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All copying is not created equal: borrowed language in Supreme Court opinions.

And finally the opinion adopts, nearly verbatim, the SG's assessment of the Court's own precedent:

And this Court has repeatedly recognized that a legislature may constitutionally prohibit convicted felons from engaging in activities far more fundamental than the right to possess firearms at issue here. See Richardson v. Ramirez, 418 U.S. 24 (1974) (disenfranchisement of felons); DeVeau v. Braisted, 363 U.S. 144, 157-160 (1960) (felons barred from waterfront employment); Hawker v. New York, 170 U.S. 189 (1898) [58] (prohibition on medical practice by a felon). (102)

This Court has recognized repeatedly that a legislature constitutionally may prohibit a convicted felon from engaging in activities far more fundamental than the possession of a firearm. See Richardson v. Ramirez, 418 U.S. 24 (1974) (disenfranchisement); DeVeau v. Braisted, 363 U.S. 144 (1960) (proscription against holding office in a waterfront labor organization); Hawker v. New York, 170 U.S. 189 (1898) (prohibition against the practice of medicine). (103)

To be sure, the Court has made clear that an outstanding uncounselled felony conviction cannot reliably be used for certain purposes. See Burgett v. Texas, 389 U.S. 109 (1967); United States v. Tucker, 404 U.S. 443 (1972); Loper v. Beto, 405 U.S. 473 (1972). But the Court has never suggested that an uncounselled conviction is invalid for all purposes (see, e.g., Scott v. Illinois, supra). (104)

We recognize, of course, that under the Sixth Amendment an uncounseled felony conviction cannot be used for certain purposes. See Burgett, Tucker, and Loper, all supra. The Court, however, has never suggested that an uncounseled conviction is invalid for all purposes. See Scott v. Illinois. (105)

In each of those cases this Court found that the conviction or sentence in question violated the Sixth Amendment because it depended upon the reliability of a particular uncounselled conviction in the past. The federal gun laws, however, focus on the mere fact of conviction, regardless of its reliability, in order to keep firearms away from potentially dangerous people. (106)

In each of those cases, this Court found that the subsequent conviction or sentence violated the Sixth Amendment because it depended upon the reliability of a past uncounseled conviction. The federal gun laws, however, focus not on reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentially dangerous persons. (107)

The high level of similarity between the SG's brief and the opinion in Lewis reinforces the conclusion that the trust and faith that Justice Blackmun and his clerks placed in the SG makes Lifted opinions more likely in cases involving the SG. This pattern continues through the remainder of Justice Blackmun's Lifted opinions for the Court, which all rely heavily on the language from the SG's briefs.

DiFrancesco v. United States, (108) is yet another Blackmun opinion for the Court in which the opinion language parallels that in the SG's brief, utilizing the same linguistic framework as the SG's brief to interpret the Court's precedent:

This rule has been characterized as attaching "particular significance to an acquittal" (United States v. Scott, supra, 437 U.S. at 91), and it has been justified on the basis that "[t]o permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that 'even though innocent he may be found guilty.'" Ibid. (109)

This is justified on the ground that, however mistaken the acquittal may have been, there would be an unacceptably high risk that the Government, with its superior resources, would wear down a defendant, thereby "enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S., at 188. (110)

The decisions of this Court in the sentencing area have also established that a sentence does not have qualities of constitutional finality comparable to an acquittal. (111)

This Court's decisions in the sentencing area clearly establish that a sentence does not have the qualities of constitutional finality that attend an acquittal. (112)

The multiple punishment guarantee that has evolved in the holdings of this Court, apart from the Benz dictum, clearly is not involved in this case.... As in Ex parte Lange, a defendant may not receive a higher sentence than that authorized by the legislature.... Clearly, no double jeopardy problem would have been presented in Ex parte Lange if Congress had established that the offense was punishable by fine and imprisonment, even though those are multiple punishments. See Whalen v. United States, supra, slip op. 4. There is no question what punishment was authorized by Congress under 18 U.S.C. 3575 and 18 U.S.C. 3576.... Accordingly, 18 U.S.C. 3576 does not violate the guarantee against multiple punishment that is enunciated in Ex parte Lange. (113)

The guarantee against multiple punishment that has evolved in the holdings of this Court plainly is not involved in this case. As Ex parte Lange demonstrates, a defendant may not receive a greater sentence than the legislature has authorized. No double jeopardy problem would have been presented in Ex parte Lange if Congress had provided that the offense there was punishable by both fine and imprisonment, even though that is multiple punishment. See Whalen v. United States, 445 U.S., at 688-689; ... id., at 697-698 (concurring opinion). The punishment authorized by Congress under [section][section] 3575 and 3576 is clear and specific and, accordingly, does not violate the guarantee against multiple punishment expounded by Ex parte Lange. (114)

DiFrancesco also tracks the reasoning and language in the SG's brief to explain the Court's decision that the Double Jeopardy Clause is not violated by allowing the government to appeal:

Since it is not a prosecution appeal itself that can fall afoul of the Double Jeopardy Clause, but rather the relief requested by the appeal, it must next be considered whether a criminal sentence, once pronounced, must be accorded constitutional finality similar to that attaching to a jury's verdict of not guilty. Neither the history of sentencing practices, the pertinent holdings of this Court, nor considerations of double jeopardy policy supports such an equation. (115)

The double jeopardy focus, thus, is not on the appeal but on the relief that is requested, and our task is to determine whether a criminal sentence, once pronounced, is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury's verdict of acquittal. We conclude that neither the history of sentencing practices, nor the pertinent rulings of this Court, nor even considerations of double jeopardy policy support such an equation. (116)

Thus, appeal of a sentence would seem to be a violation of double jeopardy only if the original pronouncement of sentence is to be treated in the same way as an acquittal and the appeal is to be treated as a retrial.... Essentially, the court of appeals' theory is that the imposition of a sentence should be treated, for double jeopardy finality purposes, as an "implied acquittal" of a greater sentence. See Van Alstyne, In Gideon's Wake: Harsher Penalties and the "Successful" Criminal Appellant, 74 Yale L. J. 606, 634-635 (1965). (117)

