text:
Section 406 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (Act) provides that "[a]ny person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy" (the "target offense"). Petitioner and others were convicted of violating 406 by conspiring to violate 401 (a) (1) of the Act by knowingly manufacturing, distributing, and possessing a controlled substance. In accordance with the provisions of 401 (b) (1) (B) prescribing penalties for violations of 401 (a) (1), petitioner was sentenced to a term of imprisonment, a fine, and a 5-year special parole term to be served upon completion of the term of imprisonment. The Court of Appeals affirmed petitioner's conviction, and thereafter he filed an action under 28 U.S.C. 2255 to vacate his sentence, claiming that the sentence was unlawful because 406 does not authorize the imposition of a special parole term. The District Court held that petitioner had been properly sentenced, and the Court of Appeals affirmed.
Section 406 of the Act does not authorize the imposition of a special parole term even though that sanction is included within the penalty provision of the target offense. Pp. 387-401.
(a) A "plain meaning" interpretation of the term "imprisonment" in 406 does not support the position that the term means a term of incarceration plus special parole made applicable by the target offense's penalty provisions. Moreover, the structure of the Act read as a whole supports the conclusion that 406 defines the types of punishment authorized for conspirators - imprisonment, fine, or both - and sets maximum limits on those sanctions through reference to the penalty provisions of the target offense, but does not incorporate by reference any provisions for special parole. Pp. 388-390.
(b) Nor does the Act's legislative history demonstrate that Congress intended that the penalties authorized for substantive offenses, and those for conspiracies to commit them, were to be identical, thus authorizing [447 U.S. 381, 382] special parole terms for conspiracy convictions. Instead, the history supports the view that 406 authorizes two types of sanctions - fines and imprisonment - and fixes the maximum amount of each that may be imposed by reference to the target offense's penalty provisions. Pp. 391-398.
(c) A reading of 406 to include the special parole provisions of target offenses cannot be supported on the ground that Congress' principal objective in enacting the Act's penalty provisions - to deter professional criminals from engaging in drug trafficking for profit - renders it unreasonable to ascribe to Congress the intent to authorize special parole for isolated substantive offenses while withholding this sentencing tool for conspiracies. A comparison of those drug offenses for which Congress clearly authorized special parole terms with those for which it clearly did not, does not reveal a coherent pattern based on the asserted justification for escalated sanctions. Moreover, since 406 deals with both conspiracies and attempts, and prescribes an identical range of punishment for both, it is not surprising that Congress would provide for less stringent sanctions to be imposed for violations of 406 than for a completed substantive offense. Pp. 398-399.
600 F.2d 407, reversed and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BURGER, C. J., filed a concurring opinion, post, p. 401. STEVENS, J., filed a dissenting opinion, in which WHITE and REHNQUIST, JJ., joined, post, p. 402.
Steven Lloyd Barrett, by appointment of the Court, 444 U.S. 939 , argued the cause for petitioner. With him on the briefs were William E. Hellerstein and Phylis Skloot Bamberger.
Harlon L. Dalton argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Frey, and John F. De Pue.
The issue presented in this case is whether 406 of the Comprehensive Drug Abuse Prevention and Control Act of [447 U.S. 381, 383] 1970 (Act), 84 Stat. 1265, 21 U.S.C. 846, 1 authorizes a sentencing court to impose a term of special parole upon a defendant who is convicted of conspiracy to manufacture or distribute a controlled substance.
"Any person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy."
"(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance."
"In the case of a controlled substance in schedule I or II which is not a narcotic drug or in the case of any controlled substance in schedule III, such person shall be sentenced to a term of imprisonment of not more than 5 years, a fine or not more than $15,000, or both. If any person commits such a violation after one or more prior convictions of him for an offense punishable under this paragraph, or for a felony under any other provision of this title or title III or other law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment of not more than 10 years, a fine of not more than $30,000, or both. Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a special parole term of at least 2 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a special parole term of at least 4 years in addition to such term of imprisonment."
"A special parole term imposed under this section or section 405 may be revoked if its terms and conditions are violated. In such circumstances the original term of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on special parole. A person whose special parole [447 U.S. 381, 385] term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment. A special parole term provided for in this section or section 405 shall be in addition to, and not in lieu of, any other parole provided for by law."
The narrow, but important, question presented in this case is whether 406, which states the penalty for conspiracy as "imprisonment or fine or both," but limits maximum punishment by reference to the penalty provisions of the substantive target offense, authorizes the imposition of a special parole term where that sanction is included within the penalty provisions of the target offense.
In an indictment filed in December 1976 with the United States District Court for the Eastern District of New York, petitioner Alphonse Bifulco and others were charged with a single count of conspiring to violate 401 (a) (1) by knowingly and intentionally manufacturing, distributing, and possessing substantial quantities of phencyclidine, a schedule III controlled substance. This conspiracy was charged as a violation of 406. A jury found petitioner and several codefendants guilty of the offense charged, and petitioner was sentenced to a 4-year term of imprisonment, a fine of $1,000, and a 5-year special parole term. 3 The United States Court of Appeals for the Second Circuit subsequently affirmed petitioner's conviction in an unpublished order.
In January 1979, petitioner, pursuant to 28 U.S.C. 2255, filed pro se a motion to vacate his sentence. He claimed that [447 U.S. 381, 386] the sentence was unlawful because 406 does not authorize the imposition of a special parole term to be served upon completion of a term of imprisonment. The District Court held that petitioner had been properly sentenced, and dismissed his complaint. App. 7.
On appeal, the Second Circuit affirmed. 600 F.2d 407 (1979). In a per curiam opinion, that court followed two other Courts of Appeals that had held that 406 authorizes the imposition of a special parole term. See United States v. Burman, 584 F.2d 1354, 1356-1358 (CA4 1978), cert. denied, 439 U.S. 1118 (1979), and United States v. Jacobson, 578 F.2d 863, 867-868 (CA10), cert. denied, 439 U.S. 932 (1978). It also relied on the decision in United States v. Dankert, 507 F.2d 190 (CA5 1975), which reached a similar result with respect to the closely analogous sentencing provisions of 1013 of the Act, 21 U.S.C. 963 (proscribing any conspiracy to import a controlled substance).
The Government recognizes, Brief for United States 31, n. 26, that our examination of the meaning of 406 must be informed by the policy that the Court has expressed as "the rule of lenity." In past cases the Court has made it clear that this principle of statutory construction applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose. See, e. g., United States v. Batchelder, 442 U.S. 114, 121 (1979); Simpson v. United States, 435 U.S. 6, 14 -15 (1978). The Court's opinion in Ladner v. United States, 358 U.S. 169, 178 (1958), states the rule: "This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended." See Whalen v. United States, 445 U.S. 684, 695 , n. 10 (1980); Simpson v. United States, 435 U.S., at 15 .
Language and structure of the Act. Several reviewing courts have adopted the view that the special parole term specified in 401 (b) (1) (B) is necessarily included within the "term of imprisonment" to which it is appended. See, e. g., United States v. Jacobson, 578 F.2d, at 868. Thus, when Congress stated in 406 that a person guilty of attempt or conspiracy "is punishable by imprisonment," it meant to include within the term "imprisonment" any special parole term made applicable by the penalty provisions of the substantive offense. This argument is not too persuasive, however, because special parole is not authorized for all substantive offenses to which 406 refers. Therefore, "imprisonment" within the meaning of 406 does not always include special parole. As a period of supervision served upon completion of a prison term, special parole is also functionally distinct from incarceration. Finally, the penalty provisions of those substantive offenses that authorize special parole terms reflect this functional dichotomy. Section 401 (b) (1) (B), for example, twice provides that a special parole term of years is to be imposed "in addition to such term of imprisonment." (Emphasis added.) We agree, therefore, with the conclusion of those courts that have rejected the argument that "imprisonment" in 406 plainly means a term of incarceration plus special parole. See, e. g., United States v. Jacquinto, 464 F. Supp. 728, 729-730 (ED Pa. 1979).
Faced with these obstacles, the Government cannot rely solely on a "plain meaning" interpretation of the term "imprisonment." Thus, in its principal argument, the Government asks this Court to take a broader view of the relationship between 406 and the penalty provisions for substantive offenses and to conclude that the structure of the Act, viewed as a whole, creates an inference that 406 incorporates by reference those substantive penalty provisions. The Government contends that the language of the statute supports this [447 U.S. 381, 389] reading because 406 authorizes penalties "which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy." While this argument is not wholly without force, it ignores the immediately preceding words of 406, which state that "[a]ny person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both." (Emphasis added.) 5 Petitioner argues that 406 defines the types of punishment authorized for conspirators - imprisonment, fine, or both - and sets maximum limits on those sanctions through reference to the penalty provisions of the target offense. Petitioner's reading of the language of 406, and the sentencing scheme that it proposes, is no less plausible than the Government's. Moreover, it is petitioner's reading that finds further support in the structure of the Act read as a whole.
