Witte v. United States – Oral Argument – April 17, 1995

Media for Witte v. United States

Audio Transcription for Opinion Announcement – June 14, 1995 in Witte v. United States

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William H. Rehnquist:

We’ll hear argument next in Number 94-6187, Steven Kurt Witte v. United States.

Mr. Sokolow, you may proceed.

H. Michael Sokolow:

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

The Double Jeopardy Clause protects against the Government seeking a second punishment for the same offense in a second prosecution.

The issue in this case is whether the Government’s attempt to punish Mr. Witte for cocaine offenses previously included in relevant conduct violates that protection.

The facts of this case illustrate exactly what the Double Jeopardy Clause was designed to protect against.

They also illustrate how these Federal Sentencing Guidelines can be defeated and eliminated.

Mr. Witte was sentenced to 12 years in Federal prison after buying 375 pounds of marijuana from Federal agents.

That sentence was based upon two things.

It was based upon a guideline range of 292 to 365 months, which included all prior marijuana offenses and all prior cocaine offenses negotiated or committed by Mr. Witte.

It was further based upon Mr. Witte’s cooperation and a Government request to reduce his sentence.

The Government has now indicted Mr. Witte for the same cocaine offenses and seeks to punish him again.

The express language of the sentencing guidelines shows that Mr. Witte was previously punished, and that he will be punished again.

The–

Sandra Day O’Connor:

May I just ask you a preliminary question about that?

The petitioner here is saying he would receive a multiple punishment for the cocaine offense if this second prosecution proceeds and he’s sentenced.

Why is that claim ripe now?

I take it he has not received a second sentence.

H. Michael Sokolow:

–That is correct.

He has not yet been sentenced on the second prosecution.

Sandra Day O’Connor:

He hasn’t been convicted in the second proceeding?

H. Michael Sokolow:

He has not been convicted, that is correct.

Sandra Day O’Connor:

And why, then, is that claim ripe?

H. Michael Sokolow:

The reason the claim is ripe is because under the Federal Drug Guideline and the other language of the guidelines, all offenses were merged for purposes of punishment in the first prosecution, and Mr. Witte has received all punishment that he can receive.

The Government is barred from the end… obtaining the end of the second prosecution… that is, any further punishment.

Since there can be no punishment, there can be no criminal judgment.

Thus, proceeding to the end and putting Mr. Witte through that process–

Sandra Day O’Connor:

Well, I’m not sure that gives you a claim at this juncture.

I was troubled by it, and I wondered how you would deal with it.

I also am troubled by how you would distinguish that case of Williams v. Oklahoma, where we held that the use of evidence of an uncharged crime at sentencing for the crime for which the prosecution succeeded, doesn’t constitute punishment for the uncharged conduct, and it seemed to me quite close.

H. Michael Sokolow:

–It is not close at all, Your Honor, and here’s why.

In Williams v. Oklahoma, this Court sought in vain for a cross-reference between the murder statute and the kidnapping statute.

Finding no cross-reference… that is, no merger of the two crimes for purposes of prosecution, no merger of the two crimes for purposes of punishment, it found no violation of the Double Jeopardy Clause and said, well, this is just a mere enhancement.

In this case, the Federal Drug Guideline 2D1.1 and the policy decisions made by the Commission effect a merger for purposes of punishment, and that is exactly where the violation of the Double Jeopardy Clause–

William H. Rehnquist:

Did the term… did the opinion in Williams v. Oklahoma use the term merger?

I read it recently, and I don’t recall it using that term.

H. Michael Sokolow:

–It does not use that term, but it does look specifically for a cross-reference between the two statutes.

I infer from the Court’s seeking a cross-reference between the two statutes that it was looking for some sort of merger that would prohibit either the second prosecution or the second punishment, or it would not have sought some cross-reference between the two statutes.

William H. Rehnquist:

What do you do with a case like Williams v. New York, another Williams case, which says that courts have traditionally taken into consideration all sorts of conduct in deciding what sentence shall be imposed?

H. Michael Sokolow:

Courts have traditionally done that, and the only thing courts have had to look at prior to the sentencing guidelines was what was in the statute.

Here we have a new set of sentencing guidelines that specifically prescribe punishment, that specifically merge, and–

William H. Rehnquist:

What do you mean by the term “merge”?

H. Michael Sokolow:

–Well, for… let’s forget the term merged.

William H. Rehnquist:

I think that’s a good idea.

H. Michael Sokolow:

Let’s look at 2D1.1.

2D1.1 and the grouping provisions state, group the offenses, drug offenses, according to their weight.

The guidelines also say drug offenses present a fungible harm and therefore ought to be grouped.

So what happens is, the drug offenses, we arrive at a guideline by grouping them, by getting a total weight of the drugs.

Now, if the Government brings four charges, let’s say, the Drug Guidelines group them and come up with one guideline range.

If the Government brings one charge, the Drug Guidelines still group the offenses and come up with the same guideline range.

What is happening in this case… that is, if Mr. Witte pleads guilty to all charges or one charge, the guideline range is still the same.

What’s happening in this case is, the Government is bringing one charge.

The guidelines, the mechanism still works the same way.

Mr. Witte has the same guideline range, and the Government says, aha, all the offenses have been grouped, Mr. Witte has gotten all the punishment he could get under the guidelines, now let us lop off one of the merged offenses that was punished–

William H. Rehnquist:

I thought you weren’t going to use the term “merged”.

H. Michael Sokolow:

–Let us lop off one of the grouped offenses that was punished, let us go back to the Federal Criminal Code, let us charge another one of the offenses that was grouped, and let us run Mr. Witte through the sentencing guidelines again, where all offenses will be grouped, and he will receive a second punishment on the group offenses.

William H. Rehnquist:

He was not convicted the first time of the same thing that he will be convicted of if a jury comes in against him the second time, is that right?

