Libretti v. United States

PETITIONER:Libretti
RESPONDENT:United States
LOCATION:Rhode Island General Assembly

DOCKET NO.: 94-7427
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 516 US 29 (1995)
ARGUED: Oct 03, 1995
DECIDED: Nov 07, 1995

ADVOCATES:
Malcolm L. Stewart – for respondent
Malcolm L. Stewart – on behalf of the Respondent
Sara Sun Beale – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – October 03, 1995 in Libretti v. United States

John Paul Stevens:

We’ll hear argument in Number 94-7427, Libretti v. United States.

Ms. Beale.

Sara Sun Beale:

Justice Stevens, and may it please the Court:

This case raises two important questions about the procedural rights afforded to defendants who tender guilty pleas, including criminal forfeiture.

The two questions are: first, whether Rule 11(f) of the Federal Rules of Criminal Procedure requires the district court to find a factual basis for the defendant’s guilty plea to the criminal forfeiture, and second, whether a defendant who waives… excuse me, a defendant who pleads guilty waives his right to a jury verdict on forfeiture if he was not advised of that right and never expressly waived it.

Briefly, the facts are as follows: in exchange for the prosecutor’s agreement to recommend a 20-year sentence on one count, and to drop the remaining counts, petitioner pled guilty to violating 21 U.S.C. section 848, and he signed an agreement containing three paragraphs regarding criminal forfeiture.

As construed by the court of appeals, paragraph 10 of that agreement forfeited all of petitioner’s property, including legitimately acquired property.

The district court accepted petitioner’s plea without making a finding that there was a factual basis for this forfeiture.

Antonin Scalia:

Excuse me, but the court of appeals said it included legitimately acquired property?

Sara Sun Beale:

The court of appeals said it included all of petitioner’s property of every kind–

Antonin Scalia:

Right, but it didn’t say that it included legitimately acquired property.

It simply amounted to, in the court of appeal’s view, an acknowledgement that none of his property was legitimately acquired.

Sara Sun Beale:

–Oh, I think that’s not correct, Your Honor.

I think everyone in the case concedes that the property, some of the property involved was acquired legitimately.

There were findings to that effect in the district court.

For example, some of the–

Antonin Scalia:

By which you mean not properly forfeitable?

Sara Sun Beale:

–No.

I think that there’s a distinction to be drawn here.

In the first instance, how was the property acquired, and that there was some which was legitimately acquired as opposed to property, let’s say, that would be the proceeds of a criminal offense.

Antonin Scalia:

Ah, I see.

Sara Sun Beale:

All right, and so–

Antonin Scalia:

You mean legitimately acquired with the proceeds.

Sara Sun Beale:

–I mean legitimately acquired.

For example, before it’s alleged that the conduct in question occurred.

So he had property that was acquired by him as a child which was involved in forfeiture here, for example.

I think everyone concedes that that property was legitimately acquired.

The two bank accounts, for example, from the Chicago area which were opened first when he was in grade school and never had any deposits after at least 1981 in the case of both accounts.

Also, his salary from General Chemical in Green River, Wyoming.

Antonin Scalia:

And the court of appeals conceded this, said this.

Sara Sun Beale:

It’s accepted by all parties.

I’m not sure if there’s a sentence in the court of appeals’ opinion, but it–

Antonin Scalia:

But that’s what you said.

You said the court of appeals said that he agreed to a… that by reason of his agreement, he forfeited properly, legitimately acquired property, is what you said.

Sara Sun Beale:

–That’s correct.

Antonin Scalia:

Where does it say that?

Wouldn’t it be more accurate to say that they said he forfeited everything he owned on the assumption some of it might have been legitimately acquired?

Even if some was legitimately acquired, under their reading he would have forfeited it.

Sara Sun Beale:

That’s correct, and… I mean, that would be another proper reading.

I think–

David H. Souter:

Does their reading… is there an indication that their reading was that the legitimately acquired property was also nonforfeitable?

Sara Sun Beale:

–Well, I believe that gets to the nub of the point.

David H. Souter:

You make that claim, but–

Sara Sun Beale:

It’s not a question–

David H. Souter:

–has anyone made that express assumption?

I take it the court of appeals did not state that assumption.

Sara Sun Beale:

–I think the point is that property… property gets–

David H. Souter:

No, but what’s the answer to my question?

The court of appeals didn’t state that assumption, did it?

Sara Sun Beale:

–I don’t think you’ll find that sentence as such.

Perhaps it would be helpful–

David H. Souter:

Okay, and the district court was in fact holding hearings that would have been relevant to that determination, but they were the hearings without jurisdiction, so we can’t depend on that.

Sara Sun Beale:

–That is correct.

I believe the court of appeals’ opinion is quite clear that their point is that petitioner entered into an agreement that would forfeit all property without any determination whether it was or was not, for example, proceeds, and… period.

And I think everyone concedes that some of the property here was not acquired as proceeds.

I believe the Government’s position is it could become forfeitable, not that it was not legitimately acquired, but it could become forfeitable, let’s say, as a substitute asset.

David H. Souter:

Mm-hmm.

Sara Sun Beale:

Right, so there was no finding, for example, that that property in the district court level or at the court of appeals level, that it was forfeitable because it was proc… because it was not legitimately acquired, and so the point merely is that it would take some factual… set of factual assumptions to show that legitimately acquired property is, in fact, subject to forfeiture.

It could become subject to forfeiture, depending upon the facts that were shown, and the district court never made those factual findings in the first instance, so if I can clarify that.

The district court also accepted petitioner’s plea without advising him that he had a right to a special jury verdict on the question of what property, if any, was subject to forfeiture, although he had a right, and it would have been possible for him to plead guilty, and nonetheless contest on the section 848 charge, and nonetheless contest forfeiture before the jury.

Sara Sun Beale:

He was not advised of that right, and he never expressly waived it.

Ruth Bader Ginsburg:

Suppose the district judge had told Libretti how it would play out if he stood trial, exactly what would have to be proved, so he knew all that when he entered his plea.

Would that have been enough to satisfy the legal requirements, if the judge had told him, just as he tells him with respect to his substantive offense, now, if you stand trial, there will be a jury trial on these assets, and there will be this special verdict, told him exactly what would happen if he stood trial, and he says, Your Honor, I want this plea, and then at the end he says what he did here, I want proof made with respect to these assets–

Sara Sun Beale:

Well, there are really two requirements that we’re talking about, and it’s important for me to distinguish those.

One of the issues before the Court is the question of the waiver standard that’s applicable to the jury trial right, and on that point, for example, if the judge had clearly indicated to Mr. Libretti not simply that the jury won’t find you guilty or innocent, which is what he told Mr. Libretti, but had said, the jury won’t find you guilty or innocent, and you have a right to have that determination, and the jury won’t make any determination of what assets are forfeitable, and you have a right to that determination as well, now, do you want to plead guilty, that would have taken care of the waiver of the jury trial right.

There’s an independent requirement, however, under Rule 11(f) for a factual basis, and I think that’s clear if you imagine a case… laying forfeiture to one side, if you imagine a case as a bank robbery case.