Legislative history. Conceding that Congress' draftsmanship when it enacted 406 may have been less than "explicit," Brief for United States 17, and n. 10, the Government asks this Court to look beyond the ambiguous language of the statute, and to give its words "their fair meaning in accord with the manifest intent of the lawmakers." United States v. Brown, 333 U.S. 18, 26 (1948). The Government argues that the legislative history of the Act demonstrates that Congress intended that the penalties authorized for substantive offenses, and those for conspiracies to commit them, were to be identical.
"Another requirement that has been included in the alternative penalty schemes is a special parole term that is a part of the illicit trafficking sentence structure. Just as incarceration is not always a meaningful answer to effective rehabilitation, certainly incarceration without an adequate supervisory followup after release is not in the best interest of society.
The Judiciary Committee's section-by-section analysis of S. 3246 noted that special parole terms were to be imposed for certain substantive offenses, S. Rep. No. 91-613, at 25, but with respect to the "endeavor and conspiracy" provision stated only: "Section 504 provides that any person who endeavors or conspires to commit any offense defined in this title may be punished by imprisonment and/or a fine, which may not exceed the maximum punishment prescribed for the offense." Id., at 26. The Government argues that the Subcommittee meant to include a specific reference to special parole in 504 when it amended the substantive offense sections in response to Mr. Ingersoll's testimony. For unexplained reasons, however, the Subcommittee neglected to make the conforming [447 U.S. 381, 394] change in the conspiracy section. Brief for United States 22. The wording of the Judiciary Committee's section-by-section analysis, however, would seem to indicate its awareness that 504, unlike the subsections of 501 that had been amended to incorporate the concept of special parole, authorized punishments consisting only of "imprisonment and/or a fine."
We think this section of the Senate bill makes it fairly evident that the Committee recognized that it had provided for the imposition of special parole terms under various subsections of 501, but that it had not done so generally. 15 Thus, 508 (a) of S. 3246, like 405 of the Act, reveals that Congress' failure explicitly to incorporate the concept of special parole into the Act's conspiracy provision, alleged by the Government to have been inadvertent, in fact may have been intentional.
"Those selling schedule I and II narcotics such as heroin and opium can draw a sentence of up to 12 years and a possible fine of $25,000. For schedules I, II, and III sales of non-narcotics such as marihuana, `pep pills' and the like, the sentence is up to 5 years and a possible fine not exceeding $15,000. A [minimum] special parole term of from 2 to 3 years is required for each of the above offenses." 116 Cong. Rec. 996 (1970).
Senator Dodd did not mention the special parole concept in the context of any other sentencing provisions; 504, the conspiracy provision of S. 3246, was not mentioned at all during the Senate debates.
Given the scant support in the legislative history of the Senate bill for the Government's position, it is not surprising that the Government must place greater reliance on events that transpired during the House's consideration of proposed narcotics legislation similar to S. 3246. H. R. 17463, the subject of hearings before the House Committee on Ways and [447 U.S. 381, 396] Means in July 1970, contained penalty provisions that were substantially identical to those in S. 3246. See H. R. 17463, 91st Cong., 2d Sess., 501 (c) (1), (c) (2), and 504 (1970), reprinted in Ways and Means Hearings 61, 66.
"This section provides that a person may be punished for endeavoring or conspiring to commit an offense under this Act. Upon conviction, his sentence may not exceed the punishment prescribed for the offense which was the object of the attempt or the conspiracy." Id., at 223.
The Government would read the second sentence of this passage as explaining "that the sentencing scheme contemplated that conspiracy was to be punished to the same extent as object offenses, without exception." Brief for United States 24. But the Ingersoll statement, like the language enacted in 406, explains merely that the punishment imposed for conspiracy may not exceed the punishment authorized for the pertinent target offense. It does not define the punishment authorized under the conspiracy provision to include special parole, and it does not disavow petitioner's theory that 406 defines the types of punishment authorized for conspiracy, while the penalty provisions of the target offense set the maximum amounts of those types of punishment that properly may be imposed. Moreover, a chart submitted [447 U.S. 381, 397] to the Committee by the Justice Department, and appended to Mr. Ingersoll's section-by-section analysis, specifically noted that H. R. 17463 authorized the imposition of special parole terms for certain substantive offenses. Ways and Means Hearing 229. With respect to the conspiracy section of the bill, however, the chart contained a footnote that merely reads: "H. R. 17463 provides that any person who endeavors or conspires to commit any offense under the act may be punished by imprisonment and/or fine, which may not exceed the maximum punishment proscribed [sic] for committing the offense." Id., at 230, n. 6. (Emphasis supplied.) In sum, we find no persuasive support for the Government's argument in the report of the hearings before the House Committee on Ways and Means.
The grammatical structure of this sentence lends obvious support to petitioner's theory that 406 authorizes two types of sanctions - fines and imprisonment - and fixes the maximum amount of each that may be imposed by reference to the penalty provisions of the target offense.
In conclusion, we believe that, rather than supporting the Government's argument that Congress manifested an intention to authorize special parole terms for conspiracy convictions, the Act's legislative history supports the opposite view. In hearings, debates, and legislative reports, to the extent that Congress' attention was drawn to the matter, Members of both Houses explicitly recognized that the penalty provisions of some substantive offenses attached a mandatory minimum term of special parole to any term of imprisonment. On the other hand, every reference to one of the forerunners of 406 stated that it authorized penalties consisting of imprisonment and/or fine, and failed to mention special parole.
Motivating policy. The Government strongly argues, finally, that Congress' principal objective in enacting the penalty provisions of the Act - to deter professional criminals from engaging in drug trafficking for profit - "render[s] it unreasonable to ascribe to [Congress] the intent to authorize special parole for isolated substantive offenses while withholding this major sentencing tool for conspiracy offenses." Brief for United States 28. This contention is unpersuasive for two reasons.
First, as petitioner points out, Brief for Petitioner 14-23; Reply Brief for Petitioner 1-3, a comparison of those drug offenses for which Congress clearly authorized the imposition of special parole terms with those for which it clearly did not, does not reveal a coherent pattern based on the asserted justification for escalated sanctions. For some of the most serious offenses, as measured by the length of the term of imprisonment and severity of the fine they authorize, special [447 U.S. 381, 399] parole is not included among the available sanctions. E. g., 408 of the Act, 21 U.S.C. 848 (continuing criminal enterprise); 403 of the Act, 21 U.S.C. 841 (registrants); and the new 401 (d) of this Act, 21 U.S.C. 841 (d) (1976 ed., Supp. II) (piperidine offenses). Thus, the Government's argument based on Congress' sentencing objectives would prove too much.
Second, the thrust of the Government's argument is that the conspiracy to engage in drug trafficking presents at least as great a threat, if not a greater one, to the community as does an isolated act of distribution. In other contexts, we have recognized the logic of that view. See, e. g., Iannelli v. United States, 420 U.S. 770, 778 (1975). From this premise, the Government contends that Congress must have desired the harsh sanctions incorporated within the concept of special parole - the unlimited maximum length of its term and the grave consequences attending its revocation, see 401 (c) - to be available to the judge sentencing a drug conspirator.
This investigation into the meaning of 406, as informed by an examination of its language and structure, its history, and relevant policy considerations, yields the likely conclusion that Congress' failure specifically to authorize the imposition of special parole terms as punishment for those convicted of conspiracy was not a slip of the legislative pen, nor the result of inartful draftsmanship, but was a conscious and not irrational legislative choice. Our analysis reveals, at the least, a complete absence of an unambiguous legislative decision to authorize special parole terms as punishment for those convicted of drug conspiracies. Of course, to the extent that doubts remain, they must be resolved in accord with the rule of lenity. 17 If our construction of Congress' intent, as evidenced [447 U.S. 381, 401] by the scant record it left behind, clashes with present legislative expectations, there is a simple remedy - the insertion of a brief appropriate phrase, by amendment, into the present language of 406. But it is for Congress, and not this Court, to enact the words that will produce the result the Government seeks in this case.
