Albernaz v. United States – Oral Argument – January 19, 1981

Media for Albernaz v. United States

Audio Transcription for Opinion Announcement – March 09, 1981 in Albernaz v. United States

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Warren E. Burger:

— is submitted.

We’ll resume at 1:00 with Albernaz against United States.

Ms. Mizner, you may proceed whenever you’re ready.

Judith H. Mizner:

Mr. Chief Justice, and may it please the Court.

This case presents the question of whether consecutive sentences can be imposed for separately charged violations of two conspiracy provisions of the 1970 Drug Abuse Prevention and Control Act, where those two provisions were violated by what the court below found as a matter of fact, to be a single conspiracy with dual objectives.

The facts were briefly that following the seizure of a large quantity of marihuana from a freighter on the high seas, petitioners Albernaz and Rodriguez and 16 others were charged in a two-count indictment.

Count one, charged a conspiracy to import marihuana in violation of 21 U. S. C. Section 963.

Count two, charged a conspiracy to distribute marihuana in violation of Section 846.

Now, the two counts were absolutely identical as to the alleged conspirators, the alleged time and locus of the conspiracy, and the overt act set forth in furtherance in each count.

They differ only in the object of the conspiracy alleged and in the statutory provision that was allegedly violated.

From the outset, the prosecution triggered the two statutory violations as a single conspiracy.

Stating in his opening that the conspiracy charged in two counts is actually a single conspiracy, that at all times, the planning was the same to go find someone with a boat with reliable people to go out to sea and meet the freighter.

And the Government’s evidence focused on the petitioners’ involvement in arranging to bring the marihuana from this freighter offshore to the United States.

However, since the petitioners had enlisted the aid of Drug Enforcement Administration agents to provide the boat to transport the marihuana, the plan never came to fruition.

The — after some of the cargo was transferred, the Coast Guard moved in and seized the freighter and the petitioners and two others were arrested in Florida later that day.

William J. Brennan, Jr.:

The conspiracies here are conspiracy to import and conspiracy to distribute.

Judith H. Mizner:

Yes (Voice Overlap)

William J. Brennan, Jr.:

Nothing about simple possession?

Judith H. Mizner:

No, they were charged as simply a conspiracy to import and a separate count of conspiracy to distribute.

But, in fact, they were based on the same facts — (Voice Overlap)

William J. Brennan, Jr.:

Right.

I understand that.

Judith H. Mizner:

— and the Court would have found a single conspiracy.

And indeed the evidence that the Court used to permit the finding of the plan to distribute was evidence that was also relevant to the plan to import and it was evidence that the court found could be inferred a plan to distribute but not a separate independent distinct conspiracy to distribute.

Now en banc, the Fifth Circuit reaffirmed this finding of a single conspiracy but affirmed the imposition of the consecutive sentences on the — on a finding of congressional intent to authorize and a finding that there was no double jeopardy involved here.

Now, a number of recent opinions, this Court has stated that in determining whether multiple punishment for separate statutory violations that arise out of the same transaction are permissible, the first and primary question is whether Congress intended to authorize such punishment.

If Congress didn’t intend to authorize multiple punishment, that’s the end of the inquiry.

Now, the congressional intent must be clear and unambiguous because criminal statutes must be strictly construed and the rule of lenity requires that ambiguity be resolved in favor of the defendant.

William H. Rehnquist:

What do you have going for you here besides the rule of lenity?

Judith H. Mizner:

As — the legislative history provides an affirmative explanation for the existence of the two separate conspiracy provisions that has nothing to do with any intent to impose multiple punishments for a single conspiracy that has two objectives that happened to fall on each side of the subchapter line, an artificially divided subchapter line.

William H. Rehnquist:

But that would not be an argument that relies on the Braverman case.

Judith H. Mizner:

No, this is a question of congressional intent of using the legislative history to support — to show that there is no affirmative congressional intent to impose multiple punishments or that at best, it is so ambiguous that the rule of lenity must be applied to —

William J. Brennan, Jr.:

Is the inquiry pretty much the same as in Simpson and Busic?

Judith H. Mizner:

Yes, Your Honor, it is.

Warren E. Burger:

Isn’t the rule of lenity a discretionary concept or how would you describe that?

Judith H. Mizner:

Well, I suggest that it has constitutional overtones in terms of being based on a desire not to impose punishment — additional punishment unless Congress has spoken clearly and unambiguously, unless Congress has provided fair and clear adequate warning, which an adequate warning in clarity is an integral part of due process of law.

William H. Rehnquist:

But of course you don’t impose punishment initially.

Judith H. Mizner:

Excuse me, Your Honor.

William H. Rehnquist:

You don’t impose punishment initially unless Congress has spoken clearly and ambiguously.

So there’s nothing different in the second sentence from the — from the first sentence in that sense.

If — if Congress has — has laid down the standard like in Lanzetta where it’s difficult to figure out what it means, you apply the rule of lenity and say, “We just don’t know what it means and therefore, we won’t convict.”

Judith H. Mizner:

But this goes beyond that to go beyond the situation where a statute is facially void for vagueness to a situation where it’s the application of two statutes to a particular factual situation rather than —

Potter Stewart:

Ms. Mizner, the hypothesis for the application of the rule of lenity has to be that it’s ambiguous whether a course of conduct constitutes one offense or two.

There has to be uncertainty about that particular problem, doesn’t there?

Judith H. Mizner:

Well — I —

Potter Stewart:

And — and if — and if there is uncertainty, then the rule of lenity requires that a court find that the intent was to — impose only one punishment, isn’t that it?

Judith H. Mizner:

Well, it goes beyond that because Congress may well have not intended to impose multiple punishments where two statutes that under a strict application may not be technically the same offense when those two offenses occur in the same criminal episode or the same criminal transaction, Congress might not have intended multiple punishment.

Potter Stewart:

Well, exactly.

And the rule of lenity has nothing to do with double jeopardy —

Judith H. Mizner:

No.

Potter Stewart:

— which is an absolute prohibition and the rule of lenity simply says that when it’s not clear that two offenses were intended, then it shall be presumed that there is only one, isn’t that it?

Judith H. Mizner:

Well, I think it’s — it’s more than that — than a strict application of two offenses or one offense under — it depends how you’re defining that equation.

The Government has argued that these are not the same offenses under the Blockburger test.

Potter Stewart:

Well, maybe they’re not that —

Judith H. Mizner:

But then it —

Potter Stewart:

— unless Congress — if it’s not clear that Congress intended that two separate punishments be imposed then regardless of any Blockburger test —

Judith H. Mizner:

That’s right.

Potter Stewart:

— then the rule of lenity says only one —

Judith H. Mizner:

Only one.

Potter Stewart:

— should be imposed.

Potter Stewart:

Isn’t that correct?

Judith H. Mizner:

That — that is our position.