Ruth Bader Ginsburg:

–So–

Sara Sun Beale:

In that instance there would be both a requirement that the defendant waive his right to a jury trial, and also a requirement that a factual basis be shown for his plea to the bank robbery offense.

So it’s true–

Ruth Bader Ginsburg:

–Your answer to my question is… your answer is no, it would not have been enough to tell him exactly how this would play out if he stood trial.

He would still have a right to insist on some kind of a showing with respect to each piece of property.

Sara Sun Beale:

–That’s correct, and the reason for that is that it’s exactly parallel to the requirements for a plea of guilty on the offenses that are charged.

The purpose of the factual basis requirement really is to ensure that there’s a match between the evidence in the case on the one hand and the legal requirements of the charge on the other hand, and if there are five or six counts in the indictment, there’s got to be–

Anthony M. Kennedy:

Well, suppose that not all of the property had yet been identified.

We know that a substantial forfeiture is going to occur, but we don’t know quite where the bank accounts are, what the amount is, where the location of the real property is, then how would you proceed?

Could you not take the plea agreement?

Sara Sun Beale:

–Well, I think, Your Honor, that the situation is–

Anthony M. Kennedy:

Pardon me, not take the plea.

Sara Sun Beale:

–I think the situation is just parallel to that, where… that the Government doesn’t have its proof in order yet on some of the… have proof in order on some counts, for example, in the indictment, and not others.

If it couldn’t make at least a factual basis showing on those other counts, then it wouldn’t be able to resolve that part of that case, that’s correct.

Now, the standard is not–

Anthony M. Kennedy:

Well, under your view the court couldn’t even take the plea.

Sara Sun Beale:

–That’s correct to the extent that it’s a dependent part of that plea.

Now, there might be other charges that could be entirely resolved.

In our view, the requirements of Federal law do make the forfeiture charge a substantive charge.

As the Court is aware, Federal rules require it to be charged in the indictment, proved to the jury with a special jury verdict, and embodied in the judgment.

Those are very substantial requirements that effectively make forfeiture a unique hybrid.

It is a substantive charge in the indictment, and the plea by definition has to resolve the charges in the indictment.

You plead to those charges in the indictment, and Federal law makes that a substantive charge.

Now, it’s not an element of the offense of a violation, let’s say, of section 848, the crime that the defendant was accused of here, but it does, under Federal law, have this unique character of a substantive charge in the indictment which must be responded to.

Sara Sun Beale:

There are only two ways to resolve the charge.

John Paul Stevens:

Ms. Beale, can I ask you a question about the relief that’s prompted by Justice Kennedy’s question and your answer that if there are two counts, there was no factual basis for one, a guilty plea might stand as to one count, I guess?

Is it your view that if there’s no factual basis for the forfeiture but there is an adequate factual basis for the guilt of the offense charge, that the guilty plea would remain in effect and the judgment of guilt could stand even though the forfeiture is improper?

Sara Sun Beale:

Well, in this case.

Your Honor, as opposed to in general would it ever be possible–

John Paul Stevens:

Well, first in general, and then in this case.

Sara Sun Beale:

–All right.

In general, I believe that it might be possible to resolve the underlying… the question of the underlying guilt and take the plea to that, and leave unresolved for the moment the forfeiture charge and the… whether that would be ultimately resolved by a jury determination of that, or whether that might also be resolved by a plea on the forfeiture with a factual basis and with the necessary waiver.

John Paul Stevens:

Could the court then enter a judgment of conviction on the guilty plea of the charge and reserve for further hearings what to do–

Sara Sun Beale:

That’s correct, in the same way.

Typically… now, that was not done in this case, but typically the way these indictments are drawn up is to include the forfeiture charge in a separate count.

John Paul Stevens:

–I see.

Sara Sun Beale:

And you would literally plead to count 2 and not 3, 4, 5, and so forth, and I think that would be certainly possible that the parties would agree to resolve it that way and the court would be willing to accept the guilty plea under those circumstances.

Now–

John Paul Stevens:

All right.

Then, going to this case, what could be done in this case–

Sara Sun Beale:

–Exactly.

John Paul Stevens:

–if we should agree with you?

Sara Sun Beale:

Well, exactly.

Now, in this case, it appears that the parties had a kind of interwoven or interrelated agreement.

As I said, in return for the prosecutor’s agreement to recommend a 20-year sentence and not to proceed with the other counts, then petitioner agreed to plead guilty, and I think that where the resolution of the counts is interrelated as a matter of plea-bargain and the parties’ understanding, then the court may indeed need to accept or reject, resolve all at one time, otherwise the parties may not in fact be tendering that agreement to the court.

Now… well–

John Paul Stevens:

Can I have one other question, then I’ll be covered everything I had at the back of my mind.

What if the agreement were totally ambiguous, and I think I read the court of appeals opinion the way you do, too, saying that even if some of the property might not be forfeitable, nevertheless we construe the agreement as an undertaking to forfeit everything.

Assume it’s clear that that’s what the agreement was in exchange for a somewhat lesser sentence, would that agreement be enforceable, in your view?

Sara Sun Beale:

–It depends, so that if the factual basis showing was that in fact, let’s say, substitute assets would reach even with legitimately acquired property–

John Paul Stevens:

No, some of the property that he agreed to forfeit, the Government would have no valid claim to.

Sara Sun Beale:

–We think it’s clear that the court cannot accept a plea on that basis and enter a sentence any more than it could accept petitioner’s agreement to serve a 30-year sentence if the statutory maximum were 20 years, even if he was willing to agree to that, even if he might, for example, be willing to agree to that to avoid the prosecution of his wife, or his child, or to preserve a uniquely valuable asset.

There are policy-based outer limitations on the court’s sentencing authority, and those clearly have to be observed or the sentence itself is illegal, and we think–

Anthony M. Kennedy:

Does the case depend… does your argument depend on whether we characterize this as sentencing enhancement or an element of the offense?

Sara Sun Beale:

–Well–

Anthony M. Kennedy:

Is that a pivotal point in the analysis?

Sara Sun Beale:

–I think that the characterization of the criminal forfeiture itself is exactly the pivotal point.

What I would not–

Anthony M. Kennedy:

If it’s enhancement of the offense, then what happens to your case, if it’s an enhancement of punishment?

Sara Sun Beale:

–We concede that forfeiture operates as a penalty, so in that sense, sentencing enhancement would be one way of describing that penalty, that there’s a period of imprisonment plus this enhanced penalty of forfeiture.

What we don’t accept is the notion that there are only two possibilities.

There are the elements of the offense on the one hand, and mere matters of sentencing on the other hand.

We think what Congress did was, in reviving criminal forfeiture and then the rules promulgated first by the advisory committee, then adopted by this Court and Congress, what they did was create something, quite properly, that is a unique hybrid, that is not, strictly speaking, an element of any particular offense but is plainly not treated like any other matter of sentencing, so it operates as a penalty, but it has far different procedural characteristics associated with it that reflect a different… a quite different weighting of the interests that are involved there.

David H. Souter:

Let me–

–Then–

–Go on.

No, you.

I’m sorry.

That’s all right.

Maybe I misunderstood you before.

If that is so, why does it matter… why is it crucial to characterize it?

