Mitchell v. United States – Oral Argument – December 09, 1998

Media for Mitchell v. United States

Audio Transcription for Opinion Announcement – April 05, 1999 in Mitchell v. United States

del

William H. Rehnquist:

We’ll hear argument next in Number 97-7541, Amanda Mitchell v. the United States.

Mr. Morley.

Steven A. Morley:

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

The Fifth Amendment is clear in its language.

No person shall be compelled in any criminal case to be a witness against himself, and yet in this criminal case the district court used the defendant’s silence, invoked to protect her from risking an increase in her own sentence, as a basis to fashion a sentence.

In doing so, the court fundamentally altered the sentencing proceedings from that which had been specifically promised to this defendant at the time of her colloquy, and from that which is generally applicable in criminal process.

Anthony M. Kennedy:

Are there cases that tell us what the authority and discretion of the trial court is in inquiring as to the basis for the… the factual basis for the plea?

At the plea stage, can the trial judge say, now, I want you to tell me… I’m not going to accept your plea.

I want you to tell me everything that you did, all of the transactions, and if you don’t I’m not going to accept your plea.

Can the trial judge say that?

Steven A. Morley:

The trial judge has discretion to make certain that there’s a foundation for the guilty plea, and certainly the trial judge can say to the defendant, I’m not going to take your plea unless you tell me everything, but then the trial judge has the opportunity to say, I’m not going to take your plea, and the defendant would also be given the opportunity to say, judge, I’m willing to tell you enough that admits to the essential elements of this offense, but I’m not getting into any sentencing factors.

Anthony M. Kennedy:

I’m surprised you can say… suppose you have three police officers, uncontradicted testimony, overwhelming proof of the guilt, and they testified, and the criminal defendant says, based on what you’ve heard I plead guilty.

Does the trial judge still have the discretion to say, I want you to tell me everything that happened or I won’t accept the plea?

Does he have that… I would–

Steven A. Morley:

I think the judge has a… I’m not sure the cases say that he can’t accept the plea.

I think the… the cases seem to say that the trial judge has the authority to make sure that there’s a factual foundation, a factual statement, and that–

Anthony M. Kennedy:

–But once he does that, doesn’t his discretion end?

Steven A. Morley:

–Yes, it does, and I think under–

Anthony M. Kennedy:

Because if it does, it seems to me to make your case easier, although I haven’t seen cases on this.

Steven A. Morley:

–I haven’t seen cases on that, but think Libretti–

William H. Rehnquist:

In a plea colloquy you’re typically told you’re waiving a privilege against self-incrimination.

Steven A. Morley:

–Typically that’s true.

William H. Rehnquist:

In this case, Judge Cahn told the defendant that, I think.

Steven A. Morley:

Well, Your Honor, actually what Judge Cahn said… and I refer to page 45 of the joint appendix toward the top… Judge Cahn said, you have the right at trial to remain silent under the Fifth Amendment or at your option you can take the stand and tell the jury your side of the controversy, so Judge Cahn specifically limited the waiver of the Fifth Amendment to the right at trial.

William H. Rehnquist:

Well, you know, I don’t know that one would parse it quite that strictly, but I… that’s a permissible point of view, certainly.

Steven A. Morley:

But even beyond that, I still believe that the cases point to the fact that one does have a Fifth Amendment right at sentencing.

This comes really from two sources.

David H. Souter:

May I… I’m sorry, I want to go back to the plea colloquy before we get to the sentence.

Would you explain to me your understanding of the difference between the waiver that is involved in speaking to the judge during the plea colloquy and the waiver, if there is a difference in the waiver that a defendant makes on taking the stand at trial?

Is there any difference?

Steven A. Morley:

Yes, there would be a difference in that way.

David H. Souter:

What is it?

Steven A. Morley:

In a plea colloquy the defendant is really giving his or her admission to the essential elements of the offense so that a legal conclusion can be drawn right at that time to the effect that individual is guilty.

That is all that it’s involved in.

At a trial, when a defendant takes the witness stand–

Sandra Day O’Connor:

Well now, just a minute.

I think you have to ask enough at the plea colloquy to satisfy yourself as the trial judge that the facts that occurred amount to a commission of the alleged offense.

Steven A. Morley:

–Precisely, and–

Sandra Day O’Connor:

And presumably the judge could have asked about the quantity of drugs.

Steven A. Morley:

–Well, this Court in Libretti made clear that forfeiture is a sentencing issue, and therefore need not be part of the factual understanding, the factual statement under Rule 11.

Sandra Day O’Connor:

What was the statute under which the petitioner was charged here?

Steven A. Morley:

This was a drug statute, 8… it was the conspiracy statute.

It was the 846 statute in which drug quantities are not part of the… not an element of the offense, but they are part of the sentencing.

Sandra Day O’Connor:

And you conceive that the quantity of the drugs is not an element of the offense here.

Steven A. Morley:

Absolutely, it is not an element of the offense.

Anthony M. Kennedy:

And would it be an abuse of discretion for the judge to say, I’m not going to take the guilty plea if I have to go through all this thing on sentencing.

You have to tell me how much drugs were involved.

Steven A. Morley:

I would be willing to give a judge that discretion.

I’m not sure that it’s an abuse of discretion.

I think our district court judges are by and large well-founded in the–

Anthony M. Kennedy:

Well then, the privilege you’re talking about is not as important as I thought it was from your brief.

Steven A. Morley:

–Well, I… perhaps I’ve conceded too much, Justice Kennedy, but at any rate–

Ruth Bader Ginsburg:

But then you’re just making it a later–

–Well, let me–

–You just said you can make the person tell sooner but you can’t make them tell later, and that doesn’t make a whole lot of sense.

Well, you haven’t agreed that he could make him tell.

Steven A. Morley:

–No.

Antonin Scalia:

You’re just saying he may not enter the plea unless you–

Steven A. Morley:

Right.

The judge, as far as… I mean, the judge can always say, I won’t take this plea, the defendant must go to trial.

David H. Souter:

–Well, are you taking the… going back to the question that I started with or, it seems to me what you’re saying is that the essential difference between the waiver and when the individual stands up at the Boykin hearing and the waiver when the individual takes the stand is that the only waiver that’s being given in the Boykin hearing is the waiver that in fact is made with each individual representation of fact by the defendant for purposes of entering the plea, and that’s as far as the waiver goes.

Steven A. Morley:

That’s as… exactly, that’s as far as the waiver goes, and–

Antonin Scalia:

And you’re saying that the judge can condition his acceptance of the plea upon the defendant’s yielding a constitutional right that the judge has no power to demand that he yield.

Doesn’t this violate the doctrine of unconstitutional conditions?

I’ll accept this plea, but only if you give up your constitutional right not to tell me this.

Well, you give up the constitutional right to trial, the constitutional right to… you give up a lot of constitutional rights when you plead guilty, don’t you?

Steven A. Morley:

–Yes, precisely.

