William H. Rehnquist: We'll hear argument now in No. 90-727, Robert G. Holmes v. The Securities Investor Protection Corporation. Mr. Samet.
Jack I. Samet: Chief Justice, and may it please the Court: The question this case presents is whether a party, which was neither a purchaser nor seller of securities, and for that reason lacks standing to sue for securities fraud under the Exchange Act, section 10(b) and rule 10b-5, may nevertheless sue for the same conduct... security-based fraud in the sale of securities... as a predicate act of racketeering activity under RICO. In order to answer this question, the Court will be called upon to construe section 1964--
Byron R. White: Did you say predicate act?
Jack I. Samet: --Yes, a predicate act of racketeering activity.
Byron R. White: Not a predicate crime, is that it?
Jack I. Samet: Well, I think they're pretty much--
Byron R. White: Or a predicate violation of law?
Jack I. Samet: --Well, I would prefer the term "predicate act" because it's neutral. As you'll see in my argument, I don't think necessarily all of these things are crimes, although I believe the overwhelming import in the criminal portion of RICO is to delineate crimes. I think when we're talking about--
Speaker: This is civil?
Jack I. Samet: --civil RICO, we're not speaking about crimes. I think we're speaking about a crime only in so far as it a... as it is a component of an element of a civil cause of action. I think it makes a difference, and I'll try to get to that. But I do agree that RICO is a criminal act, and that it purports to delineate crimes, but it also purports to delineate acts more generally.
Byron R. White: Yeah, but you're going to be... I suppose you're going to be arguing that if this conduct wasn't a violation of the securities law, it can't be a predicate act.
Jack I. Samet: You're absolutely correct. That is exactly--
Byron R. White: But aren't you arguing then that the act has to be a violation of the securities law?
Jack I. Samet: --The act... well, there are different schools of thought as to what--
Byron R. White: Well, you go ahead. I'm sorry I interrupted.
Jack I. Samet: --No, there are different schools of thought as to exactly what the nature of the conduct is that defines the RICO predicate acts. In any event, this Court will be called upon to construe the following three key phrases. Section 1964(c) states, any person injured in his business or property... and the Court will be called upon to construe the meaning of "injured in his business or property. " --by reason of... and the Court will be called upon to construe the meaning of the phrase 1962. And that, Justice White, gets into your question about what is a violation of 1962. I think the RICO Act means 1962 defines certain wrongful acts or crimes, whatever you like, and it then incorporates... it says you cannot commit a pattern of racketeering activity with respect to these crimes or acts. And then the definition of racketeering activity in section 1961 lists about 36 crimes or acts, and one of them is fraud in the sale of securities. That's the one we'll be talking about today.
John Paul Stevens: May I just interrupt there?
Jack I. Samet: Sure.
John Paul Stevens: Do you not assume for purpose of your argument that such a fraud actually occurred, that there was a predicate act. You just challenge the causal connection between it and your client.
Jack I. Samet: I must assume it in this posture of the case because we're here on a motion for summary judgment. At trial we'll contest it, but I do agree that for purpose of this argument we assume there was a fraud because it--
John Paul Stevens: And therefore... and also a predicate act.
Jack I. Samet: --Well, no, I think not. Because there was no standing. I think, absent standing, there--
John Paul Stevens: Well, but standing doesn't affect whether the act occurred, does it? Because... it affects whether--
Jack I. Samet: --Well, I think it does the way... I'm sorry. Go ahead.
John Paul Stevens: --Well, I can understand your argument that there's no standing here, no causal connection and all, but if the violation of 10b occurred, and that's a predicate act within the statute, I don't understand why you don't concede there was a predicate act, but merely argue that it didn't have the necessary causal connection.
Jack I. Samet: Because I think... well, I do make those additional arguments, but I think standing is an element of the cause of the civil cause of action, which is what I think RICO intends to incorporate when it talks about fraud in the sale of securities.
John Paul Stevens: Do you think Blue Chip holds that in 10b-5, that there's no 10b-5 violation at all?
Jack I. Samet: No, but I think that the Blue Chip means that there's no 10b violation for which anyone can sue if there's no standing. And RICO is intended, I believe, to incorporate the wisdom of Blue Chip. So I think they are related to each other. I think... I think that the restatement of the question here essentially is, is the Securities Investor Protection Corporation, SIPC, a person or a party that was injured by reason of this alleged fraud in the sale of securities.
William H. Rehnquist: Isn't it agreed that SIPC is simply here standing in the shoes of investors who themselves could not have met the Birnbaum test?
Jack I. Samet: Not at all, Your Honor. Not at all, Chief Justice. For the reason that I believe that the record shows and the law is that SIPC is not subrogated to any of those claims. There are two... SIPC essentially paid out money to two categories of investors, people who were customers of the failed brokerage firm. They paid out money to investors who bought and sold the allegedly manipulated securities, and they paid out money to people who didn't. Now, as to the people who did buy and sell the allegedly manipulated securities, they commenced a class action. It was settled. They got their recovery. So SIPC can't be subrogated to their claim, because it's already been exercised. As to the people who didn't buy or sell the allegedly manipulated securities, SIPC can't be subrogated to their claim because they, like SIPC, are too remote from the event to have a claim in the first place. Furthermore, the Ninth Circuit held that the only way SIPC can acquire a subrogation right... and this is in an earlier case. This is the third time this case has reached the Ninth Circuit. In an earlier case, which is in the record, the Ninth Circuit held that SIPC is subrogated to any fraud claims if and only if the brokers who SIPC came in to pay out exercised unauthorized use of customer funds to buy the manipulated securities. That didn't happen. Discovery has established that didn't happen, so there's no fraud claim for SIPC to be subrogated to. And therefore, SIPC cannot come here as a subrogee. We must look at SIPC only as SIPC and ensure, if you will, that paid out monies, and not as a subrogee, because there is no subrogation. In addition, Your Honor... I'm sorry, Chief Justice--
John Paul Stevens: Can I interrupt for... right there?
Jack I. Samet: --Sure.
John Paul Stevens: As to the category of customers who purchased or sold the manipulated securities, and who had their own class action and recovered some of their own money, did that recovery not reduce the obligation of SIPC to pay to them their losses?
Jack I. Samet: I don't think it worked that way. It probably should have--
John Paul Stevens: So they got a double recovery, in effect?
Jack I. Samet: --That's the problem. That's... you have hit, Justice Stevens, on exactly the problem of allowing SIPC a recovery here. There would be a double recovery, and since it's RICO, it would be a sextuple recovery.
William H. Rehnquist: Well, we didn't grant certiorari to review SIPC's separate standing. We thought we were taking a case that simply involved a question of, for instance, posed in section 2 of the questions presented, whether a person has standing under RICO when they wouldn't have if they were just going under a straight Securities Act claim. Why do we need to get into all of these ramifications of what SIPC did or didn't do?
Jack I. Samet: I don't think you do. SIPC's brief raises them, and therefore, I'm responding to the questions from the Court and anticipating them in SIPC's position. But I will tell you, totally apart from the uniqueness of SIPC... and I agree, that's not the larger, more interesting question. The larger, more interesting question is do we have... you're looking at SIPC as SIPC, not as a subrogee... do we have a situation in which SIPC was injured by reason of the alleged violation. And I'd like to get into the facts and show why I think we do not have such a situation.
John Paul Stevens: Well, let me just ask you one question. I think it's related to what we've granted certiorari. Supposing there had been no lawsuit by the customers of these firms that had purchased and sold securities, that they lost their money when the brokerage firm went bankrupt. And the amount paid by SIPC to them was precisely the amount that they lost in making purchases and sales of the manipulated securities. Would you say, then, that there was no standing on the part of SIPC to reimburse?
Jack I. Samet: No. If in fact it was a valid subrogation to people who had a claim, who were themselves purchasers and seilers of securities, there would be a... there would be standing, and I wouldn't be able to make the argument I'm making. I'm making the argument--
John Paul Stevens: So doesn't our answer in this case depend on the extent to which there is subrogation of claims of purchasers or... the extent to which SIPC reimbursed persons who had valid claims?
Jack I. Samet: --Unfortunately, in part, it does. This is not a case that purely raises the purchaser-seller issue. It does raise these related questions of who SIPC is and what it did. But I'm trying to address, and I think the Court is most interested in, the pure question. Unfortunately, the question of less general interest comes from this record and cannot be avoided. But discussing the pure general question of do we have here... is SIPC, in its own capacity, a purchaser or seller of securities, which it clearly was not, and therefore, does it have standing, I'd like to ask the Court to look at the key phrases in RICO. First, "the injured in his business or property. " phrase. What that has come to mean in the decisions of this Court and other courts is essentially that a person must be directly injured in their business or property. If, for example, a corporation is the target of a racketeering act, a shareholder cannot sue for injury to the corporation because the shareholder was not the direct victim; the corporation was. Cases have held that if a union is the target of racketeering activity, the union member may not sue for RICO because it was not the directly injured victim; the union was. Well, here--
Anthony M. Kennedy: So that argument is the same whether or not it's a securities violation, which is the alleged predicate act, or any other violation?
Jack I. Samet: --Absolutely. That's absolutely correct. And here... indeed, I think the purchase of seller implication in the doctrine of standing comes directly from the general principals of RICO. You don't have to focus on securities law to reach the same conclusion. I completely agree with you, Justice Kennedy, that looking at the general concept of RICO, SIPC here is not a person who was directly injured. The direct victims--
Sandra Day O'Connor: But your argument depends on our looking first to find out in what capacity SIPC brought the suit, whether it was subrogee for purchasers of manipulated securities or something else.