Sara Sun Beale:

Well, I think that the characterization is just a shorthand way of summing up those attributes, so I’m not so sure that it matters what–

David H. Souter:

Well, but it’s a shorthand way, in effect, of obfuscating this hybrid character.

Sara Sun Beale:

–Well–

David H. Souter:

Let me make this suggestion to you.

Let’s assume for the sake of argument there is in fact a Sixth Amendment right to the determination with respect to the forfeiture.

I don’t know whether there is or not, but I mean, there’s an argument for it.

And let’s assume also, for the sake of argument, that the Boykin requirements are in fact constitutionally mandated and not merely our choices of the best way to get from here to there.

If you make those two assumptions, then I suppose you would argue that the statement of factual basis was constitutionally mandated, wouldn’t you?

Sara Sun Beale:

–We could certainly argue that.

I think that we are hampered–

David H. Souter:

And you’d argue that, and you’d say well that argument is sound or not regardless of whether you characterize this as element, or whether you characterize this as penalty enhancement.

Sara Sun Beale:

–Well, I think that’s right.

I think that we felt somewhat–

David H. Souter:

Then why don’t you make some such argument here?

Why don’t you say, for example, in order to avoid having to grapple with these constitutional issues about the Sixth Amendment requirement of jury verdict on forfeiture and the exactly mandatory character of Boykin, the way to avoid those issues is to read Rule 11(f) to require the statement of factual basis, and why don’t you make that argument, which would not require a characterization one way or the other?

We could leave that issue in limbo.

Sara Sun Beale:

–We mean to be making that argument Your Honor, and if we haven’t made it clearly, let me endorse that now.

David H. Souter:

But if you’re making that argument, you don’t have to make the characterization on an either-or basis, do you?

Sara Sun Beale:

I was using the characterization only as a way to draw attention to those features, so that’s right.

We don’t require a head-in.

We only need to draw attention to those crucial characteristics.

Ruth Bader Ginsburg:

If you make those arguments, then you’re saying not only that what I put to you initially wouldn’t be good enough, to tell the defendant exactly how it would play out if he didn’t enter the plea, but you are also saying that what this district judge tried to do at the end was also not enough.

That is, the district judge, instead of saying, Government, come forth and show us something as to each piece of property to link it with the forfeiture right, instead, this district judge said, defendant, I’m giving you an opportunity to tell me which pieces of property in this collection are not subject to forfeiture.

Your answer would have to be, that is not enough, either.

Sara Sun Beale:

Well, the link-up, the factual basis can come from either the defendant or the Government.

Oftentimes, a district court will inquire of the defendant, do you admit the various facts that would then add up to be the elements of the offense or the–

Ruth Bader Ginsburg:

But if the Government has to make a showing, then how can it be enough for the district judge to say, here’s this big pot of everything you have.

You show me which of these items should be taken out.

It’s quite different than putting a burden on the Government to show that each and every asset is in some way connected with the criminal activity.

Sara Sun Beale:

–Right.

That’s correct.

Rule 11(f) itself doesn’t identify the Government as the party who has the burden of identifying the factual basis.

What it says to the judge is that you must be satisfied that there is a factual basis, and I think that reflects the constitutional imperative of the inquiry to determine that the plea is in fact knowing, intelligent, and voluntary, that there’s a match-up, so it can come from either side, either the defense side or the Government.

If we have a sufficient factual basis, then that portion of the case is taken care of.

Now, where we got into difficulties in front of the district court I think was that the judge indicated he was not satisfied with what the Government had come forward on the one hand, that even though they argued substitute assets he said, I don’t think you’ve proven that yet.

Ruth Bader Ginsburg:

I don’t think the Government came forward with anything.

The Government’s position was, we have a plea, and it’s good.

Now, I’m just trying to see how this fits in with the elements of the offense itself.

The Government has to make some kind of showing.

It’s the Government’s burden.

Here, this district judge put the burden quite plainly on the defendant and said, you show me which of those pieces of property should be taken out.

Sara Sun Beale:

There are two points in time.

Initially, when the Government simply assumed that the plea itself was enough, that was when the plea was entered, and the second point in time where the district judge said to the defendant, you show me… I’m ready to hear your evidence, show me what pieces of property you think are not forfeitable.

Sara Sun Beale:

That was 3 months later, in the ancillary third party hearing, after the notice of appeal had been filed, and the judge realized the scope of the forfeiture rule.

Ruth Bader Ginsburg:

Yes, but I’m asking you what the Rule 11 requires.

Sara Sun Beale:

And Rule 11 does not put the burden specifically on the Government.

It simply says the court must find a factual basis.

Now, note that that’s in the context where the defendant and the Government come forward together, and where the defendant himself is tendering a guilty plea, so it’s really quite different from the context of–

Ruth Bader Ginsburg:

Well, why don’t you tell me what you think are the marching orders for the district judge.

Sara Sun Beale:

–The district judge needs to… without regard to which party it comes from, he needs to identify a proffer of facts that would link up specific pieces of property or categories of property with a factual reason why those pieces of property are forfeited under Federal law.

Antonin Scalia:

Ms. Beale, do you get that from Rule 11(f)?

I mean, if you’re making a constitutional argument, I suppose we can discuss Boykin, but how do you find that in Rule 11(f), which speaks of notwithstanding the acceptance of a plea of guilty, a guilty plea, doesn’t it?

Sara Sun Beale:

That’s correct, and we believe the defendant–

Antonin Scalia:

Not an agreement to forfeiture, but a plea of guilty of the offense, presumably.

The court should not enter a judgment upon such plea, that is, the plea of guilty, without making such inquiry as shall satisfy that there is a factual basis for the plea.

Sara Sun Beale:

–That’s correct, and–

Antonin Scalia:

Presumably, the plea of guilty.

Sara Sun Beale:

–That’s right, and we believe–

Antonin Scalia:

And the court did that here, didn’t it?

Sara Sun Beale:

–That’s correct, and we believe that the plea of guilty… that there are two pleas of guilty, in essence, if you charge it in, as they ordinarily do, in a separate count of the indictment to resolve the charge of forfeiture.

Antonin Scalia:

You’re guilty of forfeiture?

Sara Sun Beale:

That’s right.

You plead innocent or guilty–

Antonin Scalia:

You’re not guilty of forfeiture, you’re punished with forfeiture for being guilty of the crime.

Sara Sun Beale:

–Well, with all respect, Your Honor, that’s not the way the rules are set up.

The rules are set up that this is something that the Government must literally charge in the indictment, charge against the defendant in the indictment, and either prove to the jury as a charge… and the Senate report I think describes this in a way that we have found helpful.

It’s an in personam–

Antonin Scalia:

As a condition of imposing that penalty the Government must do that, but that does not make that a plea of guilty.

I mean, what a plea of guilty means, it means, I did the crime, not, I’m subject to forfeiture.

Sara Sun Beale:

–Well, with all respect, Your Honor, we believe that that’s not the logical consequence of the combined change wrought by the statutory revival of forfeiture and the implementation of that forfeiture requirement in the Federal Rules.

Antonin Scalia:

Ah.