Yes.

Potter Stewart:

Well, that — that is the rule of lenity, isn’t it?

Judith H. Mizner:

Yes.

Potter Stewart:

And its hypothesis is that there be an ambiguity as to whether one or two punishments are to be imposed.

Judith H. Mizner:

Yes.

And —

Potter Stewart:

And you say there’s an obvious ambiguity here because the — the court said or construed it’ll come out in different ways.

Judith H. Mizner:

That’s one indicia of ambiguity.

Potter Stewart:

And that’s one — one clear indicium of — of ambiguity.

Judith H. Mizner:

And another indicium is the way that the Government has treated prosecutions that involve this — this type of conspiracy —

Potter Stewart:

Yes.

Judith H. Mizner:

— charging them both in one count —

Potter Stewart:

Right.

Judith H. Mizner:

— and in two counts.

Potter Stewart:

Right.

Warren E. Burger:

Would you say that we begin to think about turning our minds to the rule of lenity and about the same situation that we turned to the legislative history if we find ambiguity in the statute but not otherwise?

Judith H. Mizner:

Well, I believe that you can look at the legislative history even if the language is — is clear on its face but I believe that here —

Warren E. Burger:

Well, we can but do we?

Do — is there a rule that we look to the (Voice Overlap)

Judith H. Mizner:

No, it’s — it’s a discretion, Your Honor.

Warren E. Burger:

— the statute is clear.

Isn’t it that the plain meaning rule?

Judith H. Mizner:

Well, but this is the — the kind of case we are talking about the — not the plain meaning, not the facial clarity of the words themselves, but their joint and simultaneous application to a particular fact context.

Warren E. Burger:

Well, If the language of the statue, to go back to Justice Stewart’s discussion with you, if the plain meaning of the statute is apparent, do we look either to the legislative history or have you given any thought about the rule of lenity?

Judith H. Mizner:

We don’t have that situation here because the —

Warren E. Burger:

Well, I didn’t ask you whether we had it.

I just said “if” — if it’s plain, because it might be plain to someone and not be plain to others.

Judith H. Mizner:

Well, in that case I’ll suggest that if it’s plain to some and not to others then there’s an ambiguity that must be resolved by looking at —

Warren E. Burger:

But the ones who do —

Judith H. Mizner:

— the legislative history.

Warren E. Burger:

— the people who think it’s plain would — are not likely to agree that there’s an ambiguity.

William H. Rehnquist:

Are you contending then that out of the 93 judicial districts in the United States, if you can find one district judge to say that it’s ambiguous, the rule of lenity applies because we have one judge saying it’s ambiguous even though 92 others say it’s not ambiguous?

Warren E. Burger:

I’m saying that might be one indicia of ambiguity, but here — but here we have more than that.

We have statutes that on their face say nothing about how they are to be applied in the context of a single conspiracy that’s charged as violating both provisions.

It’s — it’s like the situation in Whalen and Busic and Simpson and Jeffers where there are two separate statutes that are not void for vagueness, but in terms of how they are to be applied in a particular factual context where there’s a single criminal episode, then there is some ambiguity that must be resolved by looking at legislative intent and other tools of —

When you say that — you say there’s a single criminal episode, a person may be convicted, therefore a conspiracy without norm, is that not so?

Judith H. Mizner:

That’s true.

Warren E. Burger:

And then if the conspiracy is executed that’s a separate crime, isn’t it?

Judith H. Mizner:

Yes.

This — this Court has over the past years — the conspiracy is — is a somewhat unique area and this Court and other courts have drawn lines and have said that as a matter of history, tradition and because you have different — you’re penalizing different objectives, you can punish the conspiracy and the substantive offense because the purpose of the conspiracy is to punish the agreement which is the evil rather than the objective which forms the substantive offense.

Looking at the legislative history in this case, the Government has conceded that it’s silent on the question of multiple punishments.

I suggest it goes beyond silence and provides an affirmative explanation for the existence of the two provisions.

It has nothing to do with intent to impose multiple punishment for a single conspiracy.

As proposed to the Congress by the administrational legislation that turned out to be the 1970 Drug Act, had one conspiracy provision that penalized all offenses.

And that’s the way it went through the Senate as one conspiracy provision.

In the House, because of the intricacies of committee jurisdiction and House ways and means desired to retain control over import and export provisions, the legislation was divided between that committee and the Interstate and Foreign Commerce Committee.

Harry A. Blackmun:

But doesn’t that in itself suggest that the House perceived that importation and distribution pose distinct social evils?

Judith H. Mizner:

No.

I think that what it suggests is a division according to whether these were domestic offenses or whether they were internal — external offenses in to — and in some way to further congressional committee jurisdiction.

If you look at Section 801 of the Act which sets out the congressional findings as to what are the social dangers, you find that they list importation, manufacture, distribution, possession all equally.

There is no indication that importation is any more heinous than any of the others.

Yet a conspiracy to manufacture and distribute is punishable under one conspiracy provision, 846.

I suggest that manufacture is the functional equivalent of importation.

It puts a substance —

Harry A. Blackmun:

Well, you would explain it in a way than purely on a committee structure of the House of Representatives?

Judith H. Mizner:

I would suggest that that is — that is an affirmative explanation as to why there are two separate provisions as opposed to the one that is proposed by the administration and it went through the Senate.

And in addition, Senator Dodd in — said that he perceived no major difference between the House and the Senate legislation.

And certainly, if you’re talking about the —

Harry A. Blackmun:

Well, could I — I interrupt you at that point?

Do you have a copy or brief in front of you?

Judith H. Mizner:

Yes, Your Honor.

Harry A. Blackmun:

Would you turn to page 19.

Judith H. Mizner:

Right I notice the —

Byron R. White:

We’re going to make —

Judith H. Mizner:

— this citation —

Harry A. Blackmun:

— reference —

Judith H. Mizner:

— is missing.

And it’s —

Harry A. Blackmun:

And indeed it is and I’d like you to give it to me.

Judith H. Mizner:

It is the October 6, 1970 Congressional Record —

Harry A. Blackmun:

You can do it afterward but I’d like you to if you would —

Judith H. Mizner:

(Voice overlap) — page numbers.

Harry A. Blackmun:

— write a letter to the clerk —

Judith H. Mizner:

Certainly.

Harry A. Blackmun:

— to give us that specific citation.

Judith H. Mizner:

I shall.

Harry A. Blackmun:

I’ll confess — I tried to find it in the cursory examination and I would like it.

Judith H. Mizner:

I will provide that tomorrow.

Looking at the — at the statutory structure, as well as the legislative history, also supports a conclusion that Congress didn’t really intend to impose multiple punishment for a single conspiracy because of the — the possibility that a conspiracy with two objectives that fall on — in one subchapter are penalized only under on statute, for example, the manufacture, distribution which is analogous to the importation, distribution.