Jack I. Samet: --It doesn't matter, Justice O'Connor. You reach the same result either way because, on this record, there is nothing for SIPC to be subrogated to, and therefore, this Court is faced with a pure question. If there were a viable argument that SIPC is subrogated to a claim, then you could go off on a subrogation issue. But there isn't. SIPC isn't subrogated to anything. I'm addressing that because SIPC talks about it. But if one accepts the notion that SIPC isn't subrogated to anything, then one reaches the general question. And I think that's this case. I think SIPC is subrogated to nothing, and we reach the general question. And the general question... the first proposition on the general question is that we do not have a party that was directly injured. SIPC was not directly injured. If there were direct victims, it were the purchasers and sellers of these allegedly manipulated securities, not SIPC. The second important point, I believe, is that any injury to SIPC was not by reason of the alleged fraud in... of the sale of securities. And what I mean by that is that this Court has said in Sedima, SIPC paying out money. Here there were many, many intervening events. The harm complained of operated on the purchasers and sellers of securities. Now, in addition, for that to happen, it had to be the case that these two brokerage firms took a large position in the allegedly manipulated securities. And it had to be the case that the brokerage firms were otherwise in precarious financial condition, and therefore, taking this position and these securities caused their financial demise. It had to be the case that SIPC comes in and says, well, let's make the failure of these brokerage firms subject to SIPA. And it had to be the case that the composition of the assets of the defunct brokerage firms was such that they could not pay out or simply give to the customers of the brokerage firms their securities. All of those events, none of which were intended or foreseen by the persons that allegedly committed the securities fraud, had to occur before SIPC would sustain the loss that it sustained. This is causation run rampant, attenuated causation, the kind of speculation in causation that goes way beyond the bounds of proximate cause and should not be tolerated.
John Paul Stevens: Mr. Samet-- --May I interrupt there? You've put in an awful lot of events. Supposing that all that was involved is that the brokerage firm itself had taken a large position in manipulated securities and there... and that was the only thing that caused it to fail. And as a result of the failure, SIPC had to pay a lot of money to its customers.
Jack I. Samet: Well, we have an even clearer case here because the brokerage firm... the trustees of the brokerage firm are themselves parties to the action, the brokerage firm did take a position in the securities, and we're not challenging the trustees' standing. We're challenging SIPC's standing. So I agree with the implication of your question that if the brokerage firm was itself a purchaser or seller, we wouldn't have the argument we have. But it's SIPC that's coming in, and they're not a purchaser or seller, and therefore, we have the argument on standing that we wouldn't if the brokerage firm were the only plaintiff, or the trustees were the only plaintiffs.
John Paul Stevens: I'm still not sure what your answer is. If the record showed that the only reason the firm failed was because it made purchases of the manipulated securities, and that's the only reason SIPC paid any money to the firm, would there be sufficient direct causation?
Jack I. Samet: That would be a closer, harder question. It's not the question we now have--
John Paul Stevens: Well, what's the answer to that question?
Jack I. Samet: --Well, that's the one you don't have to write an opinion on. I would--
John Paul Stevens: Well, but I think you're general approach to it might decide that case.
Jack I. Samet: --I don't think so.
John Paul Stevens: Because you said, as I understand you, that unless SIPC itself were a purchaser or seller of securities, it has no RICO claim.
Jack I. Samet: Well, I think the logic of the general approach, and I agree you presented a tougher case than the one we have here today, but the logic of the general approach is that if you ain't a purchaser or seller, you ain't got standing.
Antonin Scalia: I'm surprised you found that a hard question, Mr. Samet. I... given your approach, I would think that's an easy question.
Jack I. Samet: Well, I think any question this Court poses, I recognize is a hard question.
Antonin Scalia: Well, unless you think that somehow, simply because you are a but for... a but-for cause is a direct cause.
Jack I. Samet: No, a but-for cause is not a--
Antonin Scalia: All that the question showed is a clear but-for cause. Is there no difference between a but-for cause and a direct cause?
Jack I. Samet: --Well, are you using direct cause in the sense of proximate cause or not in your question?
Antonin Scalia: That's the way you're using it, isn't it? I'm using it the way you're using it. I thought you meant proximate cause.
Jack I. Samet: I do.
Antonin Scalia: Well, one could be a but-for cause without being a proximate cause.
Jack I. Samet: Absolutely. And that's what we have--
Antonin Scalia: So then why was it a hard question?
Jack I. Samet: --That's what we... as I say, I'm trying to be polite and respectful. I think I've answered the question, I didn't find it that hard to do.
Byron R. White: xxx anyway.
Jack I. Samet: Maybe it wasn't that hard, but in any event--
Antonin Scalia: Then again, what is the answer? [Laughter]
Jack I. Samet: --The answer is, in my view, if you are not a purchaser or seller you are not causally connected, proximate cause, by reason of the alleged harm. That's my answer. But again, I can see where you're coming from, and I think I can--
John Paul Stevens: Even though... even though but for the illegal conduct, the SIPC would not have had to pay any money.
Jack I. Samet: --Yes. And that's Justice Scalia... that's the point in Justice Scalia's question. There's a difference between but-for causation and proximate causation, and I do want to be clear about that, if I wasn't clear about anything else. But-for causation is not enough to establish the by reason of requirement to be satisfied. It's got to be proximate causation. I don't think there is proximate causation if you're not a purchaser or seller of securities. I don't think you can get that causal connection.
Sandra Day O'Connor: Now what if the predicate acts relied on are wire fraud or mail fraud? Does that alter the analysis in some way?
Jack I. Samet: I'm very glad you raised that question. I don't think it alters the analysis at all. And indeed, what has happened in litigation generally, and in this litigation, is people with a simple turn of phrase... and that's what SIPC did in this complaint, they pled alternatively securities fraud and/or wire and mail fraud. But the analysis is exactly the same.
Sandra Day O'Connor: Well, of course, for wire fraud or for mail fraud, do you still have to... you say there still has to be a purchaser or seller?
Jack I. Samet: Yes, for the reason that the provisions of 1964(c), the requirement that injury be to a person's business or property, meaning direct injury, and that the injury be by reason of, meaning proximate causal connection, those two requirements come from 1964(c), which applies to all predicate acts. And therefore, they apply whether you're talking wire/mail fraud, or whether you're talking securities fraud.
William H. Rehnquist: Well, then as presented so far, your argument doesn't depend on our opinion in Blue Chip Stamps. It's an interpretation of the RICO section itself.
Jack I. Samet: That's absolutely true, Mr. Chief Justice, but you were correct in saying as presented so far. I've not gotten to the point yet, as I'm about to, to discuss Blue Chip.
Byron R. White: You're getting to the third point, are you?
Jack I. Samet: I've got at least three, yes. Three, and I'll go more if I'm permitted.
Antonin Scalia: You might think of more on the way, is that it?
Jack I. Samet: I will keep going as long as I can.
Byron R. White: All right. Well, anyway, you've gotten... you've got through two of them.
Jack I. Samet: Yes. And the third... the third one has to do with in effect, Blue Chip, and that is this: that the RICO predicate act is defined as fraud in the sale of securities. And that's a very interesting definition of a predicate act, it contrasts with the other predicate acts in the statute. All the other predicate acts define crimes as crimes, for example, murder, kidnappings, State crimes... and also Federal crimes by citation to Federal statutes. If there was going to be a parallel incorporation of a securities crime, it should have said, for example, any violation of section 32 of the Securities Exchange Act, which is what criminalizes securities law violations. It doesn't say that. It says something much more narrow. It says fraud in the sale of securities. It also doesn't say any fraud in connection with securities. That would be fraud. But no, this predicate act is more narrowly drafted. Fraud in the sale of securities. That makes the concept of sale central. And that brings us, in my view, to the Chief Justice's excellent opinion when he was an associate justice in Blue Chip Stamp, which spoke about what the requirements were for standing with respect to fraud in the sale of securities. And those principles... that decision in 1975, was based upon, and involved from a principal of law back in the Birnbaum case, dating back to 1952, a Second Circuit case. And those principles were accepted ever since 1952, even earlier, really. They've existed in securities law for 40 years, and when RICO was passed in 1970, Congress reflected no intention to overrule, subvert, circumvent, do away with, existing securities laws, principles, and decisions. And so that standing limitation that comes from Blue Chip should be carried forward when looking at RICO. And RICO talks about fraud in the sale of securities because that's a piece of learning, basic learning, about what fraud in the sale of securities is and involved, and it's a settled, litigated matter at the Supreme Court level, that is a decision that there was no objection to at all anywhere in the congressional history of RICO. So it seems to me we have here all but an incorporation by reference in the listing of predicate acts of this decision in Blue Chip, and the whole developed notions of securities law and standing surrounding it. And they carry with it certain principles of standing. Congress didn't intend to overrule those principles. They should be carried forward into RICO when RICO incorporates fraud in the sale of securities as a predicate act. So those are the principal reasons why I think essentially we have a situation where the very language of section 1964(c) in its three component parts, "injured in his business or property. " RICO either because of the way RICO was drafted or because of what RICO incorporates by reference. But either way, one reaches the same result. Now, there are a couple of arguments that I've seen in SIPC's brief, and I'm sure that the Court has looked at them and has considered them, and I'd like to comment on them for a moment. One has to do with the principle of broad construction. SIPC says RICO is to be construed broadly. True enough. RICO is to be construed broadly. But broad construction does not mean construction in contradiction of the plain meaning of the words of the statute. And what we are arguing here--
William H. Rehnquist: Well, why is RICO to be construed broadly? Is that something this Court has said?