H. Michael Sokolow:

That is correct, but the guidelines, the Commission expressly made the decision to minimize the significance of the charging system.

William H. Rehnquist:

So are you saying basically that the guidelines prevent his being sentenced a second time, or tried, or that because of what the guidelines do, the Double Jeopardy Clause prevents it?

H. Michael Sokolow:

Because of what the guidelines do, and the way they group offenses for punishment, the Double Jeopardy Clause prohibits Mr. Witte being punished again in the same exact way.

Ruth Bader Ginsburg:

And in punishment, what is his exposure?

Would you explain that… if there’s one charge or two charges in the first trial, it’s going to end up with the same range.

What is the additional exposure in terms of length of incarceration as a consequence of the second prosecution?

H. Michael Sokolow:

In the first prosecution, the guideline range was 292 to 365 months, based on the grouping of all offenses.

Because of the Government’s motion for a departure downward, the sentence was 144 months.

In the second prosecution, the relevant conduct and guideline range will again be 292 to 365 months, so Mr. Witte is looking, for the same grouped offenses at an additional exposure at a minimum of 118 months, and for the same grouped offenses, an additional exposure of 191 months, which I believe is approximately an additional 15 years.

Ruth Bader Ginsburg:

But if the sentences are concurrent–

H. Michael Sokolow:

If the sentences are concurrent, he’s still… he is looking at an additional… because the Government made the motion for the downward departure, and–

Ruth Bader Ginsburg:

–Let’s forget the downward departure.

Leave it out of it.

Tell me the difference in the time served among these three:

1) We have an indictment for both crimes, 2) we have an indictment only for one, and the other crime is considered relevant conduct, 3) we have an indictment for one, the other considered relevant conduct, but a second prosecution for the second crime.

Are you telling me that the total numbers will differ in that third… the total incarceration period will differ?

That’s what I don’t understand.

H. Michael Sokolow:

–I believe what the Government says and what the Court of Appeals for the Fifth Circuit says should happen in the second prosecution is that, let’s assume Mr. Witte had gotten 292 months, a minimum under the guideline range.

The Government and the Fifth Circuit are saying, okay, he’s been in jail 30 months when this second prosecution sentence is handed down.

If he gets 365 months, take off 30 months, and then run the 365 months concurrent with the 262 left, so his exposure would be an additional 15 years.

Anthony M. Kennedy:

Do the guidelines require that the sentences be concurrent?

H. Michael Sokolow:

Section 5G1.3(b) says that the sentences should be concurrent, but that doesn’t mean that the second sentence will not add a significant amount to the… in other words, they’re not going to be strictly concurrent with the exact same amount of time.

Anthony M. Kennedy:

I understand that, but there will be substantial concurrency, and the district court has no authority to alter that result and impose a consecutive sentence?

H. Michael Sokolow:

As the Fifth Circuit read it, and as I read it, I do not believe the district court is going to have any authority to allow Mr. Witte to walk out of prison at the same time he would have after the first–

Stephen G. Breyer:

Why not?

I mean, the way it’s supposed to work, isn’t it… look, there are two separate things.

One is the Double Jeopardy Clause.

I take it from the year 2, well before the guidelines, a judge might decide, hey, I’m going to give you 15 years, because I’ve looked at your record and there are about three robberies here you’ve never been punished for, but this is a very bad guy.

And then indeed, later on, a year later, if the Government decides to indict him for one of those three robberies, I’ve never seen a case that says they couldn’t do it.

But the guidelines, which is a different matter, are supposed to not punish you twice for the same offense, and they can’t think of every possible unusual situation, so why wouldn’t you go in here and say, judge, look, I’d like to tell you something.

In this first case, they took all this conduct into account.

Now, I know that the guidelines haven’t written words for every situation, but what you ought to do is depart downward in this unusual situation in order to take this fact into account, which is very unusual.

And you’ll make all your arguments, and if the judge concludes that indeed this is really a gyp that the Government’s indicting him twice, maybe he’ll listen to you, and if the judge concludes that maybe your client did something that the Government didn’t reasonably expect him to do, maybe they won’t listen.

Stephen G. Breyer:

But I mean, isn’t this just the situation that you should put your argument to a judge as a matter of discretion and departure, and not an argument to the Court as a matter of Double Jeopardy law?

H. Michael Sokolow:

–No, it’s not, and here’s why.

We already know what the Fifth Circuit answer’s going to be.

The Fifth Circuit answer is going to be, Mr. Witte, go serve an additional–

Stephen G. Breyer:

No, no, it’s not the Fifth Circuit trial, it will be up to the sentencing judge in the future, in a trial we’ve never even had yet.

H. Michael Sokolow:

–But we know that the sentencing judge is going to follow the guidelines.

We know–

Stephen G. Breyer:

But the guidelines permit departure, is my point.

H. Michael Sokolow:

–They–

Stephen G. Breyer:

And isn’t this exactly the kind of situation that if, in fact, your client is being badly treated in the way you suggest, the judge ought to listen to your argument and follow it, otherwise not.

H. Michael Sokolow:

–I don’t see… I understand that you’re talking about 5K2.0, where it wasn’t considered by the Sentencing Commission, but I don’t see how a judge could reduce the sentence and make it run strictly concurrently.

The–

Stephen G. Breyer:

Why not?

H. Michael Sokolow:

–The argument on the other side would be… if the Government prevails in this case, the argument on the other side is, well, judge, clearly the Commission considered this under 5G1.3(b), and clearly this is the way it’s supposed to work.

How can… if 5G1.3(b) does apply, and Mr. Witte, as the Fifth Circuit said, is supposed to get an additional 118 months, how can you walk in front of a district judge and say, judge, the Sentencing Commission hasn’t considered this, even though the Supreme Court and the Fifth Circuit say 5G1.3(b) applies, please reduce the sentence?