And there’s no rational basis for assuming that — that Congress would intend to punish those two types of conspiracies differently.

And the Government has conceded in its brief —

Harry A. Blackmun:

Ms. Mizner, let — let me pose a hypothetical.

Suppose there were a statute that a conspiracy to import and distribute shall be punished twice as severely as a conspiracy to do either one alone, would that in your estimation be violative of the Double Jeopardy Clause?

Judith H. Mizner:

Well, I suggest that because of the interplay of two factors, one of which is the unique — somewhat unique aspect of conspiracy law and the other is the fact that importation and distribution are basically two integrally-related and almost inseparable offenses in most circumstances —

Warren E. Burger:

Well, what if the person was importing for his own use?

Judith H. Mizner:

I suggest that that’s a very rare —

Warren E. Burger:

Well, —

Judith H. Mizner:

— circumstance.

Warren E. Burger:

What difference does it make whether it’s rare or —

Judith H. Mizner:

— And —

Warren E. Burger:

— uncommon?

Is it a crime to import for your own use?

Judith H. Mizner:

Yes, it is a crime —

Warren E. Burger:

And —

Judith H. Mizner:

— to import for your own use.

Warren E. Burger:

— to sell some to some other people.

That’s a crime, isn’t it?

Judith H. Mizner:

Yes, but we’re talking about conspiracy which is simply the agreement.

Warren E. Burger:

Well, I was addressing myself to your thought that — that there is no difference between importing for your own personal use and importing for a distribution to —

Judith H. Mizner:

I’m — I’m not suggesting that there’s no difference.

I’m suggesting that — that they are kind of — in most context, very interrelated.

Warren E. Burger:

Well, of course they’re related.

You don’t — if you’re going to distribute it, you’ve got to import it in some way.

Judith H. Mizner:

Well, it’s — it would be —

Warren E. Burger:

But you’re not suggesting they can’t be made two separate crimes.

Judith H. Mizner:

Oh no, no.

I’m not suggesting that the substantive offenses cannot be made separate and I’m not suggesting that if you have two different agreements to do each of those objectives, you couldn’t be punished separately.

I’m saying that where you have one agreement that involves both of those objectives, then it raises questions as to whether this is the place where the Court should draw lines as it has done in other areas of conspiracy law and say that you cannot — that to subdivide a single agreement with two very closely related objectives simply means some fundamental sense does constitute multiple punishment for the same offense and cannot be imposed constantly with the protections of the Double Jeopardy Clause.

William H. Rehnquist:

Well then you would really require a metaphysical approach to the thing as it — that there is only a certain atom or that you can’t split atoms of crime, something to that effect.

Judith H. Mizner:

Well, I’m saying that — that conspiracy is kind of a — a different animal, particularly this kind of conspiracy where you don’t need, under the drug statute, you don’t even need an overt act.

It’s simply a crime of agreement.

If — if you sit in a room with someone and agree to commit an offense, you are punishable at that stage.

Let’s say the room is bugged and someone — some law enforcement officer overhears you, you’re punishable at that stage without anything more.

William H. Rehnquist:

And you don’t claim that — that there’s anything wrong with that statute?

Judith H. Mizner:

No.

I — I suggest that where one agreement has two objectives particularly the two objectives of importation and distribution that the offense is fundamentally singular and cannot be further subdivided.

In terms of the application of the Blockburger test to the — to a determination of legislative intent, the Government has argued that any ambiguity that exists can be resolved into a clear congressional intent by relying on the Blockburger test.

And I suggest that it’s not really a very good way of determining legislative intent.

Judith H. Mizner:

In a number of recent opinions, this Court has not looked at Blockburger in determining congressional intent.

It’s a way of telling — one way of determining whether two statutory offenses constitute the same offense but it’s not determinative of legislative intent because well, the legislature may very well not intend to impose multiple punishment even for two statutes that are technically distinct under this test.

And even as Justice Rehnquist noted that where a test generally comes out only one way, it is particularly not a good tool for determining legislative intent which may be “yes”, may be “no” but if a test always comes out one way it — it really says nothing about what the legislature intended.

And additionally, it can’t be a presumptively determinative test where it results in — in findings of separate offenses.

What it means, if under the test, you find that two statutory violations are the same offense, you can presume there’s no congressional intent to multiple punish and this is absence of clear congressional intent to the contrary.

This is consistent with other techniques of statutory construction, and resolving ambiguity — ambiguity in favor of the defendant’s strict construction.

But it only works one way.

You can’t simply invert it to say that where you have two statutory violations and they’re not the same offense, you have a presumption of an intent to impose multiple punishment.

It’s like saying that we’ve got a fruit that’s a cherry.

You presume it’s not yellow and then you invert that and you come up with a fruit that’s not a cherry, you presume it is yellow.

It doesn’t work logically.

You cannot just simply —

William H. Rehnquist:

Well, I — I don’t entirely follow that.

You — you act as if the criminal justice system that we have carried over from our English system is a totally logical one that a — a, if there is a balance on one side, there is a balance on another.

Now, the defendant has a number of — per the presumption of innocence, proof beyond a reasonable doubt, things going from — why can’t you invert the presumption?

Judith H. Mizner:

Well, I’m — you can — I’m saying that the presumption as it stands is in accord with a number of those other protections afforded to a defendant such as —

William H. Rehnquist:

Has this Court ever said so?

Judith H. Mizner:

Specifically?

William H. Rehnquist:

Yes.

I — that’s the way we try to talk.

Judith H. Mizner:

I cannot recall any — any specific language but I suggest that it does work out to be that way.

And in Whalen, this Court said that the test was that where two statutory violations are the same offense, you presume there’s no congressional intent to multiple punish.

William J. Brennan, Jr.:

I must confess I’m not sure I follow your one-way argument.

Seems to be everytime you’ve got two different offenses, defined either in two different statutes or two sections in one statute, the presumption is that the prosecutor has the power to prosecute under either one, the second or both.

Judith H. Mizner:

The prosecutor —

William J. Brennan, Jr.:

And it’s up to the prosecutor.

Judith H. Mizner:

— may have the power to prosecute under each.

William J. Brennan, Jr.:

You don’t need affirmative evidence of an intent to allow him to do it other than the fact that the Congress passed two statutes.

William H. Rehnquist:

That’s right.

William J. Brennan, Jr.:

So, why is it different from say speeding and throwing a bomb out the window but he does it in one transaction?

William J. Brennan, Jr.:

You don’t have to find Congress specifically thought about these two crimes being committed at the same time and one of them, multiple punishment.

You just violate two laws.

Judith H. Mizner:

Well, I suggest that where you’re talking about two offenses that are violated in one criminal episode, you may very well have to look at whether Congress intended — if the crimes are related in some sense that they be punished consecutively.