The judgment of the Court of Appeals is reversed, and the case is remanded to that court with instructions to vacate the special parole term that was imposed upon petitioner.
[ Footnote 1 ] The Act, Pub. L. 91-513, is set forth at 84 Stat. 1236-1296. For the sake of simplicity, further otherwise appropriate citations to the Statutes at Large will be omitted.
[ Footnote 2 ] This provision was amended in 1978, but the amendment is not pertinent [447 U.S. 381, 384] to the issue presented here. See Pub. L. 95-633, 201, 92 Stat. 3774, 21 U.S.C. 841 (b) (1) (B) (1976 ed., Supp. II).
[ Footnote 3 ] The Court of Appeals stated that petitioner was charged with two substantive violations of 401 (a) (1), in addition to the conspiracy count, and that he was acquitted of the substantive charges. 600 F.2d 407, 408 (CA2 1979). The parties agree, however, that this is error and that petitioner was charged with, and convicted on, a single conspiracy count. Brief for Petitioner 4, n. 2; Brief for United States 4, n. 2.
[ Footnote 4 ] Two Courts of Appeals, in addition to those followed by the Second Circuit in this case, have joined in the conclusion that 406 authorizes the imposition of a special parole term where such a term is included in the penalty provisions of the target offense. See United States v. Sellers, 603 F.2d 53, 58 (CA8 1979), and Cantu v. United States, 598 F.2d 471, 472 (CA5 1979). In addition, in a number of cases appellate courts have affirmed the convictions of defendants sentenced to special parole terms under 406 without considering the question whether special parole was authorized. For example, the question presented here may have lingered beneath the surface in United States v. Timmreck, 441 U.S. 780 (1979).
In Mearns, the Third Circuit followed the lead of two District Court opinions (in addition to the opinion there under review) holding that [447 U.S. 381, 387] special parole is not a penalty authorized by 406. See United States v. Jacquinto, 464 F. Supp. 728 (ED Pa. 1979), and Fassette v. United States, 444 F. Supp. 1245 (CD Cal. 1978). Cf. United States v. Wells, 470 F. Supp. 216 (SD Iowa 1979) (adopting the Mearns rationale in sentencing, pursuant to 18 U.S.C. 3, accessories after the fact to a drug conspiracy).
[ Footnote 5 ] The dissent's "ordinary reading of 406," post, at 402, appears to be based on this same incomplete reading of the words of the conspiracy provision.
[ Footnote 6 ] Section 405 (b) likewise provides for treble enhancement of the fine, the term of imprisonment, and the minimum length of any special parole term, for one who is convicted a second or subsequent time for distributing a controlled substance to a minor.
[ Footnote 7 ] The Government argues that the express reference to special parole in 405 does not detract from the view that 406 incorporates special parole by implication. It contends that it was necessary for Congress to deal with special parole explicitly in 405 because it chose to mandate a minimum special parole term of at least twice the length of the term authorized under 401 (b), whereas 405 imposes a fine or imprisonment of up to twice that otherwise authorized. The Government's argument does not dispel the fact, however, that Congress specifically accommodated the concept of special parole in one general provision imposing sentence by reference to other offenses, but did not do so with respect to an adjacent provision, 406.
[ Footnote 8 ] The Government would explain the specificity of 401 (c) as an instance where the drafters of that provision "simply looked to see what sections of the proposed bill used the term special parole, and inserted those section numbers into [the forerunner of 401 (c)]." Brief for United States 26-27, n. 22. It argues, of course, that although 406 did not refer to special parole in so many words, it did incorporate the sentencing provisions of 401. We reject the Government's argument for reasons stated in the text. Moreover, its "explanation" assumes a carelessness in draftsmanship that probably is unwarranted; see the following subparts B and C.
[ Footnote 9 ] See 21 U.S.C. 174, 176a, 176b (1964 ed.); and 26 U.S.C. 7237 (a) and (b) (1964 ed.).
[ Footnote 10 ] See S. 1895, 91st Cong., 1st Sess., 701-708 (1969), and S. 2637, 91st Cong., 1st Sess., 501-508 (1969), reprinted in Narcotics Legislation: Hearings on S. 1895 et al. before the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 69-77, 160-170 (1969). See also H. R. 13743 and H. R. 14774, 91st Cong., 1st Sess., 501-508 (1969), reprinted in Part 1, Drug Abuse Control Amendments - 1970: Hearings on H. R. 11701 and H. R. 13743 before the Subcommittee on Public Health and Welfare of the House Committee on Interstate and Foreign Commerce, 91st Cong., 2d Sess., 17-20 (1970).
[ Footnote 11 ] A chart setting out the alternative penalty schemes proposed by the Justice Department is included in the record of hearings held before the Subcommittee on Public Health and Welfare of the House Committee on Interstate and Foreign Commerce. Id., at 90-92. This chart describes the penalty provisions favored by the Department for attempt and conspiracy as providing "that any person who attempts or conspires to commit any offense under the Act may be punished by imprisonment and/or fine, which may not exceed the maximum punishment proscribed for committing the offense." Id., at 92. No mention is made of special parole terms in the conspiracy context. It seems, therefore, that the inexact draftsmanship that the Government would find in the legislative history of 406 is not to be attributed solely to Congress.
[ Footnote 12 ] The forerunner to 401 (b) (1) (B) was 501 (c) (2) of S. 3246. It provided an identical penalty scheme for first offenders as does the current substantive offense - a term of imprisonment of not more than five years, a fine of not more than $15,000, or both, and a 2-year minimum special parole term in addition to any term of imprisonment. See S. Rep. No. 91-613, at 116.
"Any person who endeavors or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the endeavor or conspiracy." S. Rep. No. 91-613, at 118.
[ Footnote 14 ] An identical provision was contained in H. R. 17463, 91st Cong., 2d Sess., 508 (a) (1970), a forerunner of the Act approved by one of the two House Committees to conduct hearings on the proposed narcotics legislation. See Controlled Dangerous Substances, Narcotics and Drug Control Laws: Hearings on H. R. 17463 before the House Committee on Ways and Means, 91st Cong., 2d Sess., 69 (1970) (hereinafter Ways and Means Hearings). The bill eventually passed by the House, H. R. 18583, 91st Cong., 2d Sess. (1970), incorporated enhanced penalties for repeat offenders within the individual substantive offenses. See 116 Cong. Rec. 33625 (1970). The House bills are discussed further below.
[ Footnote 15 ] The Government makes the same argument with respect to the repeat offender provisions of S. 3246 and H. R. 17463 that it makes with respect to 405, see n. 7, supra. The argument is no more persuasive here.
[ Footnote 16 ] The dissent takes us to task for failing to recognize that it is unlikely that Congress would intend that "the directors of a narcotics [447 U.S. 381, 400] distribution business be punished less severely than their subordinates who merely peddle the poison." Post, at 402. But even a cursory reading of the Act should make it clear that our opinion today will not result in the sentencing disparity the dissent fears. Section 406's punishment provisions are not the sole sanctions Congress enacted for apprehended directors of organized drug trafficking operations. First, nothing prevents the Government from prosecuting the operators of a distribution network, either as principals or as aiders and abettors, for substantive manufacturing, distribution, and possession offenses, pursuant to 401 of the Act, 21 U.S.C. 841. Second, and more significantly, Congress enacted two special provisions with the directors of large trafficking operations particularly in mind. The sanctions available under those provisions are especially severe. See 408 of the Act, 21 U.S.C. 848 (continuing criminal enterprise); 409 (e) (2) and (3) of the Act, 21 U.S.C. 849 (e) (2) and (3) (defining a special drug offender).
[ Footnote 17 ] One might quarrel with our conclusion that Congress was aware of the distinction between the penalty provisions of 401 (b) (1) (B) and 406, and chose not to include special parole terms among the sanctions authorized for attempts and conspiracies. That it would be extremely difficult to accept the Government's argument that Congress unambiguously intended a contrary result, however, perhaps is best evidenced by the fact that the rule of lenity is not mentioned, let alone applied, in any of the lower court opinions that have accepted the Government's position. See cases cited in n. 4, supra, and accompanying text. The dissenting opinion would appear to fare little better on that score.