Appeal of a sentence, therefore, would seem to be a violation of double jeopardy only if the original sentence, as pronounced, is to be treated in the same way as an acquittal is treated and the appeal is to be treated in the same way as a retrial. Put another way, the argument would be that, for double jeopardy finality purposes, the imposition of the sentence is an "implied acquittal" of any greater sentence. See Van Alstyne, In Gideon's Wake: Harsher Penalties and the "Successful" Criminal Appellant, 74 Yale L. J. 606, 634-635 (1965). (118)

In a later section, the opinion language mirrors the certainty in the SG's brief regarding the common law tradition of allowing such an appeal:

While there is little American experience with appellate review of sentences, this history demonstrates that the common law has never ascribed such finality to a sentence as would prevent a legislature from authorizing its appeal by the prosecution. Indeed, several countries that trace their legal systems to the English common law permit such appeals. See Canada: Can. Rev. Stat. [section][section] 605 (l)(b) and 748(b)(ii) {Martin's Annual Criminal Code (1979)); Australia (New South Wales): Criminal Appeal Act of 1912, as amended in 1924, 3 Pub. Acts N.S.W. [section] 5D (1959); New Zealand: Crimes Act 1961, as amended by the Crimes Amendment Act of 1966, 1 Repr. Stat. N.Z. [section] 383 (a) (1979). (119)

Thus it may be said with certainty that history demonstrates that the common law never ascribed such finality to a sentence as would prevent a legislative body from authorizing its appeal by the prosecution. Indeed, countries that trace their legal systems to the English common law permit such appeals. See Can. Rev. Stat. [section][section] 605(1)(b) and 748(b)(ii) (1970), Martin's Annual Criminal Code 523, 636 (E. Greenspan ed. 1979); New Zealand Crimes Act 1961, as amended by the Crimes Amendment Act of 1966, 1 Repr. Stat. N. Z. [section] 383(2) (1979). (120)

Like the opinion in Lewis, Justice Blackmun's opinion for the Court in Dickers on v. New Banner Institute (121) deals with sentencing. As happens often in a Lifted case involving the SG, the Dickerson Court actually adopts both the SG's interpretation of Lewis as a precedent and the SG's explanation of why the Court should differentiate its reasoning in this case:

In Lewis, this Court recognized an obvious, "commonsense" exception to the statutory language for persons whose convictions have been reversed or vacated on appeal or on collateral attack (445 U.S. at 60-61 & n.5), but that exception is not applicable to persons whose convictions have been expunged. ... A conviction that has been expunged, however, stands on an entirely different footing. Expunction does not call into question the legality of the previous conviction, and it does not signify that the defendant was innocent of the crime for which he was convicted. As explained below (pages 30-35, infra), expunction merely means that the responsible jurisdiction has decided not to accord the conviction certain continuing effects. (122)

In Lewis, it is true, we recognized an obvious exception to the literal language of the statute for one whose predicate conviction had been vacated or reversed on direct appeal. 445 U.S., at 61, n. 5; see Note, Prior Convictions and the Gun Control Act of 1968, 76 Colum. L. Rev. 326, 334, n. 42 (1976). But, in contrast, expunction does not alter the legality of the previous conviction and does not signify that the defendant was innocent of the crime to which he pleaded guilty. Expunction in Iowa means no more than that the State has provided a means for the trial court not to accord a conviction certain continuing effects under state law. (123)

There seems little doubt that firearms disabilities may constitutionally be attached to an expunged conviction (see Lewis v. United States, supra, 445 U.S. at 65-68), and an exception for such convictions, unlike convictions reversed or vacated due to legal error, is far from obvious. (124)

Clearly, firearms disabilities may be attached constitutionally to an expunged conviction, see Lewis v. United States, 445 U.S., at 65-68 ..., and an exception for such a conviction, unlike one reversed or vacated due to trial error, is far from obvious. (125)

Much of the shared reasoning in Dickerson involves parallel interpretations of the statute, so the majority of the overlapping language focuses on Congressional intent. The following is a sampling of the extensive instances in which the Dickerson Court adopts the SG's interpretation of Congressional purpose and also adopts much of the SG briefs language:

We have found nothing in the legislative history of the Gun Control Act or related federal firearms laws that even faintly suggests that state expunctions were intended automatically to remove the disabilities imposed by 18 U.S.C. 922(g)(1) and (h)(1), and neither the court below nor respondent has cited any such proof. This lack of evidence is highly significant for several reasons. First, the purpose of the Gun Control Act will be frustrated by the decision of the court of appeals. That decision would require the Secretary to grant dealer and manufacturer licenses to organizations directed by individuals convicted of serious criminal offenses (or to such individuals themselves) whenever the conviction in question has been expunged under state law. This would result even though state expunctions typically do not focus upon the question with which the Gun Control Act is concerned, i.e., whether the convicted person is fit to engage in the firearms business or to possess, ship, transport, or receive firearms. (126)

Although we have searched diligently, we have found nothing in the legislative history of Title IV or related federal firearms statutes that suggests, even remotely, that a state expunction was intended automatically to remove the disabilities imposed by [section][section] 922(g)(1) and (h)(1). See, e. g., S. Rep. No. 1501, 90th Cong., 2d Sess. (1968); S. Rep. No. 1097, 90th Cong., 2d Sess. (1968); H. R. Rep. No. 1577, 90th Cong., 2d Sess. (1968); H. R. Conf. Rep. No. 1956, 90th Cong., 2d Sess. (1968); H. R. Rep. No. 488, 90th Cong., 2nd Sess. (1968). This lack of evidence is significant for several reasons. First, the purpose of the statute would be frustrated by a ruling that gave effect to state expunctions; a state expunction typically does not focus upon the question with which Title IV is concerned, namely, whether the convicted person is fit to engage in the firearms business or to possess a firearm. (127)