Not that you’ll not be tried on both of them for — a jury may very well find you did one and not the other or that you did both.

But the question is whether you can be consecutively punished for both of those offenses.

William J. Brennan, Jr.:

Well, what difference would it make if they — if they punish them for both but they’ve imposed concurrent sentences?

You’re nevertheless convicting them and punishing them for both offenses.

So what — what difference would it make if they’re consecutive or concurrent?

If you —

Judith H. Mizner:

Well —

William J. Brennan, Jr.:

— can see —

Judith H. Mizner:

— consecutive sentences have a very different impact.

William J. Brennan, Jr.:

Oh, yes, but — but —

Judith H. Mizner:

— on the occurrence for instance.

William J. Brennan, Jr.:

— it’s there for — for your purposes, I would think you would say you couldn’t be tried on both of them at once and/or at least you would — certainly wouldn’t think that the judge could say 5 to 10 years on each count to run concurrently.

Judith H. Mizner:

Well, I —

William J. Brennan, Jr.:

You should just pick one or the other.

Judith H. Mizner:

Well, you have to give the trier of fact the opportunity to determine which of those two offenses if they’re not the same —

William J. Brennan, Jr.:

Well, I know but you can — seem to concede that he could impose punishments for both as long as he made them concurrent.

Judith H. Mizner:

No.

I’m not conceding that.

William J. Brennan, Jr.:

Oh —

Judith H. Mizner:

I’m saying that you may be punished only once for that offense.

Potter Stewart:

And I thought your further argument was, going back a little further, you can be convicted of only one or am I might mistaken about that?

Judith H. Mizner:

I would — the jury may come back —

Potter Stewart:

You could be tried on —

Judith H. Mizner:

Judgment —

Potter Stewart:

— both.

Judith H. Mizner:

— should be imposed on only one —

Potter Stewart:

Both.

Potter Stewart:

But the jury must be instructed that the conviction must be only one conviction and on either alternatively.

Judith H. Mizner:

Right, in the Court —

Potter Stewart:

Is — isn’t that your argument?

Judith H. Mizner:

I don’t believe that we had to go that far.

We were simply saying that judgment should be imposed on only one and that sentence should be imposed on only one.

Potter Stewart:

Even though the jury finds a violation of two separate criminal statutes?

Judith H. Mizner:

Even though the jury finds two separate statutory violations that are in fact one —

Potter Stewart:

And brings out —

Judith H. Mizner:

— offense.

Potter Stewart:

— a verdict of convictions, two convictions.

Judith H. Mizner:

And bring us a verdict back of guilty on both counts.

The Court —

Potter Stewart:

On each of two counts?

Judith H. Mizner:

Right, the Court can only impose sentence on one.

William H. Rehnquist:

Well, that — that will be in effect then.

The doctrine of my Brother Brennan’s same transaction test, would it not?

Judith H. Mizner:

Well, it doesn’t go as far.

William J. Brennan, Jr.:

So you’re just — so far, I just heard you argue statutory construction.

Judith H. Mizner:

We’ve got — I did respond to double jeopardy in one question there and I would like to reserve the rest of my time and hopefully respond to that.

Warren E. Burger:

Mr. Levy?

Mark Irving Levy:

Mr. Chief Justice, and may it please the Court.

The Comprehensive Drug Abuse Prevention and Control Act of 1970 was designed as this Court recognized in United States versus Moore to strengthen existing law enforcement authority in the field of drug abuse.

The Act contains two distinct conspiracy provisions in two distinct subchapters.

One provision, section 963, proscribes conspiracy to import a controlled substance and it authorizes a sentence of imprisonment or a fine that does not exceed the penalty specified for the abject offense of importation.

The other provision, section 846, proscribes conspiracy to distribute a controlled — a controlled substance and it authorizes a sentence measured in terms of the abject offense of distribution.

Thus, a conspiracy having multiple objectives both to import and to distribute a controlled substance implicates both subchapters, each of which authorizes a sentence based on the punishment provided for the underlying substantive offense.

Notwithstanding, the existence of distinct subchapters with distinct offense and penalty provisions, petitioners contend that a conspiracy involving importation and distribution of a controlled substance in violation of section 963 and section 846 can be punished under only one of these provisions but not both.

Surely nothing in the language or the structure of the Drug Control Act implies such a result.

To the contrary, the Act on its face suggests that sections 846 and 963 establish separate offenses that are subject to cumulative penalties.

Moreover, our interpretation is also supported by the Blockburger rule.

Mark Irving Levy:

As recently his last term in Whalen, the Court stated that Blockburger is a rule of statutory construction that has been consistently relied on to determine whether Congress has in a given situation, provided that two statutory offenses may be punished cumulatively.

Similarly, in Iannelli, the Court said that Blockburger serves the function of identifying congressional intent to impose separate sentences — separate sanctions — excuse me — for multiple offenses arising in the course of a single act or transaction.

Unquestionably, the Blockburger test is satisfied here.

Conspiracy to import a controlled substance in violation of section 963 and conspiracy to distribute a controlled substance in violation of section 846, each requires proof of the fact that the other does not.

William J. Brennan, Jr.:

Well, what if — what if it were not the case?

Then under Blockburger I suppose as a matter of statutory construction, you would assume absent some clear indication of the contrary that Congress didn’t intend double punishment.

Mark Irving Levy:

I think one would assume or presume that.

William J. Brennan, Jr.:

That’s been the rule.

At least that’s the — the way — that’s the direction Blockburger looks in.

Mark Irving Levy:

I think that’s correct, but I think Blockburger —

William J. Brennan, Jr.:

And other cases, but —

Mark Irving Levy:

I think they look —

William J. Brennan, Jr.:

— it looks the other way, if they’re different punishments.

Mark Irving Levy:

I think it looks in both directions.

William J. Brennan, Jr.:

Yes.

Mark Irving Levy:

I agree.

I think that’s right.

William J. Brennan, Jr.:

And so — so, a part of this case is whether these are the same or different offenses.

Mark Irving Levy:

Well, the question on the first part of the case is whether the statutes authorize consecutive sentences which we submit is resolved in the first instance by application of the Blockburger rule.

William J. Brennan, Jr.:

Well that’s — that’s on the assumption that if they’re separate offenses.

Mark Irving Levy:

We think the Blockburger rule in that terminology is the means to determine whether they are separate —

William J. Brennan, Jr.:

Yes.

Mark Irving Levy:

— offenses or the same offense.

But we think it is —

William J. Brennan, Jr.:

Do you think your colleague agrees with that or not?

Mark Irving Levy:

No, I believe not.

It’s —

William J. Brennan, Jr.:

So a part of this case, is I suggest, again, is whether — whether these are separate or the same offenses.

Mark Irving Levy:

I will only take issue with the characterization of whether they are separate or the same offenses.