They’ll say back to me, wait a minute, 5G1.3(b) expressly applies, even though we disagree with that, but that will be the answer.

Stephen G. Breyer:

This is the argument you would make, I guess, in the future.

Look, the theory of the thing is, if the thing has been taken into account the first time, the judge isn’t supposed to do it the second time.

He’s already been punished.

You have a very unusual situation, I take it, because the first time involved a special credit for cooperation, so that’s unusual, and you’ll go to the court and explain all the reasons why the judge should try to make the thing match as a departure, and the Government, I take it, would put contrary reasons, if that’s what they think.

But isn’t yours quite an unusual circumstance, and for that reason, departure might be called for, or might not be.

I didn’t see anything in any of the opinions that addressed that problem.

H. Michael Sokolow:

It is an unusual circumstance.

I think if Mr. Witte does not prevail here, I think that the Government will have an argument that 5G1.3(b) does expressly take that into account, and therefore I will be foreclosed.

But in addition, if Mr. Witte has received all of the punishment he should have received under the sentencing guidelines for the group defenses, why does the Government have the right to put him through the jeopardy of facing more punishment that he should not get under the sentencing guidelines?

Why should Mr. Witte be waiting in Harris County Jail to see if the judge is going to agree with us or not?

Why should he go through that anxiety when the sentencing guidelines have worked the way they should have worked in accordance with the policy of Congress to bring about uniformity in sentencing, to bring about proportionality in sentencing, in accordance with the policy and the sentencing guidelines to reduce the significance of the charging decision, to avoid double counting for drug crimes, to treat them as fungible harms?

When Mr. Witte goes up and faces his Maker to receive from 262 to 365 months on all those offenses, why should he again go to meet his Maker for the very same offenses?

And Mr. Witte’s argument does not apply across the board.

The guidelines are not monolithic.

H. Michael Sokolow:

The guidelines make policy decisions about what is a fungible harm and what isn’t a fungible harm.

I think we would have a different situation if Mr. Witte had committed five bank robberies, because those are not grouped under the guidelines, or assaults are not grouped under the guidelines.

Antonin Scalia:

There wouldn’t be any problem if they were all tried in the same proceeding.

You wouldn’t say these… you wouldn’t have any objection.

H. Michael Sokolow:

That is correct.

Antonin Scalia:

So I… there’s nothing that seems so obvious to me about the injustice of doing it one way or the other.

When you say that all that injustice can simply be eliminated by trying them all in one proceeding, the double punishment doesn’t seem to me such a horrible thing.

You’re just saying… really, it isn’t the double punishment that’s the problem, it’s not bringing them all in one proceeding that’s the problem.

H. Michael Sokolow:

It’s not bringing them all in one proceeding, because he’s forced to be put in jeopardy again for the same guideline range and additional punishment.

Antonin Scalia:

You’re not worried about the jeopardy, you’re complaining about the punishment.

H. Michael Sokolow:

That’s correct.

Antonin Scalia:

And you say that’s perfectly okay, so long as they all did it in one proceeding?

I find it hard to, you know, get righteously indignant about that injustice.

But do you agree… I just want to be clear on one thing.

Do you agree that in a single proceeding he could have received as much punishment as he might now receive?

H. Michael Sokolow:

Yes.

The way it would have worked is, if the Government brought four charges… you know, conspiring, importing, conspiring to possess with intent to distribute, and attempting to possess, if they brought four charges the guideline range still would have been 262 to 395 months.

The judge would have imposed the sentence, whatever it is.

Then that sentence would have run concurrent, each of the four sentences would have run concurrent with each other.

Ruth Bader Ginsburg:

Then that’s a different answer than the one I thought you gave.

I asked you… I gave you three situations.

Now I’ll just give you two.

H. Michael Sokolow:

Okay.

Ruth Bader Ginsburg:

One trial, two charges, guilty of both, sentenced.

One trial, one charge plus relevant conduct.

Second trial, one charge.

Is the total exposure, assuming the sentences are going to run concurrently and that you get credit in the second case for the time that you served earlier, is there any difference in the time that this person can be made to serve between consecutive trials, one on the two charges, or one trial on both charges?

H. Michael Sokolow:

There… if I understand the hypothetical correctly, the danger of having the second prosecution and trial is that a second trial judge gets to impose a sentence anywhere within the guideline range.

Ruth Bader Ginsburg:

Is the range any different?

H. Michael Sokolow:

The range… the range is not different.

Ruth Bader Ginsburg:

So the exposure is the same whether it’s one trial on two charges or consecutive trials each on one of the charges.

H. Michael Sokolow:

The exposure under the range is the same, yes, but the way the Fifth Circuit calculated it, you only get credit for time that you’ve served, so if the same sentence is imposed–

Stephen G. Breyer:

Isn’t the answer… I mean, the answer is, it’s supposed to work out the same.

It’s supposed to, but because of the way in which two consecutive trials can come about, unusual circumstances can arise where the literal wording of the guideline can’t do it because, for example, one might have been a State trial and the other a Federal trial, or one… the second trial might have taken place while the man isn’t in custody any more.

So you can have unusual circumstances, not all of which could be foreseen, and so therefore there’s a general instruction to the judge or to the bar and so forth, try to make it work in accordance, using your departure power so it works in unusual circumstances.

I mean, the guidelines are filled with statements like that, and that’s why I find this more of a guidelines problem than a jeopardy problem, and your case is not a case, I wouldn’t think, where there’s unfairness, necessarily, one way or the other.

There’s some reason here that the Government’s decided to prosecute this case again, and I’m sure that that reason is going to be presented to the judge.

I mean, doesn’t it all work out in the guidelines roughly, and… I guess… you haven’t shown me that it could be some serious problem–

H. Michael Sokolow:

–The serious–

Stephen G. Breyer:

–with their application if you apply them intelligently.