Jack I. Samet: --This statute says it.
William H. Rehnquist: The statute says it.
Jack I. Samet: The statute says it. And also, I think that this Court has managed to decide cases by not viewing the statutory mandate to construe RICO broadly as central to this Court's decision. I think that's a correct approach. I don't think--
Antonin Scalia: What does the statute say?
Jack I. Samet: --The statute at some point says... I don't have the section offhand... says that RICO is to be construed liberally to effectuate its remedial purposes. That's in the RICO statute. That's a statutory mandate. I don't think that statutory mandate need or should govern or even applies to your decision, but SIPC thinks it does. It's in their brief, so I'm raising it to talk about. I think that all "broad meaning" means is that you should look at the plain meaning of the words, apply them fairly. And when one does that here, one reaches a conclusion, I believe, that there's no standing. So I don't think the requirement that RICO be construed broadly, if it is a requirement, need dictate your decision. The second argument that SIPC has raised, which I think should not persuade this Court... and I'd like to deal with it just to be sure, if there are any questions on it... has to do with the express and implied limitation or differentiation. SIPC says, pointing back to the Blue Chip decision... which SIPC... by the way, SIPC doesn't even recognize it's bound by Blue Chip. In one of it's footnotes, SIPC suggests that Blue Chip, unfortunately precludes SIPC from recovering. Blue Chip... it's not unfortunate, it's correct law. But in any event, Blue Chip evolved from section 10(b) and rule 10b-5, and judicially implied causes of action. RICO, of course, is express. The Ninth Circuit and SIPC have tended to put significance of that and have said that because RICO is express and Blue Chip is dealing with implied remedy, somehow the construction of them should be different, or the construction of RICO should be more broad because one is dealing with an express statute. But if one looks at what it is that's expressed in 1964(c), what the express... statute expresses, it has the very limitations on it that we are arguing for... namely, that the injury must be by reason of, and it must be injury to the business or property of the claimant. Now there is another aspect of the case, which again is unique to SIPC, does not involve the general principal, but I think it needs to be address only because I think this Court should deal with the general principal, and it would be unfortunate... unfortunate, I think, for the case law in general... if the Court focuses only on the nature of SIPC, so I would like to briefly address that for a second. Because SIPC argues that they have a special status, and somehow, whatever the general rule is should not apply to them. That's in SIPC's brief. I'd like to make clear, in the event it isn't already so, that SIPC is not a Government agency, that SIPC is not a successor in interest to the brokerage firm. That's the trustees. And the trustee standing is undisputed. They've got standing. They're in the case. That SIPC is not an agency trained in prosecutorial discretion. SIPC is not the Department of Justice; SIPC is not the Securities and Exchange Commission. Though SIPC is statutorily mandated, it is essentially mandated, it is a private system of mandatory assessments against securities brokerage firms. So I don't think that SIPC deserves that the special status that would be accorded the Department of Justice in a criminal prosecution. This isn't the Department of Justice; it isn't the criminal prosecution.
John Paul Stevens: Can you tell me whether the record shows the extent to which SIPC... when it makes payments like they made here, some, I don't know, $ 12, 000, 000 or whatever it was... to what extent are they subrogated to the rights of the person to whom they made the payment? Does the record tell us?
Jack I. Samet: That's a matter of dispute. I would say that we could look at the record and argue about it. But SIPC would say that they are subrogated. We would say that they are subrogated only to claims against the brokers and not necessarily to all third-party claims. And we would say the Ninth Circuit said in this case that they're not subrogated to claims against... to fraud claims against third parties. And SIPC did not appeal that determination.
John Paul Stevens: So you would take the position they're not subrogated.
Jack I. Samet: That's correct.
John Paul Stevens: It would seem to me it would help you to take the position they were subrogated in order to avoid your client's risk of double recovery.
Jack I. Samet: No, I think if I take the position they're subrogated, then maybe they can... they can acquire the claim of a purchaser of seller. If I take the position they're not subrogated, they can't get near a purchaser or seller.
Antonin Scalia: No, but the purchaser or seller's going to sue. Well, I don't understand. I'm sorry.
Jack I. Samet: I'm sorrier. Thank you. I'd like to reserve my remaining time for rebuttal.
William H. Rehnquist: Very well, Mr. Samet. Mr. Blakey, we'll hear from you.
G. Robert Blakey: Chief Justice Rehnquist, may it please the Court. Must every person injured in his business or property by reason of a violation of the Racketeer Influenced and Corrupt Organizations Act, when the predicate offenses are securities fraud, mail fraud, and wire fraud, be a purchaser and seller... or seller to have a claim for relief? Mr. Holmes says yes. Securities Investor Protection Corporation says no. SIPC's arguments may be summarized in three words and three short paragraphs: text, text, text. RICO expressly incorporates by reference the express criminal provisions of the Securities and Exchange Act of 1934. It does not incorporate the '34 act's judicially implied civil claim for relief. As such, the purchaser-seller limitations on the implied private enforcement mechanism of the 1934 act, recognized by this Court in 1975 in Blue Chip, are simply not relevant under RICO's expressed private enforcement act.
Sandra Day O'Connor: Is there some questions, though, about how direct the injury must be for purposes of a RICO claim? There's some discussion of that in some lower court cases, I take it, dealing with shareholders of corporations and union members and the like.
G. Robert Blakey: There is indeed. The phrase "injured in his business or property. " has been understood... and properly, I think... in the context of corporations to exclude shareholders, in the context of unions to exclude members, in the context of counties to exclude taxpayers.
Sandra Day O'Connor: Well, the argument is made here that SIPC similarly stands in an indirect relationship to this claim.
G. Robert Blakey: Well, if the relationship between a broker and his customers, which is the relationship we deal here, has as its best common law analogue, bailor-bailee, and the classic position has been between bailor-bailee, that either has the ability to sue for injury to the property. I would suggest to you, Justice O'Connor, however, that this relationship is not the common law relationship of bailor-bailee, but the peculiarly statutory relationship of a customer and a broker-dealer.
Sandra Day O'Connor: Would you explain to me, if you would, please, the capacity in which SIPC's suit is before us here? Are you subrogated? Is SIPC suing as a subrogee of anybody who had bought manipulated securities?
G. Robert Blakey: It is suing in several capacities for several claims. It is not suing for, at this time, as a subrogee of any of the customers that had a purchaser-seller 10b-5 claim. That's a separate claim and a separate cause of action. And this record indicates that SIPC was unable to show that any of the customers on behalf... it's speaking--
Byron R. White: And you still won the case.
G. Robert Blakey: --We still won the case, Justice White, because we are suing as a subrogee of customers who were not purchaser-sellers. And under the peculiar provisions of SIPA, we are a real party in entrance in all matters growing out of liquidations, and thus, we have a... are entitled to be heard for all claims that can be asserted by the trustee. And we are, in addition, subrogated to the trustees' claims insofar as we have paid him or advanced him money. So we are here, not in our own right. We do not stand in our own shoes; we stand in the shoes of customers who are not purchaser-seller, who were nonetheless injured. And we stand in parallel shoes, statutorily, with the trustee itself.
Byron R. White: Was that the theory of the court of appeals?
G. Robert Blakey: Your Honor, what's happened between--
Byron R. White: Well, was it or not?
G. Robert Blakey: --No. The only issue faced--
Byron R. White: What... are you defending the court of appeals rationale?
G. Robert Blakey: --I am... yes.
Byron R. White: That isn't the rationale you just stated.
G. Robert Blakey: Justice White, I'm... an interesting thing happened between the court of appeals and the Supreme Court.
Byron R. White: That's not strange. [Laughter]
G. Robert Blakey: The argument that was presented in the court of appeals was basically an interpretation of the phrase "any person". And we took the not unusual position that "any person" didn't mean any purchaser and seller. And what's happened between the court of appeals and the Supreme Court is my good friend has moved off to the right a little bit and is trying to get the purchaser-seller limitations in through the back door. Having failed to get it in through any person, he's attempting to insert it in through "injury to business or property" or "by reason of". And we raised in the brief that this is perhaps not within the petition for cert. Nevertheless, I am perfectly willing to discuss that with the Court since you surely have discretion to hear anything that you want. To the degree that he's challenged my "in my business or property" standing, to degrees that he has challenged my "injury by reason of", I have felt duty bound to answer those arguments. I need not answer them to support the court of appeals. Nevertheless, the court of appeals is equally supported in its own terms in arguments that I have made here today.
John Paul Stevens: May I ask you a question at this point? You point out there are three categories of claims: those by the individuals and sellers who are suing on their own, and you're not subrogated as to them; the intermediate non-purchaser or seller-customer claims; and third, the firm claims themselves, where you are subrogated.
G. Robert Blakey: That's correct.
John Paul Stevens: Now, my question is this. Supposing that the combination of recoveries in the first and third categories exceeds or equals the amount of damage done by the defendants. Are you still entitled to recover something additional for the second category of claims?
G. Robert Blakey: Well, I have to kind of go back through and figure it out. The way it works out, there's no double recovery. If the parties themselves... if the purchaser-seller customers recover--
John Paul Stevens: 100 cents on the dollar.
G. Robert Blakey: --100 cents on a dollar, and we did not reimburse any of them, that takes care--
John Paul Stevens: Oh, so they would not be... okay.
G. Robert Blakey: --That's not taking any... take care of--
John Paul Stevens: All right. Then there's a category of nonpurchaser-seller customers whom you did reimburse.