We think the question is whether the statute authorizes consecutive sentences rather than whether in any abstract sense these could be characterized as the same or different.

Mark Irving Levy:

But if that is the — the correct terminology then we think Blockburger supplies the means.

William J. Brennan, Jr.:

Well, I’ll put it the other way then.

Part of this case is — is deciding in which direction — which — which direction do we follow Blockburger in this case?

Mark Irving Levy:

That’s right.

And we submit that Blockburger works in both directions in that terminology.

We think that’s expressed in — in the Court’s recent decisions, its understanding of the Blockburger rule in Whalen and Iannelli and we think that that’s absolutely supported by the Court’s decisions in the Harris case, the Gore case, and the Blockburger case itself in which the Court relied on the rule to hold that consecutive sentences were permissible.

So we think the Court has already answered the question in how the Blockburger works in both directions as Mr. Justice White put it.

William J. Brennan, Jr.:

But I’d suppose you’d — I — I suppose that even if it were decided that these were the same offenses, if they — if they were tried together and the sentences — consecutive sentences imposed in the same proceeding, the Government would suggest that there’s no double jeopardy problem.

Mark Irving Levy:

Certainly.

I — I hope to get to that —

William J. Brennan, Jr.:

Okay.

Mark Irving Levy:

— by the end of my argument but we think we agree with petitioners in the sense that the first issue in the case for the Court to resolve is whether the statutes authorize the consecutive sentences.

We submit they do and therefore, the double jeopardy question will be presented here.

But we agree that that’s the first issue that the Court should pass upon.

To respond to Mr. Justice Brennan’s question to my opposing counsel, we think this case is not like Simpson and Busic.

First, after Whalen, it’s not completely clear to us that the Blockburger rule applies to the type of compound and predicate offenses that were at issue —

William J. Brennan, Jr.:

I — I think my question was, wasn’t it, whether or not the same inquiries that were made in Simpson and Busic and Whalen had to be made to resolve a question here.

Mark Irving Levy:

Well, the question in the end was the same, whether the statutes authorize —

William J. Brennan, Jr.:

(Voice overlap)

Mark Irving Levy:

— consecutive sentences in Simpson.

William J. Brennan, Jr.:

I think that’s all I said.

Mark Irving Levy:

In that sense, we agree with you but we think the analysis of the particular case here is much different than the one the Court employed in those cases.

In particular, the Court in — in Simpson and Busic did not employ the Blockburger test and certainly didn’t find that the test was — was met by the statutes at issue there.

And the Court certainly did not suggest that if Blockburger had been met, that it would not have given some guidance, indeed a presumptive guidance on the intent of Congress to authorize consecutive sentences.

Moreover, in those cases, as the Court found affirmative evidence, particularly the statement of Congressman Poff, from the rejection of the Dominick Amendment, affirmative evidence to support the conclusion that consecutive sentences were not intended by Congress.

Byron R. White:

Mr. Levy, may I ask you a question about — I want to be sure I understand what you’re saying about the two-way use of Blockburger.

You’re saying that if two offenses satisfy the Blockburger test in the sense that each requires a proof of the fact but the other does not, then one should presume that Congress had intended to authorize a double prosecution and double punishment.

Mark Irving Levy:

Exactly.

Byron R. White:

Or permit to prosecute.

And do you also say the converse?That if there are two offenses that do not each — are –are not mutually exclusive, that then the presumption is Congress intended to authorize only one punishment?

Mark Irving Levy:

We do, with the emphasis on the word presumption.

It’s a rebuttable presumption —

Byron R. White:

Yes.

Mark Irving Levy:

— based on a specific legislative history and statute involved in the case.

Byron R. White:

What sort — what — what would rebut such a presumption, something that is expressed in the Congress and even though it’s a lesser included offense we want to be p — multiple punishment to be permitted?

Mark Irving Levy:

That would be one illustration, for example.

Byron R. White:

It’d be a very clear evidence of legislative intent.

Mark Irving Levy:

Right.

I would cite just as an illustration the Gun Control Act, section 924(c) that makes it clear in terms that the sentences to be imposed in addition to the sentence for the underlying federal felony.

Byron R. White:

Was that Simpson?

Mark Irving Levy:

We think it’s not because Simpson involved only a discrete class of felony as to contain their own enhancement of provisions.

Byron R. White:

Now, were these on 924?

Mark Irving Levy:

Yes, it did.

And either the assault statute —

Byron R. White:

(Inaudible)

Mark Irving Levy:

— or bank robbery statute.

Yes, they were the same.

John Paul Stevens:

Now, was there an enhancement provision would clearly be the evidence of an intent to (Voice overlap)

Mark Irving Levy:

Exactly.

Even though that might not pass the Blockburger rule because one is a lesser —

John Paul Stevens:

I understand.

Mark Irving Levy:

— included offense than the other.

John Paul Stevens:

— but that would be clear on the face of a statute?

Mark Irving Levy:

Exactly.

And that’s one illustration of — of evidence that would really rebut the inference that arises from Blockburger.

John Paul Stevens:

But in — in this case, you rely basically just on the Blockburger rule itself for the (Voice overlap)

Mark Irving Levy:

That’s our principal reliance here and we think that’s — that’s the first rule that —

John Paul Stevens:

(Voice overlap)

Mark Irving Levy:

— should be applied in any case.

John Paul Stevens:

But you know, still, that depends on your being able to convince us or somebody that these are separate offenses in the Blockburger sense.

Mark Irving Levy:

That they pass the Blockburger test, that’s correct and we think there’s no doubt here that they do and petitioners do not contend otherwise.

So that’s not an issue that’s contested in this Court.

Petitioners do contend, however, that the Blockburger rule is inapplicable to conspiracy offenses.

However, nothing in the formulation or the rationale of the rule indicates in any way the conspiracy is outside the scope of the rule.

Moreover, in the American Tobacco case, this Court specifically applied the Blockburger test to hold that a single conspiratorial agreement to violate Sections 1 and 2 of the Sherman Act was subject to cumulative penalties.

Here, analogously to American Tobacco, conspiracy to import a controlled substance and conspiracy to distribute that substance are separate statutory offenses under sections 943 and 846.

And the Blockburger rule indicates that these distinct statutory conspiracies are reciprocally distinguishable from and independent of each other.

Braverman versus United States, upon which petitioners heavily rely in their brief, does not compel a different result.

The Court in Braverman construed the general conspiracy statute not to authorize multiple convictions for a single agreement to commit several unlawful acts.

The Braverman decision itself makes clear as do the subsequent decisions in Pinkerton and American Tobacco, but Braverman is confined to a situation in which the conspiracy is alleged to violate but a single statute and in particular, the general conspiracy statute.

In contrast, here, as in American Tobacco, the conspiracy to accomplish multiple illegal objectives violates two distinct statutes each of which provides for a separate penalty.