But if I could get back to Mr. Justice Souter’s question about the difference at a trial, at a trial, the waiver concept there is where a defendant would testify, and in that sense would be giving up his entire right because he is testifying, and that the… and the Government would have the opportunity to cross-examine him on that testimony, and really what underlies that waiver is a rule of fairness.

We’re not going to let a defendant get up in front of a jury, testify as to facts, and then cut off cross-examination to matters that are relevant at trial.

In the guilty plea context the sentencing issue is simply not relevant.

Sentencing factors are not relevant to the waiver of the–

Stephen G. Breyer:

Well, suppose… suppose the–

–Well–

Steven A. Morley:

–of that… of the rights that… for the… because they do not relate to the essential elements of the offense.

David H. Souter:

–No, but they can.

It seems to me that it… and I… this doesn’t happen in every case, of course, but it seems to me that it may very well be open to a judge to say the following at the Boykin hearing.

Number 1, this is not an Alford plea.

You’re not standing here saying, look, I really didn’t do it, but you know, there’s a reason for pleading and so on, so your… the premise of your plea is that you really did do the things that were charged.

I, the judge, sort of believe that truth inheres in the details, and I’m not going to be satisfied that the basis is being given for this upon which I’m going to premise a knowing and voluntary waiver unless you go beyond conclusory details saying yes, I had drugs, or what-not.

I want the details to assure me that you’re really telling me the truth, something that’s worthy of my belief.

Certainly that is within a judge’s discretion at the plea hearing.

Steven A. Morley:

I don’t believe so, Your Honor.

I think what’s important at the plea hearing–

David H. Souter:

Then it would be a… I don’t want to cut you off, but you then say, it would be an abuse of discretion for him–

Steven A. Morley:

–Yes.

I would–

David H. Souter:

–to refuse to accept the plea under those circumstances?

Steven A. Morley:

–I would say it would be an abuse of discretion in that sense.

What I think happens… what’s important at the plea hearing is that the defendant understand the consequences.

That’s what the cases say, and in that sense what the judge can do is say–

David H. Souter:

Well, but he’s got to understand the consequences to which he is legitimately open by virtue of his conduct, and that involves an appreciation not only of theoretical legal consequences but of the actual conduct, too, so that’s the justification for the judge’s inquiry.

Steven A. Morley:

–Except the judge can achieve that, as Judge Cahn did in this case, by engaging in a colloquy that lays out, you’ve reserved for sentencing the drug quantity analysis which will drive your sentence.

The Government says it’s more than 5 kilograms, and if they are able to prove it you’ll be subject to this kind of sentence.

But–

Steven A. Morley:

On the other hand, you’ve saying–

William H. Rehnquist:

–If you say, Mr. Morley, that what happens at sentencing is not really an element of the offense at all, then why is it subject to the privilege against self-incrimination?

Steven A. Morley:

–I would say two things.

Well, first… first, it’s subject to the rules of the constitutional privilege of self-incrimination because of the language of the Constitution itself.

No person shall be compelled in any criminal case to be a witness against himself.

Sentencing is part of the criminal case, and it is an accusatorial, adversarial proceeding in which the Government has the burden of proof.

What we’re saying here is that the Government can come into a court armed with a lower standard of proof.

They can take hearsay, they can take all sort and manner of evidence, but the one place they cannot take it is from the mouth of the defendant.

William H. Rehnquist:

But when the defendant has pleaded guilty in a case and actually been sentenced, there’s no question that particular defendant could not again invoke the privilege against self-incrimination.

Steven A. Morley:

As to this… as to that individual, incriminatory… exactly.

William H. Rehnquist:

That particular element.

Steven A. Morley:

Yes.

William H. Rehnquist:

And what do you do in your analysis, if you say this is subject to the privilege against self-incrimination, with cases like Brown v. Walker and Blau v. United States, which says, once you’ve started to say something, once you’ve started to tell your story that would incriminate you, you can’t stop wherever you want to?

Steven A. Morley:

Those cases really derive from a factual setting, a hearing, an evidentiary hearing of some manner or form.

They are really… what’s grounded behind those rules of, once you start talking you cannot stop, is a sense of fairness.

We’re not going to let a witness cut off inquiry, at a guilty plea colloquy defendant is frequently a monosyllabic response, yes I agree that that–

William H. Rehnquist:

I don’t think Blau, the language in Blau doesn’t say sense of fairness.

Steven A. Morley:

–No, it doesn’t, but it’s what under underlies Blau.

William H. Rehnquist:

Well, how do you know that?

Are you doing some mind-reading?

Steven A. Morley:

No, Your Honor.

William H. Rehnquist:

Well then, how do you know it?

Steven A. Morley:

I think that that’s what… well, that’s the way I read Blau and read Brown v. Walker.

Anthony M. Kennedy:

Well, let’s assume there’s a general principle that you can’t testify as to part of a subject and then refuse to answer further questions on that subject.

Let’s assume that’s a general rule, which I thought it was under Rogers and cases that the Chief Justice cited.

Suppose at the sentencing hearing the defendant said, well, I did some drugs, or whatever this statement was, would that be a waiver?

Steven A. Morley:

No, Your Honor.

That was a… that… that statement–

Anthony M. Kennedy:

So you can make a self-serving statement?

Steven A. Morley:

–That statement is–

Anthony M. Kennedy:

And then rely on the Fifth Amendment to refuse to answer questions to explore the accuracy of that statement?

Steven A. Morley:

–Judge, that statement that Ms. Mitchell made was her right of allocution, which the judge specifically granted to her.

It was just a final statement to the court not meant to… not meant to be testimonial in that sense.

John Paul Stevens:

May I ask, was the defendant sworn either at the sentencing… at the plea colloquy or at the sentencing hearing, either one?

Steven A. Morley:

She was sworn at the plea colloquy.

I believe she was sworn at the sentencing.

Anthony M. Kennedy:

And at the plea colloquy was when she said, I did some of those things?

Steven A. Morley:

No.

That was at… when she said I did some drugs–

Anthony M. Kennedy:

Yes.

Steven A. Morley:

–but I couldn’t do everything they said I did, that was her right of allocution at the conclusion of the sentencing hearing.

Anthony M. Kennedy:

At the conclusion of the sentencing.

You were appealing a little earlier to what you saw as a kind of a judicial fairness rationale.

I would suppose that would work against your position here, because when someone accepts… makes a plea agreement the defendant is making the agreement because it’s a good deal.

The… supposedly the sentencing risk is at least reduced to something that the individual can accept, and the individual avoids, in fact, the very messy details of trial which can affect a judge a great deal in the discretionary sentence.

If the defendant is going to get what we presume is a comparatively good deal by making the… by entering the plea on the fairness criterion and I suppose the person ought to be forthcoming about the specific facts that might bear on sentence when you get to the sentencing hearing.

Steven A. Morley:

That might be true if there were a plea agreement, but in this case this is a… this was an open… open plea.

Oh, was this a… this was an open plea–

Steven A. Morley:

There was no plea agreement.

