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. Th e Fourth Circuit reversed the conviction, 30 quite frankly—it is easier to prosecute.” Justice Scalia rejected holding that the predicate off ense for a conviction under § this position because it “[e]ssentially... asks us to resolve the 922(g)(9) must “have as an element a domestic relationship statutory ambiguity in light of Congress’s presumptive intent between the off ender and the victim.”41 to facilitate money-laundering prosecutions,” a position which Th e Supreme Court’s decision turned on whether “turns the rule of lenity upside-down. We interpret ambiguous “misdemeanor crime of domestic violence” in § 921(a)(33)(A) 31 criminal statutes in favor of defendants, not prosecutors.” requires that “the predicate misdemeanor identify as an element Concurring in the judgment as the decisive fi fth vote, of the crime a domestic relationship between the aggressor and Justice Stevens noted at the outset that “[w]hen Congress fails victim.”42 Section 921(a)(33)(A) provides: to defi ne potentially ambiguous statutory terms, it eff ectively delegates to federal judges the task of fi lling gaps in a statute.”32 Th e term “misdemeanor crime of domestic violence” Justice Stevens argued that Congress has, in other contexts, means an off ense that— and could have here “defi ned ‘proceeds’ diff erently when (i) is a misdemeanor under Federal, State, or Tribal law; applied to diff erent specifi ed unlawful activities,” and therefore and judges may do the same “as long as they are conscientiously (ii) has, as an element, the use or attempted use of physical endeavoring to carry out the intent of Congress.”33 Th us, force, or the threatened use of a deadly weapon, committed Justice Stevens would not pick a single defi nition of “proceeds,” by a current or former spouse, parent, or guardian of the but would defi ne the term diff erently depending on the type victim, by a person with whom the victim shares a child of unlawful activity that produces the funds in question.34 in common, by a person who is cohabitating with or Ultimately, Justice Stevens concluded that the rule of lenity has cohabitated with the victim as a spouse, parent, or required the narrower “profi ts” interpretation for money guardian, or by a person similarly situated to a spouse, laundering charges based on illegal gambling transactions parent, or guardian of the victim. because the statutory text and its legislative history did not clearly indicate congressional intent regarding the defendants’ Th e majority fi rst focused on the text of the statute and gambling operation.35 observed that Justice Alito’s dissent, joined by Chief Justice Roberts, as an initial matter... § 921(a)(33)(A) uses the word Justice Kennedy, and Justice Breyer, argued that Congress “element” in the singular, which suggests that Congress

October 2009 43 intended to describe only one required element.... Had laws rendering a domestic relationship an element of the Congress meant to make the latter as well as the former off ense.”53 an element of the predicate off ense, it likely would have Th e majority opinion concluded with a brief look at the used the plural “elements,” as it has done in other off ense- scant legislative history of the statute, consisting of an earlier defi ning provisions.43 version of the law and a fl oor statement by the bill’s sponsoring Senator, which included the statement that: Justice Ginsburg then approached the text’s syntax and found that Convictions for domestic violence-related crimes often are fore crimes, such as assault, that are not explicitly [t]reating the relationship between aggressor and victim identifi ed as related to domestic violence. Th erefore, it as an element of the predicate off ense is also awkward as will not always be possible for law enforcement authorities a matter of syntax. It requires the reader to regard “the to determine from the face of someone’s criminal record use or attempted use of force, or the threatened use of a whether a particular misdemeanor conviction involves deadly weapon” as an expression modifi ed by the relative domestic violence, as defi ned in the new law.54 clause “committed by.” In ordinary usage, however, we would not say that a person “commit[s]” a “use.” It is more Th e Court acknowledged that “[t]he remarks of a single natural to say that a person “commit[s]” an “off ense.”44 Senator are ‘not controlling,’ but, ... the legislative record is otherwise ‘absolutely silent.’”55 Th e majority went on to