens rea, supersedes the --
Neil Gorsuch: Counsel --
Richard M. Summa: -- the Rosillo rule.
Neil Gorsuch: Counsel, I think -- I think we would all agree with you that normally in a criminal provision mens rea would be something we would take very seriously. But here -- and I think Justice Kagan is getting at it -- we have -- we've got two strikes against you. One is that the federal statute that you say this language parallels expressly includes the word "knowing." It's not here. Strike one. And strike two is there's the word "intent" with respect to manufacturing or distributing in -- in the next clause. So in the very next clause you do have a mens rea. Strike two. So what -- what do we do about that?
Richard M. Summa: Well, Your Honor, let me refer -- refer to strike two first. If the government's position were adopted, that intent element that you refer to would be stricken entirely from the statute because the government talks about approval of the White case from the -- from the Eleventh Circuit.
Neil Gorsuch: I -- I'm not sure I follow that because it seems to me that language would capture inchoate offenses, right, things that aren't completed, crimes that involve an intent to do these things, but not necessarily completion of them.
Richard M. Summa: I agree that the term "involving" may be broad enough to incorporate inchoate offenses that -- because that's a part of the federal drug trafficking crimes which qualify, correct, but the government says a -- a -- a trafficking statute that criminalized trafficking by possession of a specific quantity of drugs would qualify here because that necessarily entails an intent, but Congress -- my friend from the government is writing the intent requirement right out of the statute because it's a plain text requirement and it should be found by a jury, not by the judge, in a federal sentencing proceeding.
Neil Gorsuch: Let me try it one more time. I think the solicitor general would say that he has to show either a state law involving manufacturing or distribution or a crime involving possession with the intent to do those other things, manufacturing, distribution, whether or not they actually complete the manufacturing or distribution. So those two clauses would do independent work, and the first one, notably, doesn't contain any mens rea while the second one does.
Richard M. Summa: But the -- the -- the -- my -- my friend's argument would also be so broad and indeterminate that it would sweep in convictions for purchases of -- of relatively minor amounts of drugs, personal use quantities. And my friend would be arguing that on a theory that a purchase of a minor quantity of drugs necessarily entails a distribution from the seller to the buyer.
Brett M. Kavanaugh: But didn't Congress get at that by the ten years of imprisonment minimum so that would weed out minor state offenses?
Richard M. Summa: No, Your Honor. The specific example here is Florida because even the purchase of personal use quantity of drugs is punishable as a second degree felony by up to 15 years in prison. And I think it's probably true in a number of states as well.
Brett M. Kavanaugh: Then more broadly on your mens rea argument, which I think would have a great force if we were a Florida court interpreting the Florida statute, and should we interpret the Florida statute to require particular mens rea, but that's not what this statute is. It's a recidivist statute in trying to prevent the possession of firearms by people who have prior violent offenses or drug offenses. And Congress, because of the violence caused by people who have firearms and prior histories, wanted to really cast a broad net with what prior offenses would be captured and would trigger a duty on that person, don't possess firearms. So they use the word "involving." So does Congress's -- what's your response to Congress's objective, which is reflected in the language to cast a broad net of what offenses might trigger this duty not to possess firearms?
Richard M. Summa: My response is that including offenses such as prescribed by Florida does -- is not consistent with the purpose of the statute. I think you expressed the purpose of the statute quite well to capture the worst of the worst offenders, but this -- Florida's is so broad that it would capture the least culpable conduct. It captures persons such as a truck driver who is hired to deliver a -- drive a shipment from point A to point B, and so the truck driver knows nothing about what is in the shipment. All he knows is his job is to take it from point A --
Stephen G. Breyer: That person --
Brett M. Kavanaugh: To trigger --
Richard M. Summa: -- to point B.
Stephen G. Breyer: That -- that person, I gather, under Florida law, that that person would say he has the right to say, Judge, I didn't know what was in the truck. And then the government has to prove he did know. Okay? So I guess the question for us is this -- it seems much simpler. I don't know, I may be missing something. But go look further down the statute. One of the things that comes under violent felony, it says "is burglary." So they have a conviction for something, and if it is burglary. Now, every -- states have all kinds of statutes, you know. So what you have to decide is does this particular conviction fall within the terms, burglary? It has to be burglary. So, obviously, you have to have a pretty good definition of what counts as burglary for federal purposes when it was the state that convicted him of state burglary. But it doesn't say that in this part. It doesn't say "is manufacturing, distributing"; it says "involves manufacturing or distributing," which is much vaguer. So if, in fact, Florida law is not quite you have to know the intent, it is that the burden falls on the defendant to say I didn't know what was in the truck and then the government has to prove it. Is that different enough from ordinary drug possession as it's used across the country so that it doesn't involve drug manufacturing, selling? Now, I have to admit it sounds as if it does involve it, but you have a few examples there that really push me, and they're -- that's true -- but isn't that the issue?
Richard M. Summa: Your Honor, I have two responses.