My client pled guilty, open to the court, specifically reserving for sentence purpose the drug quantity analysis, and that was a condition of a… it was a conditional guilty plea, in that sense.

Stephen G. Breyer:

–In a typical case, not necessarily yours, where there was a specific reservation, but in a typical case the judge has to satisfy himself that there is a factual basis for the plea and, in doing that, I guess the defendant either might specifically or through an admission to someone else’s recitation of the facts either state or imply that it was a small amount of drugs and, in fact, when we get to the sentencing hearing there’s… the pre-sentence report says, no, no, it was a large amount.

Now, the defendant there would have really made a suggestion of the sort that in a trial you would permit cross-examination about and I guess the Government’s concern here is that it would present one side of the argument in any such case, and there may be quite a few such cases, and so it’s simpler and clearer to just say, a waiver is a waiver.

Now, I want–

Steven A. Morley:

That certainly would be simpler.

the problem is, we have an accusatorial system of justice, not an inquisitional one.

That’s what our Fifth Amendment cases tell us.

Stephen G. Breyer:

–Right, I–

Steven A. Morley:

And given that, what happens at a sentencing hearing, where the Government has the burden of proof, is that they will start calling defendants as witnesses to extract from them what it is, in fact, they did, if this court deems a guilty plea to be a waiver.

Stephen G. Breyer:

–Do you think defendants, by and large, would be ill-advised to go in and testify if the judge suggests I would like to know what happened here?

Steven A. Morley:

I think it’s a case-by-case basis.

I think–

Stephen G. Breyer:

I mean, I’d just be surprised–

Steven A. Morley:

–I think–

Stephen G. Breyer:

–that this would be invoked very often.

Steven A. Morley:

–Well, I think that–

Stephen G. Breyer:

It might be.

Steven A. Morley:

–I think that… I think that there–

Stephen G. Breyer:

What happens, in fact?

You probably know.

I don’t.

What… are there many cases where, when we’re trying to sentence, the defendant says, by the way, judge, I’m not going to tell you my side of the story.

Steven A. Morley:

–I think in cases, in drug cases particularly, where the Government is relying heavily upon the testimony of cooperating individuals whose credibility is suspect, as it was in this case, it is very… it is not unusual for a defendant to say, I’m not going to testify.

I’m going to rely upon whether or not the Government has established, by a preponderance of the evidence, extrapolating the drug quantities from the testimony as to whether or not he’s… that they’ve established sufficient drug quantities to meet the various sentencing guidelines and mandatory minimums.

Sandra Day O’Connor:

Mr. Morley, how often would there be a reservation such as occurred here concerning the testimony of the defendant at sentencing.

Steven A. Morley:

I think this happens quite frequently because of the nature of drug… particularly in drug prosecutions.

Because of the nature of the drug prosecution, with its extrapolation, with its reliance upon informants, and witnesses who are subject to questionable credibility, it’s not at all unusual for defendant to take–

Sandra Day O’Connor:

Well, there are any number of statements in cases from this Court to the effect that if someone enters a plea of guilty they’ve waived any Fifth Amendment protections.

Steven A. Morley:

–Those statements, taken at face value, certainly support the Government’s position, but if you look behind those statements a little bit more and look more closely, they really go to the elements of the offense, the fact of incrimination of an offense.

In Estelle, this Court… in Estelle v. Smith, this Court ruled–

Sandra Day O’Connor:

But that was a death penalty case.

Steven A. Morley:

–That was a death penalty case.

Sandra Day O’Connor:

And we have distinguished the sentencing proceedings in death penalty cases.

Steven A. Morley:

Frequently this Court has done so.

However–

Sandra Day O’Connor:

We have, and I… and we held it to that, I think.

Steven A. Morley:

–Well, Estelle first of all–

William H. Rehnquist:

There was no guilty plea in Estelle, was there?

Steven A. Morley:

–There was no guilty plea in Estelle.

If I might address the capital sentencing aspect, Your Honor, because I think it’s important, while Estelle was a capital sentencing case, it did not ground itself on the fact that it was a capital case.

It rose out of that factual setting in the same way one might say Miranda rose out of a death penalty case.

Sandra Day O’Connor:

Yes, but I think this Court in subsequent cases has made a point of that.

Steven A. Morley:

I don’t read the subsequent cases as limiting Estelle in that way and, in fact, Estelle’s based upon the broad principles of the Fifth Amendment, Gault, which is a juvenile case.

And if you look closely at some of the death penalty cases, this Court is looking at… when it says death is different, looking at the sense of… searching for more reliability in those cases, permitting a more flexible sense of due process, saying we’re going to have a higher standard of due process in a death penalty case.

We want to be more reliable.

We want to be more sure, because of the different nature of the death penalty.

The Fifth Amendment compulsion against self-incrimination does not go to issues of reliability.

It goes to issues of… that… it goes to issues that ensure a particular form of justice, an accusatorial versus an inquisitional form of justice.

Antonin Scalia:

Are you saying that–

–Mr. Morley, can I agree with you that there’s no right to compel a person who’s made a guilty plea to testify concerning the details of the crime, but yet not agree with you that if the person does not testify about the details at sentencing, the judge can draw a negative inference from failure to testify?

Steven A. Morley:

No, judge, I think… no, Your Honor.

I don’t think that that can be done.

Antonin Scalia:

Why?

Steven A. Morley:

The negative inference language is… is a way that this Court has given voice to violations of the Self-Incrimination Clause of the Fifth Amendment.

Antonin Scalia:

How recent is that line of our jurisprudence?

Does that go way back, or is that relatively new?

Steven A. Morley:

Well, Griffin is a 1967 decision, so it’s about 30 years.

Antonin Scalia:

Do I have to extend that demand that the jury do what it is very difficult for any reasonable person to do, do I have to extend that to the sentencing proceeding as well?

Steven A. Morley:

The cases that address… I don’t think it’s so much a matter of extension, but I think if you want to look at it that way, yes, you do, because this Court’s cases that have looked at the right of a judge or prosecutor to take a negative inference from the invocation of the Fifth Amendment have done so along a particular divide, and that divide is a civil-criminal divide.

One looks at Ward, U.S. v. Ward.

That’s a civil penalty case, a negative inference is permitted there.

William H. Rehnquist:

But we have… certainly in analogous situations we have drawn a different kind of line.

In Callandra, for example, we said we’re not going to apply some of the exclusionary rules to grand jury proceedings, even though they would be applied to court proceedings.

Steven A. Morley:

Your Honors–

William H. Rehnquist:

One could draw a dichotomy between the actual trial, where the elements are proved, and the sentencing proceeding.

Steven A. Morley:

–One could do that, except here, to do that would do violence to the basic principle here of, in any criminal case, and we still have–

Antonin Scalia:

Only if you think it’s so much of a coercion that it violates the Fifth Amendment, and it really doesn’t seem to be that much of a coercion.

Antonin Scalia:

It’s certainly reasonable for the sentencing judge to say, my goodness, I don’t know how much of the drug she had, but she’s unwilling to tell me how much she had.

You know, that makes me think she had the maximum amount that they assert she had.