H. Michael Sokolow:

–Well, the Fifth Circuit has already told us if you apply them as they see it Mr. Witte is facing an additional… at a minimum, an additional 118 months, and that is a serious problem.

There–

Ruth Bader Ginsburg:

That’s only because of the departure for… because of cooperation in the first case.

H. Michael Sokolow:

–That’s correct.

Ruth Bader Ginsburg:

But there was no cooperation as to the second charge.

H. Michael Sokolow:

That’s right.

There’s nothing to show… nothing in the record, nothing that I know that will show that there will be any departure in the second case, so what happens is, the first judge reviewed all offenses, as grouped under the guidelines, looked at Mr. Witte’s cooperation, exercised the discretion that was granted to him under the guidelines with a motion to depart downward, decided what the case was worth.

Now the Government lops off one of those offenses, goes back, indicts it, and we get back to the grouped offenses, and it will completely nullify the judge’s discretion in the first case.

It will take away the motion for departure downward.

The consequences of the Government’s case are that it does away with the Commission’s attempt to limit the significance of the charging decision.

It does away with the grouping of all offenses.

It defeats the congressional goals of uniformity.

It defeats the judge’s discretion to depart downward.

For the guidelines to work and to be consistent, both parties have to be bound by them.

William H. Rehnquist:

Well now, Mr. Sokolow, earlier I thought you said your claim here was a double jeopardy claim, that given the way that the guidelines operated, the necessary sentence would be imposed after the forthcoming trial, would be a violation of double jeopardy, but now you seem to be arguing that if you interpret the guidelines properly that would satisfy your client’s interest.

Is that right?

H. Michael Sokolow:

No.

I think what I’m arguing is that the guide… that the Double Jeopardy Clause would be violated if he is again sentenced under the guidelines, but that in addition it also is contrary to the goals that Congress sought in the Sentencing Reform Act, and the goals that the Commission sought in writing the guidelines.

It’s not that they’re both the same.

It’s just that number 1, the Double Jeopardy Clause will be violated, and number 2, by the way, the purposes of Congress will be defeated.

William H. Rehnquist:

Well, ordinarily we would take those up in reverse order.

That is, we wouldn’t reach a constitutional question if there were some statutory question to be answered first.

H. Michael Sokolow:

Well, if the Court decides, of course, that it would violate the intent of Congress under the Sentencing Reform Act and it would violate the intent of the Commission and the express language of the guidelines to prosecute and to punish him again, then the Court… you’re correct, the Court need not reach the double jeopardy decision.

William H. Rehnquist:

Well, I simply wanted to inquire about what you were urging upon the Court.

I wasn’t trying to give you any ideas of my own.

H. Michael Sokolow:

No.

I believe it is a double jeopardy decision.

The problem here is, Congress and the Commission didn’t need to promulgate, or there was no necessity to promulgate guidelines, but having promulgated those rules for use, and Mr. Witte having been punished under those rules, putting him… punishing him again under those rules violates the Double Jeopardy Clause.

Mr. Chief Justice, with your permission I would like to reserve the rest of my time.

William H. Rehnquist:

Very well, Mr. Sokolow.

Mr. DuMont, we’ll hear from you.

Edward C. DuMont:

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

This Court’s cases have always permitted consideration at sentencing of conduct that is not part of the offense of conviction, whether or not that conduct has led to other convictions, precisely because the sentence imposed at any given proceeding constitutes punishment only for the offense that is actually before the court in that proceeding.

Anthony M. Kennedy:

Will you tell us, in response to the question Justice O’Connor asked of the petitioner’s counsel, if in your view there is no prematurity here, that we have the issue squarely before us, and subsidiary to that, why are you prosecuting this person a second time if you don’t intend to enhance his punishment?

Edward C. DuMont:

In response to the first question, we think that, although there is some slight doubt on it, we think the issues are squarely presented.

The only doubt would arise if you could not reach the double jeopardy question until the sentencing stage of the second trial.

That would depend on the determination that conviction could be had in the second proceeding without… as long as there was no sentence, there would be no jeopardy problem.

That seems to us somewhat inconsistent with the Court’s decision in Ball v. United States, and also there’s another case called Woodward, I believe, where the Court took notice of the $50 special assessments that are required under Federal law, and said that those were enough to prevent two sentences from being completely concurrent.

Anthony M. Kennedy:

Yes.

The sense I have is that the whole purpose of prosecuting him is so that you can impose some additional punishment.

Now, maybe that… and that leads to the second question I asked.

Edward C. DuMont:

Well, I–

Anthony M. Kennedy:

Or is that correct?

Edward C. DuMont:

–I think there are a variety of interesting and difficult questions raised by the notion of what the proper sentence would be at the second proceeding.

I don’t think it’s necessary… it is not why we prosecuted the crimes separately that we intended additional punishment.

Sandra Day O’Connor:

Well, what if, at the second proceeding, if the conviction were obtained and if the sentence imposed were identical to the one previously imposed, credit given for time served, run concurrently, could there be a double jeopardy violation, if that were the case?

Edward C. DuMont:

Assuming no special assessments?

Sandra Day O’Connor:

Right.

Edward C. DuMont:

That’s an interesting and difficult question that has not been reached.

Our position would be that–

Sandra Day O’Connor:

And I just wonder if we aren’t jumping the gun a little bit here to assume it’s going to be different.

Edward C. DuMont:

–I think my position on behalf of the Government ought to be that it is not necessarily punishment for the second offense to be convicted for, but I think in all candidness that would be a very difficult position to maintain if we were forced to maintain it, so–

Sandra Day O’Connor:

Have you explained yet what the Government’s purpose might be in having a second prosecution?

Might it be to encourage, if you will, the defendant to cooperate in connection with the second offense?