note that “[h]ad Congress placed the Rejecting the defendant’s contention that the statute’s ‘committed by’ phrase in its own clause, set off from clause ambiguity called for application of the rule of lenity, the (ii) by a semi-colon or a line break, the lawmakers might have majority held that although the statute’s defi nition of better conveyed that ‘committed by’ modifi es only ‘off ense’ “misdemeanor crime of domestic violence” “is not a model of and not ‘use’ or ‘element.’”45 the careful drafter’s art,” the statute was not so ambiguous as Furthermore, the Court rejected the Fourth Circuit’s to allow for the rule of lenity to apply.56 application of the “rule of the last antecedent,” “under which Whereas the Hayes majority did not think the statute ‘a limiting clause or phrase... should ordinarily be read as ambiguous enough to apply the rule of lenity, the dissent, modifying only the noun or phrase that it immediately written by Chief Justice Roberts and joined by Justice Scalia, follows.’”46 According to the Court, considered this “a textbook case for application of the rule [a]pplying the rule of the last antecedent here would of lenity.”57 Th e dissent rejected the majority’s reading on require us to accept two unlikely premises: that Congress textual, structural, and practical grounds, and concluded that employed the singular “element” to encompass two distinct the statute is so ambiguous that the rule of lenity should be concepts, and that it adopted the awkward construction applied. “commit” a “use.” ... “Committed” retains its operative Like the majority opinion, the dissent started with meaning only if it is read to modify “off ense.”47 the statute’s text and framed the question as “whether the Th us, the Court’s textual analysis concluded that “[m]ost defi nition of ‘misdemeanor crime of domestic violence’ in sensibly read, then, § 921(a)(33)(A) defi nes ‘misdemeanor § 921(a)(33)(A) includes misdemeanor off enses with no crime of domestic violence’ as a misdemeanor off ense that (1) domestic-relationship element.”58 Th e Chief Justice began by ‘has, as an element, the use [of force],’ and (2) is committed disagreeing with Justice Ginsburg’s reading of the text, noting by a person who has a specifi ed domestic relationship with the that “[t]he majority would read the ‘committed by’ phrase victim.”48 in clause (ii) to modify the word ‘off ense’ in the opening Th e majority then considered the statute’s purpose clause of subparagraph (A), leapfrogging the word ‘element’ and the “practical considerations” that “strongly support” at the outset of clause (ii).”59 Under the majority’s reading, its reading of the statute,49 and found that “[b]y extending “[i]ndividuals convicted under generic use-of-force statutes the federal fi rearm prohibition to persons convicted of containing no reference to domestic violence would therefore ‘misdemeanor crime[s] of domestic violence,’”50 Congress be subject to prosecution under § 922(g)(9).”60 Th e dissent sought to prevent domestic abusers who are not charged with found this reading incongruous and preferred the Fourth or convicted of felonies from possessing fi rearms. Th e majority Circuit’s more “natural reading,” which held that “‘committed argued that “[c]onstruing § 922(g)(9) to exclude the domestic by’ modifi es the immediately preceding phrase: ‘the use or abuser convicted under a generic use-of-force statute (one that attempted use of physical force, or the threatened use of a does not designate a domestic relationship as an element of deadly weapon.’”61 “Read this way,” wrote the Chief Justice, “a the off ense) would frustrate Congress’ manifest purpose,”51 domestic relationship is an element of the prior off ense.”62 which, the Court believed, was to “keep[] fi rearms out of Th e dissent also analyzed the structure of the statute to the hands of domestic abusers” even if those abusers are not decipher its meaning, and concluded that “[t]he most natural charged with or convicted of felonies.52 Th e majority then reading of the statute... is that the underlying misdemeanor noted that “[g]iven the paucity of state and federal statutes must have as an element the use of force committed by a targeting domestic violence, we fi nd it highly improbable that person in a domestic relationship with the victim.”63 Chief Congress meant to extend 922(g)(9)’s fi rearm possession ban Justice Roberts argued that “[t]he fact that Congress included only to the relatively few domestic abusers prosecuted under the domestic relationship language in the clause of the statute designating the element of the predicate off ense strongly