That’s perfectly reasonable–

Steven A. Morley:

–The–

Antonin Scalia:

–and I find it frankly quite fanciful to think that this is a coercion of her… drawing this rational inference is a coercion of her Fifth Amendment right.

Steven A. Morley:

–The problem with doing that, Your Honor, is that it burdens the Fifth Amendment right, and Griffin and its line of cases don’t rest upon the fact that there are jury trials.

They rest upon the fact that it’s an impermissible burden on the Fifth Amendment.

Anthony M. Kennedy:

Well, can the judge say, I’m not going to draw the inference, but I am going to increase the sentence for noncooperation?

Steven A. Morley:

In that case, Your Honor–

Anthony M. Kennedy:

Noncooperation being defined as nontestifying.

Steven A. Morley:

–As nontestifying.

That would be an impermissible burden on the defendant.

Anthony M. Kennedy:

Same question as Justice Scalia’s.

Steven A. Morley:

It would be an impermissible burden on the Fifth Amendment for him to increase the sentence.

Ruth Bader Ginsburg:

How about acceptance of responsibility?

A judge can give credit, as I understand it, at sentencing for a person–

Steven A. Morley:

Certainly.

Ruth Bader Ginsburg:

–who says, Your Honor, I did it, and I was really bad, boy, am I sorry, and this is what I’m going to do.

The person who stands silent is not accepting responsibility.

So my question is very similar to Justice Kennedy’s, but putting it in terms of something affirmative that a defendant must do to get acceptance of responsibility for–

Steven A. Morley:

I think a judge could deny acceptance of responsibility in those terms because of the breadth of the sentencing guideline on acceptance of responsibility, which includes all the conduct within the offense.

–Well, that’s a burden on–

Steven A. Morley:

That’s a burden on the Fifth Amendment, but it’s not in the same sense, because the defendant in that case is required to make an affirmative choice.

He is to come forward and say, I want something from this Court.

I want acceptance of responsibility.

Stephen G. Breyer:

–That’s a hard issue–

Steven A. Morley:

Yes.

Stephen G. Breyer:

–but can I ask a practical question I’m not clear on yet?

You’re now at the sentencing stage.

Steven A. Morley:

Yes.

Stephen G. Breyer:

And the judge is reading the pre-sentence report, and it gives an account of the amount of the drugs, et cetera, it really is at variance with what the plea colloquy suggested, implied, said, et cetera.

All right.

Now… so the judge now… is the… what’s the judge supposed to do about what the judge has learned previously in the plea colloquy?

Is he supposed to just put that out of his mind?

What’s he supposed to do about that?

Steven A. Morley:

He’s supposed to take the evidence.

Stephen G. Breyer:

Well, does that count as part of the evidence or not?

After all, that’s the factual basis for the plea.

Steven A. Morley:

Well, the pre-sentence report is done subsequent to the–

Stephen G. Breyer:

I know that, but he’s sitting there, and he’s also heard what is called the factual basis for the plea, and so my question is, what is the judge supposed to do about that set of facts which he heard earlier during the Rule 11 proceeding, and it was called the factual basis for the plea, and it may well be that the defendant had a little bit to contribute there.

What’s the judge supposed to do about that when he’s considering what happened?

He has the pre-sentence report, and it’s different in respect to drugs than what was earlier implied.

What’s he supposed to do?

Steven A. Morley:

–He’s supposed to evaluate the evidence that comes before him.

Stephen G. Breyer:

Does that include the Rule 11 part, or not?

Steven A. Morley:

It can.

Stephen G. Breyer:

Fine.

Steven A. Morley:

It can include that.

Stephen G. Breyer:

I thought so, too.

Steven A. Morley:

I think he has the discretion to do that.

Stephen G. Breyer:

And as soon as you say that… as soon as you say that, you suddenly realize that he may be hearing one side of the story from the defendant during that Rule 11 colloquy, when it was just barely relevant, so we didn’t go into it, and now it becomes relevant, and he’s not going to be able to get the other side out of the defendant, or he’s not going to be able to look into it in any depth because the defendant won’t testify.

Steven A. Morley:

Can I retract my answer?

Stephen G. Breyer:

Yes.

[Laughter]

You know what is the true–

Steven A. Morley:

I think the true answer is, at a sentencing hearing is a separate stand-apart hearing, and the sentencing–

Stephen G. Breyer:

–All right, so your answer is, he should not take into account–

Steven A. Morley:

–He should not take into account what he heard at the plea.

He should take into account the evidence that’s presented to him as a separate stand-apart sentencing hearing.

–Okay, but it seems to me–

–A judge can certainly at a sentencing hearing decide on the basis of a defendant’s conduct and testimony at the trial that he has perjured himself, can’t he, or that he’s lied?

Steven A. Morley:

Yes, a judge can take that into consideration.

David H. Souter:

And can’t the judge also say, look, I’ve heard from these people at the sentencing hearing who say that the quantity was so much.

You haven’t taken the stand, and I therefore am forced to decide on the basis of the only evidence that I have, and naturally I find the evidence of the people who have testified more persuasive than silence.

I mean, that’s… I can’t help that.

That would have been permissible.

So that if that’s permissible, then the only thing that we’re dealing with here is the judge’s form of words when he said, well, I’m going to hold that against you.

Steven A. Morley:

Well, in that sense we are taking… we are taking that differently.

In that sense that in this case what the judge said is, I’m taking this against you, I’m drawing a negative inference, and if I’m wrong, the appellate courts will send it back to me and I’ll take another look at the credibility of the witnesses who testified against you.

David H. Souter:

But he could have said, I’m simply going to draw a positive inference from the testimony that I did receive.

Steven A. Morley:

He could certainly have done that, and said based on what’s before me, the Government has met its burden of proof.

David H. Souter:

Pretty fine line.

Steven A. Morley:

It is a fine line, but in this case, what the court did was, take a negative inference against my client, use that and fashion it as part of her sentence, and expressly say, I’ll reevaluate the credibility of those witnesses if I’m wrong.

David H. Souter:

Let me ask you one question that may or may not go to something peculiar in this case.

You pointed out that at the rule 11 colloquy the judge referred to the waiver of the Fifth Amendment right as being the waiver of the right to silence at trial.

I think the word, at trial, was used.

Is it fair to say that once, then, the defendant says yes, is it fair to say that once the plea is taken, the waiver is as complete as the waiver would have been if the individual had, in fact, waived at trial?

Steven A. Morley:

If the waiver was–

David H. Souter:

He says, look, your waiving the same right you would have to waive at trial.

Defendant says yes, I know that.

Judge finishes the question, says, you know, I make the appropriate findings, I accept the plea.

At that point, isn’t the waiver as complete as it would have been if the individual had, in fact, taken the stand at trial?

It wasn’t earlier in the plea colloquy, but once the plea is taken, isn’t it complete then?

Steven A. Morley:

–It’s complete… yes, it is complete at that point.

William H. Rehnquist:

Thank you, Mr. Morley.