Edward C. DuMont:

–The reason–

Sandra Day O’Connor:

Is that a possibility?

Edward C. DuMont:

–I suppose there are many possibilities.

That’s not what happened here, and I should–

Sandra Day O’Connor:

Or a three-times-you’re-out sort of a statute?

The Government might want another prosecution and conviction for purpose of a three-time-loser statute?

I mean, I’m just trying to figure out why the Government wants to do this.

Edward C. DuMont:

–I think in general we might be entitled to the benefits of a three-time-loser statute even if we brought one prosecution, but what happened here is that we had two different… what the Government viewed and still views as two very different offenses.

They involved different people.

Mr. Witte was a common conspirator in the two.

That’s about the only thing the two had in common.

Now, we had in jail at the time Mr. Witte and his codefendant in the first case.

We chose to go ahead and prosecute that case, which seems to me the right answer when we have people in jail.

We did not prosecute the cocaine conspiracy because his coconspirator was at large for most of this period, and the investigation was not yet completed.

Once we picked up the coconspirator, we promptly charged the second conspiracy, the cocaine conspiracy, and proceeded to try that.

Ruth Bader Ginsburg:

Then I didn’t understand the answer to Justice O’Connor’s question.

If in the first trial the cocaine is simply relevant conduct, how could it count as two strikes?

Wouldn’t you have to bring the second prosecution to make it a second strike?

Edward C. DuMont:

Oh, certainly, if it’s only in the first prosecution as relevant conduct.

I understood the question to be… then I misunderstood the question.

I’m sorry.

If we had brought several charges, several counts in the first indictment, it seems to me we might very well be able to impose a recidivist enhancement on the fourth one of conviction, but if it’s just counted as relevant conduct, then there’s certainly no question about it, we would have to bring a second prosecution, and that really gets to the point, which is that under all of this Court’s cases there’s always been quite a clear distinction between conviction for an offense and a sentence imposed after that conviction, and other–

John Paul Stevens:

Before you get into that, could I ask you one question about your explanation of why the second prosecution was appropriate?

You said the coconspirator had not been apprehended, so you couldn’t proceed against the coconspirator, but I don’t understand why that made it necessary to proceed a second time against this defendant, because you could have proceeded against him without indicting this person again.

Edward C. DuMont:

–I think it might have been possible to proceed in this trial.

It would have complicated the marijuana trial quite considerably, and it would have required us to put on all the cocaine evidence in two trials, both… first at Mr. Witte’s trial and then at the trial of his coconspirator.

John Paul Stevens:

No, I’m assuming this case went just as it did.

Am I correct… let me make sure I… this is kind of complicated.

Am I correct in assuming that all of the relevant conduct… put it the other way around, that all of the cocaine activity that is alleged in the second indictment was taken into account as relevant conduct in the first trial?

Edward C. DuMont:

And somewhat more, yes.

John Paul Stevens:

And then, tell me again, why is it you need the second trial against this particular defendant, if it’s not to get additional punishment?

Edward C. DuMont:

First of all, the investigation had not been completed, so it was not at the time a foregone conclusion that there would not have been additional conduct discovered–

John Paul Stevens:

No, but by the time you brought the second trial it was.

Edward C. DuMont:

–Correct.

John Paul Stevens:

Why did you have to bring the second trial against this defendant if it was not for the purpose of getting more punishment?

Edward C. DuMont:

You mean having had the judge already impose the sentence that he did?

John Paul Stevens:

Yes.

Edward C. DuMont:

The Government is entitled, it always has been entitled to bring those two prosecutions.

As it prosecutes for–

John Paul Stevens:

Well, that may be.

It’s entitled because it wants to get additional punishment.

Edward C. DuMont:

–Because the Government was going to prosecute the other coconspirator in any event, we were entitled to seek a second conviction against Mr. Witte on the–

John Paul Stevens:

I’m not arguing about what you’re entitled to do.

I’m just asking about, is there any reason for doing it other than to get additional punishment?

Edward C. DuMont:

–I believe the Government felt that we were entitled to get the conviction on the record as a conviction.

John Paul Stevens:

Oh, the reason was simply to get another conviction on his record.

Edward C. DuMont:

I believe that was a reason, and a legitimate reason for… and a sufficient reason for bringing the second prosecution.

John Paul Stevens:

Sort of like a declaratory judgment proceeding.

Edward C. DuMont:

Well, as I said, the issues of what punishment will be imposed at the second trial are not ripe here, and involve a lot of things, including what version of the guidelines will be applied, and so on.

Anthony M. Kennedy:

I thought the Government was busy, that it had a heavy criminal case load.

Edward C. DuMont:

We do, and I think if you read the transcript of the dismissal hearing on the second charge you will find the judge was very concerned about that, but I don’t think it has ever been considered to take away our right to bring a second charge on a different offense, no matter what punishment may or may not… no matter whether that conduct may or may not have been taken into account in a prior separate offense prosecution at sentencing.

John Paul Stevens:

But the difference in this case from the Williams and the other cases is that the conduct may have been taken into, or in fact was taken into, but under the guideline system, the trial judge at the first trial was required by law to take into account the relevant conduct.

Doesn’t that make a difference?

I guess you’d say no.

Edward C. DuMont:

No.

John Paul Stevens:

No, okay.

Edward C. DuMont:

First of all, of course–

John Paul Stevens:

Why not?

Edward C. DuMont:

–Assuming that he was required, because assuming that it was relevant conduct, which of course we didn’t believe at the time and don’t believe now, the Court has made quite clear that what counts as mandatory for sentencing purposes is the statutory maximum and minimum prescribed by Congress for the offense, which in the case of his marijuana conduct was 5 to 40 years.

Now, it turns out that however you applied the guidelines, or whatever conduct you took into account, that’s a broad enough range so there was no question, but that’s the relevant mandatory maximum-minimum.