Stephen G. Breyer: Yeah.
Richard M. Summa: One is that the affirmative defense doesn't offer what it seems to offer, because in the examples that --
Stephen G. Breyer: But have I got the issue right?
Richard M. Summa: Yes, Your Honor.
Stephen G. Breyer: That's what I --
Richard M. Summa: In the examples that I'm familiar with, the threat or the coercion of criminal -- criminal prosecution is so great that the defendant who is actually innocent may bargain away his affirmative defense for a lesser sentence and actually plead guilty. The second comment I have is that the distinction between "is" and "involving" is highly overrated because the term "is" was not the driver of the generic offense analysis and so it cannot be viewed as a prerequisite for the generic offense analysis. The driver was the term "burglary." The court found that burglary was ambiguous, not knowing whether it referred to the common law definition or the definition of burglary as it appeared throughout the states generally. And Congress settled on the generic definition in order to further the interest in uniform -- uniformity in sentencing for the same conduct throughout the states. That same interest in fake -- the uniformity of sentencing for the same conduct throughout the states weighs in favor of construing -- excuse me -- construing the state provisions similar to the federal provisions.
Brett M. Kavanaugh: And in your truck example, again, I think if you're in Florida court, that's a great argument, construe this narrowly, don't construe it broadly, this is unfair, this is a due process kind of problem, a Morissette kind of problem. But once you have the conviction and you have two other convictions, you have three convictions, then you know, if you read federal law, I shouldn't possess firearms or I'm going to be subject to a severe mandatory minimum. Aren't you on -- I guess the point is aren't you on fair notice when you have those convictions, even if you think those convictions are unfair, that you shouldn't possess firearms?
Richard M. Summa: But I think we agree here that the point that we're trying to decide here is whether Congress intended this type of crime to qualify. And there's very little reason to suggest Congress did so, one, because it's such an aberrational law; and, two, because the symmetry between the federal and state provisions provides very little deference to the states. In other words, there are three points: One, it starts out by the terms "manufacturing, distribution," et cetera, which seems to parallel the federal statute. Two, it says the definition of controlled substance has to be construed in conformity with federal law, not state law. And, three, it says that the length of the sentences must satisfy Congress's demand to be more than ten years -- punishable by more than ten years. So the overall symmetry between the federal and the state offenses affords very little, almost none, I would say, discretion to idiosyncratic rules of state law.
John G. Roberts, Jr.: Thank you, counsel.
Richard M. Summa: Thank you.
John G. Roberts, Jr.: Mr. Bond.
Jonathan C. Bond: Mr. Chief Justice, and may it please the Court: Section 924(e)(2)(A)(ii) prescribes a categorical approach to determine whether a state drug offense qualifies as an ACCA predicate. But unlike another nearby ACCA provision, clause (B)(ii), which uses "is," clause (A)(ii) does not call for the generic analogue inquiry that Petitioner advocates. That follows from the statutory text. Specifically, the use of the word "involving" followed by a series of everyday action words, not legal terms of art that denote complete crimes. That is fully consistent with this Court's precedent. Petitioner's contrary approach would require courts to construct a complete generic version of each offense based on a 50-state survey of laws from three decades ago and then compare that generic analogue to a particular state's offense at a particular moment in time to see if they match in every respect. That approach has proven challenging enough for the enumerated offenses in (B)(ii) like burglary, which were well established and relatively consistent in 1986. It would be even more challenging for state drug trafficking crimes, which in 1986 were comparatively new and varied in multiple material ways. And it would increase the risk of arbitrary sentencing disparities arising from variation in ancillary aspects of state law, like which bore the burden of persuasion on the knowledge of the illicit nature of the substance. In clause (A)(ii), Congress chose a much simpler approach that asked just two questions. Did the state offense involve one of these activities and, for possession, a specified intent? And did it carry a maximum sentence of at least ten years? And that mirrors the federal provision in (A)(i). Under that straight-forward approach, Petitioner's convictions clearly qualify. And that approach cuts through the variation and uncertainty in state law, like the questions that have arisen this morning about Florida law, and instead uses a broad range of conduct, plus this ten-year maximum penalty threshold to filter out and screen out low-level state offenses. And it avoided freezing in place the particular variance of state crimes that happened to predominate in 1986.
Ruth Bader Ginsburg: We're told that, under Florida law, you could have a pretty low level offense, we just heard that, and -- and have a 15-year maximum.
Jonathan C. Bond: So it's true that there are substantial sentences, although as the colloquy pointed out and we explained in our brief, under Florida law knowledge of illicit -- of the illicit nature or lack of such knowledge is an affirmative defense. So for an element that's not specified in the statute -- in the federal statute at all, it seems particularly unlikely that Congress meant the burden of -- or the allocation of the burden of proof on that element to drive the -- the ACCA analysis.
Samuel A. Alito, Jr.: What is the --
Ruth Bader Ginsburg: In federal prosecutions, how does it work? How is this element -- how does the prosecutor prove the -- the defendant knew that the substance was illegal?
