Rutledge v. United States Page 16

Rutledge v. United States general information

Media for Rutledge v. United States

Audio Transcription for Oral Argument - November 27, 1995 in Rutledge v. United States

James A. Feldman:

There's only one conviction.

There's only one sentence, and under this Court's decision in Ball, there's nothing wrong with a judgment of conviction that was entered the way the Second Circuit does.

Since that... the Second Circuit's approach would also make it clear that the defendant has to bring all of his issues to the appellate court in the very first appeal of the conviction, and since--

Antonin Scalia:

You think it's a lesser punishment to say I was... I have two convictions of two crimes, than to say I have one conviction of two crimes?

I mean, it seems to me the court that said in Ball that two convictions are punishment, you know, is cumulative punishment would also say that a conviction of two crimes is cumulative punishment, don't you?

James A. Feldman:

--I don't think so, because I think that Ball was concerned not just with the very abstract question of counting of crimes, but the possible consequences that could flow to the defendant from two convictions, and those consequences can't flow.

In other words, Ball can't flow from merely the entry of a single conviction.

Ball didn't hold that the entry of two convictions, if it had no collateral consequences whatsoever, would still, just as a matter of stigma, constitute punishment that has to be dealt with.

Antonin Scalia:

You think it's stigmatically neutral, is that it?

James A. Feldman:

Yes, I guess I would think it's stigmatically neutral, I think, and particularly in the context of these statutes, where the CCE offense is really one of the most serious ones in the Federal criminal law.

the fact that a defendant was also... was convicted of a single conviction, convicted once of violating CCE and a drug conspiracy statute I don't think carries any additional stigma.

Stephen G. Breyer:

Could you help me with something very, very basic?

Assume no knowledge on my part... very basic.

What happens in the absolute ordinary case in the Federal courts where you have crime A, and everyone agrees that crime A is a lesser included offense of crime B?

Now, how do you instruct the jury?

You instruct the jury... you instruct the jury in the ordinary Hornbook basic case that they can convict of both, or do you tell the jury you can convict of A only if you acquit of B?

James A. Feldman:

It's... the latter is the ordinary way of doing it.

Where the two--

Stephen G. Breyer:

The latter is the ordinary way.

James A. Feldman:

--Where the two bear the simple--

Stephen G. Breyer:

So ordinarily, the basic Hornbook thing is that you'll end up with one conviction, and if that conviction is reversed on appeal, you'll have to have a new trial.

James A. Feldman:

--No, I don't think that's correct.

I think if that--

Stephen G. Breyer:

If that's--

James A. Feldman:

--Well, it depends, but if the conviction is for the greater offense--

Stephen G. Breyer:

--Yes, they convict for the greater offense.

James A. Feldman:

--and if he's convicted for a reason that's unrelated to the lesser offense--

Stephen G. Breyer:

Yes, that's right.

James A. Feldman:

--Then you can just enter a conviction on the lesser offense.

Stephen G. Breyer:

How could you if the jury never came in with a conviction?