Bifulco v. United States

RESPONDENT: United States
LOCATION: Atlanta, Georgia

DOCKET NO.: 79-5010
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 447 US 381 (1980)
ARGUED: Feb 27, 1980
DECIDED: Jun 16, 1980

Harlon L. Dalton - for respondent
Steven Lloyd Barrett - for petitioner

Facts of the case


Media for Bifulco v. United States

Audio Transcription for Oral Argument - February 27, 1980 in Bifulco v. United States

Warren E. Burger:

We'll hear argument first this morning in Bifulco against the United States.

Mr. Barrett you may proceed whenever you're ready.

Steven Lloyd Barrett:

Mr. Chief Justice and may it please the Court.

This case comes to the Court upon writ of certiorari to the United States Court of Appeals for the Second Circuit.

The petitioner was convicted of violating the Federal Drug Conspiracy Law 21 U.S.C., Section 846.

He was sentenced to four years imprisonment, and $1,000 fine, and five years special parole.

The petitioner subsequently filed per se a collateral attack on his sentence alleging that the inclusion of special parole for the crime of conspiracy was not authorized and Second Circuit held that special parole was a lawful component of sentence of conspiracy and affirmed the denial of petitioner's application.

The issue in this case which is currently the subject of disagreement among the circuits is whether as the Second Circuit held Section 846 includes special parole or whether as we assert the statute specification of imprisonment and fine precludes special parole.

The statutory language of Section 846 is set forth in our brief, at page 3, and it's states, “Any person who attempts or conspires to commit any offense defined in this Subchapter is punishable by imprisonment, or fine, or both which may not exceed the maximum of punishment prescribed for the offense the commission of which was the object of the attempt or conspiracy.”

We submit that the penalties intended to conspiracy are stated plainly on the face of the statute, imprisonment and fine.

In our argument this morning, it will be shown that Congress used the precise specification of penalties for the very purpose of providing imprisonment without special parole for the crime of conspiracy and I'll be looking at four issues bearing on this matter.

First, I will examine the statutory scheme and Section 846's place in that scheme, to show that throughout the statute, special parole maybe imposed only when it is separately authorized from imprisonment and fine.

Second, I will look at the legislative history to elucidate Congress's intent that a specification of imprisonment of fine in a statutory section cannot alone authorize the inclusion of special parole.

Third, I will discuss the Government's analysis of Congress's intent and show that that position cannot be sustained.

And finally, I will consider the appropriate disposition of this case under the doctrine of lenity.

William H. Rehnquist:

Mr. Barrett I think it's -- in your legislative history discussion you will also take up the time sequence at which the statute was drafted and the time at which special parole was introduced as a concept under the statute.

Steven Lloyd Barrett:

Yes I will Mr. Justice Rehnquist.

Turning first to the statutory scheme, special parole exists as a punishment quite distinct from the punishment of imprisonment.

It's provided as an additional and separate penalty to be served after full service of a prison term.

Now, special parole is subject to no maximum limit so that it can and often does exceed the prison term in length.

This is important because of the -- revocation -- revocation rule which is then upon revocation special parole a new and additional prison term is substituted in the amount of the entire special parole term without credit for time served.

Now, it's therefore a substantial penalty and Congress authorized its inclusion selectively by a separate provision in each statutory paragraph to finding a crime to which special parole would be applied.

Now, quite a number and indeed the majority of the drug crimes provide for imprisonment without specification or without mention of any special parole and significantly the crime of the continuing criminal enterprise which is the most serious trafficking offense in the Federal Drug Law does not specify a special parole term.

And similarly there is no specification of special parole in the offenses involving trafficking by persons who are registered under the drug law.

Generally the parole -- special parole authorizations occur in the distribution and possession offenses to find in Section 841, but even here there is selectivity.

Two of the six -- two of the six punishment sections in Section 841 do not provide for special parole.

Now, in practice, there is never been any question that a drug section which does not make any mention of special parole is not entitled to include as sentenced special parole with one exception, and that of course the Section 846 which is the issue that's presently before the Court.

From the standpoint to the statutory scheme, we -- we feel at this unique treatment quoted in Section 846 which some -- which some circuits at least have given Section 846 makes no sense like the other sections throughout the drug law which do not make -- mention of special parole and which special parole does not apply, Section 846 describes it's punishments in terms of imprisonment and fine exclusively.

Unlike these other section, Section 846 is a separate criminal section under which sentences are imposed.

The purported distinction for it's -- Section 846 which the Government offers to justify the inclusion of Section -- of special parole in Section 846 notwithstanding the absence of special parole authorization is that the conspiracy section refers to the statutory section of the object offense to set the limits of punishment applicable to the particular conspiracy.