Jonathan C. Bond: So, under the federal Controlled Substances Act, which expressly requires a knowing mens rea, as this Court explained in McFadden, that extends to the -- the substance itself, the defendant must either know what the substance is or know that it's a controlled substance. But as McFadden pointed out, that knowledge can be shown by the fact of a prior arrest for possessing or selling that substance. It's very unlikely that in a recidivist statute like this, where Congress is only imposing this enhancement for those who have multiple past convictions, the Congress was worried about the unlikely scenario where a person repeatedly sells an illicit substance believing it to be innocent or believing it not to be a controlled substance. We think that's just not a plausible understanding of what Congress was getting at here. So we think that for all the reasons we have explained in our brief, you should not adopt the generic analog inquiry, and the alternative fallback argument Petitioner is offering today, that focuses on reading a mens rea, we think fails for several independent reasons.
Samuel A. Alito, Jr.: Why isn't the answer to Justice Ginsburg's question that under the federal scheme the -- the knowledge of the illegal nature of the substance is almost always inferred from the defendant's conduct? It's not based on -- it's not generally based on direct evidence; isn't that right?
Jonathan C. Bond: Yes, that's right. And under Florida law it works similarly, that if you possess one of these controlled substances, Florida law, and this is Section 893.101(c), allows a permissive presumption that you knew what it was you were selling, and that can be rebutted by the defendant. So in the scenario where a defendant says I didn't realize that this was cocaine, I thought it was powdered sugar or some non-controlled substance, the defendant can bring that in. Now, we're not aware of a large number of cases that fall in this delta. It does not seem like it's a particularly significant thing in Florida prosecutions. But in all events, it seems quite unlikely that Congress intended the application of this recidivist enhancement to turn on those kinds of vagaries of state law. Now, with respect to the mens rea requirement --
Samuel A. Alito, Jr.: Under the federal scheme, are there a lot of cases in which a defendant is acquitted based on lack of knowledge of the illegal nature of the substance involved, without actually testifying I didn't know that it was an illegal substance?
Jonathan C. Bond: I'm -- I'm not aware of statistics on that. It wouldn't at all surprise me if that's -- that's correct, but I -- I -- I don't have statistics on the frequency with which that occurs. And turning to whether to read in a mens rea requirement into (a)(2), I think there are three fundamental problems with Petitioner's argument here. First, the ordinary meaning of the words, which this Court, in ACCA cases as elsewhere, has looked to does not include an intent requirement; certainly not intent with or knowledge with respect to the illicit nature of the substances. The Petitioner urges you to look to the ordinary meaning of "manufacture" and "distribute" in his reply brief. And the ordinary meaning of those words does not pick up knowledge that the thing you're making or selling is illegal. Now, I think his argument really rests on this idea that these are somehow terms of art or were in 1986. And that argument doesn't hold water either. The federal statute as has been discussed expressly imposed that knowing or intentional requirement in addition to using these words. That's not only in the Controlled Substances Act but in the other statutes cross-referenced in clause (a)(2), the Import/Export Act and the maritime statute. All of them expressly impose this additional mens rea requirement. At the state level there was variation. Roughly two-thirds of the states followed what was then the Uniform Act approach of not expressly requiring mens rea, while the other third followed federal law and did expressly include it. Now, Congress was looking out at the landscape of state law in 1986. I think it would be hard to infer that Congress by using this series of words thought it was picking up a mens rea that some states and federal law imposed expressly. Other states in a number of circumstances had read in, based on background principles of state law, but where the words themselves don't carry that particular meaning. And, in addition, states did not all use the same terms. Although a number, roughly three-fifths, used the terms that follow the federal act, a number used a variety of different verbs to pick up conduct in addition to these or in replacement of these, like giveaway, transport, peddle, offer, traffic, negotiate and barter. And the list goes on. The point is states were not using these as terms of art when they were using different terms.
Sonia Sotomayor: Mr. Bond, do you think Congress intended to criminalize a mailman's delivery or Postal Service delivery? I -- I -- I doubt it. But what you're saying is that -- and -- and there is a disconnect, like in Leocal, where we talked about using physical force. And we said it can't mean negligent force. It has to be an intentional force. Similarly, it seems nonsensical to think that manufacturing -- what are the words of the California statute -- manufacturing or delivering or possessing with intent to sell, manufacture, or deliver, can't have some knowledge requirement because it ends with "a controlled substance." So --
Jonathan C. Bond: So --
Sonia Sotomayor: How -- how can you manufacture a controlled substance if you don't know it's a controlled substance? It seems like a non sequitur.