Second, ... "'[i]n the absence of a plain indication to the contrary it is to be assumed when Congress enacts a statute that it does not intend to make its application dependent on state law.'" NLRB v. Natural Gas Utility District, 402 U.S. 600, 603 (1971), quoting NLRB v. Randolph Electric Membership Corp., 343 F.2d 60 (4th Cir. 1965).... In Jerome v. United States, 318 U.S. 101, 104 (1943) the Court explained ...: "That assumption is based on the fact that the application of federal legislation is nationwide and at times on the fact that the federal program would be impaired if state law were to control".... [T]he legislative history reveals that Congress believed a uniform national program was necessary to assist in curbing the illegal use of firearms. See S. Rep. No. 1097, 90th Cong., 2d Sess. 28, 76-77 (1968).... Title IV "is a carefully constructed package of gun control legislation.... 'Congress knew the significance and meaning of the language it employed.'" Scarborough v. United States, supra, 431 U.S. at 570. As noted, Congress carefully crafted a procedure for removing those disabilities in appropriate cases (see 18 U.S.C. 925(c)). (128)

Second, '"in the absence of a plain indication to the contrary ... it is to be assumed when Congress enacts a statute that it does not intend to make its application dependent on state law.'" NLRB v. Natural Gas Utility Dist., 402 U.S. 600, 603 (1971), quoting NLRB v. Randolph Electric Membership Corp., 343 F.2d 60, 62-63 (CA4 1965). This is because the application of federal legislation is nationwide and at times the federal program would be impaired if state law were to control. Jerome v. United States, 318 U.S. 101, 104 (1943).... The legislative history reveals that Congress believed a uniform national program was necessary to assist in curbing the illegal use of firearms. See S. Rep. No. 1097, 90th Cong., 2d Sess., 28, 76-77 (1968). Third, Title IV "is a carefully constructed package of gun control legislation. . . 'Congress knew the significance and meaning of the language it employed.'" Scarborough v. United States, 431 U.S., at 570, quoting Barrett v. United States, 423 U.S., at 217. And Congress carefully crafted a procedure for removing those disabilities in appropriate cases. [section] 925(c). (129)

As noted above, the Gun Control Act "is a carefully constructed package of gun control legislation," (Scarborough v. United States, supra, 431 U.S. at 570) and in framing its terms Congress took pains to avoid the very sort of problems that the decision below will inevitably create. The provisions of the Act demonstrate that Congress endeavored to prevent any uncertainty concerning those persons subject to disabilities by virtue of prior convictions. Congress used unambiguous language in attaching gun control disabilities to "any person ... who has been convicted" of a qualifying offense (18 U.S.C. 922(g)(1) and (h)(1)). (130)

Congress, in framing it, took pains to avoid the very problems that the Court of Appeals' decision inevitably would create, such as individualized federal treatment of every expunction law. Congress used unambiguous language in attaching gun control disabilities to any person "who has been convicted" of a qualifying offense. (131)

The Court also tracks the SG's reasoning almost identically in its discussion of similar state statutes:

More than half the states have enacted one or more laws that may be broadly classified as expunction statutes.... The various statutes differ, however, in almost every particular. While some are applicable only to young offenders, others may be invoked by adults. Some are available only to persons convicted of certain offenses, but others permit the expunction of a conviction for any crime, including murder. Some are confined to first offenders, but others permit relief to recidivists. Some apply only to persons given certain sentences or sentenced under certain laws, while others contain no such restriction. Some but not all require a waiting period following conviction. Some are discretionary, while others provide for automatic expunction under certain circumstances. (132)

Over half the States have enacted one or more statutes that may be classified as expunction provisions.... These statutes differ, however, in almost every particular. Some are applicable only to young offenders, e. g., Mich. Comp. Laws [section][section] 780.621 and .622 (1982). Some are available only to persons convicted of certain offenses, e. g., N. J. Stat. Ann. [section] 2C:52-2(b) (West 1982); others, however, permit expunction of a conviction for any crime including murder, e. g., Mass. Gen. Laws Ann., ch. 276, [section] 100A (West Supp. 1982-1983). Some are confined to first offenders, e. g., Okla. Stat., Tit. 22, [section] 991c (Supp. 1982). Some are discretionary, e. g., Minn. Stat. [section] 638.02(2) (Supp. 1982), while others provide for automatic expunction under certain circumstances, e. g., Ariz. Rev. Stat. Ann. [section] 13-912 (1978). (133)

The statutes also vary widely in the language employed to describe what they are supposed to do. Various statutes are said to "expunge" the conviction, guilty verdict, or guilty plea; "seal" the fde or record; "limit access" to the convicted person's "criminal history." ... [O]nly a minority ... address ... whether the expunged conviction may be considered in sentencing for a subsequent offense, in setting bail on subsequent charges, or ... whether the expunged conviction may be used to impeach testimony ... and whether ... the convicted person may deny the fact of conviction. (134)

The statutes vary in the language employed to describe what they do. Some speak of expunging the conviction, others of "sealing" the file or of causing the dismissal of the charge. The statutes also differ in their actual effect. Some are absolute; others are limited. Only a minority address questions such as whether the expunged conviction may be considered in sentencing for a subsequent offense or in setting bail on a later charge, or whether the expunged conviction may be used for impeachment purposes, or whether the convict may deny the fact of his conviction. (135)

By sharing the SG's reasoning in Dickerson, the Court buttresses its decision from multiple angles. Its doing so combined with the high level of language overlap between the opinion and the SG's brief suggests that the respondent's arguments had very little influence on the Court's opinion language in Dickerson.