Sara Sun Beale:

Treating it as a charge, and indeed, incorporating it… notice there has to be a judgment.

It is not merely a matter of sentencing.

Sara Sun Beale:

You have to resolve that charge either by proof to the jury or, alternatively, by a plea.

There’s no other way to resolve such a charge, and although the language takes some getting used to… I think there’s some initial reluctance to see that as what we would describe as a guilty plea… we believe that’s the logical consequence of the way the rules are set out.

Stephen G. Breyer:

Why do you want to rely on 6(f)?

I mean, it seems to me you have your finger on a problem that bothered the Sentencing Commission for several years which we couldn’t resolve, and why you want to rely on (f) I don’t know, because the language doesn’t fit it, nor does the fact that forfeiture appears in the U.S. Code under the term “sentencing”, nor to about five other things, including I never heard this one made, but that doesn’t destroy your point.

What I want to know is, is what I think you’re actually trying to argue, and you don’t have to jump to the Constitution, you’re trying to argue that the sentencing statutes require, before a judge accepts a sentence… and that would apply to forfeiture and five other things, but you don’t argue it… before he does that, that he establish that there is some basis for the statutory requirements or guideline requirements for that sentencing existing, that that’s what you want to say.

And I can tell you exactly why the Sentencing Commission danced around it, which I’m… first of all, if you say that’s part of the Constitution, if it is, the sentencing practices of 50 States are really in trouble, including… and moreover, if you say it’s part of the code, what normally happens in many sentences will no longer exist in the entire Federal system.

All right, so I want to know what to do here.

That is, the argument isn’t made squarely.

It’s made in a context where the language and five other things are against it, but the argument’s a serious one, and as you well know, in the guidelines, Chapter 6, the Commission dances around it by saying that the judge may, after deciding that the facts are not such, decide to impose the true sentence irrespective of what the parties agree, but it doesn’t say must.

Now, that’s what I would like you to address, because I quite honestly don’t know exactly what to do about this.

Sara Sun Beale:

Well, we were not in a position to… given the grant of cert to argue–

Stephen G. Breyer:

No, I’m not interested particularly in your reasons.

I’m interested in what you think we should do.

Sara Sun Beale:

–I believe the Court should hold that a factual basis is required under 11(f).

That’s the easiest way, I think, to resolve this.

It doesn’t–

Stephen G. Breyer:

And if not, if I don’t think the language or anything else really fits, then what?

We just say, we’ll decide this another time, or what?

Sara Sun Beale:

–Well, I think that one could conclude that in parallel with the general requirements of sentencing, and in parallel with the requirement of 11(f) as to the substantive offense, that the appropriate disposition of a plea would require the showing of a factual basis, whether it falls–

Stephen G. Breyer:

What do you rely on besides the test of 11(f)?

I mean, what other sentencing statute leads you to that conclusion, unless it’s 11–

Sara Sun Beale:

–Well, I believe Justice Breyer is correct in saying that the whole scheme of the sentencing guidelines, the statutes that underlie that, require a factual basis for the determination–

Stephen G. Breyer:

–But not under 11(f), and if you do… can I–

Sara Sun Beale:

–No.

Stephen G. Breyer:

–The only difference I can see is if you choose 11(f) and you win this case, there has to be a new trial.

I don’t see how you avoid the fact that the guilty plea is void and your client goes right to trial.

If, however, these other statutes are what requires it, then the remedy is a new sentence.

Sara Sun Beale:

Well, I believe, Your Honor, that the remedy sought… that it’s not so clear as you imagine, that in this case the result will be that there’s a trial.

I believe the proper remedy is to remand to the district court, and to go back to status quo ante, and in fact there may be a showing of a factual basis.

It may depend a bit on the breadth of the Government’s claim of forfeiture.

Sara Sun Beale:

In fact, the indictment is narrower, the charge in the indictment is narrower than the courts… as construed, paragraph 10 of the agreement.

If the Court finds that there’s a textual basis–

John Paul Stevens:

Ms. Beale, I think you’ve given an answer that differs from one you gave me earlier.

I asked you what the right result was, and you said you can pro tanto sustain the plea to the crime, to the offense, but said aside only that portion which would support the forfeiture judgment.

Now you’re saying you go back to the status quo ante, which would mean withdrawal of the plea, entire plea.

Sara Sun Beale:

–Well, we did discuss both the in general and the in this case.

John Paul Stevens:

Right.

Sara Sun Beale:

And in this case, if we find a factual basis on remand, then presumably there is no difficulty.

John Paul Stevens:

Well, supposing we find a factual basis for the offense, but no factual basis for the forfeiture.

Then what do you do?

Sara Sun Beale:

Then in this case I do believe it’s interwoven, and at that point the parties have some choice.

The Government may restrict the forfeiture that it requests in order that the entire agreement may stand on a proper footing.

If, for example, the Government determines that it has sought to forfeit property that it didn’t perhaps even realize–

John Paul Stevens:

Right.

Sara Sun Beale:

–was not subject to forfeiture, it may restrict the nature of its claim.

John Paul Stevens:

But does that require… I’m still trying to find out, do you go back to status quo ante and set aside the guilty plea, or do you merely modify the judgment insofar as it affects forfeiture.

Which do you think is correct?

Sara Sun Beale:

Well, when I said status quo ante, I meant–

John Paul Stevens:

Forget what you said before.

Tell me what you think now.

Sara Sun Beale:

–I believe you go back in the first instance… in the first instance to the very moment of the Rule 11 colloquy itself, and so you determine whether there is a factual basis for the plea.

John Paul Stevens:

I still don’t know which is the right… which are you saying they must do, set aside the entire plea, or just the part that relates to forfeiture?

Sara Sun Beale:

If they find no Rule… no factual basis, then petitioner is perfectly prepared to accept the possibility–

John Paul Stevens:

I’m not–

Sara Sun Beale:

–the plea falls apart.

I’m not sure that that’s the agreement that the Government and the petitioner will–

John Paul Stevens:

–I’m trying to find out from you what you think the district court must do.

If he finds that there is a factual basis for the plea of guilty of the offense but not for any forfeiture, what must he do?

Sara Sun Beale:

–He should ordinarily reject the plea, if there’s no factual basis–

John Paul Stevens:

He should set aside the entire plea.

Sara Sun Beale:

–In this case, where it’s a single interrelated plea, that’s correct.

John Paul Stevens:

Thank you.

Sara Sun Beale:

Now, it’s possible, again, that the parties would resubmit a more narrowly tailored agreement that would reflect on a factual basis.

John Paul Stevens:

Thank you.

Mr. Stewart.

Malcolm L. Stewart:

Justice Stevens, and may it please the Court:

As to the applicability of Rule 11(f), I think the questions asked by Justice Scalia and Justice Breyer really pinpoint the weakness of petitioner’s argument.

That is, Rule 11, by its terms, applies only to pleas of guilty, and it requires the district court to find only that there is a factual basis for the plea.

As this Court recognized in McCarthy v. United States, a plea of guilty is an admission that the defendant committed the acts charged, and a willingness to forego trial on those charges.

A concession that a particular–

John Paul Stevens:

Can I ask you a preliminary question to kind of narrow the issue?