Finally, our analysis under —

John Paul Stevens:

That was under your argument that these people could have been prosecuted for three crimes under one conspiracy because I suppose they also violated the general conspiracy statute.

Mark Irving Levy:

No, we don’t take the position here and we think that question would raise different and more difficult questions that are presented in that case.

There would be, I think, two levels of inquiry involving the general conspiracy statute.

One would be whether Congress intended to preempt the general conspiracy statute by enacting specific conspiracy statutes, and if it didn’t, and whether the conspiracy statute would satisfy the Blockburger test and whether the Court’s decision —

John Paul Stevens:

Mr. Levy —

Mark Irving Levy:

— in Braverman would require —

John Paul Stevens:

Do these statutes require proof on an overt act?

Mark Irving Levy:

The lower courts consistently, as far as I know, had held that they do not.

John Paul Stevens:

Whereas, rather — the general conspiracy statute does and it seemed to me that the Blockburger test would allow all three because that’s an effect that you must prove under the general conspiracy statute.

Mark Irving Levy:

Well —

John Paul Stevens:

This would not have to prove under this.

Mark Irving Levy:

That’s certainly one possible analysis and we don’t disagree with that.

I will say that the overt act is something of — of an unusual element in — in the normal (Voice Overlap).

John Paul Stevens:

But It is an element of the — of the general conspiracy.

Mark Irving Levy:

I believe that is correct.

John Paul Stevens:

Yes.

Mark Irving Levy:

But one could also satisfy the Blockburger test, simply, without reference to the overt act requirement.

John Paul Stevens:

Yes.

Mark Irving Levy:

In other words, if Congress didn’t — if — if Congress intended the general conspiracy statute to remain applicable where the object of the conspiracy was not subject to a specific conspiracy provision, then we think that even without reference to the overt act requirement would also satisfy the Blockburger test.

But I emphasize that the question of — of the relationship between 371 and the specific conspiracy of provisions is not before the Court in this case (Voice Overlap)

Potter Stewart:

And — and the first inquiry if — if it were before the Court would be, do these specific conspiracy statutes displace the general conspiracy statutes?

Mark Irving Levy:

I believe —

Potter Stewart:

But apart from many Blockburger test.

Mark Irving Levy:

I believe that’s correct.

Potter Stewart:

Yes.

Mark Irving Levy:

And the Court would look among other things to the specific history and provisions —

Potter Stewart:

Right.

Mark Irving Levy:

— at issue and determine the question of congressional intent, but that problem is not here today.

Our analysis under Blockburger and American Tobacco is reinforced by the fact that sections 846 and 963 are directed at separate evils.

In particular, and I think Mr. Justice Blackmun, averted to the same idea before.

Harry A. Blackmun:

Yes.

I did.

Mark Irving Levy:

Importation of a controlled substance not only poses a societal harm relating to drug trafficking and the increased availability of the illegal drugs, but it also involves a breach of the sovereign borders of the United States and an interference with the Government’s authority to regulate commerce across those borders.

A wrong that occurs independently of either the contraband nature of the items brought into the country or the subsequent use or distribution that is made of them.

Thus, since section 846 and 963 serve to protect against different social dangers, a separate penalty for the violation of each provision is justified.

Petitioners offer two arguments, to rebut the Blockburger presumption in this case.

First, that the legislative history of the drug control act does not disclose a clear intention to allow cumulative penalties for a single unlawful agreement, and second, that the rule of lenity requires the construction that consecutive sentences are not permitted.

It is common ground between petitioners and ourselves that the legislative history is silent on the precise question of consecutive sentences for conspiracy to import and to distribute a controlled substance.

However, it is unrealistic to demand as petitioners do, that Congress focus its attention on every conceivable issue of statutory interpretation and furnish and express an unambiguous answer to every potential question that might subsequently be litigated.

As recently noted in the Whalen opinion, both this Court and the Congress have recognized that the legislative process simply does not function in the manner envisioned by petitioners.

Since Congress is predominantly a lawyer’s body, that is presumably aware of familiar legal doctrines, it must be assumed to be cognizant of the subtle Blockburger rule and at least in the absence of a specific contrary indication to contemplate the consecutive sentences may be imposed in cases such as the instant one where two distinct statutory provisions meet the Blockburger test.

Byron R. White:

Mr. Levy, do you have any comment on the opposition’s reliance on Senator Dodd’s statement?

Mark Irving Levy:

Well, we have a citation on our brief to a similar statement by a — by a representative saying that the bill that was enacted was essentially the House version rather than a Senate version and I think that’s supported by the conference report.

But the honest answer, I think, is that Congress never specifically focused on the question of consecutive sentences and therefore it was never confronted in an immediate way with any difference that might exist between the House version and the Senate version in that regard.

The Congress did enact this — the House version.

It did enact the statute that has two distinct conspiracy provisions that meet the Blockburger rule.

And we think in no circumstances consecutive sentences are authorized.

Thurgood Marshall:

Mr. Levy, do you see anything to the petition’s position that this was argued as a one conspiracy case?

Mark Irving Levy:

No, I don’t believe so.

That — that, I think, poses the question in this case rather than answers it.

If there have been two separate conspiracies in the sense that I believe you are using the term, Justice Marshall, then, unquestionably, there could be consecutive sentences.

There could be consecutive sentences for two violations of the same statute if there were two separate agreements.

The problem only arises where as a factual matter the unlawful agreement is — is singular rather than plural on its — on that basis that the Court of Appeals decided the legal question and it’s on that basis that the question is presented to the Court.

Thurgood Marshall:

So that if Congress passed the bill that if you — he brought a gun for the purpose of shooting somebody and then shot somebody.

You wouldn’t have to shoot and you still can be convicted of both assault and purchase of the gun.

I guess Congress could do that.

Mark Irving Levy:

I believe it could, because there are two separate evils and Congress has the right particularly in an area like gun control to an absent of sentences, stiff provisions.

Petitioners contend that the existence of two conspiracy provisions is purely adventitious and merely reflects the fortuity.

The two different committees considered the bill on the House.

Thurgood Marshall:

I see.

Mark Irving Levy:

However, the history they emphasize is not inconsistent with and does not foreclose consecutive sentences pursuant to sections 846 and 963.

Rather than ineluctably conforming petitioners’ construction, this history is equally consistent, we believe, with the inference of the House Committees focusing on two distinct governmental interests concluded that a conspiracy encompassing importation and distribution comprise dual evils that should be subject to enhance penalties.

More specifically, the legislative development of the Act is fully compatible with the view that the House Ways and Means Committee which has general jurisdiction over customs and import matters deemed importation offenses to present, not only a drug problem, but also a discrete harm involving the territorial sovereignty of the nation and the Government’s ability to control ingress from foreign shores.