G. Robert Blakey: --That's correct. We now stand in their shoes.
John Paul Stevens: And assume that the wrongdoers have paid the firm everything it tortiously took from this firm, and the other customers, everything that they lost. Are you still entitled to recover for the--
G. Robert Blakey: If everybody has been paid off everything--
John Paul Stevens: --Well, not the category that you've had to reimburse, because they were presumably hurt by other... you know, this is not the sole cause of the failure of this firm.
G. Robert Blakey: --Well, Your Honor, I think it's really appropriate to talk about how this firm went under. This firm did not go under simply by a fraud in the purchase and sale of security. The underlying challenge here is to have schemed to defraud. And in the scheme to defraud, we had factually a situation where... and maybe I should explain the record here. Mr. Holmes' co-conspirator, Mr. Lugo, took stock out of proprietary account in First State, and moved it into Mr. Holmes' account. And the reason he did that is he would avoid his liquidity crisis that would come from the discount for the stock in the proprietary account. He did that for one purpose and one purpose only, to hide the fact that he had a net capital deficiency. Because he was able to hide the fact that he had a net capital deficiency, he was able to stay in business for a longer period of time. And not only did he go under, and had he not done it, he would have gone under for about $ 700, 000... he... not only he went under, but he took in Sebag in California. He hid that, not from purchaser-sellers. He hid that from the regulatory system. And we are part and parcel of the regulatory system. The scheme to defraud that did in these two broker-dealers is a scheme that transcends fraud on individual purchaser and sellers who were customers. It's a fraud against the broker-dealer and it's a fraud against the regulatory system as well. Let me give it to you as a practical example. Suppose a terrorist group wanted to engage in fundraising activities and they decided to work a life insurance scam involving some of its own members. And they blow up an airplane to collect the life insurance on those two member passengers. Clearly the insurance company, if it pays off, will be subrogated to the estates in their claims. The issue here, though, is whether there is an injury in the business or property and a proximate cause relationship to the injury also done to the other passengers and to the airlines. And that's precisely what we have here. This is not a fraud directed to just some purchasers. It was a fraud that in its scheme took in the broker-dealers and all of the customers who were there. Accordingly, we suggest that there is a... SIPC is a proper party plaintiff to bring it because it stands in--
John Paul Stevens: But as you describe it, let's be sure I understand, as you describe it, I would think my second category would also have a cause of action against these people.
G. Robert Blakey: --Oh, I think they do. I think the other customers have a category and a claim. Interestingly enough, if we've paid them off--
John Paul Stevens: Even though they are not purchasers or sellers.
G. Robert Blakey: --That's correct. Well, they may have it under the security statutes, too. What we would suggest to you is, and now I'm not really arguing securities. I'm arguing injury to business or property, and I'm arguing injury by reason of, which has nothing to do, as he's presented it, with the fact that it's underlying security.
Antonin Scalia: I don't know any other statute where there is not some proximity requirement placed upon the ability to recover. I mean, really what you're saying is if by reason of this fraud somehow somebody's uncle got mad and cut them out of the will, they would have a cause of action under RICO so long as they could establish that causality.
G. Robert Blakey: No. But let me give you a slightly different example from the common law. It is standard Hornbook law that if I defrauded a testator into leaving to me property, and Justice White would have been the person to whom the request goes, he has a claim for relief against me, even though he's not the immediate target because he's within the intended sphere. Let me rive you another example... is if a group of corporations undertake a pattern of fraud to cheat the Government, clearly the Government can sue, but what about the next honest bidder who would have obtained the bid but for? I think that next honest bidder has a claim for relief. And on this issue, which is the proximate cause question, there was a summary judgment below.
Antonin Scalia: Do you have any cases on that? That surprises me.
G. Robert Blakey: Yes.
Antonin Scalia: The defrauded bidder would have--
G. Robert Blakey: Yes.
Antonin Scalia: --I mean the bidder who would have gotten it but for the fraud?
G. Robert Blakey: Yes. The Environmental Tectonics v.--
Antonin Scalia: On the basis of defrauding or on the basis of unfair business practices?
G. Robert Blakey: --No. Environmental Tectonics v. Kirpatrick, which is both an antitrust case and a securities... I mean and a RICO case... 847 F. 2d 1052 1007, in the Third Circuit, affirmed on other grounds by this Court. My reference to the defrauded testator is supported by Bohannon v. Wachovia Bank and Trust Company, 210 North Carolina 679. My illustration of the terrorist in the airplane, slightly modified, is reflected in Judge Posner's RICO decision in the Seventh Circuit in the matter of E.D.C.--
Antonin Scalia: But the terrorist in the airplane is different. These are other people who are harmed proximately by the same act, although they are not the persons who have the cause of action for the fraud. But they are proximately harmed by the same act. Here you have a person who is further down the line. Every time you harm somebody you harm other people who are dependent on that somebody. And that's what occurred here.
G. Robert Blakey: --Your Honor, no, we're not arguing that the mother, the brother, the uncle, of any of the purchasers, or the landlord of one of the customers who now, because the customer was defrauded, can't continue to maintain his rent.
Anthony M. Kennedy: What about the employees of Sebag?
G. Robert Blakey: No.
Anthony M. Kennedy: Why not?
G. Robert Blakey: The injury there is precisely to injury... to... this is the corporate analogy. The injury is to Sebag. Sebag has the claim for relief. The customer... the customers were not injured in their business and property within the meaning of RICO, injured in their business or property. But we sue here for the injury to the customers. The causal relationship between their illegal conduct and the injury to the customers is the same, whether it is a purchaser-seller customer, or whether it is a nonpurchaser-seller customer.
Sandra Day O'Connor: Could I ask the question in another way? Some courts have spoken of it in terms of a direct injury requirement. Is it your position that if there is such a requirement for a RICO cause of action, that the customers who were not purchasers of the manipulated securities were nonetheless directly injured?
G. Robert Blakey: Yes. This is a question of proximate causation, and it's a question as to which we raised in the court below, a material question of fact, as so found by Judge Toshima. It is a question that the defendant below defended on the grounds that there was no proximate relationship between his personal conduct and the fraud and the collapse. That was accepted by Judge Toshima, and it was reversed by the Ninth Circuit on the grounds that he was equally responsible with his xx conspirators' conduct.
John Paul Stevens: May I ask this, Mr. Blakey? This intermediate group of customers who did not themselves buy or sell, under your view of RICO I take it they would have been able to sue under RICO?
G. Robert Blakey: Clearly under RICO, and a minimum, the predicate offense is mail fraud or wire fraud. And we think they could just as easily sue using a fraud... the Securities Act because this does not incorporate 10b-5.
Antonin Scalia: How could they sue? What money was obtained from them?
G. Robert Blakey: It's the loss that they suffered. As soon... what happened here--
Antonin Scalia: Anyone that is caused a loss by the deceiving of someone else has a cause of action for fraud?
G. Robert Blakey: --Well, Your Honor, part of the problem here is that scheme to defraud is not equivalent to common law deceit. As this Court has recognized, for example, in Carpenter, it extends to misappropriation. This Court has not limited scheme to defraud to the common law meaning. It included chicanery and overreaching. And the chicanery and overreaching in this situation caused this broker-dealer to go under. When that broker-dealer went under, it took out the business and it took out the property that the broker-dealer had in its hands.
Antonin Scalia: They are all subsequent consequences of the fraud. They are not themselves a defrauding.
G. Robert Blakey: Well, but in this context, the defrauding was of the broker-dealership itself. For example, if you sink a boat, it sinks all passengers.
Antonin Scalia: Yes, it's called a sinking, though. It's not called fraud. Fraud means obtaining money or property from someone. It doesn't mean tricking someone and--
G. Robert Blakey: That's what common law deceit meant. Mail fraud says scheme to defraud and scheme to defraud has never been limited to common-law deceit. If Congress had meant common-law deceit in 1972 when it enacted the mail fraud statute, it would have said deceit.
Antonin Scalia: --I'm not saying it means common-law deceit. I am saying that it means obtaining money or property from someone. And your claim here is not based upon... even on this other category of persons, is not based on obtaining any money or property from them. They are consequentially injured because of the wrongful obtaining of property and money from somebody else. It's just one of the ripples that--
G. Robert Blakey: The issue here is... can be put in terms of what is the target of the fraud. If you focus the target only to obtain the property from the meaning person, you answer is obviously correct. But all... but the problem with target in that context, it's a nubber-band word. You can narrow it that way or you can extend it to ask what were the means by which the property was done in? And if the means included destroying someone else's property, as you got there, that person is part of the intended scope of the fraud. And he equally ought to have a claim for relief as the person who is the primary target. You can be an intended target and not be the primary target. That's the airplane example. My intended target was my two people and the insurance company, but I took out the whole airplane. My intended target was cheating the people who were buying and selling the stock, but my impact of it was to take out the entire broker-dealership.
Antonin Scalia: --You took them down directly. When you took the plane down, you took them down directly. They didn't go down as a result of the other people going down. The analog to your plane incident is the business run by the person who was bombed fails because he's no longer managing it. That's the analog to what's going on here--
G. Robert Blakey: Justice Scalia, this is a fact-specific question that was raised in the trial court and the held... the holding below is that we raised a material question of fact on that question. And I think that it is in one sense not in the grant of cert, but if it is in the grant of cert, we have to deal with the facts as argued and found below, the facts as--
Antonin Scalia: --What fact? What fact is found below that I am contradicting?