Mr. Dreeben, we’ll hear from you.

Michael R. Dreeben:

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

A plea of guilty is an admission of a crime, and therefore inherently constitutes self-incrimination.

The effect of a guilty plea that has been entered by a court is therefore to waive the privilege against self-incrimination with respect to the conduct underlying the charge to which the defendant has admitted, and it follows from that that a court may at sentencing draw an adverse inference from the defendant’s failure to amplify and explain the conduct in which she engaged that underlies the crime.

Anthony M. Kennedy:

Could the court at sentencing say, I’m calling the defendant to the stand, and then just examine the defendant?

Michael R. Dreeben:

Yes, Justice Kennedy, under the principle–

Anthony M. Kennedy:

I think you’d have to say that.

Michael R. Dreeben:

–I think that under the waiver analysis of a guilty plea the judge could do that at least as to the events that underlie the very count of conviction to which the defendant has admitted guilt.

That–

Anthony M. Kennedy:

I take it that… and this is just to explore the separate proceeding, stand-alone proceeding effort.

I take it that I’m right… correct me if I’m wrong… if the target of the investigation testifies at the grand jury, that’s not a waiver if there’s a subsequent indictment and a trial.

Michael R. Dreeben:

–That’s the majority rule.

There is at least one decision of this–

Anthony M. Kennedy:

And I take it what the petitioner is doing here is to say that same sort of analogy applies between the plea stage Rule 11 proceeding and the sentencing.

Michael R. Dreeben:

–That’s right.

The petitioner is attempting to construct two wholly separate proceedings and apply a rule that has developed in the lower courts that says that a waiver of the Fifth Amendment is applicable only for one proceeding.

Sandra Day O’Connor:

Well, Mr. Dreeben, here we have a special circumstance, because in addition to the guilty plea this defendant expressly reserved the right to contest the amount of cocaine that she was responsible for.

Michael R. Dreeben:

She did.

And that–

Sandra Day O’Connor:

And the judge said, fine, I’ll take your plea, and that’s the deal we’re going to make.

Michael R. Dreeben:

–That’s true, but that’s not–

Sandra Day O’Connor:

Does that change the situation, then, on the waiver, because there was an express reservation that the judge apparently went along with.

Michael R. Dreeben:

–No, I don’t think that it changes it, Justice O’Connor.

She didn’t reserve any privilege against self-incrimination with respect to the conduct that she admitted to committing in the charged conspiracy.

What she reserved was the right to challenge the Government’s proof at sentencing.

Anthony M. Kennedy:

The question is not whether she reserved it, but whether she waived it.

Michael R. Dreeben:

Well, our position is that she inherently waives it when she stands before the court and says, I am guilty of this charged offense.

I admit that what the Government has alleged is a violation of the law that I committed.

Antonin Scalia:

That’s all she admitted.

She didn’t admit, you know, how much of the drug she had.

She violated this statute, but she didn’t admit all of the sentencing elements.

Michael R. Dreeben:

She did not.

Antonin Scalia:

So why must she admit it now?

I do not see the parallel that you seek to draw between taking the stand in a criminal trial at the guilt stage, and whereupon you can be examined about anything related to the crime, and this situation, because where a person takes a stand in a criminal trial, that person is using his or her testimony as a sword, attacking the Government with it.

Whereas, where the person has pleaded guilty, the person is not using his testimony… in fact, he’s using… not only is it a shield, he’s using it as a sword against himself, and you’re saying he has to push the sword in further than he has agreed to.

Antonin Scalia:

It seems to me they’re totally different situations, and I do understand why when a person takes the stand the prosecution ought to be able to get everything out of them, but where the person has pleaded guilty, I don’t know why the prosecution must have a right to insist that that person plunge the sword in still further.

The two situations are not parallel.

Michael R. Dreeben:

They are not exactly parallel, Justice Scalia, and I’m not suggesting to the Court that they are exactly parallel.

What occurs when this Court has examined the question of what is the scope of a waiver when a defendant takes the stand is, the Court asks, what is reasonably going to be furthered as a policy matter by saying the privilege either goes this far or it ends, and it’s concluded that in a criminal trial, or in any trial, when a witness testifies, the fairness of the proceeding requires that all matters that are relevant to cross-examination be deemed to be waived.

In this context, there are also very strong reasons to consider the scope of the waiver to be at the minimum all of the conduct that is bound up in the offense to which the defendant pleads guilty.

Let me highlight two of the reasons, apart from the generic reason that the plea of guilty itself is an admission that the defendant has engaged in conduct that violates the law.

The first is that, at the Rule 11 colloquy, the judge does have a obligation to make sure that the defendant is fully aware of the facts that are alleged to constitute a violation of the law, and agrees that his conduct constitutes that violation.

To perform that responsibility adequately, the judge must have the authority to say, look, you know, I’ve heard what this charge is, it’s, for example, murder, but I want to hear you tell me in your own words what you did.

Now, the defendant may have killed a person with a gun, and the defendant may also be a felon, and thereby admitting that the defendant had a gun would also implicate the defendant in an independent crime, a section 922 violation.

Now, the defendant can’t realistically say, I’m going to tell you, judge–

John Paul Stevens:

Oh, he can’t realistically, but legally he has the right to say to the judge, the reason I’m not going to tell you more is, it may incriminate me in another offense.

He could legally do that.

Michael R. Dreeben:

–Well, I think that–

John Paul Stevens:

Could he not?

Michael R. Dreeben:

–Yes, and the judge at that point could say, thank you, but the rule 11 colloquy is over.

John Paul Stevens:

I’m going to take… accept your plea.

Michael R. Dreeben:

That’s right.

John Paul Stevens:

That’s right.

Michael R. Dreeben:

And that’s why our position is, it’s the entry and acceptance of the plea that effectuates the waiver with respect to the conduct underlying the plea.

The defendant who wants to plead guilty and spare society the burden of a trial, and perhaps obtain whatever sentencing benefits flow from it, must be prepared to come and tell the court exactly what he did with respect to the charged offense.

Now, the first distortion is therefore… it’s going to undercut the judge’s ability to carry out the Rule 11 colloquy.

Antonin Scalia:

Wait.

You want to go further.

I haven’t followed you this far.

I understand why the judge can insist that the defendant say this or else not enter the Rule 11 order, but I don’t understand why, if he hasn’t asked the defendant to come out with it and enters the Rule 11 order, it amounts to a voluntary agreement to give up this information by the defendant.

Michael R. Dreeben:

I think the question that the Court has to answer is, what are the necessary and inherent consequences of the guilty plea, and I think that in answering that question, the Court ought to look at the consequences of going with either petitioner’s rule or with our rule.

Antonin Scalia:

And that has nothing to do with the Rule 11 situation, it seems to me.

All we have to ask ourselves are, what are the necessary consequences of the guilty plea, and it seems to be perfectly reasonable to say, I agree that I’m guilty of the crime, and I say nothing about what the various sentencing factors happen to be.