Byron R. White:

On the other hand, the — the bill that came over from the administration of the Congress had merely one of conspiracy provision that it didn’t deal.

Mark Irving Levy:

That is correct.

Byron R. White:

And that isn’t it surprising that therefore to end up were two penalties that there isn’t something positive in the legislative history?

Mark Irving Levy:

Well, one would hope that Congress would address the question.

Otherwise, it’d certainly be simpler if it had but I don’t think particularly as this Court noted around.

I don’t think it’s surprising that there is no discussion of this in the Act.

Congress rarely specifically and expressly indicates its intent to allow consecutive sentences.

Congress did enact the bill that has two separate conspiracy provisions.

Those provisions do pass the Blockburger test.

In those circumstances, the question is whether there’s anything in the legislative history that defeats the presumption flowing from Blockburger.

We think that the legislative history and particularly the events in the House that petitioners so heavily rely on are fully consistent with the position we take here in the resolution suggested by Blockburger.

The bills that were originally introduced in the two committees were substantively identical and each applied to both domestic and international drug offenses, the only difference between the bills concerning the type of drugs covered.

The Ways and Means Bill was applicable to narcotics and marihuana which historically have been regulated under the Internal Revenue Code and other statutes within the jurisdiction of that committee.

While the Interstate and Foreign Commerce Committee bill was limited to depressant and stimulant drugs which previously had been regulated under the Federal Food, Drug and Cosmetic Act and thus, was — was within the authority of the Commerce Committee.

Later, however, and importantly, this division of responsibilities was deliberately altered in such a fashion that the Ways and Means Committee, which as I noted before, has general jurisdiction over customs and import matters, focused its attention on the international aspects of the bill.

Mark Irving Levy:

At the same time, the Commerce Committee addressed the domestic side of the bill.

Thus, the ultimate relationship between the committees expressly and purposely emphasized the distinction between the domestic and international facets of the legislation.

In these circumstances, we believe that it accords with the usual presumption of rationality and regularity of congressional actions and is not contradicted by anything in the legislative history to believe that the Ways and Means Committee was naturally aware of and concerned with, not only the particular menace of drug — drug trafficking but also with the Government’s general interest in maintaining the integrity of its borders and in policing its boundaries against unauthorized entries into the United States.

From the outset, the legislation in the House consisted of two bills, each containing its own conspiracy provision and Congress in passing the Comprehensive Drug Control Act was unquestionably aware of the separate conspiracy sections.

Accordingly, the most likely congressional understanding was that under the well established Blockburger doctrine, cumulative penalties would be available for the distinct conspiracy offenses defined in sections 846 and 963.

At the least it cannot be unfailingly supposed, as petitioners suggest, that the existence of separate conspiracy provisions was a mere accident of the legislative process and that Congress never intended to authorize consecutive sentences.

William J. Brennan, Jr.:

Mr. Levy, do I correctly understanding that it — if this statute in Section 1 it said, “Importing is bad” and Section 2 said, “Distribution is bad.”

And Section 3 said, “A conspiracy to do any of the forgoing is bad”, you’d proscribe the other way.

Because if you had one conspiracy, one prohibition against conspiracies, then you’d have to follow Braverman, if you had two separate conspiracy prohibitions, do you follow Blockburger?

Mark Irving Levy:

Now, I think one would have to follow a different analysis and I — I believe that — that Braverman likely would — would certainly be highly illuminating if not controlling in those circumstances.

It is conceivable, however, in the legislative history and in some other way, Congress would indicate an intent to authorize consecutive sentences, and that situation by analogy —

William J. Brennan, Jr.:

So, you didn’t have anything beside the face of the statute (Voice overlap)

Mark Irving Levy:

That is right.

But that situation arose, for example, in the Callanan case where the Hobbs Act in a single section proscribes both conspiracy and substantive offenses.

And this Court held that even though there was but a single provision, both the conspiracy and the substantive offense could be cumulatively punished.

William J. Brennan, Jr.:

Now, my question is whether you could punish the conspiracy twice because it had two separate objects in that situation I gave you.

I think you’d say no —

Mark Irving Levy:

My assumption is that one could not.

William J. Brennan, Jr.:

Yes because there’s only one prohibition against the conspiracy.

Mark Irving Levy:

That is correct, and that was essentially the analysis that was followed in Braverman, but that is not a constitutional requirement.

Byron R. White:

You mean unless Congress — unless Congress said so.

William J. Brennan, Jr.:

That’s right.

Mark Irving Levy:

Exactly, but absent and some specific indication I think the — the strong inference would be that the single conspiracy provision could only give rise to one sentence.

Petitioners’ second argument to rebut the Blockburger rule, the rule of lenity analysis, is also unavailing.

As this court has recognized in such cases as Busic and in Callanan, the notion of lenity is one guy to be used in discerning legislative intent where an ambiguity otherwise is present.

In the words of Mr. Justice Frankfurter writing for the Court in Callanan, the rule is a guide to statutory construction and comes into operation at the end of the process of construing what Congress has intended not at the beginning as an overriding consideration of being lenient to wrongdoers.

In our view, the Blockburger doctrine renders it unnecessary to resort to the rule of lenity.

If as in this case, two distinct statutory provisions satisfy the Blockburger test, it is to be presumed the defenses under those provisions are subject to cumulative penalties.

Indeed, the very purpose of the Blockburger standard was to answer the question of consecutive sentences in the absence of a specific indication of congressional intent, and therefore, Blockburger serves to resolve any ambiguity that might otherwise call for application of the rule of lenity.

Lenity cannot, by itself, be used to defeat the Blockburger doctrine and we are unaware of any decision in which this Court has found the Blockburger test to be satisfied and yet nonetheless relied on the rule of lenity to prohibit the imposition of cumulative penalties.

Mark Irving Levy:

Petitioners’ counsel also relied on the fact that there are divergent authorities among court of — the Courts of Appeals on the proper construction of these conspiracy provisions.

We don’t think —

Byron R. White:

And I suppose you’d say — say that satisfies the Blockburger test.

You could even — you could try them separately too.

Mark Irving Levy:

I’m not sure.

You mean try them in separate prosecutions?

Byron R. White:

Yes.

Mark Irving Levy:

I think that raises an entirely distinct question.

Byron R. White:

Well, it may be but I — but I say if they if — if each requires proof of a — of a fact that the other one doesn’t, they can be tried separately, can’t they?

Mark Irving Levy:

The statute would allow them to be tried separately.

Byron R. White:

How about the double jeopardy?

Mark Irving Levy:

That would be an additional question, one that isn’t present here, where there are successive prosecutions.

Byron R. White:

What question would it be?

Mark Irving Levy:

Excuse me?

Byron R. White:

What question would it be?

Mark Irving Levy:

Whether successive prosecutions rather than —

Byron R. White:

For different offenses?