44 Engage: Volume 10, Issue 3 suggests that it is in fact part of the required element.”64 He under the rule of lenity.”75 After analyzing the statute’s text, contended that the majority’s reading “requires restructuring structure, and practical application, the majority determined the statute and adding words. Th e majority fi rst must place that the statute is not so “grievously ambiguous” as to warrant the ‘committed by’ phrase in its own clause—set off by a line the rule of lenity.76 break, a semicolon, or ‘(iii)’—to indicate that ‘committed by’ Th e majority began by observing that the statute’s text on refers all the way back to ‘off ense.’”65 Th e dissent noted several its face “does not require that the discharge be done knowingly other textual revisions required by the majority’s reading and or intentionally, or otherwise contain words of limitation,” argued that they “are not insignifi cant revisions; they alter and the Court refrained from reading words or elements the structure of the statute[,] ... [which] is often critical in into the statute.77 Th e Court then turned to the structure resolving verbal ambiguity.”66 of the statute and found that it too did not support Dean’s Turning to the majority’s arguments concerning the contention that the sentence enhancement included an intent statute’s sparse legislative history—a single fl oor statement by requirement. Th e majority noted that whereas subsection a single Senator—the dissent stated that “[s]uch tidbits do not (ii) of the statute “expressly included an intent requirement” amount to much,” especially when, as here, “the statement for the 7-year mandatory minimum sentence if a criminal was delivered the day the legislation was passed and after the brandishes a fi rearm,78 “Congress did not, however, separately House of Representatives had passed the pertinent provision.”67 defi ne ‘discharge’ to include an intent requirement.”79 Th e Th us, the dissent dismissed the relevance and “value of such Court rejected Dean’s argument that “even if the statute is statements due to their inherent fl aws as guides to legislative viewed as silent on the intent question, that silence compels a intent, fl aws that persist... in the absence of other indicia.”68 ruling in his favor.”80 Dean argued that there is a presumption Chief Justice Roberts concluded by turning to the rule in criminal cases that “the Government [must] prove the of lenity: “Taking a fair view, the text of 921(a)(33)(A) is defendant intended the conduct made criminal.”81 Chief ambiguous, the structure leans in the defendant’s favor, the Justice Roberts acknowledged that “[i]t is unusual to impose purpose leans in the Government’s favor, and the legislative criminal punishment for the consequences of purely accidental history does not amount to much,” thereby making this “a conduct,” but explained that “it is not unusual to punish textbook case” for applying the rule of lenity.69 Moreover, individuals for the unintended consequences of their unlawful he wrote, “[i]t cannot fairly be said here that the text ‘clearly acts,” citing the felony-murder rule, whereby “[i]f a defendant warrants’ the counterintuitive conclusion that a ‘crime of commits an unintended homicide while committing another domestic violence’ need not have domestic violence as an felony, the defendant can be convicted of murder,” as an element.”70 example.82 Th e majority observed that Dean was already guilty B. Dean v. United States of illegal conduct, and that conduct was not accidental: Whereas Chief Justice Roberts argued in favor of Th e fact that the actual discharge of a gun under the rule of lenity in his Hayes v. United States dissent, he 924(c)(1)(A)(iii) may be accidental does not mean that authored the opinion rejecting the rule’s application in Dean the defendant is blameless. Th e sentence enhancement in v. United States.71 In Dean, the Chief Justice was joined by subsection (iii) accounted for the risk of harm resulting the traditionally more conservative justices along with Justices from the manner in which the crime is carried out, for 83 Ginsburg and Souter, while Justices Stevens and Breyer (who which the defendant is responsible. had both joined Justice Ginsburg in rejecting the rule of lenity Taken together, the majority was convinced that the law’s arguments in Hayes) each wrote separately in calling for the text and structure were suffi ciently clear and unambiguous