If the question presented by this case were as simple and easy as the dissent formulates it - whether "the directors of a narcotics distribution business [should] be punished less severely than their subordinates who merely peddle the poison" - none of us would have any difficulty with the decision. But that is not really the issue. Rather, the question before the Court is substantially more limited: What do the words of the statute mean? Of course, we must try to discern the intent of Congress. But we perform that task by beginning with the ordinary meaning of the language of the statute. Our compass is not to read a statute to reach what we perceive - or even what we think a reasonable person should perceive - is a "sensible result"; Congress must be taken at its word unless we are to assume the role of statute revisers. Aaron v. SEC, 446 U.S. 680 (1980); TVA v. Hill, 437 U.S. 153, 173 (1978).
Particularly in the administration of criminal justice, a badly drawn statute places strains on judges. See, e. g., Busic v. United States, 446 U.S. 398 (1980); LaRocca v. United States (decided with Busic). The temptation to exceed our limited judicial role and do what we regard as the more sensible thing is great, but it takes us on a slippery [447 U.S. 381, 402] slope. Our duty, to paraphrase Mr. Justice Holmes in a conversation with Judge Learned Hand, is not to do justice but to apply the law and hope that justice is done. The Spirit of Liberty: Papers and Addresses of Learned Hand 306-307 (Dilliard ed. 1960).
Not without the same reluctance that in my view underlies the Court's opinion, I join the opinion.
MR. JUSTICE STEVENS, with whom MR. JUSTICE WHITE and MR. JUSTICE REHNQUIST join, dissenting.
Should the directors of a narcotics distribution business be punished less severely than their subordinates who merely peddle the poison? It is unlikely that Congress so intended. See Callanan v. United States, 364 U.S. 587, 593 -594.
Since an ordinary reading of 406 1 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 implies that a conspirator may be punished just as severely as a substantive offender, I would so construe the statute. This construction is fortified by the total absence of any statement by any legislator suggesting any purpose to treat conspirators in the drug trade with any greater lenity than substantive offenders. 2 This is particularly important in view of the fact that prior to the 1970 Act, Congress had authorized [447 U.S. 381, 403] identical penalties for conspiracies and completed offenses. See ante, at 391.
Because the statutory language conveys quite a different meaning to me, and because the Court has not paused to consider the narrow issue presented by this case in the context of the larger objectives Congress was seeking, I respectfully dissent.
[ Footnote 1 ] "Any person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy." 84 Stat. 1265, 21 U.S.C. 846.

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§ 35.315 Maximum federal share.
§ 35.332 Basis for allotment.
§ 35.335 Maximum federal share.
§ 35.349 Maximum federal share.
§ 35.364 Maximum federal share.
§ 35.385 Maximum federal share.
§ 35.405 Maintenance of effort.
§ 35.415 Maximum federal share.
§ 35.420 Basis for allotment.
§ 35.421 Maximum federal share.
42 U.S.C. 7401et seq.;33 U.S.C. 1251et seq.;42 U.S.C. 300fet seq.;42 U.S.C. 6901et seq.;7 U.S.C. 136et seq.;15 U.S.C. 2601et seq.;42 U.S.C. 13101et seq.;Pub. L. 104-134, 110 Stat. 1321, 1321-299 (1996); Pub. L. 105-65, 111 Stat. 1344, 1373 (1997).
66 FR 1734, Jan. 9, 2001, unless otherwise noted.


text:
Canon 773. It is a proper and grave duty especially of pastors of souls to take care of the catechesis of the Christian people so that the living faith of the faithful becomes manifest and active through doctrinal instruction and the experience of Christian life.
Canon 774. §1. Under the direction of legitimate ecclesiastical authority, solicitude for catechesis belongs to all members of the Church according to each one’s role.
§2. Parents above others are obliged to form their children by word and example in faith and in the practice of Christian life; sponsors and those who take the place of parents are bound by an equal obligation.
Canon 775. §1. Having observed the prescripts issued by the Apostolic See, it is for the diocesan bishop to issue norms for catechetics, to make provision that suitable instruments of catechesis are available, even by preparing a catechism if it seems opportune, and to foster and coordinate catechetical endeavors.
§2. If it seems useful, it is for the conference of bishops to take care that catechisms are issued for its territory, with the previous approval of the Apostolic See.
§3. The conference of bishops can establish a catechetical office whose primary function is to assist individual dioceses in catechetical matters.
Canon 776. By virtue of his function, a pastor is bound to take care of the catechetical formation of adults, youth, and children, to which purpose he is to use the help of the clerics attached to the parish, of members of institutes of consecrated life and of societies of apostolic life, taking into account the character of each institute, and of lay members of the Christian faithful, especially of catechists. None of these are to refuse to offer their help willingly unless they are legitimately impeded. The pastor is to promote and foster the function of parents in the family catechesis mentioned in can. 774, §2.
5. that the faith of youth and adults is strengthened, enlightened, and developed through various means and endeavors.
Canon 778. Religious superiors and superiors of societies of apostolic life are to take care that catechetical instruction is imparted diligently in their churches, schools, and other works entrusted to them in any way.
Canon 779. Catechetical instruction is to be given by using all helps, teaching aids, and instruments of social communication which seem more effective so that the faithful, in a manner adapted to their character, capabilities and age, and conditions of life, are able to learn Catholic doctrine more fully and put it into practice more suitably.
Canon 780. Local ordinaries are to take care that catechists are duly prepared to fulfill their function properly, namely, that continuing formation is made available to them, that they understand the doctrine of the Church appropriately, and that they learn in theory and in practice the methods proper to the teaching disciplines.

matches: §1 §2 §1 §2 §3 §2


text:
WELLS FARGO BANK, N.A., its successors in interest and/or assigns, Plaintiff-Respondent, v. Merri Sue CLARK, as Trustee of the Richard W. Clark and Merri Sue Clark Revocable Living Trust under Trust Agreement dated July 26, 1994; Merri Sue Clark, individually; Richard W. Clark, aka Richard Warren Clark, as Trustee of the Richard W. Clark and Merri Sue Clark Revocable Living Trust under Trust Agreement dated July 26, 1994; and Richard W. Clark, aka Richard Warren Clark, individually, Defendants-Appellants, and Selco Community Credit Union, et al., Defendants.
Merri Sue Clark and Richard W. Clark filed the briefs for appellants pro se. Peter J. Salmon filed the brief for respondent.
Merri Sue Clark and Richard W. Clark filed the briefs for appellants pro se.
Peter J. Salmon filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
ARMSTRONG, P.J.Defendants appeal a judgment dismissing this action because it prevents defendants from pursuing counterclaims that they sought to bring against plaintiff. We conclude that the trial court erred. Accordingly, we reverse and remand with respect to defendants’ counterclaims but otherwise affirm.
The relevant facts in this case are undisputed and primarily procedural. Plaintiff filed a complaint against defendants, among others, for judicial foreclosure of real property. In response, defendants filed a motion to dismiss the complaint under ORCP 21 A, asserting that plaintiff lacked standing and was not the real party in interest. On the same morning as the hearing on defendants’ motion to dismiss, two things happened: Plaintiff filed a notice of voluntary dismissal of the complaint without prejudice and submitted a general judgment of dismissal for the court to sign; and defendants filed a pleading that answered plaintiff’s complaint and asserted counterclaims against plaintiff. At the hearing, the parties made the court aware of those filings and discussed them with the court, but the court did not make any rulings with respect to them. The court granted defendants’ motion to dismiss but did not enter a judgment at that time.
Three months later, defendants filed a notice of intent to apply for an order of default against plaintiff on defendants’ counterclaims. Plaintiff replied, denying every allegation of the counterclaims. Defendants moved to strike plaintiff’s reply as a "sham" that was "false on its face" because it denied facts previously alleged by plaintiff in its complaint. In response, plaintiff asserted that defendants were not permitted under the procedural rules to file counterclaims while their motion to dismiss was pending. Because the motion to dismiss had been granted, plaintiff argued, there was nothing left to litigate. Plaintiff also submitted a general judgment of dismissal for the court’s signature. Defendants moved to strike plaintiff’s proposed judgment. The day after defendants filed their motion to strike, the trial court signed a general judgment of dismissal without ruling on defendants’ pending motions.The court later held a hearing on defendants’ motions, which it denied by written order. In its order, the court concluded that, because defendants had chosen to make their initial appearance by filing a motion to dismiss under ORCP 21 A, they "had no right to submit further pleadings in the form of an answer and counterclaim until the motion to dismiss had been ruled upon or withdrawn." The court further concluded that, as a result, defendants’ answer and counterclaims were "a legal nullity that should not have been filed, [because] [p]arties are not allowed to file an appearance by motion under ORCP 21 and a responsive pleading under ORCP 19 at the same time." The court reasoned that, because it had granted defendants’ motion to dismiss, the case was concluded "except for the submission of an appropriate general judgment." With respect to the submitted judgment, the court concluded that there was no basis on which to set it aside. Finally, the court advised defendants that, if they wished to pursue claims against plaintiff, then they "will need to file those claims as the plaintiff in a separate action."