Jonathan C. Bond: So a few different points on that. First, Florida law does require that you know the substance is present. So it wouldn't be implicated here. If you're a delivery person who's carrying an opaque sealed box and you don't know that there's cocaine inside, I don't think you could be prosecuted under Florida law because you must know of the presence of the thing, regardless of whether you know its character, so that's not implicated under Florida's law. But take --
Sonia Sotomayor: You think so? I don't know why, because under yours it says, "any person who sells, manufactures, or delivers or possesses with intent to sell, manufacture, or deliver." So whether the box is opaque or not, under the theory as your briefs gave it to me, if it's a controlled substance in the box, you intend to possess it.
Jonathan C. Bond: So I think there's an important twist in federal -- or in Florida law here that explains where how that state would address this circumstance. Until 2002, the state courts had interpreted the statute to require knowledge of the illicit nature. The legislature overturned that and said knowledge of the illicit nature is not an element. It is instead an affirmative defense. But that did not wipe out the preexisting requirement that you must know of the presence of the substance. And the state's Supreme Court confirmed that in an opinion in 2014 called In Re Standard Jury Instructions in Criminal Cases, this is 153 Southern 3d 192, where they reject a change that would have suggested uncertainty about who needs to prove presence of the substance or knowledge of the presence of the substance because it points back to the case we cite, Atkins, saying, look, Florida law is already clear on this.
Brett M. Kavanaugh: If we --
Jonathan C. Bond: So all of that is about Florida --
Brett M. Kavanaugh: If we -- if we had a federal statute, not a recidivist statute, but a straight up federal statute that said it's unlawful to manufacture, distribute or possess with intent to manufacture, distribute a controlled substance, it is 100 percent, or close to it, that we would require mens rea and knowledge of the substance. Don't you agree with that?
Jonathan C. Bond: So we agree that ordinarily you would read in a -- you would presume a mens rea requirement. Exactly how that would apply across the different elements --
Brett M. Kavanaugh: So you -- so if you agree, if this were a straight up federal statute, that mens rea would be read in, why not read it in to a recidivist statute?
Jonathan C. Bond: For some of the reasons that came up in the colloquy earlier, that in a recidivist statute there is no concern about fair notice of what you were already convicted of. And in addition, Congress isn't using the mens rea for a particular offense as the substantive threshold for how serious something is. Congress took a different approach that side-stepped all the variation and uncertainty in state law by covering a broad range of drug trafficking conduct, but only if the crime carries at least a ten-year maximum sentence. That's ten times the threshold in the violent felonies provision in -- in subparagraph (b). It's also the same threshold used in the federal provision, (a)(1), that refers to any crime under the Controlled Substances Act, the Controlled Substances Import/Export Act, and a particular maritime statute. So Congress is covering a broad range of conduct but using the punishment as a proxy for the seriousness of the offense. I think that fits together with the idea that Congress isn't asking courts to read in a mens rea into state statutes that might have predated ACCA and determine whether they correspond in a particular respect to an element Congress didn't mention. Instead Congress cast this wide net with respect to conduct but used the penalty as the filter to screen out lower level offenses.
Brett M. Kavanaugh: But as Justice Ginsburg said, and counsel said, the penalty might not be that much of a filter, given the severe penalties attached to certain seemingly low-level offenses. And you -- can you respond to that again?
Jonathan C. Bond: Sure. It -- it's entirely possible that states would impose serious sentences for those kinds of things. We're not aware of a large number of them. They -- it -- it did exist in 1986 that not every state --
Brett M. Kavanaugh: So then that --
Jonathan C. Bond: -- required mens rea.
Brett M. Kavanaugh: Sorry to interrupt. If that's true that's not much of a filter then?
Jonathan C. Bond: I think it is a filter and would have -- would have been viewed by Congress as a meaningful filter in the vast majority of cases. We're not aware of any other state that imposes this kind of penalty for this -- for this category of offense where it's an affirmative defense that you don't have knowledge, rather than an -- an affirmative element. And I think the point is Congress, looking across the landscape of law, of state laws in 1986, wouldn't have viewed this in a recidivist statute as being a serious problem. I think the concern that Congress had in 1986 was, look, there are a variety of state laws that involve drug trafficking. There's -- it's clear from the text of the legislative history that Congress was trying to include those laws. But rather than get caught up on exactly how each state defined it and exactly how they parsed the mens rea requirement, how they grouped particular offenses, which also differed, and whether they used particular enhancements to get to the ten-year threshold, Congress just took a simpler approach, saying if it involves drug trafficking conduct and it involves a -- or it carries a maximum sentence of at least ten years, then we are concerned that your subsequent possession of a firearm unlawfully presents a sufficient risk that we need to impose a greater sentencing.
Neil Gorsuch: Mr. Bond --
Jonathan C. Bond: So I think that's what was driving it.