to rule of lenity to be applied. deny Dean’s claim that the rule of lenity should apply. Dean concerned the meaning of 18 U.S.C. 924(c)(1)(A), Justice Stevens and Justice Breyer, however, were not which imposes extra punishment for discharging a fi rearm so convinced. Justice Stevens argued that the structure and during a “crime of violence or drug traffi cking crime.” Th e history of the statute indicate that “Congress intended § question in Dean was whether the statute requires that the 924(c)(1)(A)(iii) to apply only to intentional discharges” defendant intended to discharge the fi rearm during the because it may be inferred that “Congress intended to impose commission of his crime. Th e Court held that it does not.72 increasingly harsh punishment for increasingly culpable During the course of an armed bank robbery, Dean’s conduct.”84 Justice Stevens points to the escalating sentences gun accidentally discharged as he was removing money in subsections (i) – (iii) and argues that by implication, the from the teller’s drawer. Th e defendant was convicted of 5-year to 7-year to 10-year progression should correspond discharging a fi rearm during an armed robbery, in violation of to escalating degrees of culpability. Because the accidental 924(c)(1)(A)(iii), and was sentenced to a mandatory minimum discharge caused no harm, and because the defendant did of 10 years in prison.73 Dean appealed, arguing that the gun not act intentionally in fi ring his gun, he therefore lacked a fi red accidentally and that “the sentencing enhancement... more culpable mens rea and should not be punished more requires proof that he intended to discharge the fi rearm.”74 Th e harshly. Rather than read subsection (iii) as a strict-liability Eleventh Circuit affi rmed Dean’s conviction and sentence. off ense, Justice Stevens contended that the Court should In affi rming the court of appeals, the majority have applied the “common-law presumption that provisions rejected Dean’s argument that “any doubts about the proper imposing criminal penalties require proof of mens rea,” which, interpretation of the statute should be resolved in his favor he argued, was “bolstered by the fact that we have long applied

October 2009 45 the rule of lenity—which is similar to the mens rea rule in to the calculation of credits awarded to federal prisoners for both origin and purpose—to provisions that increase criminal good behavior, governed by 18 U.S.C. § 3624(b). In Zenk penalties as well as those that criminalize conduct.”85 He stated I, the court explained that “[t]he rule of lenity has two that he would apply this presumption in order to “avoid the purposes: fi rst, to ensure that the public receives fair notice of strange result of imposing a substantially harsher penalty for what behavior is criminal and what punishment applies to it; an act caused not by an ‘evil-meaning mind’ but by a clumsy and second, to ensure that legislatures and not courts defi ne hand.”86 criminal activity.”98 But because the statute at issue was not a Justice Breyer largely adopted the points made by Justice criminal statute, the rule of lenity was irrelevant.99 Stevens without much additional explanation, and then On a petition for rehearing, Zenk II addressed the focused more narrowly on the rule of lenity, which he argued defendant’s arguments that the court had erred in its earlier “tips the balance against the majority’s position.”87 Justice analysis because the Supreme Court had previously held that Breyer believed “the discharge provision here is suffi ciently sentencing credit calculations were “criminal for purposes ambiguous to warrant the application of that rule [of lenity],” of an ex post facto analysis.”100 Th e court in Zenk II sought but he off ered little analysis for that view.88 Instead, Justice to clarify its earlier holding “to avoid any confusion,”101 and Breyer argued that the rule of lenity should be applied drew the distinction between the rule of lenity and ex post because “in the case of a mandatory minimum [sentence], an facto doctrine. Acknowledging that the two rules are related interpretation that errs on the side of exclusion (an interpretive and that “both are concerned with notice and fair warning,”102 error on the side of leniency) still permits the sentencing judge Judge Sotomayor distinguished between their purposes: to impose a sentence similar to... the statutory sentence even Th e rule of lenity concerns situations in which a 89 if that sentence... is not legislatively required.” In