Supposing… the reason for it is so that the court should not enter judgment upon the plea unless there’s a factual basis.

Supposing the maximum sentence authorized by statute is 10 years, and there’s a plea agreement that will accept 12 years, could he enter a 12-year judgment?

Malcolm L. Stewart:

–No.

I mean, that would not be as a result of Rule 11(f), but we agree–

John Paul Stevens:

At least he couldn’t do it.

Malcolm L. Stewart:

–He couldn’t do it.

John Paul Stevens:

And secondly, supposing there is clear… that there’s no factual basis for a forfeiture, but there’s an agreement by the defendant, I’ll forfeit $10 million because I’m going to get a 5-year sentence, but there’s no statutory legal basis for a forfeiture, could that agreement be enforced?

Malcolm L. Stewart:

No.

If the defendant was pleading guilty to a crime for which forfeiture was not an available penalty–

John Paul Stevens:

No.

Forfeiture is an available penalty, but the facts would not support forfeiture, and everybody agrees to that.

Malcolm L. Stewart:

–If everybody agrees to that, then the sentence would be an illegal one.

The way we would interpret–

John Paul Stevens:

And what if that is shown after the judgment is entered, then what happens?

Malcolm L. Stewart:

–Well, typically the responsibility of the judge would be to determine in one way or the other that he was satisfied that the sentence was a lawful one under the applicable statute, and we’re not saying–

John Paul Stevens:

Is it sufficient satisfaction to say that I’ve got an agreement in front of me in which the defendant says, I agree to forfeit X dollars?

Malcolm L. Stewart:

–If the defendant has conceded that the property is forfeitable, and if there is no record evidence that casts doubt upon that proposition, and if that agreement is–

John Paul Stevens:

Does he have to concede particular assets are forfeitable, or just that a certain amount of money is forfeitable.

Malcolm L. Stewart:

–No.

Malcolm L. Stewart:

I think the… and in this case the defendant in essence conceded that all his assets met the statutory requirements for forfeiture.

Now, if–

John Paul Stevens:

If one doesn’t read the agreement that way, one merely reads it as an agreement to forfeit everything I own, which one could read it, would the judge be permitted to enter this judgment?

Malcolm L. Stewart:

–I think the judge would have to, again to satisfy himself that this was a lawful sentence, and if the judge–

John Paul Stevens:

He’d have to satisfy himself there was a factual basis for it.

Malcolm L. Stewart:

–Well, he would have to satisfy himself that there were facts supporting it, but one of the bits of evidence he could look to, and I think one of the primary pieces of evidence, would be the parties’ agreement–

John Paul Stevens:

Sure.

Malcolm L. Stewart:

–that it was so, and I think one highly relevant portion of the colloquy at the sentencing hearing–

John Paul Stevens:

In other words, he has to find in the agreement a factual basis for concluding the assets are forfeitable.

Malcolm L. Stewart:

–He has to find… he has to be satisfied that the property is forfeitable under the statute, and typically one of the ways that judges resolve potential factual disputes is by agreement or stipulation of the parties.

Antonin Scalia:

Right, so you’re saying he does not have to satisfy himself personally of the factual basis.

It is enough if he receives from the defendant a concession that a factual basis exists.

Malcolm L. Stewart:

That is corr… he–

Antonin Scalia:

But if no concession that a factual basis exists is there, then he may have to conduct some other inquiry.

Malcolm L. Stewart:

–That is correct.

David H. Souter:

But I think you’re going beyond that.

I thought you said that there would… well, maybe you didn’t say there would be a sufficient basis.

You said it would be a relevant factual basis that this agreement had been made.

If that argument was sound, then that would be a relevant factual basis that an agreement to plead guilty had been made, yet that’s not sufficient under the rule.

Malcolm L. Stewart:

I think that’s correct, and I think in McCarthy v. United–

David H. Souter:

It’s correct that that’s what you said, or it’s correct that that would not be enough.

Malcolm L. Stewart:

–Both, and–

Antonin Scalia:

Okay.

That would be enough under the rule, but I thought you’re saying the rule doesn’t apply here.

Malcolm L. Stewart:

–That’s correct.

Let me explain–

David H. Souter:

But you were suggesting that there was an independent obligation on the part of the judge.

Malcolm L. Stewart:

–I’m suggesting in the context of guilty pleas under Rule 11(f) that in essence the plea of guilty cannot form its own factual basis.

David H. Souter:

All right.

Now, what about the claim of the right to forfeiture.

David H. Souter:

Can a stipulation that he will but he agrees to forfeit be a sufficient factual basis?

Malcolm L. Stewart:

Yes.

I believe the stipulation would ordinarily be construed as–

David H. Souter:

Now, why the difference?

Why is it enough on forfeiture, but it’s not enough on guilt or innocence?

Malcolm L. Stewart:

–I–

David H. Souter:

Is it the fact that the rule applies on guilt or innocence and the rule doesn’t apply on forfeiture?

Malcolm L. Stewart:

–That is correct, and I think–

David H. Souter:

But you have said… I apologize in a way for keeping cutting you off like this.

I promise you I’ll let you run as long as you want in a second, but I understood you to say that even without the rule, the judge has an obligation to assure himself that there is some factual basis to believe that the forfeiture was not a wholly illegal forfeiture.

Malcolm L. Stewart:

–That’s correct, and ord–

David H. Souter:

What’s the source of that obligation?

Malcolm L. Stewart:

–The courts have recognized through the years that the judge has an independent obligation to impose a sentence that is authorized by law and indeed, the plea agreement in this case contained a term stating that the judge was not bound by the parties’ agreement but would impose the sentence that he deemed–

David H. Souter:

Does that get you to the equivalent of Rule 11, then?

Malcolm L. Stewart:

–I don’t believe so, and let me explain by reference to McCarthy v. United States.

In McCarthy v. United States, the Government made, with respect to guilty pleas, something very similar to the argument that I’m making with regard to sentencing stipulations.

That is, the Government argued the mere fact that McCarthy entered a plea of guilty is a sufficient reason for us to conclude that he must have committed the crime, and the Court said, that’s not good enough, and it pointed to rule… what at that time was Rule 11, it hadn’t been recodified as Rule 11(f), and said the rule specifically requires in the context of guilty pleas that the judge look beyond the party’s plea, and the Court stated that the reasons for this requirement are specific to the context of guilty pleas.

That is precisely because a plea of guilty to a criminal offense has such severe consequences, because a criminal conviction is thought to be such a significant step, the court has an obligation with respect to pleas of guilty that is not imposed with respect to concessions or stipulations generally.

The Court did not say in McCarthy, in the area of criminal law generally there is an obligation for the court to look beyond the parties’ agreement to see whether they are accurate.

The Court said, guilty pleas are different.

Antonin Scalia:

Where in this plea agreement did the defendant acknowledge the factual basis for his giving up his title to all his property?

Malcolm L. Stewart:

The plea agreement contained only a term stating that the defendant agrees to transfer title to all his assets.

Antonin Scalia:

I think your case would be a lot stronger if you said the defendant agrees that all of these assets are properly forfeitable at law, and he agrees to transfer them all to the Government.