On appeal, defendants argue that nothing in the procedural rules or Oregon case law prohibits a party from filing counterclaims while a motion to dismiss is pending. Defendants assert that, to the contrary, the text of those rules allows such a procedure and nothing about that approach would prejudice plaintiff. Plaintiff argues that defendants’ reading of the procedural rules ignores the implicit timing found in ORCP 21 A and ORCP 15, which, plaintiff asserts, contemplates that a responsive pleading and counterclaims will be filed only if a motion to dismiss is denied. As explained below, we agree with defendants that they were not prohibited from filing counterclaims while their motion to dismiss was pending, and, therefore, we reverse and remand the judgment of the court with respect to defendants’ counterclaims.
Because we reverse on that basis, we do not address defendants’ other arguments.
Because the trial court’s ruling that defendants’ counterclaims were a "legal nullity" involves a question of statutory construction, we review it for legal error. Delcastillo v. Norris , 197 Or. App. 134, 140, 104 P.3d 1158, rev. den. , 338 Or. 488 (2005). In construing the procedural rules, our task is to discern the intentions of the Council on Court Procedures in adopting them and, doing that, we use "the same analytical method that applies to statutory construction." Rains v. Stayton Builders Mart, Inc. , 258 Or. App. 652, 658, 310 P.3d 1195 (2013) ; see also Waddill v. Anchor Hocking, Inc. , 330 Or. 376, 382 n. 2, 8 P.3d 200 (2000), adh’d to on recons. , 331 Or. 595, 18 P.3d 1096 (2001) ("[U]nless the legislature amended the rule at issue in a particular case in a manner that affects the issues in that case, the Council’s intent governs the interpretation of the rule."). In this case, the legislative history of the relevant rules is not useful to our analysis; thus, we focus on the text of those rules. See State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009) (in construing statutes, we seek to discern the intention of the legislature by considering the text of the statute in context, along with any legislative history that is useful to our analysis).
"A How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a complaint, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto, except that the following defenses may at the option of the pleader be made by motion to dismiss: *** (4) that plaintiff has not the legal capacity to sue, *** (6) that the party asserting the claim is not the real party in interest ***. A motion to dismiss making any of these defenses shall be made before pleading if a further pleading is permitted. *** If, on a motion to dismiss asserting defenses (1) through (7), the facts constituting such defenses do not appear on the face of the pleading and matters outside the pleading, including affidavits, declarations and other evidence, are presented to the court, all parties shall be given a reasonable opportunity to present affidavits, declarations and other evidence, and the court may determine the existence or nonexistence of the facts supporting such defense or may defer such determination until further discovery or until trial on the merits. If the court grants a motion to dismiss, the court may enter judgment in favor of the moving party or grant leave to file an amended complaint. ***.
"C Preliminary hearings. The defenses specifically denominated (1) through (9) in section A of this rule, whether made in a pleading or by motion, and the motion for judgment on the pleadings mentioned in section B of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.
"G Waiver or preservation of certain defenses.
"G(2) A defense that a plaintiff has not the legal capacity to sue, that the party asserting the claim is not the real party in interest, or that the action has not been commenced within the time limited by statute, is waived if it is neither made by motion under this rule nor included in a responsive pleading[.]"
Nothing in the text of ORCP 21 suggests, either explicitly or implicitly, that a defendant may not file an answer or a counterclaim to the complaint while that defendant’s motion to dismiss the complaint is pending. ORCP 21 A only specifies that a motion to dismiss made under ORCP 21 A must be made before a responsive pleading; there is no requirement that the motion must also be ruled upon before a responsive pleading may be filed. Given that the court may defer ruling on an ORCP 21 A motion until trial, see ORCP 21 A, ORCP 21 C, it would be contradictory to the purpose of ORCP 19, which governs responsive pleadings, to read such a requirement into ORCP 21 A. See ORCP 19 C ("Allegations in a pleading to which a responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading."). Further, the requirement that a motion be filed before the responsive pleading is relevant only to whether a defendant can bring the motion under ORCP 21 A. See ORCP 21 G (providing when failure to raise a defense by motion or in a pleading is a waiver of that defense); Burden v. Copco Refrigeration, Inc. , 339 Or. 388, 392-93, 121 P.3d 1133 (2005) (a motion brought on a defense raised first in a pleading is a motion for a preliminary hearing under ORCP 21 C, not a motion under ORCP 21 A). That is, the requirement that a motion under ORCP 21 A be brought before a responsive pleading does not address, either explicitly or implicitly, the validity of the responsive pleading.
Additionally, the statement in ORCP 21 A that a judge may enter a judgment for the moving party after it grants a motion to dismiss does not indicate that a defendant cannot file a counterclaim before the court rules on the motion to dismiss. The language used in the rule is permissive, not mandatory, and does not reference a particular type of judgment to be entered. Given the circumstances of the particular case, it might be appropriate for a court to enter a limited, rather than a general, judgment that disposes of only some of the claims in the case. See ORS 18.005 (defining "general judgment," "judgment," and "limited judgment"); ORCP 67 B (providing for limited judgments that dispose of some, but not all, of the claims or parties). In sum, there is nothing in the text of ORCP 21 that indicates that defendants could not file their answer and counterclaims while their motion to dismiss was pending.
The plain text of the other rules implicated by the court’s order does not change our reading of the plain text of ORCP 21. ORCP 19 governs the content of responsive pleadings, which may include a counterclaim. With regard to counterclaims, ORCP 22 A(1) provides, that "[e]ach defendant may set forth as many counterclaims, both legal and equitable, as such defendant may have against a plaintiff." Neither of those rules indicates that the filing of an ORCP 21 A motion has any effect on a defendant’s ability to also file a responsive pleading or counterclaim.
We note that a motion filed under ORCP 21 A is generally an attack on the sufficiency of a pleading, while the filing of a responsive pleading under ORCP 19 generally includes a response to the pleading. Our opinion does not address the effect that the subsequent filing of an answer has on a trial court’s consideration of an earlier-filed motion to dismiss on which it has not yet ruled. We hold only that the initial filing of the motion to dismiss here did not, by its mere filing, render the subsequent filing of an answer "a legal nullity."
"B(1) If the court denies a motion, any responsive pleading required shall be filed within 10 days after service of the order, unless the order otherwise directs.
"B(2) If the court grants a motion and an amended pleading is allowed or required, such pleading shall be filed within 10 days after service of the order, unless the order otherwise directs."
However, the text of ORCP 15 does not supply the implied rule for which plaintiff contends. Nothing in the text of ORCP 15suggests that a defendant may not file a responsive pleading or counterclaim while that defendant’s motion to dismiss under ORCP 21 A is pending. ORCP 15 B(1) provides the time allowed to file a required pleading when a court denies a motion. However, it does not address at all when a defendant may file a counterclaim—which is not a required pleading, see ORCP 13 (setting out the required and permissive pleadings)—nor does it suggest that a defendant cannot file a required responsive pleading before the filing deadline triggering date, viz. , the denial of a motion. We decline plaintiff’s invitation to read into the procedural rules a rule prohibiting the filing of responsive pleadings and counterclaims while a motion to dismiss is pending when no such prohibition appears on the face of the rules.
Because the plain text of the applicable rules did not prohibit defendants from filing their answer and counterclaims while there motion to dismiss was pending, the trial court erred in declaring those pleadings a "legal nullity." Accordingly, we reverse and remand the judgment with respect to defendants’ counterclaims and otherwise affirm.
Reversed and remanded with respect to defendants’ counterclaims; otherwise affirmed.

matches: v. v. v. v. v. v.


Alexander BASULTO–RODRIGUEZ, Appellant, v. THE STATE of Florida, Appellee.
Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant. Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
Before SUAREZ, ROTHENBERG and EMAS, JJ.
Alexander Basulto–Rodriguez appeals from his conviction for trafficking in cannabis in violation of section 893.135(1)(a), Florida Statutes (2008), based on his presence in a home containing a marijuana hydroponics operation. We affirm.