Neil Gorsuch: Mr. Bond, I have two questions. Feel free to tackle them in any particular order you wish. First, what is your understanding of how the affirmative defense works under Florida law? There was some confusion about that in our earlier discussion as to who bears the burden at the end of the day. I'd be -- I'd be curious to know the government's position on that, Number 1. And, Number 2, related to what Justice Sotomayor was asking you, forget about Florida law for a moment. The word "involves" I think we would both agree is a pretty broad word. Right? Everything in the world pretty much involves everything else, at some level of connection. And what do we do about the fact that this statute would, at least possibly, capture a state law that had a draconian penalty for delivering a drug without knowing what it is? I mean "involves" would seem to capture that. Your colleague on the other side says there's a vagueness concern here that you're ultimately inviting a constitutional challenge on. So those two questions.
Jonathan C. Bond: So if I can take them in order. Our understanding of Florida law is that when the affirmative defense is invoked, the burden remains on the defendant at that point to demonstrate that he did not have knowledge of the illicit nature. And a defendant who possesses the substance, when that happens under 893.101(c), a permissive presumption is available that can be drawn by the jury -- can be inferred by the jury that the person actually knew of what it was they were then manufacturing and distributing, if they had possession of it. So that's our understanding of Florida law. I don't think anything turns on that here, but that's -- that's how we understand it. Now --
Stephen G. Breyer: How do you draw -- how do you draw the line he's referring to? I mean, suppose the state legalizes marijuana but it has a criminal provision which says anyone who sells marijuana at a price that is higher than X, you see, is committing a -- or lower than Y, is committing a serious offense, et cetera. Okay? Now, is it picking up like economic control statutes if their -- if their -- you know, if they -- criminalized like the antitrust laws or something?
Jonathan C. Bond: Yeah, so I -- I don't think that --
Stephen G. Breyer: It involves it, I mean.
Jonathan C. Bond: I think you have to look to the elements of the offense as -- as under categorical approach generally. So unless the statute that you're describing were divisible into a drug sale --
Stephen G. Breyer: Yeah, it is.
Jonathan C. Bond: Right --
Stephen G. Breyer: What do you want it to say? I'll --
Jonathan C. Bond: Sure.
Stephen G. Breyer: -- I'll agree to everything.
Jonathan C. Bond: If -- if the statute is divisible and has one element, one alternative element, that involves the sale of drugs --
Stephen G. Breyer: Yeah.
Jonathan C. Bond: -- and one that does not --
Stephen G. Breyer: It says marijuana.
Jonathan C. Bond: -- involve the sale of drugs -- sure. Then it's --
Stephen G. Breyer: It's a controlled substance. It says it's legal in this state. I'd just be repeating myself. And -- and all that they're forbidding, though, is something to do with price.
Jonathan C. Bond: Yes, and a number of states do impose an aggravating circumstance based on --
Stephen G. Breyer: Ten years, and that's -- if you did that, then this statute kicks in, even though what he really did was make a price agreement, or he didn't get the right license, et cetera.
Jonathan C. Bond: Yes, I think that's -- that's correct, that that would -- that would fall under the federal definition.
Stephen G. Breyer: Well, then there's another way of doing it, he says, you don't have to go that broad at all. He says let's look at the -- let's look at the real elements of the very comparable crime, which is the crime of possessing a controlled substance with intent to distribute it, a well-known crime, and he says look at those elements. And, by the way, those elements, everywhere but Florida, require the prosecution to come in -- you've heard the argument -- and -- and to show that he knew that this powder was heroin.
Jonathan C. Bond: So a few -- a few points. A state crime for possession with intent to distribute would be picked up under the plain language of the statute, and the fact states might or might not require additional elements doesn't change the meaning of the words or what Congress was trying to capture.
Stephen G. Breyer: No, no. But that's general. What I'm trying to do is to go back to the question I think Justice Gorsuch was asking and say once we get in a definition of the word "involved," which is broader than the elements of the state traditional crime which every state has but one, we've opened the door to all kinds of things such as economic crimes, which do involve but don't seem to be what Congress is interested in.
Jonathan C. Bond: So if I can take on "involves" directly. So, first, I don't think it's that complicated of an inquiry, just as this Court explained in Kawashima, where it said the involvement clause was clear. We look to the elements. If they necessarily entail this conduct, game over. It's a straightforward inquiry, at least in the mine-run of cases. Now, we understand there to be daylight between the involves clause and -- and elements clause or something along those lines because it would pick up solicitation or financing offenses. For example, California's law, Section 11353, that makes it a crime if you hire a minor to engage in selling -- selling a particular drug. Whether or not the state has to prove that the drugs were sold by the minor, you have engaged in conduct that involves distribution. Indeed, that's the whole point of the conduct. But at the end of the day, whatever you think about the meaning of the word "involves," it's a problem for Petitioner as much as it is for us. He agrees, at reply brief page 7, with our interpretation of it. And whatever he thinks about the word, you still have to address its meaning on either theory. The word -- Petitioner's principal submission is about the meaning of "manufacturing, distributing, and possession -- and possessing." Those words all follow "involves." So on both sides' theories, you still have to figure out what "involves" means.