All it says, however, is he agrees to transfer them to the Government.

Now, how do you find what you say is the necessary factual concession in that?

Malcolm L. Stewart:

I think the strongest indication that this was the interpretation the parties placed upon the agreement is on page 149 of the Joint Appendix, which is the colloquy at the sentencing hearing, and petitioner’s counsel… petitioner’s then-counsel is addressing the court, and counsel states… the second, the first full paragraph, second paragraph… your Honor, of course–

Antonin Scalia:

On what page?

Malcolm L. Stewart:

–Page 149 of the Joint Appendix.

Counsel states, Your Honor, of course that’s all for naught, because as a result of this, meaning the crime, the forfeiture is going to take regular money and illegal money under the substitute assets.

Maybe all those years that he’s worked, maybe that which he’s loved most dearly next to his family, those dollars for whatever reason are going to be taken from him by the Government.

Malcolm L. Stewart:

Mr. Libretti has a lot of questions about that.

It’s a harsh law.

Both the CCE law and the forfeiture law is a harsh law.

It’s a bitter pill dealt by Congress, but it’s a pill we must swallow.

And I think implicit in this discussion is, first, counsel’s recognition that all of the property was to be forfeited pursuant to the agreement, and that there was to be no further hearing to determine which property would be forfeited and which would not, but I think second, and equally significant–

John Paul Stevens:

That paragraph doesn’t say all his property is covered by it.

Malcolm L. Stewart:

–He says–

John Paul Stevens:

It says it may be some regular money and some illegal money.

Malcolm L. Stewart:

–He says, regular money and illegal money under the substitute assets.

The substitute–

John Paul Stevens:

It doesn’t say that the substitute assets would eat up his entire estate.

Malcolm L. Stewart:

–Well, he says both the CCE law and the forfeiture law is a harsh law.

It’s a bitter–

John Paul Stevens:

Well, it is.

Malcolm L. Stewart:

–pill dealt by Congress.

John Paul Stevens:

But it’s still not the same as saying he gets 100 percent of his estate, even if the forfeitable assets plus the substitute assets don’t equal the total.

It doesn’t say that.

Malcolm L. Stewart:

Well, at the hearing itself the Government made a motion for forfeiture that listed all the assets that were subsequently encompassed in the district court’s order forfeiture, and defense counsel made no objection to that motion, and this is the portion of the colloquy that most directly addresses the issue of forfeiture, and it seems to us not to be an acknowledgement not simply that all of the property would be forfeited pursuant to the agreement–

John Paul Stevens:

But that all of it was forfeitable.

Malcolm L. Stewart:

–Exactly.

John Paul Stevens:

But I don’t think the court of appeals read it that way.

If you look at page 325 of the Joint Appendix, they seemed to say, in exchange for forfeiting all of his property.

That seems to include forfeitable as well as nonforfeitable.

He made his deal.

Malcolm L. Stewart:

If you look at page 324 of the court of appeals, at the very bottom of the page, the fifth line from the bottom, the court of appeals states, he intended to forfeit all of his property without requiring the Government to prove the assets were forfeitable.

The plea agreement requires forfeiture pursuant to section 853, which includes forfeitable assets under 853(a) and substitute assets under section 853(p).

We would certainly agree that if the plea agreement had been drafted more artfully some of these questions would have disappeared.

We think on the whole the courts below and petitioner’s then trial counsel placed the construction on the agreement that we place here.

In any event, it’s certainly irrelevant to the 11(f) question.

That is, the concession either is or is not a plea of guilty.

John Paul Stevens:

Well, is it irrelevant… what if the agreement made it perfectly clear that half of his assets were forfeitable properly, but the agreement nevertheless provided for forfeiture of all of his assets, so there was a clear, factual basis for saying that everything covered by the agreement is not authorized to be forfeited.

What would happen then?

Malcolm L. Stewart:

Well, if the agreement were clear on its face that the other half of the assets were not forfeitable under the statute but the parties were nevertheless agreeing to forfeit them, I think the district court’s obligation would be to reject that aspect of the agreement–

John Paul Stevens:

Because–

Malcolm L. Stewart:

–just as if the Government and the defendant had agreed that the defendant would consent to a prison sentence in excess of that authorized by law.

Antonin Scalia:

–And what if the plea agreement says nothing at all–

–Yes.

–about whether it is properly forfeitable or improperly, it just says, he agrees to forfeit all his assets?

Malcolm L. Stewart:

I think probably the obligation of… probably the better practice on the part of the district court would be to inquire as to–

Antonin Scalia:

I’m not talking about–

–What about his obligation?

–I’m talking about what he has to do.

Wouldn’t he do exactly what the judge is trying to do in this case?

Malcolm L. Stewart:

–No.

I think what went on at the sentencing colloquy was what ought to have happened.

That is–

Antonin Scalia:

Never mind that.

Answer my question, would you.

What does the judge have to do when he gets a plea agreement that says nothing more than he agrees to forfeit all his assets, period, and there’s no colloquy with counsel which you contend suggests that there’s an acknowledgement that they are all forfeitable?

There’s no acknowledgement at all that they are forfeitable, just he agrees to forfeit all of them.

Is that an adequate plea agreement?

Malcolm L. Stewart:

–I think that the… precisely because the parties cannot stipulate to an illegal sentence, the judge could construe that as a concession that all of the property was forfeitable.

Antonin Scalia:

He could.

Malcolm L. Stewart:

Yes.

Antonin Scalia:

So he would not have to make any further inquiry?

Malcolm L. Stewart:

He would not.

Again, if the–

Anthony M. Kennedy:

Well, suppose that’s not a reasonable way to construe the agreement, but that after the plea is accepted, he then holds a complete forfeiture hearing, is the plea still invalid?

It seems to me that you’re conceding more than you should.

It seems to me that you’re saying that he has to make either a finding that there’s a factual basis, or at least construe a concession or an agreement that way, for the plea to be valid.

Malcolm L. Stewart:

–No.

We’re saying to impose the sentence of forfeiture.

Not for the plea to be valid, but to order forfeiture in accordance with the agreement, the judge would have to feel–

Anthony M. Kennedy:

But the plea stands, and then the question is just the adequacy of the post plea procedures.

That’s all we’re talking about.

Malcolm L. Stewart:

–That’s correct, but for–

Anthony M. Kennedy:

Under your view of the case.

Malcolm L. Stewart:

–That’s correct, but pursuant to the agreement, if the parties… if the defendant had stipulated that all the assets were forfeitable, the judge would be perfectly justified in… and that agreement was plausible on its face–

Stephen G. Breyer:

This… sorry.

Malcolm L. Stewart:

–The judge would be justified in ordering forfeiture on that basis alone without conducting additional proceedings, and certainly the point, from the Government’s perspective of entering into this agreement, was precisely to obviate the need for an elaborate hearing on the question of forfeitability.

Stephen G. Breyer:

What is the right form of words in your opinion?

Where we are, as I take it, is, forget about 11(f).

That has to do with guilty pleas.