This pattern continues in Russello v. United States, (136) another federal-crime-bill case with a Blackmun opinion for the Court that frames the facts as laid out by the SG--and, consequently, in a way unfavorable to the defendant. The Court, for example, adopts the SG's strong language to define the ambiguous term "interest," which is consequential in the case:

[T]he term "interest" ... undoubtedly comprehends all forms of real and personal property, including profits and proceeds. This Court has repeatedly relied upon the term "interest" in defining the meaning of "property" in the Due Process Clause.... Perry v. Sinderman, 408 U.S. 593,601 (1972). (137)

[T]he term "interest" comprehends all forms of real and personal property, including profits and proceeds. This Court repeatedly has relied upon the term "interest" in defining the meaning of "property" in the Due Process Clause.... See Perry v. Sindermann, 408 U.S. 593, 601 ... (1972). (138)

It was undoubtedly because Congress did not want the RICO forfeiture provision to be limited by "rigid, technical" (Perry v. Sindermann, supra, 408 U.S. at 601) definitions drawn from other areas of law that it selected the broad term "interest" to describe those things subject to forfeiture under Section 1963(a)(1). Congress therefore selected the term "interest." ... This choice of language was fully consistent with the pattern of the RICO statute. (139)

It undoubtedly was because Congress did not wish the forfeiture provision of [section] 1963(a) to be limited by rigid and technical definitions drawn from other areas of the law that it selected the broad term "interest" to describe those things that are subject to forfeiture under the statute. Congress selected this general term apparently because it was fully consistent with the pattern of the RICO statute in utilizing terms and concepts of breadth.... (140)

If Congress had intended to restrict subsection (a)(1) to interests in an enterprise, as petitioner argues, it presumably would have done so expressly, as it did in subsection (a)(2). (141)

Had Congress intended to restrict [section] 1963(a)(1) to an interest in an enterprise, it presumably would have done so expressly as it did in the immediately following subsection (a)(2). (142)

As is the case with many Lifted opinions, the Russello Court uses reasoning similar to that of the SG's brief for rejecting the opposing party's contentions. But this feature pervades the Russello opinion to a much greater extent than in some Lifted opinions, as is evident in the following passages:

[P]etitioner has not attempted to define the term "interest." Petitioner insists ..., however, that the term does not reach profits and proceeds because '"[ijnterest', by definition, includes of necessity an interest in something." ... This argument is plainly invalid. Every property interest, including the ownership of or right to receive profits or proceeds, may be described as an interest in something. Before the profits of an illegal enterprise are divided, each participant may be said to own an "interest" in the ill-gotten gain. After distribution, each participant will have a possessory or ownership interest in currency, valuables, a bank account, stocks, bonds, or the like. (143)

Petitioner himself has not attempted to define the term "interest" as used in [section] 1963(a)(1). He insists, however, that the term does not reach money or profits because, he says: "'interest,' by definition, includes of necessity an interest in something." Brief for Petitioner 9.... We do not agree. Every property interest, including a right to profits or proceeds, may be described as an interest in something. Before profits of an illegal enterprise are divided, each participant may be said to own an "interest" in the ill-gotten gains. After distribution, each will have a possessory interest in currency or other items so distributed. (144)

Petitioner argues (Br. 17-18) that if the term "'interest' were as all encompassing as suggested by the en banc decision below, 18 U.S.C. Sec. 1963(a)(2) would have no meaning independent of 18 U.S.C. Sec. 1963(a)(1)." This argument is plainly incorrect. Section 1963(a)(1) reaches "any interest," whether or not in an enterprise, provided that the interest was "acquired or maintained in violation of section 1962." Section 1963(a)(2), on the other hand, is restricted to interests in an enterprise, but the interest itself need not have been illegally acquired or maintained. (145)

It is no answer to say, as petitioner does, Brief for Petitioner 17-18, that if the term "interest" were as all-encompassing as suggested by the majority opinion of the Court of Appeals, [section] 1963(a)(2) would have no meaning independent of [section] 1963(a)(1), and would be mere surplusage. This argument is plainly incorrect. Subsection (a)(1) reaches "any interest," whether or not in an enterprise, provided it was "acquired ... in violation of section 1962." Subsection (a)(2), on the other hand, is restricted to an interest in an enterprise, but that interest itself need not have been illegally acquired. (146)

Petitioner also suggests (Br. 29-33) that subsequent proposed legislation demonstrates that the 1970 RICO forfeiture statute excludes profits. This conclusion is wholly unjustified. The bills in question were introduced to rectify Marubeni and similar district court cases. Their introduction hardly suggests that their sponsors viewed those decisions as correct interpretations of 18 U.S.C. 1963(a)(1) as it currently stands. See United States v. Gordon, 638 F.2d 886, 888 n.5 (5th Cir. 1981). And, in any event, it is settled that '"the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.'" Jefferson County Pharmaceutical Association v. Abbott Laboratories, No. 81-827 (Feb. 23, 1983), slip op. 15 n.27, quoting United States v. Price, 361 U.S. 304, 313 (1960). See also United States v. Clark, 445 U.S. 23, 33 n.9 (1980). (147)

The bills to which petitioner refers, however, were introduced in order to overcome the decisions in Marubeni, Meyers, and Thevis. See, e. g., S. 2320, 97th Cong., 2d Sess. (1982). The introduction of these bills hardly suggests that their sponsors viewed those decisions as correct interpretations of [section] 1963(a)(1). See United States v. Gordon, 638 F.2d 886, 888, n. 5 (CA5), cert, denied, 452 U.S. 909 (1981). In any event, it is well settled that '"the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.'" Jefferson County Pharmaceutical Assn. v. Abbott Laboratories, 460 U.S. 150, 165, n. 27 (1983), quoting from United States v. Price, [361 U.S. 304, 313] ... (1960). See, also, United States v. Clark, 445 U.S. 23, 33, n. 9 ... (1980). (148)