It’s the one prescribed by Congress.

The fact that Congress in the sentencing guidelines chose to guide and channel the district court’s discretion in imposing a sentence within that range is completely irrelevant to whether it was a sentencing factor or a conviction factor, as the Court made very clear in MacMillan.

Really, there’s no distinction between the kind of issue that was posed in MacMillan and that issue here.

I’d like to point out that petitioner’s theory being that consideration at the sentencing phase of his prior prosecution of this particular conduct amounts to punishment for that conduct has one very dramatic consequence, which is that every recidivist statute in every jurisdiction in this country is unconstitutional, because every one of those statutes involves considering at sentencing for one offense conduct that has previously been considered at the guilt phase–

John Paul Stevens:

No, but none of those statutes require consideration at the first trial of the conduct for which he is indicted in the second trial.

None of them require that, whereas this statute does require that the cocaine conduct be considered at the marijuana trial, if it’s known.

Edward C. DuMont:

–If it’s known?

John Paul Stevens:

And that distinguishes all of the recidivist statutes that you refer to.

Edward C. DuMont:

Well, with respect, I don’t think so, because in both cases what we are talking about is consideration at sentencing on a preponderance standard of certain uncharged conduct, conduct that was not required to be proven to the court that’s doing the sentencing beyond a reasonable doubt after an indictment, and so on and so forth.

John Paul Stevens:

No, but it was required to be proved, and it was proven, and was relied on just as if it had been proved beyond a reasonable doubt.

Edward C. DuMont:

That’s right, but if it is punishment in violation of the Double Jeopardy Clause to consider at sentencing conduct that has previously been proved, then it is a violation of the Double Jeopardy Clause to enhance someone’s sentence at a subsequent prosecution on the basis of criminal conduct that was previously proved to another jury in another charge.

Antonin Scalia:

Your point is it doesn’t matter whether it was required to be previously proved or was previously proved and considered as a discretionary matter.

The fact that it has been done previously makes the later one a second one, whether it was done discretionarily or not.

Edward C. DuMont:

That’s absolutely right, and in our view it cannot possibly make a difference.

That has always been–

Stephen G. Breyer:

No, what–

Edward C. DuMont:

–part of the fabric of sentencing law.

Stephen G. Breyer:

–What the problem, I think, was… I mean, I don’t want to put words in other people’s mouths, but I thought that Justice Stevens was driving at the different problem of a later prosecution, and what you are prosecuting this person for is the thing for which he was punished previously, required by law.

That’s not the recidivism statute at all.

In a recidivism statute you’re punishing the person for what he did later, and the amount of the punishment is a function of what happened before.

But in this case, what you’re doing later is you’re convicting him of an activity for which he was previously punished.

You’re not increasing punishment because of what he previously did for a different thing.

You are convicting him of what he has previously been punished for, and that… and since these matters are matters of criminal… of congressional intent, there is an open question, I suppose, about whether the Congress in passing these sentencing guidelines has, in fact, manifested some kind of relevant intent.

I’m not saying you’re wrong.

I’m simply saying it’s not so obvious a question as the recidivism quotation would suggest.

Edward C. DuMont:

Well, let me make two responses, if I may.

Edward C. DuMont:

The first is that there is a, if I may, a crucial flaw in the way you–

Stephen G. Breyer:

Yes.

Edward C. DuMont:

–posed the problem, which is to say that it is conduct for which he has previously been punished.

That is not true.

It is conduct that has been taken into account–

Stephen G. Breyer:

That’s right.

Edward C. DuMont:

–in punishing him previously–

Stephen G. Breyer:

Yes.

Edward C. DuMont:

–for a different offense, and that has never been considered to be a problem–

Stephen G. Breyer:

Yes, that’s right, up till now.

That is a good point.

Edward C. DuMont:

–under the Double Jeopardy Clause or the Due Process Clause or anything else.

Stephen G. Breyer:

Right.

Edward C. DuMont:

Now, the second point you make–

Stephen G. Breyer:

That’s true.

Edward C. DuMont:

–is an excellent one and you made it before, which is, there are really two possible arguments the petitioner can be making here, and he conflates them, but I think it’s necessary to separate them out.

One is an argument based on the Constitution, that what we are doing violates double jeopardy per se and that, we think, is wrong for all the reasons that we’ve been discussing, that all these Court’s cases are to the contrary on both sentencing and due process.

Now, there is also a statutory argument, I suppose, that could be made, that Congress intended when it passes… passed the guidelines and the Sentencing Reform Act to so transform the sentencing system that it would in effect forbid, as a matter of statutory law, subsequent prosecution and successive prosecutions of this type.

Now, we think that that cannot hold up, first of all because there is no positive indication anywhere in the language or the history of the Sentencing Reform Act or the guidelines to suggest that that’s what Congress had in mind, and second because the guidelines themselves in section 5G1.3 have an explicit mechanism which is designed to take care of exactly this kind of situation, where you have successive prosecutions for the same kind of conduct, in fact, the same exact conduct.

Now, it is implausible that Congress addressed, then the Sentencing Commission addressed that issue specifically in 5G1.2 if they thought that it was unconstitutional anyway, given what they had done to the definition of offenses.

To return for a moment to the issue of what you are punished for when you are punished, no matter what is being taken into account, I’d like to just point out one example.

The amount of marijuana involved in the first prosecution here happened to be 370 pounds, and that put Mr. Witte in the statutory sentencing category of 5 to 40 years, a very broad category which, as I mentioned, accommodated any of the possible changes in the guidelines range depending on the relevant conduct.

But supposing it had been 50 kilograms of marijuana, then his statutory maximum sentence under section 841, leaving aside unlikely other events, would have been 5 years.