We’re now talking about Justice Stevens’ question, which is that a judge is never free to impose an illegal sentence, and here we have a forfeiture statute, we also have a statute that governs in very great detail sentences of all sorts and shapes, and one of the major questions is the extent to which parties can stipulate to facts relevant to sentencing which aren’t true.

So this governs quite a lot, and the issue, I take it, is what’s the right form of words for this Court to write as to the duty imposed on a Federal district judge to determine independently what the facts are in respect to a fact relevant to sentencing to which the parties have agreed?

Now, there are two guideline sections written on this, and neither answers that question, so what is the Government’s view, because I don’t see how to write this case without taking a view on that, though it isn’t fully argued.

Malcolm L. Stewart:

Oh, I think the Government’s view would be that, again, leaving aside for the question… for the moment the question of interpretation of the agreement, if it were clear that the agreement was a concession that certain assets were forfeitable under the statute, I think the ordinary principles governing–

Stephen G. Breyer:

Yes, right.

If they had said right here, as your directive, I guess, of November 1994 now tells everybody to say, the defendant should stipulate as to what the facts are, that if that were clear, there wouldn’t be a problem.

You could just say, yes, there’s enough here.

Or alternatively, if there were nothing, I guess it wouldn’t be a problem.

We could say there’s nothing here.

What is… but we might have to be in that ambiguous area where it would be useful to have a standard as to what there has to be, and that’s why I’m asking what in your opinion… and I think it’s quite difficult to answer, but we may have to answer it.

What, in your opinion, is the correct form of words to describe… I’d be repeating myself.

You’ve taken it in, right?

Malcolm L. Stewart:

–The correct form of words for the–

Stephen G. Breyer:

The correct form of words to describe the duty of a sentencing judge in the Federal system independently to determine the extent to which a fact relevant to sentencing is true–

Malcolm L. Stewart:

–I think–

Stephen G. Breyer:

–given that there is a stipulation.

Maybe there is no independent duty, but maybe there is some.

Stephen G. Breyer:

Maybe you have to look at the presentence report.

Was there a presentence report here?

Malcolm L. Stewart:

–There–

Stephen G. Breyer:

Maybe you have to ask some questions.

I’m asking to get your opinion on that, if there is one that you have.

Malcolm L. Stewart:

–I think as a general matter the district court’s… the district court could enter an order of forfeiture in accordance with the agreement if the agreement was plausible on its face, and if it were not squarely contradicted by other record evidence.

That is–

Stephen G. Breyer:

And that also would hold for stipulations as to how much drugs there were, stipulations as to the proper guideline level, stipulations as to the amount of the fine, stipulations as to… you know.

I mean, I take it there’s no way to differentiate the one from the other.

Malcolm L. Stewart:

–Well, at least as between the things are mentioned, some are purely factual determinations, some are purely legal determinations, and some are mixed questions of fact and law.

The court would more often feel justified in saying that a stipulation as to a pure question of law was implausible.

Anthony M. Kennedy:

But is it correct that that issue has to be reached by this Court when we write the case?

The issue is the validity of the plea and whether a jury was waived as to the forfeiture determination, that’s all.

Malcolm L. Stewart:

Certainly–

Anthony M. Kennedy:

I mean, those are the questions as I read them.

Malcolm L. Stewart:

–Certainly it isn’t necessary to resolve this question to decide whether Rule 11(f) imposes upon the district court an obligation to find a factual basis for the plea.

Anthony M. Kennedy:

Can you or do you take the position that if the judge takes appropriate action to determine forfeitability after the entry of the plea, that the plea is valid?

Malcolm L. Stewart:

Oh, that’s correct, and in general–

Anthony M. Kennedy:

All right, and that’s the first question.

Now, what about the waiver of the right of a jury to determine forfeitability?

Does the entry of a guilty plea waive the right of a jury to determine forfeitability at the sentencing stage?

Malcolm L. Stewart:

–That is somewhat unclear.

As a practical matter, this is a situation that virtually never arises.

That is, the Government hardly ever enters, or virtually never enters into plea agreements in which issues of forfeitability remain unresolved because part of the point of a plea agreement from our standpoint is to obviate the need for that kind of prolonged evidentiary proceeding.

Anthony M. Kennedy:

But Mr. Stewart–

–I’m actually surprised at that.

It would seem to me that there are many issues of forfeitability that are somewhat difficult… the tracing of assets and so forth… that are going to take a subsequent hearing after the plea’s entered.

Malcolm L. Stewart:

I mean, typically–

Anthony M. Kennedy:

You know the cases better than I do, but I’m surprised at your answer.

Malcolm L. Stewart:

–As far as Department of Justice practice goes, typically if we were going to enter in… you’re right that often when a case is tried to a jury there will be elaborate, difficult issues of forfeitability remaining, but when the Government enters into a plea agreement, typically there is an insistence upon obtaining stipulations or concessions as to forfeiture as well so that we don’t essentially have to try the case despite the entry of the plea agreement.

Malcolm L. Stewart:

Now, it’s very clear that the defendant could simply plead guilty without an agreement and preserve his right to contest the forfeitability of assets.

Ruth Bader Ginsburg:

Mr. Stewart, let me go back to the question I asked Ms. Beale, that this defendant was not told by the district judge going in about this most unusual kind of a jury determination that he would be entitled to if he didn’t plead guilty.

That is, the special verdict and all of that.

Doesn’t he, to waive that right to the jury determination on the forfeiture, at least have to know about this extraordinary… a special verdict in a criminal case is really extraordinary procedure, isn’t it, and not one word was said about that.

Malcolm L. Stewart:

We agree, but we don’t believe that the knowing relinquishment standard of Johnson v. Zerbst would apply.

That is, by pleading guilty, the defendant obviously gave up a host of rights that he could have asserted at a trial had he insisted–

Ruth Bader Ginsburg:

But under Rule 11 he’s told about those rights, or many of them.

He’s certainly not told about this unusual right.

Malcolm L. Stewart:

–He’s told about a small set of fundamental constitutional rights.

He’s not required under Rule 11 to be told about any statutory rights, and we believe that Rule 31(e) is not a constitutional dimension.

Moreover, he was told at the plea colloquy that he had the right to be tried by a jury.

I think part… in a sense, petitioner’s argument presumes that on the one hand the right to a jury determination on forfeiture is part and parcel of the Sixth Amendment right to jury trial, but that on the other hand for purposes of the Rule 11 colloquy they are two different things, so the advice that you have the right to be tried by a jury doesn’t encompass the right… the advice that you have the right to be tried to a jury on forfeiture.

In general, the Rule 11 colloquy would not involve an elaborate parsing out of the functions that judge and jury would play at trial, so even if a defendant received a perfectly adequate Rule 11 colloquy, he might still be uncertain as to whether particular issues would have been resolved by the judge or by the jury.

Ruth Bader Ginsburg:

I’m not asking you anything abstract.

I’m asking you about, this is a peculiar kind of a jury trial right.

Does defendant waive that even though he has no notion that it exists because nobody told him about it?

Malcolm L. Stewart:

Yes.

We know that he was not told by the court.

We don’t know whether he was told by his counsel, but he could waive it regardless of whether he had actual knowledge, and the court has–

Ruth Bader Ginsburg:

I… the notion of an unknowing, unconscious waiver is disturbing.