Police received a tip about possible drug activity at a certain address. After a few days of surveillance and after having obtained a warrant, the police forcibly entered the home. The record shows that the windows and doors were fully shuttered and sealed; the police had to pry open the front door to enter the house. Inside, they found approximately 250 marijuana plants growing in plain view, with the associated high-intensity lamps and hydroponic growing equipment. The police heard scuffling; Basulto–Rodriguez and his associate were found hiding in the attic, and refused to come down when ordered to by the police. They were apprehended when they fell through the attic in an attempt to escape. Basulto–Rodriguez's theory of defense was that he and his associate were in the house to burglarize it when the police coincidentally happened to enter the house and apprehend them.
There was no evidence introduced to link the defendant to the house, the plants or grow equipment. There was no evidence that the defendant owned the house or the car parked out front. There was also no evidence that the house had been broken into when the police arrived to execute the search warrant.
At the conclusion of the State's case, the defense moved for judgment of acquittal, arguing that, because there was no evidence tying Basulto–Rodriguez to the contraband or the premises, his mere presence in the house was insufficient evidence of guilt. The trial court denied the motion. At the charging conference, the defense requested a modification of the standard jury instruction on trafficking to follow the instruction on constructive possession in jointly occupied premises as discussed in Mitchell v. State, 958 So.2d 496 (Fla. 4th DCA 2007). The substituted language would instruct that, in order to convict, the State must establish constructive possession of the contraband by showing that Basulto–Rodriguez had dominion and control over the contraband, that he knew the contraband was in his presence, and that he had knowledge of the illicit nature of the contraband. The State objected, and the trial court proposed its own modified instruction providing that the defendant could be found to possess the contraband if he “exercised dominion and control” over it, where the premises in which the contraband was found are jointly occupied by both offenders. The trial court declined to give the full Mitchell instruction on constructive possession, and the jury ultimately found Basulto–Rodriguez guilty as charged.
(c) the thing is so close as to be within ready reach and is under the control of the person.
Mere proximity to a thing is not sufficient to establish control over that thing when the thing is not in a place over which the person has control.
Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it.
If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person's (1) control over the thing, (2) knowledge that the thing was within the person's presence, and (3) knowledge of the illicit nature of the thing.
Possession may be joint, that is, two or more persons may jointly have possession of an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. [emphasis in the original].
If a person does not have exclusive possession of a thing, knowledge of its presence may not be inferred or assumed.
To establish constructive possession of a controlled substance, the State must show that [defendant] had dominion and control over the contraband, that he had knowledge that the contraband was within his presence, and that he had knowledge of the illicit nature of the contraband. If the premises on which the contraband is found are in joint, rather than exclusive possession of [defendant], knowledge of the presence of the contraband on the premises and [defendant's] ability to maintain control over it will not be inferred. The State must establish knowledge and [defendant's] ability to maintain control over it by independent proof of [defendant's] actual knowledge, or evidence of incriminating statements and circumstances other than mere location of the substance.
Basulto–Rodriquez argues that the Mitchell instructions apply where the premises are found not to be in exclusive control of the occupants, and in those circumstances the State is required to establish the defendant's knowledge of the presence of the contraband, the illegal nature of the contraband, as well as his ability to exercise dominion and control over it when the possession of the contraband is joint, as between the defendant and his associate. But the facts of this case are distinguishable from those in Mitchell. In Mitchell, the defendant was not present in the house when the contraband was discovered, and the contraband was not in plain view. The Mitchell court explains that, “the specially requested instruction, unlike the standard instructions, instructs the jury that the elements of knowledge and ability to control may not be inferred from the mere fact of joint possession of the premises where contraband is found.” Mitchell, 958 So.2d at 500;see also Taylor v. State, 13 So.3d 77, 80 (Fla. 1st DCA 2009) (holding that, if the site where the contraband is found is in joint, rather than exclusive, possession, a defendant's knowledge of the contraband's presence and his ability to control it cannot be inferred merely from the defendant's proximity to the contraband). The Mitchell court acknowledged, however, that, “where joint possession of the premises is shown, the knowledge element may be met by contrabandin plain view in the common areas of the premises.” Mitchell, 958 So.2d at 500. In Basulto–Rodriguez's case, it is undisputed in the record that the cultivated marijuana plants were in plain view throughout the house, and thus the standard, unmodified jury instructions regarding constructive possession of the contraband adequately addressed the element of knowledge. Further, the court's slight modification of the standard jury instructions to include the element from Mitchell of “dominion and control” over the jointly possessed contraband did not render the instructions erroneous or insufficient under the circumstances presented here. We conclude that the trial court's modification of the standard jury instruction was not error.
The State had to establish that the Appellant knew of the presence of the contraband on or about the premises and had the ability to maintain dominion and control over it. § 893.101(1)-(2), Fla. Stat. (2006) (eliminating the defendant's knowledge of the illicit nature of a controlled substance as an element of the offense the State is required to prove, and designating the lack of such knowledge as an affirmative defense to the offenses in the chapter). See Taylor v. State, 13 So.3d 77, 80 (Fla. 1st DCA 2009).
Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article if he exercised dominion and control over the contraband. ... If a person does not have exclusive possession of a controlled substance, knowledge of its presence may not be inferred or assumed unless you find that he exercised dominion and control over the contraband.
The appellant further asserts that the trial court erred when it failed to grant his motion for judgment of acquittal, arguing that the State's evidence of the defendant's dominion and control over the contraband was insufficient to sustain the conviction. Whether a defendant had dominion and control over contraband is generally a fact issue for the jury, but a judgment of acquittal is proper when there is no evidence from which dominion and control can be inferred. See Campbell v. State, 577 So.2d 932, 935 (Fla.1991). In a wholly circumstantial evidence case such as this, a special standard of review applies. “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” State v. Law, 559 So.2d 187, 188 (Fla.1989). In such cases, the State is not required to rebut conclusively every possible variation of events that could be inferred from the evidence, but only to introduce competent evidence that is inconsistent with the defendant's theory of events. Id. at 189. If the State introduces such evidence, then the jury must decide whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. See Davis v. State, 90 So.2d 629, 631–32 (Fla.1956); Perez v. State, 565 So.2d 743 (Fla. 3d DCA 1990). The standard for review of a denial of a motion for judgment of acquittal is not whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis other than guilt, but rather whether the jury must reasonably so conclude. Perez, 565 So.2d at 744. We find sufficient evidence in the record to contradict the defendant's theory of innocence and to support the denial of his motion for judgment of acquittal.
We review de novo the trial court's denial of a motion for JOA, to determine solely whether the evidence is legally sufficient. Thomas v. State, 36 So.3d 853 (Fla. 3d DCA 2010); see Pagan v. State, 830 So.2d 792, 803 (Fla.2002). In reviewing the denial of the motion, we consider the evidence and all reasonable inferences in a light most favorable to the State as the non-moving party. See Williams v. State, 967 So.2d 735, 755 (Fla.2007).


Before tackling a criminal tax case, one needs to know a little about the inner workings of the IRS, Department of Justice Tax and your local Assistant US Attorney.
A man with a badge claiming to be a CID Agent is at the front door, what do I do?
Like all criminal confrontations with law enforcement the first answer to the clients question is do not say anything until you have had time to talk to an attorney. However, how the CID agent got to the clients front door and what you do now is very different from most criminal investigations.
A CI investigation typically begins with the receipt by CI of information concerning potential criminal violations of one or more of the statutes discussed previously. This information can come from the general public, another division of the IRS, a US Attorney’s office, another law enforcement agency, or another CI investigation.
Once the office approves the opening of the case, a CID agent will conduct an investigation and prepare a Special Agent Report (SAR) that the agent’s superiors will use to decide whether to refer the case to the Department of Justice (DOJ). If the DOJ decides to prosecute and brings charges against the target, the CID agent becomes the AUSA’s case agent.
A case works its way from a civil audit to a criminal investigation through the IRS’s long-standing fraud referral program. When a revenue agent or revenue officer investigates a case and identifies “firm indications of fraud” the agent must suspend the civil audit and transfer or refer the case to the IRS CI division.
There are sections of the IRS in the civil audit and collections divisions that are set up to detect fraud that have fraud referral specialists. Tax protesters, gambling enterprises, drug dealers, dubious tax deduction schemes and overseas shelters are all examples of the type of activity that will alert the fraud referral specialists.
When you have a client that is being audited by the IRS and there is the reason to suspect he or she has some criminal exposure there is a difficult decision to make. To what extent, if any, you want to allow your client to be interviewed by the civil revenue agent?
