Whither the Rule of Lenity by Dan Levin & Nathaniel Stewart*
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Whither the Rule of Lenity by Dan Levin & Nathaniel Stewart* he “rule of lenity” “requires ambiguous criminal laws to manner based on strict statutory construction, it is perhaps be interpreted in favor of the defendants subjected to not surprising that at times it results in interesting coalitions them.”1 Although long a favorite of defense attorneys, that cross the Court’s traditional conservative-liberal lines. As T 10 actual applications of the rule, at least at the Supreme Court noted, Justice Scalia’s plurality opinion in Santos was joined level,2 have been relatively rare. Th is is perhaps somewhat by Justices Th omas, Ginsburg, and Souter; Justice Stevens surprising as the rule’s roots in due process principles, and concurred in the judgment and wrote separately, also endorsing potential application where a strict construction of a statute application of the rule. Justice Alito fi led a dissenting opinion results in an ambiguity, could lead both traditionally liberal joined by Chief Justice Roberts, Justices Kennedy and Breyer. and traditionally conservative Justices to favor its use. In 2008, Other discussions of the rule of lenity in the most recent in United States v. Santos, the Supreme Court issued a plurality three terms have included the following: Justice Ginsburg opinion holding that a key term in a federal money laundering acknowledging that the statutory defi nition in question was statute was ambiguous and applied the rule of lenity to resolve “not a model of the careful drafter’s art” and yet declining to the ambiguity in the defendants’ favor. Th e plurality involved apply the rule,11 while Chief Justice Roberts, joined by Justice just such a coalition of conservative and liberal Justices (Justices Scalia, considered the case “a textbook case” for the rule of Scalia, Th omas, Ginsburg, and Souter; with Justice Stevens lenity;12 Justice Souter and Justice Ginsburg joining with the writing separately and agreeing that the rule should apply), traditionally more conservative members in declining to apply raising the question of whether the rule may be entering a the rule of lenity,13 while Justice Stevens14 and Justice Breyer15 period of somewhat greater application. each wrote dissenting opinions calling for its application; and As noted, to date, the Supreme Court has applied the Justice Scalia writing an opinion, joined by Justice Stevens and rule sparingly and “only when, after consulting the traditional Justice Ginsburg, calling for application of the rule of lenity, canons of statutory construction, [the court is] left with an in a case in which neither the majority opinion, authored ambiguous statute.”3 As Justice Th omas noted in Staples by Justice Alito, nor Justice Th omas’s separate dissent, even v. United States, “[t]hat maxim of construction [the rule of discussed the rule.16 lenity] is reserved for cases where, ‘[a]fter seiz[ing] every A brief review of Santos and several of the recent cases thing from which aid can be derived,’ the Court is ‘left with discussing the rule highlights the confusing diffi culty the an ambiguous statute.’”4 Similarly, the Court has described Court faces in determining when to apply the rule of lenity. the rule as “appl[ying] only when the equipoise of competing Th e Justices seem to agree on the rule’s purpose and that the reasons cannot otherwise be resolved....”5 rule is one of “last resort,” to be used when all other attempts Determining when the traditional canons have failed to interpret the text have failed. But when those attempts have and an ambiguous statute remains, however, enjoys little failed, and when the rule must be employed, remains murky consensus among members of today’s Supreme Court. and uncertain. Because it is currently used only as an interpretative tool-of- I. United States v. Santos last-resort, it is not surprising that the rule of lenity has not ultimately served to “break the tie” in many cases. After all, Santos and one of his collectors were convicted of the Court may choose to interpret a criminal statute using money laundering charges related to their long-standing 17 any number or combination of the canons of construction illegal lottery scheme. Santos employed several operatives to in order to avoid declaring a statute hopelessly ambiguous.6 manage an illegal lottery, including “runners” to collect bets Since the 2006-2007 term, for example, the rule of lenity at bars and restaurants and “collectors” who would deliver 18 has been mentioned or discussed in a majority, dissenting, those bets to him. Financial transactions between Santos or concurring opinion fewer than a dozen times,7 and it has and his employees and lottery winners formed the basis been applied and broken the tie in the defendant’s favor only for money laundering charges and subsequent convictions 19 once—in