Mark Irving Levy:

Yes, that would be the question whether the offenses are the same or different offenses, and even if they were different offenses as the court held, for example, in Harris versus Oklahoma and In re Nielsen.

The Double Jeopardy Clause might still bar successive prosecutions.

That would rest, I suppose, on some notion of finality for the defendant’s benefit of an interest that simply is not presented in the context of multiple punishments following a single trial and a single sentencing proceeding.

William J. Brennan, Jr.:

Although I recognize your stressing the use of Blockburger as a statutory construction aid, you don’t deny that it has some relevance to the constitutional inquiry, do you?

Mark Irving Levy:

Well, the court has on occasion indicated that Blockburger has some —

William J. Brennan, Jr.:

I mean a lot of the stuff for many years, that was the constitutional standard.

I — you don’t deny that, do you?

Mark Irving Levy:

I don’t deny that for many years (Voice overlap)

William J. Brennan, Jr.:

And so, it might still be — have some relevance to the constitutional question.

Mark Irving Levy:

It might still have some relevance although, as the Court well knows from our brief in Whalen, we believe that the double jeopardy issue in that context is no different from the question of whether the legislature has authorized multiple punishments.

William H. Rehnquist:

Blockburger anyway, did not originate as a constitutional doctrine.

Mark Irving Levy:

It did not.

The Blockburger case itself was a — a question of statutory construction as were the succeeding cases in Gore and in Harris among others.

Mark Irving Levy:

Petitioners’ counsel seeks to find an ambiguity in the statute because Courts of Appeals have diverged on a proper construction of the conspiracy provisions.

I would only point out, as Mr. Justice Rehnquist, suggested that virtually, every — every federal criminal case heard by this Court involves a conflict in the circuits, including those cases in which the Court applies — finds that the meaning of the statute is plain on its face or declines to apply the rule of lenity, and I would cite to the Court as illustrations to the Lewis case in 445 U.S., the Colbert decision in 435 U.S., and the Scarborough decision in 431 U.S.

Moreover, since the rule of lenity is merely a device to ascertain congressional intent, it is not applicable, we believe, whereas in a drug area, Congress intends to deal severely with serious criminal violations like those of petitioners.

In Gore, this Court declined to extend the rule of lenity to federal drug laws because Congress had manifested an attitude, not of lenity but of severity toward such offenses.

As the Court recognized in Moore, Congress did not follow a different course in enacting the Drug Control Act of 1970.

If as we urge, the Court concludes that sections 846 and 963 authorize consecutive sentences, the imposition of such sentences on petitioners does not contravene a Double Jeopardy Clause of the Fifth Amendment.

First, it is our belief that the Court in its recent decision in Whalen did adapt the view that the Double Jeopardy Clause does not bar consecutive sentences that are authorized by the legislature and impose that a single sentencing proceeding following a single trial.

Since Congress did authorize cumulative punishments here, the Double Jeopardy Clause is no more offended that if — than if Congress had enacted an equivalent statute as Mr. Justice Blackmun mentioned which expressly provided a maximum term of imprisonment of 10 years for conspiracy both to import and to distribute a controlled substance and five years for conspiracy to engage in only one of the proscribed objectives.

But in any event, even if it is assumed that there are some circumstances in which multiple punishments authorized by Congress could be unconstitutional under the Double Jeopardy Clause, petitioners’ sentences in this case would nonetheless, be in fact, valid.

To the extent that the clause is applicable here at all, the Blockburger test would, as Mr. Justice Stevens suggested, furnish the standard for determining whether separately defined crimes constitute the same offense for purposes of double jeopardy.

And I think that is the phrasing that Mr. Justice White referred to before.

Here, these statutes clearly satisfy the Blockburger test as we discussed previously.

In terms of double jeopardy, this case is no different from one in which, for example, the defendants conspire to import goods without paying the customs duty in order to obtain an unfair competitive advantage and attain a monopoly.

Surely, such an unlawful agreement could be punished if Congress saw fit as a violation of both the smuggling and antitrust laws.

Contrary to petitioners’ basic premise, nothing in the Double Jeopardy Clause forbids Congress to conclude that an agreement to commit two offenses is more pernicious and should be more severely punished than an agreement to commit one offense.

Thank you.

Warren E. Burger:

Very well, you have just one moment remaining, one minute remaining counsel.

Judith H. Mizner:

In that one minute, I would just simply like to say that we do contest the applicability of Blockburger.

(a) to the conspiracy situation in general, and (b) to this particular conspiracy situation where each one does not require proof of the fact that the other does not, since you can infer the objective of distribution from the same facts that prove the importation.

I would suggest that American Tobacco which is the only case that the Government has cited as a prime, this is distinguishable on the grounds that -(a) it was dicta.

The portion discussing the consecutive sentences for Section 1 and 2 violations, and two that Sections 1 and 2 of that Act are very different from the conspiracy provisions here.

Section one of the Sherman Antitrust Act I trust that is in a sense almost the substantive provision.

It prohibits a conspiracy in restraint of trade and makes engaging in that an offense, while Section 2 is conspiracy to monopolize.

So, there might be different reasons for saying that under those circumstances, consecutive sentences might be permissible.

And in addition, it is the Antitrust Act which this Court has recognized and commentators, as well, has not been construed in the same manner that normal criminal statutes have.

William H. Rehnquist:

Do you think that anti-criminal — anti-drug statutes are to be construed much more strictly than drug statutes?

Judith H. Mizner:

No.

I’m saying that the antitrust statute has been given a much broader construction, a looser construction in terms of effectuating its — its goal as a pro-competitive free enterprise statute and this — this Court has, I believe, in United States Gypsum recognized that it has not construed the Sherman Antitrust Act and other Antitrust Act in the same manner that it can construes penal statutes such as the drug statute.

That it’s given a much broader construction.

Warren E. Burger:

I am not sure I follow you.

Warren E. Burger:

Do you mean that this society’s view is that it is not as serious to commit antitrust violations as it is to import drugs or vice versa?

Judith H. Mizner:

No, I’m suggesting —

Warren E. Burger:

Which was — which is the more offensive to society?

Judith H. Mizner:

What on — no, it’s not a —

Warren E. Burger:

Why is there is no difference?

Judith H. Mizner:

— question of which is more offensive to society.

It’s a question of this Court’s having throughout its history, construe the Sherman Antitrust Act, differently.

And in addition, at the time of American Tobacco, these were misdemeanor offenses.

The — the civil sanctions were much more compelling than the criminal misdemeanor penalty.

So I’m just saying that relying on that decision to, as a general proposition, that Blockburger has been applied to other criminal conspiracy context is inappropriate.

Warren E. Burger:

Thank you.

Judith H. Mizner:

Thank you.

Warren E. Burger:

Thank you counsel.

The case is submitted.

We’ll hear arguments next in California —