G. Robert Blakey: --Well, if you take a look at the Bunnington Park. When property was taken out of one account and put into another, to keep the broker-dealership alive, that is part of the scheme to defraud. And it was only because it was kept alive for a period of time that when it did collapse it took out not only the property of the immediate target of the fraud. It took out all the other customers' property as well.
William H. Rehnquist: Mr. Blakey, you're speaking as if it were a trial below. But as I understand it... and you talk about facts that were found below. The district court granted summary judgment, did it not?
G. Robert Blakey: It granted summary judgment only on the issue is we were not a purchaser-seller.
William H. Rehnquist: Were other issues actually tried?
G. Robert Blakey: All the other issues were raised.
William H. Rehnquist: Well, I didn't ask you whether they were raised; I asked you whether they were tried.
G. Robert Blakey: They were posed in a motion for--
Speaker: I didn't--
G. Robert Blakey: --No, they were not tried.
William H. Rehnquist: --Okay. Then answer the question briefly, if you will. They were not tried. Is that correct?
G. Robert Blakey: Correct.
William H. Rehnquist: And then the Ninth Circuit reviewed the... reversed the grant of summary judgment. There were no factual findings made in the sense you're talking about. Both courts were dealing with motions for summary judgment.
G. Robert Blakey: Perhaps I misspoke. What I should--
William H. Rehnquist: I think you did.
G. Robert Blakey: --And I withdraw what I said, and would like to rephrase it. For the purposes of the summary judgment, the lower court found that we had raised a material question of fact on each of these other issues, that there was an enterprise that we were employed and associated by, that there was a pattern, and that there was a nexus, a proximate cause nexus between the wrongdoer's conduct and the injuries sustained.
William H. Rehnquist: The court found that in a summary judgment proceeding?
G. Robert Blakey: It found that we had raised--
William H. Rehnquist: You had raised that?
G. Robert Blakey: --a material question of fact as to it. And therefore, we were entitled to a trial on that question. And what we... but having found that, it then dismissed it on the grounds that we lack purchaser-seller standing. The difficultly with purchaser-seller standing is that it is a concept that can be used in several different senses. It can be used in the sense of describing the class you may sue. It can be, as he's using it, describing the nature of the injury or causation. What he has done with Blue Chip is take what pleases him from it. There is in Blue Chip a clear indication that the purchaser-seller limitations are somewhat arbitrary and that they deny some deserving plaintiffs of an opportunity to sue. It is mitigated, however, this Court said, by the fact that there can be claims for relief under other bodies of law. The example given in the footnote, footnote 9, comes from loss on securities. And it points to the fact that in the Birnbaum case itself, a subsequent suit was brought for an accounting. And in that suit for the accounting, nonpurchaser-sellers were able to establish a wrong, injury, and causation and recover on the same facts. What we are here with RICO is another claim for relief. We are not suing under 10b-5 and its implied claim for relief. We're suing under the standard.
Byron R. White: No, but you are claiming that you have been injured in your business or property. And I suppose the antitrust laws say that a person injured in his business or property can recover treble damages if it's by reason of an antitrust violation. And yet we say that... we say that only those people who are directly injured can recover. An indirect purchaser cannot.
G. Robert Blakey: I think--
Byron R. White: This is not a very popular decision among plaintiffs' lawyers.
G. Robert Blakey: --I think my case does not rest on the legislative history, and I'm willing to stick with the text. Nevertheless, in the legislative history it's very clear, as this Court pointed out in Sedima, that one of the reasons RICO was not drafted as an amendment to the Antitrust Act, but rather as a freestanding statute was to avoid precisely narrow standing limitations of antitrust and proximate cause--
Byron R. White: I know, but it used that language "anybody injured in his business or property. " And the antitrust laws, you're not injured in your business or property, within the meaning of the antitrust laws, if you're an indirect purchaser rather than a direct one.
G. Robert Blakey: --The same word in different contexts will have different meanings. The meaning that it ought to have in this context is a function of the purpose that it serves in this statute. In order to avoid precisely those narrow standing limitations and proximate cause limitations, RICO was drafted outside of the antitrust acts, and its liberal construction was enjoined. If his argument is plausible and my argument is plausible, that is to say it's a genuine ambiguity, the statute suggests that this Court ought to take that construction of the statute that enhances its remedial purposes and not--
Byron R. White: You seem to say... you seem to concede that surely there are some kinds of injuries that will be... that would be caused by a securities fraud that would not be recoverable under RICO. Some can be too remote.
G. Robert Blakey: --Well, absolutely.
Byron R. White: And the claim here is that any... anybody injured except the purchaser or seller is just too remote from the fraud to--
G. Robert Blakey: But the purchaser-seller limitation deals with the class who consume, not the nature of the injury or the causation relationship. If it were otherwise, footnote 9 in the Court's opinion in Blue Chip would no longer have meaning. Let me refer to one other case. The language, 1934 act is squarely interpreted by this Court in National Securities... SEC v. National Security... to refer to coverage... that is, the wrongdoer's conduct, and not to the status of the plaintiff. It is precisely that language in 1969 that was incorporated into RICO. Since 1970, this Court has decided 10 RICO appeals. Each time, properly, it has declined to add language to the statute that was not there: not organized crime, not legitimate, not racketeering, not competitive. Indeed, the failure to add racketeering and competitive in Sedima would seem a fortiori to dictate the result in this case. Not in an enterprise in Rusello, not only in Tafflin, and it is not subtracted from property legal fees. We think that this Court in this case ought not to depart from that well-reasoned line... unbroken line of decisions, and add purchaser-seller to RICO.
Antonin Scalia: --I thought you were going to say the odds are against you this time. [Laughter]
G. Robert Blakey: Well, I teach at Notre Dame, and we from time to time act when the odds are against us, unfortunately, not always successfully, as last weekend shows.
Speaker: Not last weekend.
G. Robert Blakey: Thank you.
William H. Rehnquist: Thank you, Mr. Blakey. Mr. Samet, you have 4 minutes remaining.
Jack I. Samet: I don't intend to use them all unless there are questions from the Court. But just two or three brief points. First, it became clear during Professor Blakey's remarks that SIPC is here as a subrogee. And I'd like to make two comments about their position as a subrogee. First, that the concept of subrogation is limited to get reimbursement for what you paid. SIPC isn't seeking reimbursement for what they paid. They're seeking treble damages under RICO. So the whole idea of subrogation and RICO are inconsistent because RICO, 1964(c), mandates treble damages. It says, any person injured in his business or property by reason of a violation, shall sue and shall recover threefold the damages. That's not subrogation. That's an entirely different notion. So the concept of RICO--
Byron R. White: You say wouldn't be suing under RICO if you were just suing for subrogation.
Jack I. Samet: --Exactly. That's point 1. Point 2, SIPC says it's here as a real partied interest in the liquidation proceedings. The fact of the matter is this isn't a liquidation proceeding. The SIPA statute gives SIPC power to appear as a real party in liquidation proceedings. But this is a RICO action, not a liquidation proceeding.
Byron R. White: Well, I know, but they did liquidate them.
Jack I. Samet: Yes, but--
Byron R. White: And they paid out millions of dollars in claims.
Jack I. Samet: --But that doesn't give them standing. For example, SIPC wouldn't have--
Byron R. White: I didn't say it did.
Jack I. Samet: --Okay.
Byron R. White: I didn't say it did, but it was a liquidation.
Jack I. Samet: But this is the claim that we're discussing: SIPC's power to assert. It's as though SIPC came into that terrorist airplane crash, having nothing to do with it, and say, well, we're a party to all proceedings. We have the power to get in here. SIPC must show it has the standing on a specific case basis and its authorization to appear as a real party in liquidation proceedings doesn't give it standing here.
Byron R. White: Like an insurance company coming in.
Jack I. Samet: Yes, that is exactly correct, Mr. Justice White. But third of all, we think that the Blue Chip case was right as it applied to securities law, and is even more right, even though it didn't address RICO, because didn't... it wasn't before the Court at that time.
John Paul Stevens: Of course, the Blue Chip case, you know, cuts against you in a way because that opinion assumed there were classes of investors other than purchasers or sellers who could be directly injured. But they nevertheless followed the old Birnbaum rule and limited standing to purchasers and sellers. So the premise of that decision was that there are a category of people directly harmed by the wrongdoing.
Jack I. Samet: Well, of course we all know the author of that decision sits on this Court and is best... in the best position to describe what the decision meant. But I don't read it that way.
John Paul Stevens: That's what he said in the opinion. He discusses the three classes of harmed persons and said they don't have standing--
Jack I. Samet: I'm sure he would make very clear what he means, but let me tell you what I think he meant, to be corrected, I'm sure, by him. [Laughter] I think that the policy considerations in Blue Chip, the concept of vexatious litigation, the concept of strikes, the concept of bludgeoning settlements are all the more egregious in RICO than they were in the securities law because the stakes are three times as high. And it's interesting, in the amicus here, it's interesting to see who the amici are. They are a group of plaintiffs' attorneys. And what has happened here is there has been massive abuse of civil RICO. President Bush, in his Civil Justice Reform Act, just the other day, was talking about the excesses of civil litigation. In today's Wall Street Journal, there's an article about the SEC is saying they're concerned about the excesses of RICO civil abuse. And I think what has happened is the very concerns that were soundly described in Blue Chip are even more egregious in the RICO area. And hopefully this Court will put a stop to it. Thank you.
William H. Rehnquist: Thank you, Mr. Samet. The case is submitted.


William H. Rehnquist: We'll hear argument now in No. 90-6616, James R. Stringer v. Lee Roy Black. Mr. Rose.