Now, suppose that the guidelines range, as it would have been, would have been 33 to 41 months, in the middle of that 5-year range, and suppose the district court had taken account of the other 232,000 kilograms of marijuana equivalent that it took account of in this case as relevant conduct.

It would have wanted… it would have been required to enhance his sentence, but it would have hit a statutory maximum of 5 years, and it would have been able to impose no sentence greater than 5 years, because that’s the statutory maximum for the offense of conviction.

John Paul Stevens:

Yes, but that’s not this case, and you don’t have a statutory maximum.

Edward C. DuMont:

It’s not this case.

John Paul Stevens:

Supposing just the opposite, supposing that that would have required a 20-year sentence, say there was no statutory maximum, and then… but they only indicted him for the lesser amount, and you’re saying they could impose that sentence and then subsequently indict him for the larger amount and then impose an additional sentence.

That’s your position, is it not?

Edward C. DuMont:

As a constitutional matter, if the two offenses are separate, that’s absolutely right.

John Paul Stevens:

Yes.

Edward C. DuMont:

Now, as a guidelines matter–

John Paul Stevens:

And there’s no precedent–

Edward C. DuMont:

–it’s unlikely that that–

John Paul Stevens:

–Do you have a precedent for that ever having been done by any court, where at the first trial there was a requirement by statute or rule or whatever it might be that certain relevant conduct aggravate the sentence, and it was imposed, and then subsequently the person was indicted and convicted of the aggravating offense?

Edward C. DuMont:

–I have no case where there was a statute that required it as a matter of guidelines.

Now, I think the Court said in both Williams v. Oklahoma–

John Paul Stevens:

But in the Williams case the–

Edward C. DuMont:

–and Williams v. the State of New York that the Court has an obligation to consider all conduct that comes before it.

John Paul Stevens:

–But in the Williams case–

Edward C. DuMont:

In fact, there’s a statutory obligation in this case–

John Paul Stevens:

–when he was indicted for kidnapping, at the prior proceeding for murder there was no indication that the kidnapping aggravated his offense.

It couldn’t have been, because he got a lesser sentence that time.

Edward C. DuMont:

–Well, he got a… he was sentenced to life for murder and then to capital–

John Paul Stevens:

And for the kidnapping he got death.

Edward C. DuMont:

–That’s right, explicitly on the basis of having committed the murder.

John Paul Stevens:

That’s right, but at the murder trial… the point is that at the murder trial there was no reliance on the kidnapping as relevant conduct that would aggravate the offense, and that’s what you’ve got here.

Edward C. DuMont:

Well, that’s–

John Paul Stevens:

All of your cases, I don’t think you can cite a single case where the relevant conduct at the first offendment aggravated the sentence and then was the subject matter of a second indictment.

Or can you?

Maybe you can give me a case like this.

Edward C. DuMont:

–Well, not that I can think of.

Stephen G. Breyer:

Yes, but there should be.

There should be, because there are a lot of–

Edward C. DuMont:

I can also say there’s no case holding to the contrary.

There’s no case holding, and you know, certainly Williams v. New York is to the contrary, where the Court took into account uncharged conduct in imposing a death penalty, and there’s no suggestion that if the Government had wanted to and hadn’t thought it a waste of resources it couldn’t have gone and prosecuted him for those burglaries later.

John Paul Stevens:

–No, but it seems somewhat counterintuitive to me to say that a man could be punished for relevant conduct in proceeding A, yet have that aggravate a sentence that would not otherwise have been imposed, then say in proceeding B, we can go ahead and punish him again for the same relevant conduct, and all I’m suggesting is, your position is without any precedent.

Edward C. DuMont:

Well, I would say that my position is I think with a great deal of precedent, although I can’t cite you a specific case where, as you say, the judge was required in the first case to take account of the same conduct, although I suspect that there are such cases.

I can’t think of one off the top of my head.

That should not be taken as an indication that they don’t exist.

Edward C. DuMont:

Now, what I think the logic of your argument and petitioner’s argument has to be is that it makes a difference whether the court in the first case is required by Congress to take into account certain things as sentencing factors, or whether it is not required to take them into account but is allowed to do so as a matter of discretion.

And we think that as a constitutional matter it cannot make a difference whether the Court takes account of uncharged conduct as a purely discretionary matter within the statutory range, as a prescribed matter under the guidelines, as criminal history… who knows what they might do, how they might take account of it.

If it’s constitutional–

John Paul Stevens:

Would you take the same position if in the first trial–

Edward C. DuMont:

–one way, it’s constitutional every–

John Paul Stevens:

–the guidelines or some procedure required proof beyond a reasonable doubt before they could take into account relevant conduct?

Would you still take the same position?

Edward C. DuMont:

–I don’t see why we wouldn’t.

John Paul Stevens:

I wouldn’t think you would, either, right, actually.

Edward C. DuMont:

That’s entirely a matter of… it goes to the fact that the Court has always said that it is Congress or the legislature in any given case that is entitled to choose what is an element of the offense and what is a sentencing factor.

Now, the Court has recognized that there are cases where that might potentially be manipulated.

MacMillan, I think, stands for this proposition, that the Court will take cognizance that the legislature might try to manipulate that and slip something that should really be an offense element into the sentencing phase.

But until the legislature does that, and there’s no case that has ever held that the legislature has done that, until they do that, what the legislature decides is an offense element and a sentencing factor controls, and if it’s a sentencing factor, it need only be proved by a preponderance, although of course Congress could prescribe something greater, and it does not go to the question of whether you’ve been punished for that conduct.

You’ve only had that conduct taken into account in enhancing your punishment for something else, of which you have been duly convicted.

Stephen G. Breyer:

You probably agree with this, so don’t let me go down the wrong track though if it’s not.

I think it’s quite a difficult question, and rather deep.