Often the US Attorney will refer a matter to the IRS for criminal investigation. Other State and Federal agencies investigating criminal activity will usually make the referral to the U.S. Attorney who then notifies the IRS. Because of its ability to crunch numbers and its arsenal of tax laws, the DOJ and US Attorney’s will often use the IRS in drug conspiracies, political corruption, organized crime and a host of money heavy criminal investigations.
A number of referrals come from outside information. Sometimes the IRS receives a tip that someone is cheating on their taxes. The more common of these referrals include confidential law enforcement sources, whistle blowers, competitors and unhappy spouses (at one time the largest source of outside referrals came from ex and soon to be ex wives).
If the case is referred to the IRS CI division it usually follows the administrative procedures of the Internal Revenue Service and the Tax division of the Department of Justice, but that is not always the case. Sometimes a criminal tax case can be indicted by a Grand Jury that bypasses all the administrative steps that are normally required.
Once the civil division turns the case over to the criminal division, the CID agent has the power to issue an Administrative Summons. The summons will force a tax payer to appear before the agent, give testimony and produce books and records. 26 USC §7602 (IRC – Examination of books and witnesses). The Agent designates the time and place of examination. And failure to obey the summons is enforceable by a contempt action. 26 USC §7210 (IRC – Failure to obey summons).
Often the taxpayer receiving this Summons (on his front porch at 7:00 AM) is when we first become aware of the criminal investigation. The issuing of the Summons is usually followed by an interrogation from the Agents (they always come in pairs). And this interrogation is fraught with peril for your client. While the Agent will talk to you, briefly and usually over the phone, any additional communication will require the attorney to fill out a signed power of attorney (POA) form from you and your client (Form 2848 provided by the IRS). This is necessary to protect the confidentiality of the taxpayer’s financial information.
The tax payer has the right to contest the Summons in District Court, via a motion to quash, but has very limited legal grounds that would allow him to prevail.
Once the CID agent has put together his case the taxpayer, through his lawyer, has the right to appear before the local IRS attorneys (Area Counsel) who have to approve the criminal case through the DOJ Tax Division in Washington. You should always request a hearing from Area Counsel. They will tell you what years are in question, how much money they are alleging is involved and what statues they are pursuing. You do not have to say a word or you can challenge their case at this point. They will notify you in writing of their decision and if it is to go forward you get another bite at the apple in Washington.
You must request a hearing in writing at the DOJ Tax level in Washington. They will grant the request and you can do the hearing in person or over the phone. These lawyers review the case from a trial lawyer’s perspective and this is an excellent opportunity to convince the government they have a civil fraud case and/or it should be reduced to a lesser charge. If they authorize prosecution the case usually goes down to the AUSA in the district it originated from to be indicted and prosecuted.
Sometimes a case will forgo all the administrative steps of the IRS and go directly to the Grand Jury for indictment. These cases are most often associated with an ongoing criminal investigation that happens to uncover additional criminal tax violations. Speed and secrecy are considerations and thus the US Attorney will request an expedited approval from DOJ Tax so they can indict and prosecute. We are talking drug cartel, organized crime, state security type cases here.
A direct grand jury tax case is like any other criminal case that is in the pre indictment stage. The only real difference is that DOJ Tax has become involved. If Washington has approved an indictment, there are not many local AUSA’s that are willing to try and reverse that decision. If a local US Attorney refuses to go forward on a DOJ approved criminal tax case, the Justice Department will send their DOJ tax lawyers from Washington to try the case.
A solid and substantial tax deficiency.
The badges of fraud; provable, sneaky behavior usually (but not always) concerning the tax deficiency.
Most but not all of the big five criminal tax offenses require a tax due and owing. However, even for those that do not require a tax deficiency, as a practical matter it is a tax case and the case becomes stronger for the government as a tax deficiency increases and becomes more evident. The government’s case also, of course, strengthens with the more badges of fraud it can uncover.
The government proves a tax deficiency in different methods both direct and indirect. Not surprisingly many of these methods come from the world of accounting. At one time the IRS “unofficially” required a tax deficiency of at least $40,000 before they would approve a criminal case.
Specific items method consists of direct evidence of the items of income received by a taxpayer in a given year. This is just what it sounds like. The Defendant received dollars from his business, a kickback, gambling, extortion, the lottery etc. … and the income does not appear on the return.
Bank deposits method, an indirect method of proof, reconstructs income by analyzing bank deposits by a taxpayer who has an income-producing business and makes regular and periodic deposits to bank accounts.
Net worth method, another indirect method that reflects increases in the taxpayer’s wealth, as contrasted with reported income. This is often the undoing of many a drug dealer.
Expenditures method (a variation of the net worth method) reflects the expenditures made by a taxpayer. Excessive money spent for consumable items such as vacations, entertainment, food, drink, and the like.
Cash method, a variation of the expenditures method, compares the taxpayer’s cash expenditures with the known cash sources.
Remember that interview by the CID agent of your client early one morning? One of the first questions asked will be how much cash do you keep on hand and where did it come from?
Any conduct, the likely effect of which would be to mislead or to conceal.
Spies v. US, 417 US 492, 498 (1943).
Remember that 7:00 AM interview of your client, at his front door before he had his cup of coffee, by the CID Agent? If your client makes a false statement in response to a question such as: “why haven’t you filed your taxes the last few years?” Client, “Oh I meant to but we had a fire at my office and it has delayed me.” His little ‘white lie’ has elevated a misdemeanor Failure to file his taxes into a felony Tax Evasion charge! And this rise to a felony is all under the legal nomenclature of a badge of fraud.
Id.; US v. Brooks, 174 F.3d 950, 954-56 (8th Cir. 1999); US v. Meek, 999 F.2d 776,779 (10th Cir. 1993).
The Defense Attorney has his strategy and arsenal of weapons as well and the sooner we are involved in the case the better the chances of success.
By having the Form 2848 Power of Attorney filled out and signed by lawyer and client, the lawyer stops the bleeding of information to the CID Agent. You are now the authorized agent for the target and pursuant to IRS regulations all communication must go through you.
Still give your client the speech about not talking to anyone unless it is in the presence of his attorney. But you have at least shielded him from additional contact from the CID investigators.
The weakest link in the IRS case is often proving the tax deficiency. There are a lot of good forensic fraud CPA’s and former IRS CID agents that know where and how to attack the numbers that the case is based on. Hire this accountant and use a contract that spells out the purpose of his employment. He is being hired to help you prepare a defense for this client. The agreement gives the accountant a Kovel privilege [US v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961)]. Kovel sets out the parameters of the privilege and they are a little different from hiring an investigator/accountant in your typical case. However, the primary difference would occur if the Kovel accountant files a return or amended return because tax preparation files are never privileged.
Interview the CPA that the client used to prepare his taxes. Make sure your Kovel accountant is at the interview as he is going to know more about taxes than you are.
The CPA who prepared the taxes is referred to as the historical CPA and does not have a privilege. His information and conversations are fair game for government investigators. There is usually a race for the defense attorney to try and interview the historical CPA before the CID Agent gets there.
The intent element of most all tax offenses is Willfulness … the voluntary, intentional violation of a known legal duty. Cheek v. US, 498 US 192 (1991). But because the tax laws are complex, and often used by lay people, the courts have softened the concept that ignorance of the law is no excuse. A good faith belief that one is following the law, even if unreasonable, will excuse criminal willfulness if honestly held by the tax payer. Id.; Razlaf v. US, 510 US 135 (1994).
The Cheek instruction as it is known allows the defense attorney to argue good faith to Area Counsel, DOJ Tax and a jury. Although everyone may know better, and what the Client did was improper he still did it out of an honestly held belief that it was the proper way to treat his taxes. The court in Cheek held that this instruction has its limits and will not aid a so called tax protestor who holds an erroneous belief the tax laws are unconstitutional and he does not have to pay taxes at all.
Besides the obvious burden of proof in all criminal cases, the reasonable doubt standard has significant repercussions in a criminal tax case. When your Kovel accountant is preparing the taxes for your case he is not burdened with the fact that the IRS may not accept his method or deductions. Questionable methods may not be accepted by the IRS in a civil case but here there is a beyond a reasonable doubt standard. Vague and unsettled law can be an advantage to a client and reasonable doubt about a deduction or a tax method goes to the Defendant. US v. Harris, 942 F.2d 1125, 1131 (7th Cir. 1991); US v. Heller, 830 F.2d 150, 154-55 (11th Cir. 1987); US v. Garber, 607 F.2d 92, 100 (5th Cir. 1979); US v. Critzer, 498 F.2d 1160, 1162 (4th Cir. 1974).