Kenneth J. Rose: Mr. Chief Justice, and may it please the Court: James Stringer was convicted and sentenced to die in Hinds County, Mississippi for a killing during the commission of an attempted robbery. The jury found three statutory aggravating circumstances, one of which was the especially heinous, atrocious, or cruel aggravating circumstance. The jury then found that statutory aggravating circumstances were not outweighed by mitigating circumstances. The Mississippi supreme court affirmed Mr. Stringer's conviction and sentence after a review of the aggravating circumstances. The court below, the United States Court of Appeals for the Fifth Circuit, again affirmed Mr. Stringer's sentence, relying on what it perceived to be Mississippi's rule of automatic affirmance. That is, where there's at least one valid aggravating circumstance, despite the fact that the jury may have also relied on an invalid or unconstitutional aggravating-circumstance, the Mississippi supreme court would automatically affirm the sentence of death without individualized review. This Court vacated Mr. Stringer's sentence and remanded the case for further consideration in light of Clemons v. Mississippi. The Fifth Circuit again affirmed the sentence, this time relying upon the nonretroactivity of Clemons v. Mississippi and Maynard v. Cartwright. Clemons and Maynard represent no new law. We rely on two fundamental principals central to this Court's Eighth Amendment jurisprudence.
Anthony M. Kennedy: Counsel, just at the outset, and you can just do it in the course of your oral argument, but it seems to me the briefs don't meet very well. Mississippi is arguing that even if Clemons was dictated by Godfrey as to the content of the aggravating factor, Mississippi wasn't the kind of State that Georgia was or that Florida was or that Oklahoma was. And that I didn't see addressed in your brief. So I hope during the course of your argument you'll make that clear what your position is.
Kenneth J. Rose: Your Honor, I could go ahead and address that now. Mississippi has always contended that it is a State like Florida, that is, it requires a finding of at least one statutory aggravating circumstance, and then the jury is required to weigh statutory aggravating circumstances against all mitigating circumstances, and the jury is required to make a unanimous finding that statutory aggravating circumstances are not outweighed by mitigating circumstances. Mississippi has compared itself to Florida and has relied upon Florida law in several cases; Coleman v. State, Evans v. State, Gilliard v. State. The State contends that Mississippi is not like Florida, because it says that there is a narrowing done in Mississippi at the definition of capital murder. Our contention is even if that is true, even if Mississippi has defined capital murder in a way similar to Texas where it makes a subclass of persons that may have committed murders eligible for the sentencing phase, that is not... that does not solve the constitutional problem, because Mississippi then allows vague statutory aggravating circumstances to be relied upon by the sentencer, and puts emphasis on those circumstances. In order to be eligible for the death penalty in Mississippi, you have... the jury must make that unanimous finding that aggravating circumstances are not outweighed by mitigating circumstances. So the fact that Mississippi has allowed a vague aggravating circumstance to be considered and relied upon by the jury is a constitutional violation.
Anthony M. Kennedy: But of course, the further question is whether or not that's a new rule under Teague. And it seems to me that Mississippi makes an important point that it has to be... that you have to counter when it says that this simply was not anticipated as of the time of Clemons because of the differences in the States, in the two States' sentencing schemes.
Kenneth J. Rose: Your Honor, Florida has narrowing. And I think that's a... that may be a misconception that Mississippi has narrowing, Florida does not. And then there's balancing in Mississippi and in Florida. Florida has narrowing by the initial finding of an aggravating circumstance. Mississippi has narrowing either by the definition of capital murder or by the initial finding of a statutory aggravating circumstance. But then they both require a weighing. So they're similar in the respect that both have some initial narrowing. But then they both require aggravating circumstances... statutory aggravating circumstances to play a central role. And if... this Court has always held that if a statutory aggravating circumstance is vague, even if it's at that point where it's determining eligibility for the death sentence, where aggravating circumstances are weighed with mitigating circumstances, then there's constitutional error. This Court held in Zant where there was an initial narrowing by an aggravating circumstance, a valid aggravating circumstance, that there still needed to be an individualized determination of the effect of an unconstitutional aggravating circumstance. And this Court accepted Georgia's representation that the effect was inconsequential in Georgia because statutory aggravating circumstances played no special role under the Georgia... played no role under the Georgia scheme beyond the initial narrowing. So the problem in Mississippi and the problem in Georgia that the Court discussed in Zant that was a cause of constitutional error in Zant was not that there was no narrowing at all; the problem was that there a consideration by the jury of a vague statutory aggravating circumstance that introduced an arbitrary and capricious factor.
William H. Rehnquist: Mr. Rose, I understand Mississippi says it relied on Zant. Clemons has been decided. We know that Mississippi is a different situation from Georgia in that respect. But so far as a new rule under Teague, I think you have to show that Mississippi was not entitled to rely on Zant, that, if you would, come as a surprise or whatever Teague said. And to simply show that the two systems are somewhat different I don't think suffices.
Kenneth J. Rose: Your Honor, I would agree. I think... I think that first of all, Godfrey said that you cannot consider vague aggravating circumstances.
William H. Rehnquist: Yes, but that's your Maynard point, that's not your Clemons point, to go back to the Fifth Circuit's analysis.
Kenneth J. Rose: Your Honor, our Clemons point is that there must be some individualized cure once the sentencer has considered a vague statutory aggravating circumstance. And that has always been the case. That was the case even in Georgia, where the statutory aggravating circumstance, the vague statutory aggravating circumstance played no role. So our position is that Georgia required individualized review and this Court approved Georgia's application of its statute in part because it did require some individualized review.
William H. Rehnquist: You know, that probably shows your case is different from Zant, but I think you have to go further in Teague and show that Clemons was not a new rule.
Kenneth J. Rose: Yes, Your Honor, we do have to show Clemons is not a new rule. And I think we can. I think if you look at California v. Ramos as just an example, this Court said that there had to be some substantive... there are some substantive limitations on the factors that the sentencer can consider in determining whether death is the appropriate punishment. And it says what those substantive limitations are. It says those limitations are consideration of vague factors. That's apart from any consideration of the narrowing rule, the initial narrowing rule that every statute must provide. In other words, there's a procedural requirement that every death penalty statute must be, and that is it must circumscribe the persons eligible for the death penalty. And then it may allow the sentencer to consider a myriad of factors in determining punishment. But one factor we know, and we've known it since Zant and we've known it since California v. Ramos, one factor it may not allow juries to consider are vague aggravating circumstances. And the reason that is so is because it introduces an arbitrary and capricious factor into the sentencing proceeding. We don't know what the juries considered when they considered vague aggravating circumstances--
Byron R. White: Are you talking about Maynard now or--
Kenneth J. Rose: --Your Honor, I'm talking about what was applied in Maynard. It was a rule that was not even discussed, I might add.
Byron R. White: --But you're going to get to Clemons pretty soon, I guess.
Kenneth J. Rose: Yes, Your Honor. The... I'll go on to Clemons.
Byron R. White: That's all right. I just thought you were about to talk about Clemons.
Kenneth J. Rose: Clemons had stated that there is some requirement of individualized review. And in particular, it said a weighing State may allow the State appellate court to either reweigh or apply a harmless error analysis as long as there is some individualized review of the facts and circumstances of the case. That is not new law. That has been in the rules since Eddings, Zant, and Barclay. In Barclay, for example, this Court reviewed an invalid aggravating circumstance that was not constitutionally invalid, but was invalid as a matter of State law. This Court said in Barclay that the critical question was whether the invalid aggravating circumstance so infected the balance in process created by the Florida statute that it was constitutionally impermissible to allow the sentence to stand. Now that requires individualized review, because it looks at the statute, the Florida statute, the balancing process that has been established, and it requires the State appellate court to do some individualized consideration of the factors that were presented in the court below.
William H. Rehnquist: Do you deduce all of that just from that one sentence in Barclay?
Kenneth J. Rose: Your Honor, no, sir. There was more language in Barclay. They talked about Barclay applying a harmless error test. They considered the fact that there were no mitigating circumstances introduced in Barclay, and said that the court, the Florida court did do individualized review and said that was what was important. The specific language in Barclay that supports our position that said what is required is some individualized review... some individualized consideration of the facts and circumstances of the case. The vast majority of State and Federal courts since Zant and Barclay have understood the required analysis. They've understood first you had to determine whether or not there were vague aggravating circumstances employed in the sentencing determination. If there were, then the court had to do some determination, individualized determination of the effect of those aggravating circumstances. That individualized consideration had to also include a consideration of the mitigating factors that were introduced in the court below. Mississippi has done none of that. And it stands alone in doing none of that until Clemons. This Court's decisions on retroactivity during the last 3 or 4 years had one unifying theme, and that is similarly situated persons must be treated alike. And for that reason it's particularly important that the two basic principles that James Stringer asked to be applied in his case have already been applied in a postconviction context. In Parker v. Dugger, this Court applied in a postconviction context the principle that there must be some individualized review of error. There was a question of whether there was error. The State of Florida said yes, there is error under State law, and apparently did not apply an individualized review, either a harmless error test or a reweighing. And this Court said that at a minimum some individualized review is required applying the principles in Clemons. That is the same principle that James Stringer seeks to have applied in his case. It has already been applied in a postconviction context. Secondly, in Lewis v. Jeffers, this Court applied the basic principal that James Stringer seeks to have applied in this case... in his case, and that is you cannot use a vague statutory aggravating circumstance in determining sentence. Now, the question again in Lewis v. Jeffers was on the periphery. Well, had Arizona developed a case law that has narrowed the construction of its equivalent of the especially heinous, atrocious or cruel aggravating circumstance in such a manner that it was not applied in a vague way. And the Court answered that question yes. But the basic principle that you cannot use vague statutory aggravating circumstances was accepted and there was no debate that that principle should be applied in Lewis v. Jeffers. In conclusion, this Court was right to apply on habeas review the long-established principles that were the premise for Cartwright and Clemons, including that the sentencer cannot rely upon vague statutory aggravating circumstances. And if the sentencer does rely on such circumstances, there must be some type of individualized review by the State appellate court to cure the error. That was a law... that is the law now and that was clearly the law in 1985 when James Stringer's conviction became final.