Neil Gorsuch: I -- I understand there's tricky sides -- tricky questions for the Petitioner. I think we're trying to address one that's tricky for you. And -- and -- and that is if "involves" is as capacious as you suggest, state law, the draconian penalties for anybody who unwittingly provides substances that are used in the manufacture of drugs or the delivery of illicit drugs with no mens rea, just because we hate drug crimes and recidivists and, you know, those sorts of policy considerations, how far out does "involved" go? You know, somebody who finances people who deliver drugs unwittingly, thought they were investing in a -- a legitimate business, but it turns out that they're mules for -- for -- for a drug manufacturer? How -- I mean, you -- this thing could trace out quite dramatically at either end of -- of the spectrum before and after the actual crime. Quite far. That's -- that's my concern.
Jonathan C. Bond: So I think the concern would be addressed because it would only pick up state offenses whose elements as a categorical matter involve --
Neil Gorsuch: Sure. No, no. The state offense is going to say anybody who finances anybody else who delivers a drug, an illicit drug. All right? So there's -- there's manufacture and distribution right there in the statute, but the -- the defendant's involvement is maybe three or four steps removed in either direction, antecedent or after the fact. What do we do about that?
Jonathan C. Bond: So I think the -- the answer under -- under the existing law is that if the state has imposed a ten-year or more sentence and the defendant has three or more convictions under that statute, yes, it can be an ACCA predicate. Congress used the substantive threshold of the penalty rather than trying to target specific conduct and to parse out exactly what mens rea was necessary.
Stephen G. Breyer: Well, I -- well, any person -- who knows what California will pass as a law. But they have marijuana shops. Anyone who invests in a marijuana shop, anyone, that could be a one share, and the marijuana shop turns out to sell some cocaine on the side -- ten years. Now, they could, and that's -- that's a kind of far-out example. And what we're trying to do is, since you've challenged everyone here to use their imaginations, the -- the -- is to -- is to suggest, well, he's saying the safer thing --
Jonathan C. Bond: So I think --
Stephen G. Breyer: -- is to not give a special meaning to "involve," but just look at what has been the traditional meaning of "distribution with intent to distribute," of "manufacture with intent to distribute," of "selling," et cetera, et cetera. In that tradition, then he has to face the hurdle has he really departed enough from the traditional meaning when you have this burden shift.
Jonathan C. Bond: So a couple of points.
Stephen G. Breyer: Ours is on the first part.
Neil Gorsuch: Yeah, and just to put a friendly amendment to that, I don't mean to prolong it, but "involve" has to end somewhere along the chain, right? At some point, you're going so say it no longer "involves," I would think, a drug crime. Where is that? Is it enough for the state -- if the state just simply says some attachment to a drug, you know, five -- five layers removed, and a drug crime was involved, is that enough? Or does the government have some position on whether that might not be enough at some point in the causal chain?
Jonathan C. Bond: It might not be enough at some point in the causal chain if you can't say with confidence that it -- that the elements necessarily entail this particular result. That will depend on the state --
Samuel A. Alito, Jr.: And why -- I'm sorry, go ahead.
Jonathan C. Bond: It depends on the particular crime at issue. And so there are, for example, state crimes where -- a -- a trafficking statute where the highest level of the statute -- of the trafficking regime says that if you possess a certain large quantity of drugs, we're going to infer -- we're going to conclusively presume an intent to distribute based on the quantity there. That involves possession with intent to distribute because state law presumes that you have that particular intent. So I think there are plenty of things that fall within "involves" that don't -- that don't push that outer limit. Now, I -- I take the point about the concern about --
Sonia Sotomayor: Sorry. Stop right there. Right there. What's the amount? Meaning let's assume that a state says you possess any amount of -- of cocaine, we presume you intend to distribute. Is that -- does that involve a crime? What's the generic meaning?
Jonathan C. Bond: So the -- the state offenses that we're aware of have used a 28-gram threshold. And the Eleventh Circuit held that possession of that amount, which is a pretty common threshold, is sufficient to trigger --
Sonia Sotomayor: But the Fourth didn't. Because the Fourth basically said what -- "involves" has to involve possession with intent to distribute.
Jonathan C. Bond: That's right. And there --
Sonia Sotomayor: And you can't read a presumption into an intent with -- with that. So -- but you are. How about if they lower it to 4 grams? I think 4 grams is well within what most people possess with use, personal use.
Jonathan C. Bond: Well, I think at that point it would be much more difficult to say that a state law is -- is presuming intent based on that statute.
Sonia Sotomayor: So why don't we read it literally? It has to involve the -- possession with intent to distribute, not a presumption of intent to distribute.
Jonathan C. Bond: Sure. And at the end of the day nothing in this case turns on exactly what you think the delta is between has as an element and involves. If you conclude that those are ultimately synonyms, I don't think much would ultimately change. We do think that the Congress intended there to be some delta to pick up statutes that reach slightly beyond an element of possession or -- sorry, an element of manufacturing and distributing, to other crimes like solicitation and financing. But if at the end of the day --
Sonia Sotomayor: Yeah, but I'm really worried about the fact that you've -- on that delta, you said the Eleventh Circuit is right, right only because a state has used the label.