For the same reasons, petitioner's argument draws no support from the fact that certain state racketeering laws provide expressly for the forfeiture of "profits," "money," or "all property, real or personal," acquired from racketeering (see Pet. Br. 8-9). With one exception, all of the state provisions upon which petitioner relies postdate federal court decisions barring the forfeiture of racketeering profits under the federal law. See United States v. Meyers, 432 F. Supp. 456 (W.D. Pa. 1977); United States v. Thevis, 474 F. Supp. 134 (N.D. Ga. 1979). Undoubtedly aware of the problems created by such decisions, the legislatures of these states presumably employed language different from that in 18 U.S.C. 1963(a)(1) in order to avoid similar interpretations of their new racketeering laws. (149)

Neither are we persuaded by petitioner's argument that his position is supported by the fact that certain state racketeering statutes expressly provide for the forfeiture of "profits," "money," "interest or property," or "all property, real or personal," acquired from racketeering. Brief for Petitioner 8-9. Nearly all of the state statutes postdate the Meyers and Thevis district court decisions. See, e. g., Colo. Rev. Stat. Sec. 18-17-106 (Supp. 1982) (enacted in 1981); R.I. Gen. Laws [section] 7-15-3 (Supp. 1982) (enacted in 1981). The legislatures of those States presumably employed language different from that of Sec. 1963(a)(1) so as to avoid narrow interpretations of their laws along the lines of the narrow interpretations given the federal statute by the courts in Meyers and Thevis. (150)

As evidence that Congress did not intend to reach racketeering profits, petitioner points (Br. 14-15) to a 1969 letter from then Deputy Attorney General Kleindienst to Senator McClellan .... concerning an earlier version of Section 1963(a)(1) (,Senate Hearings, supra , at 407).... The court below correctly concluded that this letter did not indicate a congressional intent to preclude forfeiture of racketeering profits. The sentence at issue did not refer to Section 1963(a) as finally enacted but to an earlier version in which forfeiture was expressly limited to interests in an enterprise. Thus, by stating that forfeiture under Section 1963(a) was "limited ... to one's interest in the enterprise," the letter was merely following the language of the bill then pending. Moreover, the purpose of this sentence was not to explain what the statutory provision meant but to explain why the Department of Justice believed it was constitutional. (151)

We are not persuaded otherwise by the presence of a 1969 letter from the then Deputy Attorney General to Senator McClellan. See Measures Relating to Organized Crime: Hearings before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 407 (1969). That letter, with its reference to "one's interest in the enterprise" does not indicate, for us, any congressional intent to preclude forfeiture of racketeering profits. The reference, indeed, is not to [section] 1963(a) as finally enacted but to an earlier version in which forfeiture was to be expressly limited to an interest in an enterprise. The letter was merely following the language of the then pending bill. Furthermore, the real purpose of the sentence was not to explain what the statutory provision meant, but to explain why the Department of Justice believed it was constitutional. (152)

Without delving into the psychology of the Justices and their clerks, it is impossible to determine if they used independent reasoning to reject the petitioner's points in Russello. But the high similarity between the language in the opinion and the SG's brief suggests that, at very least, the Court found the SG's arguments far more compelling than those made by the respondent.

As in Russello, Justice Blackmun's opinion for the Court in United States v. National Bank of Commerce (153) almost entirely follows the linguistic template set forth in the SG's brief. The examples below show that the Court's opinion uses language about Congressional intent that is highly similar to that in the SG's brief:

In holding that Roy did not possess "property [or] rights to property" on which the IRS could levy, the court of appeals relied heavily on Arkansas creditors' rights law.... This reasoning seriously misconceives the role properly played by state law in federal tax collection matters. (154)

The Court of Appeals' conclusion that Roy did not possess "property [or] rights to property" on which the IRS could levy rested heavily on its understanding of the Arkansas law of creditors' rights, particularly those in garnishment. ... As we have suggested, this misconceives the role properly played by state law in federal tax-collection matters. (155)

[T]he facts that under Arkansas law Roy's creditors (unlike Roy himself) could not exercise his right of withdrawal in their favor ... and would have to join his co-depositors in a garnishment proceeding ... are irrelevant in answering the question presented here. The federal statute ... refers to the taxpayer's property and rights to property, not to his creditor's rights. Yet the court of appeals has ... deprived the ... statute of all independent force, by remitting the IRS to only the rights that an ordinary creditor ... would have under state law. That result ... is to "compare the government to a class of creditors to which it is superior" (Randall, 542 F.2d at 274 n.8). (156)

Thus, the facts that under Arkansas law Roy's creditors, unlike Roy himself, could not exercise his right of withdrawal in their favor and in a garnishment proceeding would have to join his codepositors are irrelevant. The federal statute relates to the taxpayer's rights to property and not to his creditors' rights. The Court of Appeals would remit the IRS to the rights only an ordinary creditor would have under state law. That result "[compares] the government to a class of creditors to which it is superior." Randall v. H. Nakashima & Co., 542 F.2d 270, 274, n.8 (CA5 1976). (157)

In its solicitude for the potential claims of Roy's co-depositors, the court of appeals has ignored the statutory scheme that Congress established. (158)

In its understandable concern for Ruby's and Neva's property interests, the Court of Appeals has ignored the statutory scheme established by Congress to protect those rights. (159)

As a final justification for refusing to impose personal liability on the bank, the court of appeals theorized that an IRS levy "is not normally intended for use as against property in which third parties have an interest" or "as against property bearing on its face the names of third parties." (Pet. App. 17a). The court appeared to recognize that Congress's enactment of Section 7426--which permits wrongful-levy actions by "any person who claims an interest in" seized property--tended to undermine this theory. But the court suggested that the Section 7426 remedy is designed to protect only those third parties "whose property has been seized 'inadvertently'" (Pet. App. 17a). (160)

The Court of Appeals' final justification for its holding was its belief that an IRS levy "is not normally intended for use as against property in which third parties have an interest" or "as against property bearing on its face the names of third parties, and in which those third parties likely have a property interest." 726 F.2d, at 1300. The court acknowledged the existence of [section] 7426 but felt that that statute was designed to protect only those third parties "whose property has been seized 'inadvertently.'" 726 F.2d, at 1300. (161)

(156.) Nat'l Bank of Commerce Brief, supra note 154, at * 30 (emphasis in original).