William H. Rehnquist: Thank you, Mr. Rose. Mr. White, we'll hear from you.
Marvin L. White, Jr.: Mr. Chief Justice, and may it please the Court: In Gregg and in Zant both, this Court stated that each distinct scheme for imposing the sentence of death on a defendant must be examined on an individual basis, and that's what we're asking you to do with the Mississippi scheme here. In order to answer the question that is before the Court today, that is whether Clemons or Maynard are to be retroactively applied, we must examine how the Mississippi statutory scheme works and operates in the imposition of a death sentence. This is because the scheme found in Mississippi is almost unique. There's only one other State that has a statute like that, and that is Louisiana.
Sandra Day O'Connor: And was Lowenfield v. Phelps from Louisiana?
Marvin L. White, Jr.: Yes, ma'am... yes, Your Honor.
Sandra Day O'Connor: And did we say there that only one narrowing procedure is constitutionally required?
Marvin L. White, Jr.: You said that, there in Lowenfield, that... and I interpreted as saying yes... that in Lowenfield that the Constitution... the last sentence of the opinion says that the narrowing, constitutional narrowing is done by the finding of guilt of one of the narrowly defined crimes, and the Constitution requires no more.
Sandra Day O'Connor: So then, the State is permitted to use vague aggravating circumstances thereafter if it wants to, is that the theory you offer?
Marvin L. White, Jr.: The... that is not the theory. That the... it does not infringe on the Constitution to have those aggravating circumstances if they're even vaguely defined in comparison with Godfrey even, or Zant, I should say, is that--
Sandra Day O'Connor: Well, your position is that they can be vague, and under a standard that you would apply to a constitutional inquiry, but still stand up.
Marvin L. White, Jr.: --That's correct.
Sandra Day O'Connor: That's your... so that Maynard doesn't apply at all.
Marvin L. White, Jr.: That's correct. And because as in Johnson v. Thigpen, as the Fifth Circuit found, and as we have argued contrary to counsel opposite, that we have always said we were like Florida, we have not. The decision in Johnson v. Thigpen would not be there had we argued otherwise.
Byron R. White: Well, in this case it was still necessary to find an aggravating circumstance.
Marvin L. White, Jr.: That's correct, under State law.
Byron R. White: Yes, and so the jury had to find an aggravating circumstance.
Marvin L. White, Jr.: That's correct.
Byron R. White: In addition to the narrowing.
Marvin L. White, Jr.: That's correct.
Byron R. White: And you say the jury could be... could satisfy that requirement by finding an aggravating circumstance that's just plain outright vague.
Marvin L. White, Jr.: That's correct, because it's not constitutionally required.
Byron R. White: Well, your brother, I think-- --But the State law requires it.
Marvin L. White, Jr.: That's correct.
David H. Souter: I think your brother is arguing that you've got a two-step narrowing procedure, and he is saying, at least I think he's saying implicitly, that if you do employ a two-step narrowing procedure, the standards applicable to, we'll say the second step, should be the same applicable to the first and there's nothing new about applying a given standard. The only thing different about your situation is that you have a two-step process rather than a one-step process.
Marvin L. White, Jr.: Well, if in Lowenfield... and the Mississippi statute operates as does the Louisiana statute... if the narrowing... that all the Constitution requires is that narrowing to limit the class of people for who the death penalty may be imposed is constitutionally completed or established by the finding of guilt of one of the narrowly defined crimes... and Lowenfield said the Constitution requires no more. If we on the State law basis go further and require a further narrowing, we contend it doesn't--
Byron R. White: Well, didn't the Fifth Circuit find this instruction invalid for vagueness?
Marvin L. White, Jr.: --In this case?
Speaker: Yes.
Marvin L. White, Jr.: No. Well, I mean they never reached that. They just said it was... that Teague did not apply... I mean that Teague barred its application on remand. The first time through, they said that if it isn't vague or invalid in this particular case, yes, that there were other valid aggravating circumstances that allowed this to be affirmed. And the issue, of course, going back to the Fifth Circuit's opinion in Johnson v. Thigpen, we say that even if this is to be looked at this way, that Lowenfield... I mean Lowenfield and Johnson v. Thigpen both allow us to rely on this as a new rule, especially in Maynard. I mean, and Maynard coming from Godfrey, and the Fifth Circuit held in Johnson v. Thigpen that this very instruction was not even cognizable in habeas.
Anthony M. Kennedy: Well, in your view are Lowenfield and Clemons contradictory?
Marvin L. White, Jr.: To some extent. When you say that the aggravating circumstances in Mississippi take on a constitutional significance, then it conflicts with Lowenfield in that respect, in that we have to do... they also have to meet the same test as the narrowing factors that the Court held required by law in Lowenfield.
Anthony M. Kennedy: Of course you didn't argue that in Clemons and we didn't address it in Clemons.
Marvin L. White, Jr.: You didn't address it in Clemons. It is argued not as forcefully as it is here, but it was argued that the aggravating circumstances in Mississippi do not have the same constitutional significance as they do in Georgia, Florida, and Oklahoma. That as I say, the argument is made there in Clemons, and it was made before that in Johnson v. Mississippi.
Anthony M. Kennedy: It would seem that if it were a matter of a new rule of the significance you say, that we would have addressed it in Clemons.
Marvin L. White, Jr.: Probably so, but we weren't discussing, I don't think, new rules at that point, of whether this was a new ruling. Clemons, as the Court started off its opinion by saying, that we are now addressing the question that we left open in Zant. I mean I think that is almost a total answer of the question whether it's a new rule or not there, because if the Court has never spoken to this issue and they speak to it, and that's what the Court said, the opinion says in Clemons, we now address that question we left open in Zant. And our court had been relying on Zant all this time in doing so. And now Clemons comes down and says that you have to do it another way, that you have to do a reweighing or a harmless error analysis now instead of just what you have been doing under Zant... or relying on Zant in doing that. So the... of course as we said, the aggravating factors under the Mississippi statute act as actually a second filter that's not constitutionally required, and of course, reading Lowenfield, I think it is consistent with the way the Mississippi statute operates is that these aggravating factors take on a different significance under the Mississippi statute... under the Louisiana statute than they do in Georgia, Florida, and Oklahoma. We define narrowly as does Texas. We define narrowly as does Louisiana. And this Court has said that no more was required. So if Clemons stands for the fact that yes, there is... these aggravating circumstances in Mississippi do have constitutional significance, then that is a new rule because it has not been stated before. And as relying on the ruling in Johnson v. Thigpen out of the Fifth Circuit where they said the aggravating circumstances had no constitutional significance, were not even cognizable in Federal habeas, and that takes care of both Maynard and Clemons as being new rules there, because both of them address aggravating circumstances and the same aggravating circumstance, for that matter. In other words, the Court is actually for the first time saying that relevant admissible truthful evidence presented during... to the jury during a sentence phase of a capital trial was given constitutional significance because it was denoted in aggravating circumstance. In Georgia, the statute there... the court has said there that narrowing is performed by the aggravating circumstance. And then the jury can consider anything. It doesn't have to be defined. It's wide open. They consider a whole myriad of aggravating factors, but they're not statutorily listed. And they can consider any evidence before them that's relevant. Why does it change because we denoted an aggravating factor, and basically limit that to that respect?
Sandra Day O'Connor: Well, I gather that the Mississippi supreme court has compared itself really more to Florida. I don't... and it has assumed that Maynard and Clemons apply to it.
Marvin L. White, Jr.: Yes.
Sandra Day O'Connor: I think you're arguing a position not taken by your State supreme court.
Marvin L. White, Jr.: I think that they took that tack after--
Speaker: Isn't that right?