contrast, legislature fails to give notice of the scope of punishment “an interpretation that errs on the side of inclusion requires by leaving “a grievous ambiguity or uncertainty in the imposing 10 years of additional imprisonment on individuals language and structure of the [statute]....,” while the whom Congress would not have intended to punish so ex post facto doctrine “concerns situations in which the 90 harshly.” Such an “inclusive” error would remove discretion legislature gives adequate notice, but then affi rmatively from the sentencing judge and perhaps “depart dramatically” changes its instructions in a way that disadvantages the 91 from what Congress had intended. defendant.”103 III. Th e Newest Justice’s Views Accordingly, the court observed, the rule of lenity is the Justice Sonia Sotomayor has joined the Supreme Court narrower doctrine, and “should be more narrowly applied.”104 for the 2009-2010 Term, replacing Justice Souter, who joined Judge Sotomayor went on to explain: in the Santos opinion applying the rule and also penned only Th e reason the ex post facto doctrine is broader than the 92 one recent dissenting opinion favoring its use. It is natural to rule of lenity in the area of sentencing administration ask whether this change in personnel may herald any greater— is that there is a greater potential for unfairness when or lesser—receptivity to the use of the rule. a legislature changes the law pertaining to a criminal Of course practice on a lower court is not always a off ender’s sentence than when the legislature merely leaves reliable predictor of practice on the Supreme Court. But it is a question open for future regulation by an administrative worth noting that during her tenure on the lower courts, then- agency.... Judge Sotomayor authored seven opinions in which the rule was at issue—six during her time on the Second Circuit Court Th e rule of lenity, however, deals with diff erent of Appeals,93 and one as a district court judge in the Southern concerns and employs a diff erent analysis, and so it is not District of New York.94 remarkable that the scopes of these doctrines should also In each of the six circuit court decisions in which she diff er or that we should consider a particular statute to be discussed the rule of lenity, Judge Sotomayor rejected the “criminal” in a way that implicates one doctrine but not 105 arguments in its favor, fi nding the statute in question was the other. suffi ciently clear using the traditional canons of interpretation. In light of her view that the rule of lenity should be “narrowly As discussed above, even in otherwise diffi cult cases the rule of applied,” it is perhaps unsurprising that Judge Sotomayor lenity rarely proves dispositive, so it is not surprising that Judge declined to apply the rule in each of her opinions on the Court Sotomayor did not fi nd the challenged statutes so “grievously of Appeals. ambiguous” as to require the judicial rule’s application. In four In contrast, as a district judge in United States v. Westcott,106 of those six cases, Judge Sotomayor declined the defendant’s Judge Sotomayor found that the “defendant’s reading of [the invitation to apply the rule in summary fashion, with relatively statute] is as reasonable as the government’s, and that the rule little discussion or explanation.95 In two related circuit court of lenity therefor[e] requires that the provision be applied opinions, however, she discussed the rule of lenity and its according to defendant’s interpretation.”107 Westcott concerned meaning at some length before concluding that it did not a defendant who had been convicted of robbery and then apply. deported from the United States to Jamaica. He illegally In Sash v. Zenk (Zenk I),96 and in the petition for reentered the United States several years later and pleaded rehearing that case (Zenk II),97 Judge Sotomayor, writing for guilty to reentering “after being deported subsequent to the unanimous panels, held that the rule of lenity did not apply