the Santos case.8 under 18 U.S.C. § 1956(a)(1), which criminalizes fi nancial Although it has rarely decided a case, the rule of lenity transactions involving “proceeds” of certain types of unlawful 20 has been more frequently cited in dissenting opinions arguing activities. that the statutory provision at issue is ambiguous enough to Th e convictions were vacated by the lower court on warrant the rule’s application. Maybe this, too, should be grounds that “proceeds” means “profi ts” rather than “gross expected in light of the rule’s broad implications for and eff ect receipts,” and the Government had failed to prove that the on criminal statutes.9 funds involved in the transactions represented “profi ts” from 21 Because the rule of lenity can be applied in a manner the lottery. After the Seventh Circuit Court of Appeals that protects defendants’ due process rights and also in a affi rmed the holding, the Supreme Court granted certiorari to determine the narrow question of whether “proceeds” means ..................................................................... “profi ts” or “gross receipts,” i.e. whether the government has * Dan Levin and Nathaniel Stewart are white collar attorneys with White to prove that the underlying criminal activity was profi table or & Case LLP in Washington, DC. 42 Engage: Volume 10, Issue 3 just that the money used in the transaction was a product of intended the term “proceeds” to be defi ned as “gross receipts” the criminal activity.22 for any unlawful activity under the statute.36 Th e dissent Th e plurality held in favor of the two defendants by focused on the legislative history of the statute and cited similar settling on the narrower of the two meanings. Th e money defi nitions in other statutes, including every state money laundering statute did not defi ne “proceeds,” and, as Justice laundering statute, as well as the prosecutorial burdens created Scalia noted, “[w]hen a term is undefi ned, we give it its by the plurality’s defi nition, and concluded that the “meaning ordinary meaning.”23 But “proceeds” is equally capable of two of ‘proceeds’ in the money laundering statute emerges with “ordinary meanings”—either “receipts” or “profi ts.”24 In such reasonable clarity when the term is viewed in context, making a case, as Justice Scalia explained, the rule of lenity “requires the rule of lenity inapplicable.”37 ambiguous criminal laws to be interpreted in favor of the II. Other Recent Rule of Lenity Cases defendants subjected to them,” since no individual should be held criminally liable for statutory off enses not clearly In two cases since Santos, application of the rule of prescribed.25 Th us, according to the plurality, “[b]ecause the lenity has been rejected, making clear that even if Santos may ‘profi ts’ defi nition of “proceeds” is always more defendant- herald some greater receptivity to the rule, it is still likely to be friendly than the ‘receipts’ defi nition, the rule of lenity dictates sparingly applied. that it should be adopted.”26 Justice Scalia went on to argue A. United States v. Hayes that “[w]hen interpreting a criminal statute, we do not play In United States v. Hayes, Justice Ginsburg, writing for the part of mind reader,” and, quoting Justice Frankfurter, the majority, reversed the Fourth Circuit’s application of the stated: “‘When Congress leaves to the Judiciary the task of rule of lenity, and held that the rule did not apply because the imputing to Congress an undeclared will, the ambiguity statute’s “text, context, purpose, and what little drafting history 27 should be resolved in favor of lenity.’” there is all point in the same direction.”38 Hayes concerned Th e Government had made two primary arguments in the Gun Control Act of 1968,39 which prohibits a person favor of the “gross receipts” interpretation. First, gross receipts convicted of a “misdemeanor crime of domestic violence” would more “accurately refl ect the scale of the criminal from possessing a fi rearm. Th e defendant was charged with activity” and thus better serve the purpose of the money three counts of possessing fi rearms after being convicted of 28 laundering statute. Th e plurality rejected this argument out a crime of domestic violence, but he moved to dismiss the of concern that such a broad interpretation would eff ectively indictment on grounds that the state statute “under which he “merge” any illegal gambling off ense into a much more severe was convicted in 1994... was a generic battery proscription, money laundering off ense, “because paying a winning bettor not a law designating a domestic relationship between off ender is a transaction involving receipts that the defendant intends and victim as an element of the off ense.”40 Th e district court 29 to promote the carrying on of the lottery.” Second, the denied defendant’s motion to dismiss, and he pleaded guilty Government argued for the “receipts” interpretation “because— and appealed.