(157.) Nat'l Bank of Commerce, 472 U.S. at 727.

(158.) Nat'l Bank of Commerce Brief, supra note 154, at * 33.

(159.) Nat'l Bank of Commerce, 472 U.S. at 728.

While the opinion in National Bank of Commerce utilizes the SG brief throughout, relying especially on its legal reasoning, the opinion in United States v. Hughes Properties (162) utilizes language and reasoning from the SG's brief to interpret and apply the Court's precedent. Some examples include:

This Court has consistently held that a liability does not accrue for purposes of the "all events" test as long as it remains contingent. Brown v. Helvering, 291 U.S. 193, 200 (1934). To be deductible for tax purposes, "the obligation to pay [must] ha[ve] become final and definite." Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 287 (1944). It must be "unconditional." Lucas v. North Texas Lumber Co., 281 U.S. 11, 13 (1930). (163)

The Court's cases have emphasized that "a liability does not accrue as long as it remains contingent." Brown v. Helvering, 291 U.S. 193, 200 ... (1934); accord, Dixie Pine Products Co. v. Commissioner, 320 U.S. 516, 519 ... (1944). Thus, to satisfy the all-events test, a liability must be "final and definite in amount," Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 287 ... (1944), must be "fixed and absolute," Brown v. Helvering, 291 U.S., at 201 ..., and must be "unconditional," Lucas v. North Texas Lumber Co., 281 U.S. 11, 13 ... (1930). (164)

Rather, "the tax law requires that a deduction be deferred until 'all the events' have occurred that will make it fixed and certain" (Thor Power Tool Co., 439 U.S. at 543). (165)

And one may say that "the tax law requires that a deduction be deferred until 'all the events' have occurred that will make it fixed and certain." Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 543 ... (1979). (166)

Congress's decision to grant the Commissioner "broad powers" to depart from the taxpayer's usual accounting practice in computing taxable income owes in part to "the vastly different objectives that financial and tax accounting have." Thor Power Tool Co., 439 U.S. at 542. "The primary goal of financial accounting is to provide useful information to management, shareholders, [and] creditors" and "to protect these parties from being misled" (ibid.). ... "[T]he major responsibility of the Internal Revenue Service," by contrast, "is to protect the public fisc." (167)

The Court has long recognized "the vastly different objectives that financial and tax accounting have." Thor Power Tool Co. v. Commissioner, 439 U.S., at 542.... The goal of financial accounting is to provide useful and pertinent information to management, shareholders, and creditors. On the other hand, the major responsibility of the Internal Revenue Service is to protect the public fisc. Ibid. (168)

In Department of the Navy v. Egan, (169) in which Justice Blackmun again wrote for the Court, the opinion adopts the caselaw and statutory analysis provided in the SG's brief as the basis for its interpretation and application of precedent:

This Court has ... recognized the government's "compelling interest" in withholding national security information from unauthorized persons in the course of executive business (Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) ...). See, e.g., United States v. Robel, 389 U.S. 258, 267 (1967); United States v. Reynolds, 345 U.S. 1,10 (1953).... The authority and the solemn obligation to protect such information fall on the President as head of the Executive Branch and Commander in Chief. (170)

This Court has recognized the Government's "compelling interest" in withholding national security information from unauthorized persons in the course of executive business. Snepp v. United States, 444 U.S. 507, 509, n. 3 ... (1980). See also United States v. Robel, 389 U.S. 258, 267 ... (1967); United States v. Reynolds, 345 U.S. 1,10 ... The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief. (171)

National security matters, as this Court has recognized, are "the province and responsibility of the executive." Haig v. Agee, 453 U.S. 280, 293-294, 304 (1981). "As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities." United States v. Nixon, 418 U.S. 683, 710 (1974). Absent an unambiguous grant of jurisdiction by Congress, courts have traditionally been reluctant to intrude upon the authority of the executive in military and national security affairs. See, e.g., Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953); Burns v. Wilson, 346 U.S. 137, 142, 144 (1953); Gilligan v. Morgan, 413 U.S. 1, 10 (1973); Schlesinger v. Councilman, 420 U.S. 738, 757 758 (1975); Chappell v. Wallace, 462 U.S. 296 (1983). The court of appeals' contrary holding ... puts the matter backwards. (172)

The Court also has recognized "the generally accepted view that foreign policy was the province and responsibility of the Executive." Haig v. Agee, 453 U.S. 280, 293-294 ... (1981). "As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities." United States v. Nixon, 418 U.S. 683, 710 ... (1974). Thus, unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs. See, e.g., Orloff v. Willoughby, 345 U.S. 83, 93-94 ... (1953); Burns v. Wilson, 346 U.S. 137, 142, 144 ... (1953); Gilligan v. Morgan, 413 U.S. 1, 10 ... (1973), Schlesinger v. Councilman, 420 U.S. 738, 757-758 ... (1975); Chappell v. Wallace, 462 U.S. 296 ... (1983).We feel that the contrary conclusion of the Court of Appeals' majority is not in line with this authority. (173)

The Egan Court's language also tracks that from the brief regarding the policy rationale of the case and its implications:

No individual has a "right" to a security clearance. Under long established principles, the grant of a security clearance requires an affirmative act of discretion on the part of the granting official based on a high degree of confidence in the grantee.... The general standard therefore is that a clearance may be granted only when "clearly consistent with the interests of the national security." See, e.g., Exec. Order No. 10,450, Sec. Sec. 2, 7, 3 C.F.R. 936, 938 (1949-1953 Comp.); OPNAV INST 5510.IF, para. 16-100(1); 10 C.F.R. 710.10(a) (Department of Energy regulation); 32 C.F.R. 156.3(a) (Department of Defense regulation); Department of Defense Regulation 5200.2-R, para. 6-100(a) (Dec. 1979). (174)