46 Engage: Volume 10, Issue 3 commission of an aggravated felony, in violation of 8 U.S.C. and capable of two reasonable, competing meanings, the § 1326(b)(2).”108 rule of lenity “‘requires the sentencing court to impose the Section 501 of the Immigration Act of 1990 amended lesser of two penalties’”117 and “assures defendant the benefi t the defi nition of “aggravated felony” to include robbery, and of the doubt.”118 On appeal, the Second Circuit affi rmed the issue in Westcott was whether the “eff ective date” provision the defendant’s sentence without reaching the rule of lenity in § 501(b) expanded the defi nition of aggravated felony to question.119 reach the defendant’s earlier robbery conviction and therefore As noted, divining how any Justice will act based on their made him an aggravated felon. Section 501(b) states: prior record is, at best, a hazardous task. Justice Sotomayor’s lower court decisions, however, suggest that she takes the rule Eff ective date—Th e amendments made by subsection seriously while applying it, in her own words, “narrowly.” (a) shall apply to off enses committed on or after the date If so, her addition to the Court in place of Justice Souter is of enactment of this Act, except that the amendments unlikely to mark any signifi cant departure in the application made by paragraphs (2) and (5) of subsection (a) shall be of the rule. eff ective as if included in the enactment of 7342 of the Anti-Drug Abuse Act of 1988. IV. Conclusion Th e expanded defi nition of “aggravated felony” to include Th e rule of lenity will undoubtedly remain a favorite “any crime of violence” was made in paragraph 3 of 501(a), among defense counsel. Given its roots in due process notice and was therefore not one of the enumerated paragraphs to be principles, it is perhaps somewhat surprising that it has not eff ective as if enacted in the Anti-Drug Abuse Act. But, as the received more traction in coalitions of traditionally conservative, Government argued, the “off ense” at issue in the case was the strict constructionist Justices and more liberal Justices. It is “defendant’s illegal reentry, which occurred ‘after the date of the possible that Santos may signal a greater willingness of such enactment of [the Immigration] Act.’”109 Th us, according to coalitions of Justices to apply the rule in the future, and the the Government, the expanded defi nition of aggravated felony Supreme Court’s 2009-2010 Term includes at least three cases would apply and reach the defendant’s robbery conviction. in which the rule may be discussed or applied.120 Hayes and Th e defendant countered that the “off enses” referred to in § Dean strongly suggest, however, that there has been no radical 501(b) “are limited to those off enses delineated as aggravated change yet and that, at least for the foreseeable future, the rule felonies in § 501(a) of the Act,” which would therefore not is still likely to be sparingly used. reach back to his earlier robbery conviction.110 Judge Sotomayor recognized that several circuit courts were divided on this issue, with the Fourth and Fifth Circuits Endnotes adopting the Government’s view and the Ninth Circuit, in an en banc decision, unanimously taking the defendant’s 1 United States v. Santos, 128 S.Ct. 2020, 2025 (2008). position.111 In holding that the rule of lenity should apply in 2 Th is article is limited to the Supreme Court’s recent application of the this case, Judge Sotomayor acknowledged that the positions rule of lenity and does not examine how frequently the rule is used in the lower courts. taken by the Fourth and Fifth Circuits were “plausible interpretation[s] of the Immigration Act,” but that the 3 United States v. Shabani, 513 U.S. 10, 17 (1994); see also Callanan v. United States, 364 U.S. 587, 596 (1961) (“Th e rule comes into operation at “structure and language of section 501 of the Immigration Act” the end of the process of construing what Congress has expressed.”). support the Ninth Circuit’s “natural and reasonable reading” 4 Staples v. United States, 511 U.S. 600 n.17 (1994) (denying the rule’s 112 of the statute. Judge Sotomayor began by analyzing the text application) (quoting Smith v. United States, 508 U.S. 223, 239 (1993)). of the statute and found that “[i]n short, section 501(b) can 5 Johnson v. United States, 529 U.S. 694, 713 n.13 (2000). reasonably and naturally be construed to provide that most 6 Th e use of these other canons may help explain the relative rarity of the of those crimes set forth in section 501(a)—including crimes rule’s use at the Supreme Court level. For example, in McNally v. United States, of violence—are aggravated felonies only to the extent that 483 U.S. 350 (1987), the Court limited the reach of the mail fraud statute they occurred after November 29, 1990.”113 Th en, fi nding using language sounding much like the rule of lenity but without actually “no real guidance” in the statute’s legislative history, the judge invoking the rule: noted that although the Government had off ered a plausible Th e Court has