I can see you say, well, he doesn’t… he’s really not entitled to know about it, so it doesn’t matter that he wasn’t told.

Malcolm L. Stewart:

–Well, in–

Ruth Bader Ginsburg:

How can you waive something that you don’t know you have a right to?

Malcolm L. Stewart:

–Well, the Court has recognized in a variety of circumstances that as a general matter a defendant’s rights, even constitutional rights, can be waived simply by the failure to assert them at the proper time, so it can often happen during the course of a criminal trial–

David H. Souter:

Well, yes, but here, if we make the assumption for the sake of argument that this particular right, the jury determination with respect to forfeiture, is of constitutional dimension, then it would be very odd to say that the same guilty plea which waives the right to a trial on guilt and innocence should be treated differently from the guilty plea insofar as it waives the jury determination with respect to the forfeiture.

I mean, why would you draw that distinction?

There’s no pragmatic reason to do so.

It’s not that you would be interfering with the relationship between counsel and client, or what-not.

Why would you ever draw that distinction if you assume that in fact it is of constitutional… that the determination on forfeiture is of constitutional significance?

Malcolm L. Stewart:

–Well, I think in fashioning Rule 11 the drafters didn’t state that the defendant had to be advised of all the constitutional rights that–

David H. Souter:

No, but just why… just… my question is, why would you want to draw that distinction?

What would make that a rational and sensible distinction to draw?

Malcolm L. Stewart:

–Well, my answer may sound as though it’s questioning your premise that this falls within the Sixth Amendment, but the fact is that the procedural protections available at a criminal trial as a prerequisite to a determination of guilt or innocence have always been given a higher status than procedural protections available at sentencing.

David H. Souter:

That does sound as though you’re rejecting my premise.

[Laughter]

And if you don’t reject my premise, what’s your answer?

Why would you draw that distinction?

Malcolm L. Stewart:

I guess we would say, first we would draw that distinction because we think that the drafters of Rule 11 drew that distinction.

They referred to the right to be tried by a jury, they placed it in the context of other rights that were clearly going to be asserted at a trial rather than at a sentencing proceeding.

And the second point we would make is, again, if this is part and parcel of the Sixth Amendment right to be tried by a jury he was told, you have the right to be tried by a jury, and he waived it.

David H. Souter:

Well, he was told that, and yet in the colloquy which is in… which has been already adverted to, the judge as part of that colloquy then went on to say, now, if you plead guilty, that’s going to be the end of it and so on, and he says, the jury is not going to decide whether you’re guilty or not.

That suggests to me, would suggest to me if I were the defendant standing there, that my jury trial right goes to guilt or innocence.

It would not suggest to me that I had a jury trial right with respect to the forfeiture, and even if I assume for the sake of argument that the… that a mere statement or an unqualified statement saying you waive your right to jury trial, of all matters charged against you, or what-not, would be sufficient, it seems to me, going back to Justice Ginsburg’s question, what happened here is the judge seems to have modified that later in the colloquy to indicate that the jury trial right just goes to guilt or innocence.

Malcolm L. Stewart:

Well, certainly that statement… I think the judge was primarily focusing on the right to jury trial on guilt or innocence, because that’s the thing that’s generally at issue.

David H. Souter:

So if you were standing there listening, wouldn’t you draw the conclusion that you had a jury trial right on guilt and innocence, and likewise conclude that you didn’t have a jury trial right on anything else?

Malcolm L. Stewart:

I think that’s probably the most likely inference, and our position has never been–

Ruth Bader Ginsburg:

But normally you don’t have a jury trial on the sentence, so what I don’t understand is that here is a hybrid, as Ms. Beale called it.

It has to be charged.

You have a right to a jury trial with a special verdict, and to say that a defendant… a judge doesn’t even have the obligation to tell the judge… the defendant with respect to this forfeiture in the absence of a plea agreement there would be a jury trial right, and the jury would have to make special findings on each item of property–

Malcolm L. Stewart:

–I mean, in… the Rule 11 really encompasses two categories of information that have to be conveyed to the defendant.

One is information about what will happen to you if you plead guilty, what’s the minimum and maximum sentence, and so forth, and the other category of information is, what rights would you be able to insist on if you didn’t plead guilty and insisted upon a trial, and the idea is to allow the defendant in some rough sense to compare the options available to him.

I think one thing that’s noteworthy about the second category of information… what would happen to you if you insisted upon a right to trial… is that it doesn’t include any information about sentencing.

That is, the defendant is not required to be told, this would be your minimum and maximum sentence if you insisted upon a right to trial.

Indeed, in Brady v. United States, the Court held that a defendant’s guilty plea was voluntary even though he reasonably believed that he would be subject to a sentence of death if he insisted upon trial and was convicted.

It turned out that that was not the case, that that statutory capital provision was invalid, and therefore the defendant pleaded guilty under the misapprehension that he would be subject to a capital sentence if he contested the charges, so the rule simply doesn’t require the same quantum of information as to what would happen if you contested the charges as it would–

John Paul Stevens:

–Mr. Stewart, can I ask you… your time is about to expire… two questions about this particular case?

Am I correct that the only issue before the court of appeals was the order of forfeiture, not the plea of guilt or innocence?

Malcolm L. Stewart:

–That’s correct.

John Paul Stevens:

And secondly, is it your reading of the court of appeals opinion that the post plea proceedings on forfeiture that the district judge was conducting cannot be conducted under the holding of the court of appeals?

Malcolm L. Stewart:

The court of appeals said that the district court retained jurisdiction to adjudicate third party claims to the property, but that the district court did not retain jurisdiction to entertain the petition.

John Paul Stevens:

The defendant could not make any further claims.

Malcolm L. Stewart:

That’s correct, and the court of appeals essentially treated that aspect of the post judgment proceedings as a nullity.

John Paul Stevens:

Okay, thank you.

Was there a presentence report?

Malcolm L. Stewart:

There was a presentence report.

Stephen G. Breyer:

And did the presentence report go into any of these facts?

Malcolm L. Stewart:

The presentence report contains information regarding the legitimate income that petitioner had earned over the years which would be relevant in determining the plausibility of the Government’s claim that assets would be forfeitable under the substitute assets provision.

The presentence report also notes forfeiture as an available sanction but does not go into–

Stephen G. Breyer:

My point is, is there anything in that that would add to the quantum of information that the sentencing judge had if the obligation is on the sentencing judge to determine whether there is a basis for the forfeiture that he ordered?

Malcolm L. Stewart:

–To the extent that the presentence report discusses petitioner’s legitimate–

Stephen G. Breyer:

Does it help, or doesn’t it help?

Malcolm L. Stewart:

–It does help.

Stephen G. Breyer:

Do we have it here?

We should get it.

Malcolm L. Stewart:

Okay.

I’m not sure if it’s in the record.

The presentence report included information both about legitimate earnings and about the extent of petitioner’s unlawful conduct, both of which would have been relevant in determining the plausibility of the concession that all the property was forfeitable under the statute.

Stephen G. Breyer:

Okay.

John Paul Stevens:

Thank you, Mr. Stewart.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.