It should be obvious that no one has a "right" to a security clearance. The grant of a clearance requires an affirmative act of discretion on the part of the granting official. The general standard is that a clearance may be granted only when "clearly consistent with the interests of the national security." See, e. g., Exec. Order No. 10450, Sec. Sec. 2 and 7, 3 CFR 936, 938 (1949-1953 Comp.); 10 CFR Sec.710.10(a)(1987) (Department of Energy); 32 CFR Sec. 156.3(a) (1987) (Department of Defense). (175)

A clearance determination ... is not a judgment of an individual or his past conduct. It is an attempt to predict his future behavior, to assess whether he might ... under the compulsion of circumstances beyond his control, compromise sensitive information. The prediction may be based upon the individual's past or present conduct; but it may also be based upon concerns unrelated to an individual's conduct, such as whether he has close relatives residing in a country that is hostile to the United States. (176)

A clearance does not equate with passing judgment upon an individual's character. Instead, it is only an attempt to predict his possible future behavior and to assess whether, under compulsion of circumstances or for other reasons, he might compromise sensitive information. It may be based, to be sure, upon past or present conduct, but it also may be based upon concerns completely unrelated to conduct, such as having close relatives residing in a country hostile to the United States. (177)

Such predictive judgments must be made by those with the necessary expertise in protecting classified information. For "reasons ... too obvious to call for enlarged discussion" (CIA v. Sims, 471 U.S. 159, 170 (1985)), the protection of classified information must be committed to the broad discretion of the agencies responsible ..., and this must include broad discretion to judge who may have access to it. It is not reasonably possible for an outside, nonexpert body to review the substance of such a judgment and decide whether, under the "clearly consistent" standard, the agency should have been able to make the necessary affirmative prediction with the necessary confidence. (178)

Predictive judgment of this kind must be made by those with the necessary expertise in protecting classified information. For "reasons ... too obvious to call for enlarged discussion," CIA v. Sims, 471 U.S. 159, 170 ... (1985), the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it. Certainly, it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence. (179)

Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk that confidential inform ation will be compromised. Accordingly, this Court has acknowledged that with respect to employees in sensitive positions "there is a reasonable basis for the view that an agency head who must bear the responsibility for the protection of classified information committed to his custody should have the final say in deciding whether to repose his trust in an employee who has access to such information." Cole v. Young, 351 U.S. 536, 546 (1956). (180)

Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk. The Court accordingly has acknowledged that with respect to employees in sensitive positions "there is a reasonable basis for the view that an agency head who must bear the responsibility for the protection of classified information committed to his custody should have the final say in deciding whether to repose his trust in an employee who has access to such information." Cole v. Young, 351 U.S. 536, 546 ... (1956). (181)

In John Doe Agency v. John Doe Corp., (182) the Court examined an exemption under the federal Freedom of Information Act (FOIA). Justice Blackmun's opinion for the Court relies on the SG's brief primarily for the interpretation of the relevant statutory provisions:

The Legislative History Of Exemption 7, As Enacted And As Amended In 1974, Confirms The Plain Meaning Of Exemption 7. ... This Court thoroughly discussed the legislative history of Exemption 7 in NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224-236 (1978). As originally enacted, Exemption 7 permitted nondisclosure of "investigatory files compiled for law enforcement purposes except to the extent available by law to a private party." 80 Stat. 251. By that exemption, "Congress recognized that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it came time to present their cases." Robbins Tire, 437 U.S. at 224. (183)

If, despite what we regard as the plain meaning of the statutory language, it were necessary or advisable to examine the legislative history of Exemption 7, as originally enacted and as amended in 1974, we would reach the same conclusion. Justice Marshall, writing for the Court in Robbins Tire, 437 U.S., at 224-236, ... discussed this legislative history in detail. In its original 1966 form, Exemption 7 permitted nondisclosure of "investigatory files compiled for law enforcement purposes except to the extent available by law to a private party." Pub. L. 89-487, [section] 3(e)(7), 80 Stat. 251. But the Court in Robbins Tire observed: "Congress recognized that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it came time to present their cases." 437 U.S., at 224. (184)

The legislative history of the 1974 amendments says nothing about limiting Exemption 7 to those documents originating as law enforcement records. (185)

The legislative history of the 1974 amendments says nothing about limiting Exemption 7 to those documents originating as law-enforcement records. (186)

This Court has consistently taken a practical approach to interpreting FOIA in an effort to apply a workable statutory balance between the interests of the public in greater access to information and the needs of the government in protecting certain kinds of information from disclosure. See, e.g., EPA v. Mink, 410 U.S. 73, 80 (1973); Department of the Air Force v. Rose, 425 U.S. 352, 361-362 (1976); Baldrige v. Shapiro, 455 U.S. 345, 352 (1982). In accord with that approach, the Court looks to the reasons for exemption from FOIA's mandatory

disclosure requirements in determining whether the government has properly invoked a particular exemption. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148-154 (1975); FBI v. Abramson, 456 U.S. at 630. In applying Exemption 7, this Court has looked carefully at the effect that disclosure would have on the interests that exemption seeks to protect. In NLRB v. Robbins Tire & Rubber Co., 437 U.S. at 242-243. ... (187)

This Court consistently has taken a practical approach when it has been confronted with an issue of interpretation of the Act. It has endeavored to apply a workable balance between the interests of the public in greater access to information and the needs of the Government to protect certain kinds of information from disclosure. The Court looks to the reasons for exemption from the disclosure requirements in determining whether the Government has properly invoked a particular exemption. See e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148-154 ... (1975). In applying Exemption 7, the Court carefully has examined the effect that disclosure would have on the interest the exemption seeks to protect. Robbins Tire, 437 U.S., at 242-243.... (188)