often stated that when there are two rational readings of a interpretation of § 501(b), it provided “no arguments which criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and defi nite language. As the unambiguously preclude the Ninth Circuit’s reading of that Court said in a mail fraud case years ago: “Th ere are no constructive 114 same provision.” Th is is perhaps a strange formulation of the off enses; and before one can be punished, it must be shown that his Government’s burden, requiring it to present arguments which case is plainly within the statute.” Rather than construe the statute “unambiguously preclude” another court’s reading of a statute, in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure and good but she went on to explain that for each of the Government’s government for local and state offi cials, we read § 1341 as limited in interpretations there was an equally plausible alternative way scope to the protection of property rights. If Congress desires to go to read the text.115 She concluded, therefore, that “the Ninth further, it must speak more clearly than it has. Circuit has identifi ed an interpretation of section 501 which Id. at 360 (internal citations omitted). Indeed, the dissent appears to have favors [the] defendant, which appears reasonable, and which assumed that the majority was applying the rule (or doctrine) of lenity: cannot be rejected through the applicable tools of statutory To support its crabbed construction of the Act, the Court makes a construction.”116 Th us, in cases where the statute is ambiguous straightforward but unpersuasive argument. Since there is no explicit,

October 2009 47 unambiguous evidence that Congress actually contemplated “intangible gross revenues from the sale of contraband and the operation of organized rights” when it enacted the mail fraud statute in 1872, the Court explains, crime syndicates involving such sales.” Id. But he disagreed with the dissent any ambiguity in the meaning of the criminal statute should be resolved because “that history sheds no light on how to identify the proceeds of many in favor of lenity. Th e doctrine of lenity is, of course, sound, for the other types of specifi ed unlawful activities.” Id. citizen is entitled to fair notice of what sort of conduct may give rise 36 Id. at 2044. to punishment. But the Court’s reliance on that doctrine in this case is misplaced for several reasons. 37 Id. at 2054 (Alito, J., dissenting). Id. at 482-83. 38 United States v. Hayes, 129 S.Ct. 1079, 1089 (2009). 7 See, e.g., Boyle v. United States, 129 S.Ct. 2237 (2009) (majority refusing 39 18 U.S.C. § 921(g)(9). to apply the rule of lenity); Dean v. United States, 129 S.Ct. 1849 (2009) 40 Hayes, 129 S.Ct. at 1083. (Stevens, J., and Breyer, J., dissenting) (each calling for the rule of lenity). 41 United States v. Hayes, 482 F.3d 749, 751 (4th Cir. 2007). 8 United States v. Santos, 128 S.Ct. 2020 (2008). Th e Court has found it somewhat easier to conclude that the rule does not apply in a particular case, 42 Hayes, 129 S.Ct. at 1082. but even in those instances unanimity has been elusive. In Boyle v. United 43 Id. at 1084. States, 129 S.Ct. 2237 (2009), for example, the Court refused to apply the rule of lenity, but the dissent did not comment on this point. As far as the 44 Id. at 1085. authors are aware, Justice Ginsburg’s opinion in Burgess v. United States is 45 Id. the only recent unanimous decision in which the Court held that the rule of lenity could not be invoked. 46 Id. at 1086. 9 Th is raises the additional question as to whether the rule retains much force 47 Id. at 1086-87. as a practical matter for deciding cases in the defendant’s favor, or whether it 48 Id. at 1087. is largely a tool used by the dissent to construe the statute in question as too ambiguous to be read as the majority has read it. Th is question lies beyond 49 Id. the scope of this article. 50 Id. 10 128 S.Ct. 2020 (2008). 51 Id. 11 United States v. Hayes, 129 S.Ct. 1079, 1089 (2009). 52 Id. 12 Id. at 1093 (Roberts, C.J., dissenting). 53 Id. at 1087-88. 13 Dean v. United States, 129 S.Ct. 1849, 1856 (2009). 54 Id. at 1088. 14 Id. at 1859 (Stevens, J., dissenting). 55 Id. 15 Id. at 1860 (Breyer, J., dissenting). 56 Id. at 1089. 16 James v. United States, 127 S.Ct. 1586 (2007). 57 Id. at 1093 (Roberts, C.J., dissenting). 17 Id. at 2022. 58 Id. at 1089 (Roberts, C.J., dissenting). 18 Id. at 2023. Th e co-defendant in the case was one of Santos’ collectors. 59 Id. 19 Id. 60 Id. 20 Money Laundering Control Act of 1986, 18 U.S.C. § 1956(a)(1) 61 Id. (2006). 