Marvin L. White, Jr.: --Well, in Clemons, it's the first time they actually took that tack, that said yes, it is. Up until that time, the court said no. And in the concurring opinion in Johnson... Jones v. State, Montecarlo Jones v. State, the concurrence talks about Johnson v. Thigpen and says the Federal courts, being neutral observers, have found no constitutional infirmity or even constitutional necessity in our aggravating circumstances. Yes, I think on a State law basis they have looked to Florida somewhat in the aggravating circumstance area. But they stand for different purposes. I mean, Florida's aggravating circumstance... and our State has given some significance to these, you know, under State law, this is the way that it has to be. And we have... you have to find these things in order to take that second step and weigh those aggravating and mitigating circumstances, and then the jury must find whether or not death is the appropriate sentence after, and if the aggravating circumstances outweigh I think, in this particular case, it must outweigh the mitigating circumstances. Under the statute, the mitigating have to outweigh the aggravating, but that's no... just here it's just turned around. But we're considering evidence... we don't have evidence coming to the jury that they couldn't have before them in any other... you know, it was totally admissible, everything that was considered in relation to the especially heinous, atrocious or cruel aggravating factor... photographs, the argument, everything in support. Even had it not been denoted an aggravating factor, the jury still could have considered it. And Mississippi does allow for the consideration of nonstatutory aggravating factors, they have to find the others, but the jury can certainly consider those. They have said in Jordan v. State, and just most recently in Hanson v. State, that the jury certainly can consider nonstatutory aggravating circumstances. They can't rest the death penalty solely on that as a finding there, but they can certainly consider them in assessing whether or not the death penalty should be imposed. And that's the ones that they have mentioned, mainly, as future dangerousness. So we look to that. They can consider these other factors other than that, but they do have to find at least one aggravating circumstance. And as we contend under Mississippi law, is contrary to Godfrey, a jury in Mississippi could never return a death sentence based solely on especially heinous, atrocious, and cruel. They have first always found that defendant guilty of one of the narrowly defined crimes set out... and there were seven crimes set out in our statute that carry or elevate the crime to a capital murder offense. And then after they have been convicted of that, then the jury must look at aggravating factors. We have never had a jury come back with a verdict even at that, and have solely the especially heinous, atrocious, and cruel aggravating factor as the only aggravating factor that they considered. So even if you had a, as Justice Souter was talking, the second narrowing or a double narrowing statute... and we've called it a double narrowing statute. That's not something that we have not used a term in describing our statute, that is a double narrowing statute. Even so, when you look at that, it's what makes that second one the finding of one aggravating circumstance, then you get into a Zant-type analysis then and what is the effect of the invalid aggravating circumstance at that point. Does it then skew that balance to the point, and of course, looking at Barclay and Goode, and the type of analysis this Court and the Florida court made in both those cases, it's no different than what the Mississippi supreme court has been doing all these years in those cases. It's not what was stated in Clemons. Petitioner brings up Parker v. Dugger; of course, retroactivity is not raised in Parker v. Dugger. It was not addressed in the briefs. It was not addressed in oral argument. And whether that was an oversight... whatever it was, we do not feel that it is compelling or a binding precedent that Clemons has to be applied in this case. The cases are differently situated anyway. Because... basically because of the way the statutes operate and because of the manner in which they do.
Anthony M. Kennedy: Am I correct that you did not make the Teague argument in Clemons?
Marvin L. White, Jr.: Teague was a direct appeal case and we could not--
Anthony M. Kennedy: Oh, that's correct.
Marvin L. White, Jr.: --There was no Teague argument to make there. This, in fact, this case, Smith v. Black, and Hill v. Black, all came to the Fifth Circuit after Clemons, or either were... had hardly been decided in this Court, sent back for reconsideration in light of Clemons. And our argument there was that this case in fact, this is a new rule and that it is, you know, Teague barred from retroactive effect of these opinions, both Maynard and Clemons. The Fifth Circuit's main opinion in this, of course, is not in this case. It is in Smith v. Black where Judge King has written a quite lengthy analysis of why these precedents... this precedent especially, the Clemons precedent, is not retroactive. In the particular case, bar, the Fifth Circuit basically just said we adopt and we reaffirm and reinstate our earlier judgment based on Smith v. Black, the same thing they have done also in a case called Hill v. Black, which was also sent back for reconsideration in light of Clemons. So we have two other cases, at least two other cases pending on this same issue in the Fifth Circuit, before this Court, in fact. Smith is already before this Court. But that is where the full opinion is delineating how the Fifth Circuit arrived at that. And I think Judge King's analysis there is very clear that this is the first time that constitutional limits had been put on how aggravating factors ought to be considered in Mississippi because of the difference in the statutes. And because we do have, and this Court's precedent allows for, difference in the manner in which we apply our statutes or the statutes that are operating, then we can say... we contend that we have to look at the individual statute and how it operates in order to decide whether or not certain precedents would have retroactive effect on that particular statute. And of course, we would further contend that the... that this is simply a procedurally... and it doesn't fit into the exceptions of Teague either. First, it doesn't outlaw any private conduct or anything like that. It's not a watershed rule. Both our decisions relating to procedurally flawed contemplation or review are relevant evidence, and that's not something that would kick in the second exception to Teague. Thank you.
William H. Rehnquist: Thank you, Mr. White. Mr. Rose, do you have rebuttal?
Kenneth J. Rose: Yes, Your Honor, I do. The State's basic premise is that a State could reasonably permit, before Clemons and Cartwright, could reasonably permit the jury to consider vague statutory aggravating circumstances to determine eligibility under its State's statutory scheme. Certainly a State can define its statutory scheme within broad contours. But if that State has determined that statutory aggravating circumstances play an important role in determining eligibility for sentence, as Mississippi has, each statutory aggravating circumstance must meet a constitutional narrow standard derived from Furman.
Anthony M. Kennedy: And Lowenfield is not controlling on that point because?
Kenneth J. Rose: Your Honor, Lowenfield is not at all controlling, and that has no relevance to the question, because Lowenfield just defines the point where there has to be... what is constitutionally permitted for a State to do. Louisiana was permitted to use the equivalent of aggravating circumstances at the definitional stage of first-degree murder. Mississippi was not permitted, and Lowenfield does not address what has happened in Mississippi, and that is... and in this case... and that is after the initial narrowing stage is met, there is then injected a vague statutory aggravating circumstance which the jury is told to put emphasis on and rely upon in determining further eligibility for a sentence. Lowenfield has nothing to do with that. Johnson v. Thigpen, in answer to Justice White's question, did the Fifth Circuit find that Mississippi's construction of especially heinous, atrocious, or cruel, was vague. The Fifth Circuit found that it was vague in Johnson v. Thigpen, and in later cases assumed that it had no narrowing construction that had been consistently applied. And it was only after it had got to that point that it then decided that well, it didn't make any difference that this vague aggravating circumstance played a role in determining eligibility for punishment.
Byron R. White: They were wrong about that in Clemons?
Kenneth J. Rose: Your Honor, they were wrong on that under Zant.
Byron R. White: Well, yes, yes.
Kenneth J. Rose: Because Zant said that it was constitutional error for the sentencer to consider vague statutory aggravating circumstances. Chief Justice Rehnquist, in his opinion in Barclay, called what this Court did in Zant a constitutional harmless error test. In other words, there was constitutional error, and what the Court did in Zant was determine whether it had an effect on the sentencer. And the determination had to be made after careful scrutiny.
Byron R. White: Yes, but didn't we, in Zant, didn't it just leave open the question of the significance of the invalidity of one of several aggravating circumstances in a balancing State, in a weighing State?
Kenneth J. Rose: Your Honor, the question--
Byron R. White: Is it yes or no?
Kenneth J. Rose: --Your Honor, the question is yes, but what was left open was whether or not a State was required to automatically reverse based on a vague stat... in a weighing State, we know that each statutory aggravating circumstance found by the jury plays an important role. That's the question this Court answered against the petitioner in Clemons v. Mississippi. And in Zant, that was the question the Court was also asking. Under Georgia law, did... was the State of Georgia required to automatically reverse when the sentencer considered a vague aggravating circumstance? And it said... and the Court answered the question about--
Byron R. White: Well, surely Clemons was, in that respect was a new rule on the Fifth Circuit, wasn't it?
Kenneth J. Rose: --Clemons reversed the Fifth Circuit, Your Honor. The Fifth Circuit was wrong.
Byron R. White: So it was a new rule somewhere and it-- --It did not reverse the Fifth Circuit in that case, since that came from the supreme court of Mississippi.
Kenneth J. Rose: Yes, Your Honor.
William H. Rehnquist: It disagreed with the Fifth Circuit, and obviously when we disagree with the Fifth Circuit, the Fifth Circuit was wrong.
Kenneth J. Rose: That's right, Your Honor. [Laughter] And not a single Justice on this Court differed on the analysis that the Court applied in Clemons. It was understood that once a sentencer relies upon a vague statutory aggravating circumstance, that there is error and the State must--
Byron R. White: Well, that's the Maynard. That's the Maynard argument.
Kenneth J. Rose: --The counsel opposite has argued that Mississippi does not limit consideration, the weighing stage, to just statutory aggravating facts supporting the statutory aggravating circumstance. And that's incorrect. In Mississippi has interpreted its laws very narrowly constraining what the jury may consider at the weighing stage. It said... it has said in Coleman v. State that it can only... the jury can only consider facts relevant to the statutory aggravated circumstance. And that's significant. Because in Zant the question asked was what is the function... the constitutional question is controlled by the function of aggravating circumstances under the State law. Well, Mississippi said, we have a prominent function under our law, and yet we're still going to ignore the effect of the vague statutory aggravating circumstance without any individualized review. That was impermissible as of Zant, that was impermissible as of Barclay v. Florida. And specifically in California v. Ramos, this Court said that what Gregg meant is that are substantive limitations on factors that a sentencer may consider. And it didn't matter what--
William H. Rehnquist: Mr. Rose, you've mentioned California v. Ramos a couple of times in your oral argument. Apparently you don't cite it in your brief?
Kenneth J. Rose: --No, Your Honor.
William H. Rehnquist: You don't?
Kenneth J. Rose: I do not cite it in my brief. But the State cites it in their brief, and that's why I'm responding in this manner. The State has... the State has raised a point that we do not address, as Justice Kennedy stated before, we do not address because we considered it fundamental. The fundamental principle... and this Court considered it fundamental in Maynard v. Cartwright and Clemons... the fundamental principal that if a vague aggravating circumstance is injected into the jury's consideration, there is constitutional error. Because that's what... that's what the problem was in Furman. That's what this Court tried to cure, or allowed to be cured, in Gregg v. Georgia and Proffitt v. Florida. And found that it had not been cured in the particular case in Godfrey v. Georgia. If there are no further questions, thank you.
William H. Rehnquist: Thank you, Mr. Rose. The case is submitted.