The Doe Agency opinion also relies on the SG's interpretation of the lower court opinion and the SG's interpretation of the opposing parties' arguments:

The plain meaning of the word "compile" does not permit such a distinction [as made by the Court of Appeals], It is the pulling together of materials that constitutes the compiling. It does not matter whence the documents were obtained.... This Court itself has used the word "compiled," quite naturally, to refer to the process of pulling together at one time records and information that were generated (or even compiled) at an earlier time and for different purposes. In FBI v. Abramson, 456 U.S. at 622 n.5.... (189)

We disagree with that interpretation for, in our view, the plain meaning of the word "compile," or, for that matter, of its adjectival form "compiled," does not permit such refinement. This Court itself has used the word "compile" naturally to refer even to the process of gathering at one time records and information that were generated on an earlier occasion and for a different purpose. See FBI v. Abramson, 456 U.S., at 622, n. 5. (190)

Even respondent has used the noun form of the word "compiled" in its ordinary sense to refer to the gathering together of documents, whether or not they were generated or compiled at an earlier time for a different purpose. In its FOIA requests of September 30, 1986, and February 3, 1987, respondent "ask[ed] that copies of the requested materials be furnished to us as soon as individual items are available, and that your response to this request not await a compilation of all the materials requested." J.A. 21, 47-48. Thus respondent, unlike the court of appeals, obviously and quite properly recognized that the documents' having been "compiled" once for the purpose of routine audits would in no way prevent their being compiled again later for a different purpose. (191)

Respondent, too, has used the word "compile" in its ordinary sense to refer to the assembling of documents, even though those documents were put together at an earlier time for a different purpose. In its FOIA requests of September 30, 1986, and February 3, 1987, respondent asked that the requested materials be furnished as soon as they were available, and that the response to the request "not await a compilation of all the materials requested." App. 21, 47-48. This was a recognition, twice repeated, that the documents having been compiled once for the purpose of routine audits were not disqualified from being "compiled" again later for a different purpose. (192)

[T]he ruling ... is at odds with the plain meaning of the exemption. The ... distinction ... drawn between documents that were originally obtained for law enforcement purposes and those ... not so originally obtained, but later gathered ... for law enforcement purposes, finds no support in the plain language. (193)

We thus do not accept the distinction the Court of Appeals drew between documents that originally were assembled for law enforcement purposes and those that were not so originally assembled but were gathered later for such purposes. The plain language of Exemption 7 does not permit such a distinction. (194)

By adopting the SG's positions regarding both the lower court decision and the opposing parties' contentions, the Doe Agency Court aligns itself with the government's perspective. Reading linearly through an opinion with this extent of shared reasoning leaves little room for one to speculate on the Court's conclusions: The Court's ultimate decision seems a foregone conclusion.

In the constitutional case of University of Pennsylvania v. EEOC, (195) the Court's opinion parallels the SG's analysis of Title VII provisions and the SG's explanation for why the petitioner interpreted these provisions incorrectly:

The effect of the elimination of Title VII's exemption for educational institutions was to expose tenure determinations to the same enforcement procedures applicable to other employment decisions. As this Court has noted, Title VII creates '"an integrated, multistep enforcement procedure' that enables the Commission to detect and remedy instances of discrimination." EEOC v. Shell Oil Co., 466 U.S. 54, 62 (1984) (citation omitted). The efficacy of each step of that procedure depends directly on the Commission's unencumbered access to information relevant to alleged discrimination. The Commission's enforcement responsibilities are triggered by the filing of a specific, sworn charge of discrimination. The Act obligates the Commission to investigate charges of discrimination to determine whether "there is reasonable cause to believe that the charge is true." Section 706(b) of Title VII, 42 U.S.C. 2000e-5(b). (196)

The effect of the elimination of this exemption was to expose tenure determinations to the same enforcement procedures applicable to other employment decisions. This Court previously has observed that Title VII "sets forth 'an integrated, multistep enforcement procedure' that enables the Commission to detect and remedy instances of discrimination." EEOC v. Shell Oil Co., 466 U.S. 54, 62 ... (1984), quoting Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359 ... (1977). The Commission's enforcement responsibilities are triggered by the filing of a specific sworn charge of discrimination. The Act obligates the Commission to investigate a charge of discrimination to determine whether there is "reasonable cause to believe that the charge is true." 42 U.S.C. [section] 2000e-5(b) (1982 ed.). (197)

If it finds no reasonable cause, the Commission is obligated to dismiss the charge. Ibid. If it does find reasonable cause, the Commission "endeavor[s] to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." Ibid. This requirement reflects Congress's wish "that violations of the statute could be remedied without resort to the courts." ... If attempts at voluntary resolution fail, the Commission may bring an action against the employer. (198)

If it finds no such reasonable cause, the Commission is directed to dismiss the charge. If it does find reasonable cause, the Commission shall "endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." Ibid. If attempts at voluntary resolution fail, the Commission may bring an action against the employer. (199)

To enable the Commission to make informed decisions at each stage of the enforcement process, Section 709(a) of Title VII, 42 U.S.C. 2000e-8(a), confers a broad right of access to relevant evidence: [T]he Commission or its designated representative shall ... have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated ... that relates to unlawful employment practices covered by [the Act] and is relevant to the charge under investigation. If employers refuse to provide information voluntarily, the Act authorizes the Commission to issue subpoenas and to seek orders enforcing them. Section 710 of Title VII, 42 U.S.C. 2000e-9 (incorporating 29 U.S.C. 161). (200)
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Title Annotation:Continuation of III. Measuring Language Overlap F. Lifted Relationships (High Percentage Overlap and High Word Overlap) 1. Blackmun Cases, p. 53-82
Author:Feldman, Adam
Publication:Journal of Appellate Practice and Process
Date:Mar 22, 2016
Words:9249
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