62 Id. 21 Santos, 128 S.Ct. at 2023. 63 Id. at 1091 22 Id. at 2022. 64 Id. 23 Id. at 2024. 65 Id. 24 Id. 66 Id. 25 Id. at 2025. 67 Id. at 1092. 26 Id. 68 Id. 27 Id. at 2026 (quoting Bell v. United States, 349 U.S. 81, 83 (1955)). 69 Id. at 1093. 28 Id. 70 Id. 29 Id. 71 129 S.Ct. 1849, 1856 (2009). 30 Id. at 2028. 72 Dean, 129 S.Ct. at 1853. 31 Id. Within one year of the Santos decision, Congress responded with the Fraud Enforcement and Recovery Act of 2009 (FERA), Pub. L. No. 111-21, 73 Id. 123 Stat. 1617. Designed to bolster the government’s anti-fraud capabilities, 74 Id. FERA, inter alia, amended the Money Laundering Control Act’s defi nition 75 Id. at 1856. of “proceeds” (§ 2(f)(1)(9)) to specifi cally include “gross receipts” of unlawful activity, as well as “any property derived from or obtained or retained, directly 76 Id. Th e Court quotes Muscarello v United States, 524 U.S. 125, 138 or indirectly, through some form of unlawful activity.” (1998) (“Th e simple existence of some statutory ambiguity, however, is not suffi cient to warrant application of that rule, for most statutes are ambiguous 32 Santos, 128 S.Ct. at 2031 (Stevens, J., concurring). to some degree.”). 33 Id. at 2032 (Stevens, J., concurring). 77 Dean, 129 S.Ct. at 1853. 34 Id. 78 Id. (observing that Congress defi ned “brandish” to mean “to display all 35 Id. Justice Stevens agreed with Justice Alito that “the legislative history of or part of the fi rearm, or otherwise make the presence of the fi rearm known § 1956 makes it clear that Congress intended the term ‘proceeds’ to include to another person, in order to intimidate that person.” 924(c)(4) (emphasis

48 Engage: Volume 10, Issue 3 added)). 115 Id. 79 Id. at 1854. 116 Id. 80 Id. at 1855. 117 Id. (quoting United States v. Canales, 91 F.3d 363, 367 (2d Cir. 1996)). 81 Id. 118 Id. 82 Id. 119 United States v. Westcott, 159 F.3d 107 (2d Cir. 1998). 83 Id. 120 See Skilling v. United States (08-1394) (discussing the scope of federal 84 Id. at 1857 (Stevens, J., dissenting). law punishing a corporate executive’s failure to provide “honest services”); 85 Id. at 1858-59. Weyhrauch v. United States (08-1196) (discussing the rule of lenity in the 86 Id. at 1859. context of the “intangible right to honest services”); Black v. United States (08-876) (discussing the rule of lenity in the context of the “honest services” 87 Id. at 1860 (Breyer, J., dissenting). provisions of 18 U.S.C. § 1346). 88 Id. at 1861. 89 Id. at 1860. 90 Id. 91 Id. at 1861. 92 See United States v. Rodriguez, 128 S.Ct. 1783, 1793 (2008) (Souter, J., dissenting). 93 See United States v. Giordano, 442 F.3d 30 (2d Cir. 2006); Sash v. Zenk, 439 F.3d 61 (2d Cir. 2006) (rehearing); Sash v. Zenk, 428 F.3d 132 (2d Cir. 2005); United States v. Maloney, 406 F.3d 149 (2d Cir. 2005); United States v. Reinoso, 350 F.3d 51 (2d Cir. 2003); United States v. Figueroa, 165 F.3d 111 (2d Cir. 1998). 94 United States v. Westcott, 966 F.Supp. 186 (S.D.N.Y. 1997). 95 See United States v. Giordano, 442 F.3d 30, 40 (2d Cir. 2006) (“Because we fi nd that the statute unambiguously reaches intrastate use of a telephone, we decline Giordano’s invitation to apply the rules of lenity and constitutional avoidance to guide our interpretation.”); United States v. Maloney, 406 F.3d 149, 153 n.6 (2d Cir. 2005) (rejecting the rule of lenity argument in a footnote); United States v. Reinoso, 350 F.3d 51, 55-56 (2d Cir. 2003) (summarily rejecting the rule of lenity argument in a section-closing paragraph); United States v. Figueroa, 165 F.3d 111, 119 (2d Cir. 1998) (dismissing the rule of lenity argument in the opinion’s fi nal paragraph). 96 428 F.3d 132 (2d Cir. 2005). 97 Sash v. Zenk, 439 F.3d 61 (2d Cir. 2006) (rehearing). 98 Zenk, 428 F.3d at 134. 99 Id. 100 Zenk, 439 F.3d at 63. 101 Id. 102 Id. at 64. 103 Id. 104 Id. at 65. 105 Id. at 66. 106 966 F.Supp. 186 (S.D.N.Y. 1997). 107 Westcott, 966 F.Supp. at 188. 108 Id. at 187. 109 Id. at 188. 110 Id. 111 Id. at 189 (citing and discussing United States v. Garcia-Rico, 46 F.3d 8 (5th Cir. 1995) (applying amended defi nition of aggravated felony retroactively); United States v. Campbell, 94 F.3d 125 (4th Cir. 1996) (applying amended defi nition of aggravated felony retroactively); and United States v. Gomez-Rodriguez, 96 F.3d 1262 (9th Cir. 1996) (rejecting retroactive application of the 1990 amendments)). 112 Westcott, 966 F.Supp. at 189, 190. 113 Id. at 190. 114 Id. at 191.

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