And your position, Mr. Dreeben, would be exactly the same no matter what happened at the Rule 11 proceeding–

Michael R. Dreeben:

It is.

Michael R. Dreeben:

That’s right.

John Paul Stevens:

–as I understand it.

You’d say it’s inherent in the guilty plea.

Michael R. Dreeben:

That’s right, because it has the effect of prescribing to a rule that all the defendant has to do is come up and to say, bare bones, I’m going to say each element, yes, I agree to that.

I did a minimal act that amounts–

John Paul Stevens:

May I ask in that connection, Mr…. either in this Rule 11 colloquy where the judge is very careful on page 45 to state the nature of the waiver… you give up your right at trial to remain silent.

He did not go on and say, you also will not have a right to remain silent if there’s a controversy about amount at the sentencing hearing.

In your experience, has there ever been a Rule 11 colloquy when the judge explained to him the theory the Government is now espousing?

Michael R. Dreeben:

–I doubt it, Justice Stevens.

John Paul Stevens:

I do, too.

Michael R. Dreeben:

But the judge also doesn’t explain to the defendant that upon entry of a final judgment of conviction you may be subpoenaed to testify at a grand jury with respect to all of the facts and details surrounding the offense to which you pleaded guilty.

John Paul Stevens:

No, but this is a routine sequence.

You first have the Rule 11, and later you have a sentencing hearing, and if your position is correct, it would seem to me that the ordinary colloquy ought to include an explanation of this consequence, which it doesn’t.

Michael R. Dreeben:

It does not, because the purpose of the colloquy is to determine whether the defendant is pleading guilty voluntarily.

John Paul Stevens:

And knows what rights he’s waiving, because that’s why you have this paragraph in here.

Michael R. Dreeben:

Well, he knows… he knows certain of the rights that he’s waiving, and certain of the consequences of the plea–

David H. Souter:

Well, suppose you have this sequence, Rule 11 hearing, guilty plea.

Then the defendant is subpoenaed by the Government to testify in another related criminal case.

His sentencing hasn’t occurred yet, and at sentencing there’s going to be a big problem with contesting the amount of drugs.

Under your view, I take it the Government can require the defendant to testify about everything relating to the transaction, even though his sentencing is pending.

Michael R. Dreeben:

–Justice Kennedy, we have not taken the position that the defendant can be required to testify in some other case.

There… that is not a question–

David H. Souter:

Well, if there… if he has no Fifth Amendment right–

Michael R. Dreeben:

–Well–

David H. Souter:

–and if it’s waived, what’s the basis for his declining?

Michael R. Dreeben:

–Well, the normal rule that has been evolving in the lower courts… this Court has never squarely addressed it… is that waivers of Fifth Amendment rights are specific to the case in which they’re entered.

David H. Souter:

Ah, so now this is just a limited waiver we’re talking about that’s implied from your guilty plea.

Michael R. Dreeben:

That’s right, and I don’t think that that’s inconsistent with the rule that in your own criminal case, when you have come forward and stood before the court and said, I’m guilty, you’ve effectuated a full waiver of the conduct underlying that transaction in your own case.

Now, the other distortion that can occur besides the distortion of the Rule 11 colloquy is that it gives the defendant who is supposed to be coming forward into court and admitting his guilt a tremendous incentive to minimize his culpability, to conceal facts, and otherwise to hope to skate by during the Rule 11 colloquy with an absolutely bare bones admission of what he has done, and that consequence will similarly undermine one of the societal functions of a guilty plea, which is to get somebody who’s willing to come into court and acknowledge what they did to–

Ruth Bader Ginsburg:

But Mr. Dreeben, that’s so far from this case, where she said, I don’t… I do want to contest the amount of drugs, and the judge said, fine, we’ll leave that over.

Ruth Bader Ginsburg:

I think from what she was told, one is, you are waiving any right that you would have had if you stood trial, and fine, you can contest at sentencing the amount.

There seems to be close to an element of a trap for the unwary there, and if the purpose of the Rule 11 colloquy… I thought the purpose of it was to make sure the defendant is informed and uncoerced.

Here, she is certainly not informed, because from what was told to her the reasonable inference is, okay, the judge told me I can contest the amount of drugs at sentencing, and all he said about the Fifth Amendment was, trial.

Michael R. Dreeben:

–Justice Ginsburg, there is a potentially separate concern that I think your question goes to about adequacy of notice, and whether you were required to legally be given notice of every right that would be waived by your guilty plea before the waiver can be complete.

I don’t think that this Court’s cases have ever said that any right that might be waived or affected by a guilty plea beyond those rights that are specified in Rule 11 needs to be spelled out.

If there were a case-specific claim of entrapment, as Your Honor put it, that would be a separate kind of due process claim.

It does not go to the fundamental question of what the legal effect and consequence of the guilty plea is with respect to Fifth Amendment rights.

Antonin Scalia:

Well, frankly, if I were the trial judge and I heard her say, I reserve the right to contest the amount of the drugs, I would have thought she intended to come up and testify at the sentencing proceeding and say, no, I only had, you know, the lesser amount of the drugs.

I don’t know that he was put on notice that she reserved the right not to say anything.

To the contrary.

Michael R. Dreeben:

Well, I think that that’s right.

I think that what she reserved was the right to say, there weren’t so many drugs.

Stephen G. Breyer:

But as long as she reserved it, as long as… we’re talking about something, a fact that she says is in dispute, and she… it’s not an element of the crime, so it really doesn’t have to do with the factual basis for the plea, and I take it it’s also the case that in the later sentencing hearing what she said about this at the plea, since it didn’t concern an element of the crime, is really beside the point.

I mean… all right.

So given that, you were about to list, and maybe you were doing it, the bad consequences that would flow from accepting petitioner’s view, what are they?

So far I’ve heard you say, well, we couldn’t go into the sentence in great detail, we wouldn’t find out all the facts, and that’s true.

Of course that’s true.

That’s also true when he goes to trial and doesn’t waive anything.

I mean, it’s always true if you have a Fifth Amendment right, so is there any other bad consequence that would flow from accepting his view?

I mean, I absolutely agree with you that a judge couldn’t go into… by definition couldn’t go and find out from the person who’s asserting the right what happened, but I think that’s true whether they plead guilty or not.

Michael R. Dreeben:

Well, I think that that is a sufficiently–

Stephen G. Breyer:

Is there any other… is there any other bad thing that would flow from accepting his view of the case?

Michael R. Dreeben:

–I think there are really three.

One… and I have tried to cover them, Justice Breyer, so I’m not suggesting I have a new one.

One is that I think it’s inherently inconsistent with what society expects in a guilty plea, that a defendant will come forward, acknowledge the conduct that they did, and admit that it’s a violation of the law, and society can accept that as a method of resolution of a criminal case rather than a trial because there is a value to having somebody acknowledge it.

Second is that it will distort Rule 11 proceedings by limiting the judge’s ability to find out what the defendant exactly did.

Stephen G. Breyer:

Right.

He says, you know, you’d better tell me what you did.

I don’t know that there’s a factual basis for this plea.