Why isn’t there this precedent, and there should… it should turn out there is such, because lots of States have guidelines systems now, and you should find the State might try to prosecute somebody for a thing where there has been, you know, this kind of situation federally or the other way around, and the difficulty, I think, is that they don’t always call the crimes by the same name.

You have a civil rights conviction and an assault conviction, you see, in two different jurisdictions, and what’s worrying me is if you suddenly bring the Constitution into this, I don’t see how the Constitution’s going to get it… when has there been a prior… because the underlying things are described in terms of behaviors.

They’re not described in terms of crimes.

I’m saying this because maybe it will jog your recollection that you have found such similar things, or–

Edward C. DuMont:

Unfortunately, it doesn’t jog my recollection on the point of having found another case.

It does bring up an excellent point, and I do agree with it entirely.

Stephen G. Breyer:

–You would agree with that because it’s favorable to you, but–

Edward C. DuMont:

I agree with it entirely, and I think it points up that the relevant conduct provisions of the guidelines talk, as you say, in terms of conduct, not in terms of offenses, and petitioner’s argument requires courts, would require courts to go through an analysis where you take that conduct and try to figure out what offense it constituted and then compare it under the Blockburger test, the elements of offense of a new prosecution.

Now, I’m not saying that would be impossible, but it is difficult, and–

John Paul Stevens:

–But you’d only have to do it–

Edward C. DuMont:

–in places where–

John Paul Stevens:

–But you’d only have to do it when the Government sought to indict somebody for the same conduct which had already enhanced punishment.

I mean, that doesn’t happen very often.

I mean, this is a very unusual case, I think, or maybe it isn’t.

John Paul Stevens:

I don’t know.

It seems to me it’s somewhat unusual.

Edward C. DuMont:

–I think it’s unusual.

Sandra Day O’Connor:

But the guidelines do seem to expressly provide that if the offense has been fully taken into account in the determination of the sentence already given, that the new sentence will run concurrently.

Edward C. DuMont:

That’s absolutely right.

Sandra Day O’Connor:

I mean, the guidelines seem to contemplate this very occurrence on occasion.

Edward C. DuMont:

That’s absolutely right.

Sandra Day O’Connor:

And accommodate it by requiring a concurrent sentence.

Edward C. DuMont:

That’s quite right, and I would point out again that the… as respondents, or as petitioners have pointed out, the Sentencing Commission has not been notably satisfied with the way that 5G1.3 works.

It’s been amended several times.

There are some extensive amendments that have been proposed for public comment right now.

I think that part of what that indicates is that there are a lot of vexing problems about how you decide whether prior conduct has really been taken into account and whether it’s comparable to the current offense of conviction and how exactly one ought to accommodate all of that.

John Paul Stevens:

But doesn’t it boil down the fact that if the sentences have to run concurrently, that… and the Government thinks the first judge was too lenient and too much of a downward departure or something, it gets a second bite at the apple, says well, maybe the second judge, even though it will run concurrently, will give a longer sentence the second time.

That’s what it gives the Government the opportunity to do, it seems to me, is to get the maximum sentence for the relevant conduct.

Edward C. DuMont:

It gives the opportunity… it gives the Government the opportunity to do what the Government has always had the opportunity to do, which is to charge and convict for separate offenses at separate trials at separate times, and allows the judge–

John Paul Stevens:

It’s always had this opportunity, but you haven’t been able to find a case where they’ve ever done it before.

Edward C. DuMont:

–And allow the judge in each case to impose the sentence that he or she thinks fit within the statutory maximum and minimum for the offense of conviction at every trial.

If the Court has nothing further–

William H. Rehnquist:

Thank you, Mr. DuMont.

Mr. Sokolow, you have 5 minutes remaining.

H. Michael Sokolow:

Thank you, Mr. Chief Justice.

Let me point out first that the Government says that it has always had the opportunity to bring separate charges and obtain different punishments.

The Sentencing Reform Act and the Federal Sentencing Guidelines changed that system because of the disproportionate sentences that came about.

It changed that system because Congress wanted uniformity and honesty in sentencing.

The fact that the Government cannot now bring subsequent prosecutions to try to get different sentences is something that Congress wanted to bring about.

Now, let me say a few words about the record in this case.

The record in this case show… shows that number 1, the Government filed a criminal complaint alleging all acts and all offenses at the outset of the case.

There’s no reason–

William H. Rehnquist:

We’re talking about now the first prosecution?

H. Michael Sokolow:

–The first prosecution started out with a criminal complaint, and the affidavit alleged all of the facts and transactions in both the cocaine offenses and the marijuana offenses.

H. Michael Sokolow:

The Government didn’t file it under seal.

It didn’t try to keep it secret.

The Government, in the motion to dismiss hearing in this case, when questioned by the judge about a Castlebaugh problem said, oh, no, judge, we had all the evidence before Mr. Witte pleaded guilty in the first case.

So they had all the evidence to prosecute him.

They could have filed an indictment then, and could have gotten their conviction.

If there was a problem finding Mr. Parkorny, they had plenty of tools in their arsenal.

They can get a continuance under the Speedy Trial Act to try to apprehend fugitives.

They can try the cases separately and merge them for sentencing.

The Government is not precluded by getting another conviction at the same time when it alleged all those facts at the outset of the first prosecution.

Finally, I’d like to point out the Government cannot cite a reason for pursuing this prosecution that puts Mr. Witte, according to the Fifth Circuit’s opinion, in jeopardy for an additional 118 months.

I think the Court can only infer that the reason it’s going after this is to get a second bite at an apple, to get additional punishment, which is exactly what the Double Jeopardy Clause prohibits.

Your Honors, we request that you reverse the decision of the Fifth Circuit Court of Appeals and remand for dismissal of the indictment in this case.

Thank you, Mr. Chief Justice.

William H. Rehnquist:

Thank you, Mr. Sokolow.

The case is submitted.