Jonathan C. Bond: I don't think it's because the state has used the label. The Eleventh Circuit pointed out that in the context of that particular scheme, it was quite implausible that the -- the -- the state legislature, I think it was Alabama, intended that the highest level of its scheme not to become an ACCA predicate and not to involve conduct that would give rise to this kind of inference, even though lower level offenses did. It's a context-specific thing. And we're not suggesting that this case turns on exactly where you draw the line, and where the -- where the Eleventh Circuit drew it or where the Fourth Circuit drew it with respect to that 28 gram threshold.
Samuel A. Alito, Jr.: What does this have to do with the question in this case? It totally -- it's a totally different question. The quantity of drugs from which you can infer that there was an intent to distribute, what -- what does that have to do with anything in this case?
Jonathan C. Bond: So we -- we agree that the question here is much more straightforward and doesn't turn on exactly what you conclude involves means, whether you think that a particular quantity is -- can -- can be used as the basis to infer that -- that possession with intent to distribute will necessarily be entailed by the conduct or not. The question here is simply --
Samuel A. Alito, Jr.: You can intend -- you can be convicted -- am I wrong -- of possession with intent to distribute, even a very small amount of drugs, if there's proof that you intended to distribute it.
Jonathan C. Bond: Certainly. That's right.
Samuel A. Alito, Jr.: And so that's a separate question of when you can -- when you can infer from the quantity of drugs that there was an intent to distribute. You could have a state, if you want to hypothesize, draconian state law that says if you intend to distribute one gram, that is -- that is a felony punishable by 50 years in jail. That would raise potentially other questions, but has nothing to do with the issue here.
Jonathan C. Bond: That's exactly right, Your Honor. I don't think anything turns on exactly how far you construe that provision to extend. And if -- if at the end of the day --
Brett M. Kavanaugh: And so to be clear, just to be very clear, if you win here, to Justice Alito's question, the question where to draw the line on state possession statutes would remain open for litigation in future cases. Correct?
Jonathan C. Bond: So you will still have the question of what particular crimes necessarily entail distribution, manufacture, or possession with intent to distribute, but that litigation and that kind of uncertainty is dwarfed by the litigation that Petitioner's theory is presenting, which would require you not just to figure out what that specific thing means but the elements of the complete offense or of each of these three offenses in 1986.
John G. Roberts, Jr.: You also --
Brett M. Kavanaugh: And also -- I'm sorry.
John G. Roberts, Jr.: I was just going to say you emphasize in your brief the difficulty of -- I -- I -- I'll just quote -- "attempting to synthesize generic versions of these offenses from the motley raw material of state and federal laws." Your office will keep that in mind the next time you urge us to adopt a generic approach? (Laughter.)
Jonathan C. Bond: I think there's a -- there's a material difference between state drug trafficking laws in 1986, and I think Petitioner acknowledges, and the offenses that Congress recognized were sufficiently well defined in 1986 that it could refer to them by name and understand that -- and courts would understand what Congress was referring to, particularly the offenses that previously had already been defined in the ACCA before the 1986 amendments, like burglary and robbery, which is no longer --
Neil Gorsuch: I -- I --
Jonathan C. Bond: -- defined.
Neil Gorsuch: I wonder whether you'll also keep in mind this -- this question about involves, you know, the use and carry provision of 924 has kept courts awfully busy, right, what is a "use"? Are we going to, you know, what is our assurance we're not going to have similar amounts of concern and litigation about what's an "involving"?
Jonathan C. Bond: So, again, both sides have the same problem with respect to the word "involving." And the ordinary meaning of it, as the Court explained in Kawashima, is relatively straightforward. And, again, you look to the ordinary meaning of these words. The same as you did in Waseem, look at use of force, that connotes a certain amount of volitional conduct. It doesn't necessarily mean knowing --
Neil Gorsuch: The use of a gun involves -- the government has told us involves bartering, it involves -- it's in the room, it's somewhere in the house, it's in the neighborhood. That's a use of a gun. Why -- why aren't we going to be going down that road here?
Jonathan C. Bond: I don't think that the language compels you to go down the road. It simply tells you to look to the elements of the offense and determine whether they necessarily entail this conduct. And in this case there's no reason to go beyond determining --
Sonia Sotomayor: Mr. Bond, Florida is the only state that takes out mens rea; 49 other states don't. And I don't actually know why it's -- why there would have been a fear of what other states were doing since most of them were adopting the uniform definition of manufacturing, sale, and production -- and distribution.
Jonathan C. Bond: So --
Sonia Sotomayor: Yes, there might be production uses but I -- I'm not quite sure what the worry on your part is.