Please tell me.

Stephen G. Breyer:

Well, I can’t imagine a defendant under those circumstances who wants to plead guilty not telling him.

Michael R. Dreeben:

Well, a defendant–

Stephen G. Breyer:

I mean, the defendant might say, okay, forget it, I’ll go to trial, but–

Michael R. Dreeben:

–Well, if the defendant had the–

Stephen G. Breyer:

–if the judge says please tell me, I mean, she’s going to tell him.

Michael R. Dreeben:

–Justice Breyer, if the defendant has a Fifth Amendment right, as petitioner contends, then the defendant will say, well, I don’t have to tell you those kinds of details.

Stephen G. Breyer:

Fine, he says, and I don’t have to accept your… I don’t have to accept your guilty plea.

Michael R. Dreeben:

Well, it’s not clear to me on what basis he would have to reject it.

Stephen G. Breyer:

I don’t have the adequate factual basis here under (f), 11(f) or whatever, 11… you know.

11(f), is it, whatever.

May I ask you, on the facts of this case, where the woman said, I want to contest the amount, and that implied to the judge she probably would be going to get on the stand and testify, supposing at the sentencing hearing the probation… the pre-sentence report said, we’ve looked at the evidence as best we can, we thought we had some reliable witnesses who would testify to X amount of drugs, but our witnesses don’t stand up, we don’t know what the amount was.

Now, is it your view that the prosecutor could say, well, we can’t prove it, but we’d like to put her on the stand and cross-examine her and see if we can’t get her to admit it?

I think that’s your view.

Michael R. Dreeben:

Yes.

That… the waiver analysis that we have put forward suggests that at least as to the facts surrounding the conspiracy to which she admitted, the Government could do that, or… and the court could ask her to testify.

There is, of course, a narrower basis for looking at this particular case, because that did not happen here.

What happened here is that the judge had a substantial amount of very credible evidence before him, and he concluded, the Government has given me this much, you have given me nothing.

John Paul Stevens:

And of course, as Justice Souter said, it’s a very fine line.

The judge could very well have said, the evidence is uncontradicted, I’ll accept it, and I’ll enter a sentence accordingly.

Michael R. Dreeben:

Well, that’s right.

John Paul Stevens:

So the Government… you don’t lose a lot if you don’t… if you are not able to draw the negative inference, because you still have the affirmative evidence of amount on which you can still rely.

Michael R. Dreeben:

That’s true.

I… the Government came to this sentencing prepared to prove up the facts that supported the sentence.

William H. Rehnquist:

Well, one senses that Judge Cahn actually wanted to raise an issue that would go up to the Third Circuit and perhaps here.

[Laughter]

Michael R. Dreeben:

I think, Chief Justice Rehnquist, that he perceived accurately that this would be a novel question of law.

Anthony M. Kennedy:

You had a third… you said, number 1, it distorts the societal expectations, number 2 it distorts the Rule 11 hearing, and number 3–

Michael R. Dreeben:

It gives the defendant an incentive to conceal and minimize his own criminal conduct, so instead of the defendant coming into court and being willing to make a fair statement of what he actually did, you can envision a defendant thinking quite carefully with counsel about what to admit and what to attempt to get by.

Stephen G. Breyer:

–All right, you know… you may or may not know this.

It’s just a factual, empirical matter, but it still comes as a little bit of a surprise to me that many defendants, when asked by the judge at the sentencing hearing as to a contested matter what their side of the story was, would say, I’m not going to tell you.

Stephen G. Breyer:

I mean, does that happen very often?

Michael R. Dreeben:

No.

No, it does not, Justice Breyer, but I think that that’s consistent with our view that–

Stephen G. Breyer:

All right.

So this might be a tempest in a teapot.

Michael R. Dreeben:

–Well, if this Court holds that there’s a Fifth Amendment right with respect to sentencing facts that do not relate strictly to the elements of the offense in the closest way, I think a great many defendants may–

Stephen G. Breyer:

Why?

Michael R. Dreeben:

–seek to exploit that.

Stephen G. Breyer:

You know, but the… exploit it.

They would be losing the opportunity, as here, the woman seemed to say, which I think Justice Scalia said, that maybe she’s going to present some evidence later on.

Michael R. Dreeben:

Well–

Stephen G. Breyer:

She wants to deny what the pre-sentence report’s saying.

Do you think they will?

Why do you think that?

Michael R. Dreeben:

–Well, simply because it will deprive the sentencing court and the Government of just that particular piece of evidence that may be relevant both to the crime and sentencing.

David H. Souter:

Yes, but why isn’t the answer to that and the answer to the distortion of the Rule 11 argument that the judge simply has to make it clear at the time that the plea is taken that if the plea is accepted the right is being waived not only with respect to testimony at trial, which was the term he used here, I guess, but at sentencing?

All he’s got to do is add a couple of words, and there will then be no question about the scope of the waiver.

It’s true we might have a question later whether, when the person said, well, I won’t waive it as to sentencing, whether the judge can then refuse to take the plea, but that’s unlikely, too, so why isn’t that fairly simple answer dispositive of your concerns?

Michael R. Dreeben:

I don’t have any objection, Justice Souter, to a judge accurately informing a defendant of more consequences of a guilty plea than are required by the current version of Rule 11.

David H. Souter:

Well, he’s simply making explicit to a lay person what in fact is being done.

I mean, the reason for the Boykin hearing is to make sure the defendant who is not a lawyer knows what the consequences will be, and all you’re doing if you add the reference to waiver as to sentencing hearing is just being complete, whereas under the colloquy that took place in this case it was not totally complete on your view.

Michael R. Dreeben:

Well, Justice Souter, that amendment of Rule 11, or the Rule 11 colloquy, is consistent with our position that that’s the effect of the guilty plea.

The Rule 11 in its… colloquy in its current form should not drive the constitutional conclusion that this Court reaches.

If the guilty plea constitutes a waiver of the privilege with respect to at least the conduct that is subsumed in the count of conviction, then there’s nothing wrong–

Sandra Day O’Connor:

Well, but if we take the view that all the guilty plea does under a colloquy like this is deal with the elements of the crime, not something that’s purely a sentencing factor, I can envision a statute where the quantity is an element.

But that wasn’t this one, apparently, and under those circumstances, I guess a prosecutor could say to the defendant, we’re not going to take a plea unless the plea makes clear that at sentencing it’s a waiver of any Fifth Amendment privilege that you might want to assert at sentencing as well.

Michael R. Dreeben:

–That is true–

Sandra Day O’Connor:

I mean, a prosecutor could do that.

Michael R. Dreeben:

–That’s true, Justice O’Connor, and a defendant could similarly say, I want to enter a plea of guilty, but I want the Government to agree that it will shoulder the load at sentencing.

Sandra Day O’Connor:

Well–

Sandra Day O’Connor:

–Yes, but you could say, fine, then we won’t agree.

Michael R. Dreeben:

That’s right.

This then will establish–

Sandra Day O’Connor:

End of story.