Jonathan C. Bond: Well, so -- I think -- if I can challenge the premise about what was clear in 1968, as Petitioner acknowledges, the North Dakota Supreme Court had directly rejected this mens rea requirement. I don't think it was clear in -- in a number of the other two-thirds of the states whose statutes did not expressly require mens rea. Petitioner cites cases that come long after 1986 or address different enhanced --
Sonia Sotomayor: But right now, 49 other states include it.
Jonathan C. Bond: We're not aware of any other state besides Florida that has emphatically rejected this -- this knowledge requirement as Florida has done.
Sonia Sotomayor: Either as expressed or implied, correct?
Jonathan C. Bond: We're not aware of a -- of a state that falls in that category. I'm not sure it is as clear in every state to the extent the Petitioner is describing. But --
Brett M. Kavanaugh: The point of the statute is to tell people who have these prior convictions not to possess firearms?
Jonathan C. Bond: Exactly. The point of this enhancement provision is those that have three or more --
Brett M. Kavanaugh: And there are a lot of people in Florida or who have prior Florida offenses who Congress didn't want to possess firearms.
Jonathan C. Bond: That's exactly right. And so the idea that we would read into mens rea for these already completed crimes is just detached from Congress's purpose here, which is to impose a sufficiently serious sanction on those who in Congress's judgment pose an increased risk when they possess firearms because of their history of repeatedly engaging in drug trafficking crimes or violent felonies that carry significant penalties, and a -- for the case of drug trafficking crimes, a ten-year maximum sentence or more. If there are no further questions.
John G. Roberts, Jr.: Thank you, counsel. Mr. Summa, five minutes.
Richard M. Summa: The purpose of the statute is not exactly to tell people who have prior convictions not to possess firearms. The purpose of the statute is to identify those people, those felons who possess firearms but who would also deliberately use those firearms to harm other people. As -- as the Court stated in Begay, identify the people who are likely to point their weapon and fire their weapon. When you have a statute that criminalizes the truck driver who doesn't even know what substance is, that person is less culpable, that person does not have the motive or the intent to defend this unknown substance by violent action or by use of a gun. To the extent that the Court is concerned about the scope and the effect of the term "involving," I think this Court should be guided by the interpretation of the RICO statute in the Scheidler case. There the statute proscribed acts or threats involving, followed by a list of crimes such as murder, kidnapping, arson and extortion, and in that context the Court said the term extortion must be regarded in its generic sense. And, to the extent that there's still any lingering ambiguity about the scope of the term "involving," the legislative history that we cited in our initial briefs shows the intent of Congress. When Congress drafted this state offense provision, the history shows that Congress intended to add "offenses," not "conduct," not "activities," but add "offenses" described generally, which translates to the generic sense. And I would also point to this Court's Moncrieffe decision, when the clerk was confronted with elicit trafficking in a controlled substance, the Court said illicit -- illicit trafficking in a controlled substance is a generic crime. Compare that to what we have here, phrases such as "manufacture of a -- of a controlled substance" and "distribution of a controlled substance," these phrases even more specifically describe generic crimes. Their -- Congress uses models to identify predicate crimes. What we're asking the Court in this case to do is no more and no less than the Court did in the Esquivel-Quintana case, when the predicate crime was described as sexual abuse of the minor and that crime may not be clearly defined, the model says look to a related federal statute. Now, if the Court still thinks there's ambiguity about what "manufacturing of a controlled substance" means or "distribution of a controlled substance" means, begin by looking to the related statute for how it defines the crimes. The related statute here is, of course, the federal drug trafficking provision, which describes the crimes to include a mens rea element, and the Court said in Esquivel-Quintana, then look to the survey of state law to see how the states define the crimes and all those factors contribute to the -- to the finding of the definition of what constitutes the generic federal crime.
Samuel A. Alito, Jr.: If Congress had before it when it drafted this provision of ACCA these two models, the federal model where the prosecution has to prove that guilty knowledge of the nature of the substance, and the Florida model, which differs only in that the defendant has to raise this as a -- an affirmative defense, has to say I didn't know that it was an illegal substance, Congress would think there's enough difference between those two models to say that only the former is included and not the latter?
Richard M. Summa: I think Congress -- yes, Congress would have decided the law is so overwhelmingly in favor of a mens rea element, that's what we generally would contemplate.
Samuel A. Alito, Jr.: Is there any practical difference between those two? I -- I mean, I don't see it. I don't think very many people are going to get -- get acquitted under the federal law unless they're willing to stand up and say I didn't know this was cocaine, in which case the two things are exactly the same.
Richard M. Summa: Well, Your Honor, I respectfully say that you are giving short shrift to the general requirement -- my time's up, may I --
John G. Roberts, Jr.: You may. Go ahead.
Richard M. Summa: You are giving general short shrift to the significance of jury findings. If a jury does not find, as it does in the Florida law, that the defendant has engaged in blameworthy conduct, the court, in a federal court, in a sentencing proceeding should assume that the defendant did not have that guilty knowledge because the -- the -- the federal sentencing court cannot make that finding for the first time in a collateral sentencing proceeding. And I thank you very much.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.