Michael R. Dreeben:

–a baseline from which parties can enter into plea agreements.

William H. Rehnquist:

Is it entirely consensual?

I mean, if the petitioner is right that where you deal separately with the elements of a crime, you’ve pleaded guilty, you waive the plea there, but you don’t with respect to sentencing, then can… could either the prosecutor or the judge simply condition their acceptance of a plea on a further waiver without being charged with burdening the privilege against self-incrimination such as we’ve said in some other cases?

Michael R. Dreeben:

Chief Justice Rehnquist, the claim would be made… my response would be that a prosecutor can exert considerable pressure on a defendant to waive all sorts of constitutional rights in the course of a guilty plea, and to give up statutory rights as well, and there’s nothing inherently unconstitutional in a procedure in which there is that kind of give-and-take, so I don’t think that affirming the view that petitioner has put forward would preclude the Government from trying to vary it by contract.

But by the same token, if I am correct that the plea does constitute a waiver, nothing would prohibit a defendant from coming in to the prosecutor and saying, I am willing to plead guilty and spare you a trial.

I do have a contest about the sentencing facts, and I think that if you’ve got the evidence you ought to put it on.

I don’t want to have my client testify.

And at that point the Government can decide, is that an advantageous plea, or a disadvantageous plea agreement, and the parties can set that ground rule.

This case will not preclude parties from achieving legitimate goals that they might wish to achieve through plea agreements.

Antonin Scalia:

A prosecutor can agree that a certain witness will not appear before a Federal judge?

Michael R. Dreeben:

Justice Scalia–

Antonin Scalia:

A prosecutor can sort of arrange the witness list for a Federal court, then?

Michael R. Dreeben:

–He can certainly agree that he is not going to call witnesses, or put on certain evidence.

Antonin Scalia:

If I were the judge, I would call that witness myself, the witness most knowledgeable.

If that witness has no constitutional right not to testify on the point, I just don’t see how you could guarantee him that he wouldn’t be called.

Michael R. Dreeben:

You can’t, but it could be written into the plea agreement that if the court doesn’t accept that plea agreement term, it will reject the plea agreement, and at which point the defendant has the option of withdrawing the guilty plea and can go back to ground zero with the prosecution and determine what the most advantageous arrangement really is.

I agree with you that a Federal court would not necessarily and inherently be bound to live within the terms of the parties’ arrangement, but the Federal Rules of Criminal Procedure provide the outcome when the Federal court concludes that it will not do that.

John Paul Stevens:

May I ask one other question?

Supposing this was a capital case, rather than this kind of case, and the defendant wanted to make exactly the same arrangement.

He would plead guilty to the murder, but he wanted to contest the aggravating factors at sentencing, and the same colloquy you had here.

You take it he would not have a… he could be called to the stand and cross-examined about aggravating factors because he pleaded guilty to the crime?

Michael R. Dreeben:

Justice Stevens, presupposing that some of the aggravating factors were bound up in the very conduct.

Not all aggravating factors are.

John Paul Stevens:

No.

Michael R. Dreeben:

But I… yes.

John Paul Stevens:

You would draw a distinction between those that were and those that were just prior criminal record, or something like that?

Michael R. Dreeben:

Yes.

I… that would ultimately depend on whether this Court wanted to create a special rule for capital cases that would be distinct.

John Paul Stevens:

The logic of your position would apply to that.

Michael R. Dreeben:

Yes.

The logic of my position is uniform as to the scope of the waiver that is achieved at sentencing.

There are various–

John Paul Stevens:

The waiver would just flow from the plea of guilty.

Michael R. Dreeben:

–It would.

John Paul Stevens:

But not the nature of the colloquy, or anything like–

Michael R. Dreeben:

It would.

Hardly any… none to my knowledge… capital prosecutions are resolved by a plea of guilty to the offense and trial on sentencing.

It is theoretically possible, but most jurisdictions put the question to the trier of fact, and most capital defendants will take their chance at acquittal or conviction of a lesser offense rather than plead guilty and place all of their bets in the sentencing hearing.

John Paul Stevens:

–Oh, we’ve seen a fair number of capital cases where they plead guilty and hope to get a life sentence.

Michael R. Dreeben:

Yes.

No, that’s true, and at that point they’ve avoided the possibility of a capital hearing altogether, but if they plead guilty to a capital offense and then stand capital sentencing, that would be quite an extraordinary situation in my experience.

Ruth Bader Ginsburg:

What would be the result if this had been an Alford plea?

Michael R. Dreeben:

That would depend, Justice Ginsburg, on how this Court ultimately resolved the question of what an Alford plea really is.

In the Federal system, Alford pleas are extraordinarily rare.

They are susceptible of being characterized as a plea of guilty, which the Court seems to have done in the Alford case itself, but they are also susceptible as being characterized as pleas of no contest in which the defendant is admitting that these charges have been made, the facts have been put before the court, and I believe that I’m innocent, but I’m going to allow the court to enter judgment against me.

If the Court categorized the Alford plea into the basket of guilty pleas, then my position would be the same.

It is the legal effect of the guilty plea to accomplish a waiver of the privilege within the zone of facts encompassed by the plea.

If the Court instead viewed this as no… it’s really more like a plea of nolo contendere in the historical sense, then I don’t think that it would necessarily amount to an admission of commission of a crime.

It’s really consent to the imposition of criminal punishment.

Ruth Bader Ginsburg:

So then the Fifth Amendment privilege would have been retained at the sentencing.

Michael R. Dreeben:

I think that it’s possible to conclude that it would have been retained, at least on the theory that we have articulated before the Court today.

Alford pleas are so anomalous in the standard run of guilty pleas that it’s tricky to say exactly what they are, but the normal guilty plea unquestionably is a full-fledged waiver of the privilege against compelled self-incrimination.

Indeed, it is self-incrimination, and we simply take the view that once one comes forward to the court to do that, you cannot withhold the details of the offense to which you have pleaded guilty.

Ruth Bader Ginsburg:

Are you… is your position different from Judge Slovener, because as I recall she didn’t put Rule 11 into her analysis at all.

Michael R. Dreeben:

I think, Justice Ginsburg, that the Third Circuit went back and forth between two different rationales.

One rationale begins with the guilty plea analysis that we have stretched out in this Court to articulate more factors.

Michael R. Dreeben:

The other part of the Third Circuit’s rationale seems to be the notion that there is no privilege against self-incrimination with respect to facts that can serve to enhance your sentence.

The logical implication of that position is broader than the position that we’ve taken in this Court.

The logical implication of that position is that a defendant who goes to trial and does not take the stand and is convicted would then forfeit any Fifth Amendment privilege with respect to the criminal sentencing.

The Third Circuit didn’t have to confront that situation, and I do not know what the Third Circuit would have answered to that question, but there are enough elements in the Third Circuit decision that are consistent with our position, so I think it’s fair to say that this was and is a guilty plea case.

The essence… thank you.

William H. Rehnquist:

Thank you, Mr. Dreeben.

The case is submitted.