While the accountant cannot go wild with his methodology he does have an advantage that is seldom seen in the tax courts. This can, once again, give the defense attorney powerful arguments at the administrative level for a civil tax fraud and/or a lesser charge.
Sometimes an early filing or amending a tax return can convince a CID agent or his superiors to turn the case back over to the civil division. The IRS does have a voluntary disclosure policy. However, this is a risky move because reveling undisclosed income has the potential of making a de facto confession to the IRS of filing incorrect returns. Like putting your client before a Grand Jury this move requires some warm and fuzzy input from the government and a leap of faith on your part.
At the end of the day a federal tax fraud case is just another fraud case with a few more legal twists and turns. The defense attorney, by paying close attention to these unique twists and turns, can do things for his client that we cannot do in any other criminal case.


Before POLITZ, GIBSON,* and HIGGINBOTHAM, Circuit Judges.
H & D Tire and Automotive-Hardware, Inc., Beard Plumbing Co., and Jones & Jones, Inc. appeal the district court's grant of summary judgment to Pitney Bowes Inc. and Pitney Bowes Credit Corp. (collectively, Pitney Bowes). We conclude that the court did not have jurisdiction over this case because the amount in controversy requirement was not satisfied. We therefore vacate the district court's judgment and instruct it to remand this case to the state court in which it was initially filed.
Pitney Bowes Inc. markets a variety of mailing equipment and other office equipment and sells it to Pitney Bowes Credit Corp., which then leases the equipment to customers. The plaintiffs entered into leases with Pitney Bowes. Representatives of Pitney Bowes contacted the plaintiffs before their original leases expired and offered them the opportunity to upgrade their mailing equipment. The plaintiffs then entered into the replacement leases that are the subject of this suit.
H & D Tire and Beard Plumbing brought an action in Texas state court, seeking to represent a class of Pitney Bowes customers.1 They alleged that Pitney Bowes overcharged customers who entered into replacement leases by impermissibly including a trade-up component in the calculation of lease payments. They claimed that individual actual damages would not exceed $30,000 and sought an unspecified amount of punitive damages and attorneys' fees.
Pitney Bowes invoked federal diversity jurisdiction and removed the case to the Eastern District of Texas. It argued that the jurisdictional amount was satisfied in any of three ways: (1) by adding each plaintiff's requested actual damages to its punitive damages; (2) by aggregating the punitive damages claims of the class and attributing the amount to each plaintiff; or (3) by adding the claim for attorneys' fees to the named plaintiffs' claims.
H & D Tire and Beard Plumbing moved to remand the case to state court, arguing that Pitney Bowes had not established the required amount in controversy.2 The district court referred the motion to a magistrate judge, who found that punitive damages could be aggregated and recommended denial of the motion. The court followed the recommendation and denied the motion to remand. The district court later denied class certification and granted Pitney Bowes's motion for summary judgment. On appeal, the plaintiffs challenge only the grant of summary judgment. They do not appeal the denial of class certification or the denial of their motion to remand to state court.
We have a duty to raise the issue of subject matter jurisdiction sua sponte. See Christoff v. Bergeron Indus., Inc., 748 F.2d 297, 298 (5th Cir. 1984). We must determine whether the district court would have had original jurisdiction had the case been filed there. See 28 U.S.C. § 1441(a) (1994).
Even if a court lacks jurisdiction at the time of removal and regardless of whether there was an objection to the removal, the judgment will stand if the court had jurisdiction at the time it entered judgment. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 64, 73 (1996); Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 700 (1972). If, however, the court lacked jurisdiction both at the time of removal and judgment, the judgment cannot stand. "Despite a federal trial court's threshold denial of a motion to remand, if, at the end of the day and case, a jurisdictional defect remains uncured, the judgment must be vacated." Caterpillar, 519 U.S. at 76-77 (emphasis in original).
Diversity jurisdiction exists if the amount in controversy requirement is satisfied and there is diversity of citizenship between the plaintiffs and defendants. See 28 U.S.C. § 1332(a) (1994). Diversity of citizenship is not at issue here; our only concern is whether the amount in controversy is sufficient.3 At the relevant time, the amount in controversy had to exceed $50,000. See id.
We first consider whether the plaintiffs' individual actual damages plus individual punitive damages exceed $50,000. In their state court petition, H & D Tire and Beard Plumbing alleged that their individual claims for actual damages would not exceed $30,000. They also sought an unspecified amount of punitive damages. Because it is not facially apparent from the complaint that the jurisdictional amount is satisfied, we will look elsewhere in the record to determine the amount in controversy. Cf. St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998); Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
According to documents filed with the plaintiffs' response to Pitney Bowes's motion for summary judgment,4 H & D Tire, Beard Plumbing, and Jones & Jones have actual damages claims of no more than $72, $254, and $990, respectively. These amounts are substantially less than the ceiling of $30,000 set forth in the state court petition. There is no evidence that any member of the putative class would have had a claim for significantly greater actual damages. In fact, the plaintiffs' reply to Pitney Bowes's brief opposing class certification indicates that a typical class member's claim would be less than $200. There is no evidence of conduct by Pitney Bowes that would support punitive damages awards equal to roughly 50 to 690 times actual damages, the amount necessary to bring the total damages above the statutory minimum. Accordingly, the amount in controversy requirement is not satisfied by the damages of any individual plaintiff.
We next consider whether the punitive damages of the class can be aggregated and attributed to each plaintiff to meet the amount in controversy requirement.5 Our earlier decisions seem to conflict on this issue.
In Lindsey v. Alabama Telephone Co., 576 F.2d 593 (5th Cir. 1978), we held that the district court did not have subject matter jurisdiction over a removed class action where the plaintiff requested $2000 in compensatory damages and $1 million in exemplary damages on behalf of the class. The complaint did not allege the number of class members, and thus we could not mathematically ascertain the amount in controversy for each member. See id. at 595. Implicit in this reasoning is that a claim for punitive damages must be allocated pro rata among class members to determine whether the jurisdictional requirement is met. Otherwise, the number of members would have been irrelevant, the district court would have had jurisdiction, and removal would have been appropriate.
We later addressed a nearly identical issue in a case brought jointly by 512 plaintiffs for damages related to an explosion. See Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1329 (5th Cir. 1995). We held that the full amount of alleged punitive damages must be counted against each plaintiff to determine the amount in controversy because punitive damages, under Mississippi law, are fundamentally collective. See id. at 1333. Lindsey's reasoning did not rely on a characterization of punitive damages under Alabama law, but was instead based on the principle that "the claims of several plaintiffs, suing as members of a class, cannot be aggregated for the purpose of satisfying th [e] jurisdictional predicate." Lindsey, 576 F.2d at 594 (citing Snyder v. Harris, 394 U.S. 332 (1969)).
After Allen was decided, we followed Lindsey and held that punitive damages should not be aggregated and attributed to each plaintiff for purposes of determining the amount in controversy. See Ard v. Transcontinental Gas Pipe Line Corp., 138 F.3d 596, 602 (5th Cir. 1998).6 See also Cohen v. Office Depot, Inc., 204 F.3d 1069, 1073-77 (11th Cir. 2000) (holding that Tapscott v. MS Dealer Service Corp., 77 F.3d 1353 (11th Cir. 1996), which considered a class claim for punitive damages in the aggregate, was inconsistent with Lindsey; because the court was bound by Lindsey, it divided a $10 million claim for punitive damages among 39,000 class members and held that the amount in controversy requirement was not met), petition for cert. filed, No. 00-246 (U.S. Aug. 14, 2000).
When panel opinions appear to conflict, we are bound to follow the earlier opinion. See Harvey v. Blake, 913 F.2d 226, 228 n.2 (5th Cir. 1990). Because Lindsey is the earliest, and thus controlling, decision in this circuit, the punitive damages claims of the putative class cannot be aggregated and attributed to each plaintiff to meet the jurisdictional requirement.
We turn now to whether the plaintiffs' claim for attorneys' fees fulfills the amount in controversy requirement. When a statutory cause of action entitles a party to receive attorneys' fees, the amount in controversy includes those fees. See Graham v. Henegar, 640 F.2d 732, 736 (5th Cir. Unit A Mar. 1981). If the statute awards attorneys' fees to the named plaintiffs in a class action, the fees are attributed solely to the class representatives. See Free v. Abbott Lab. (In re Abbott Lab.), 51 F.3d 524, 526-27 (5th Cir. 1995), aff'd by an equally divided Court, 120 S. Ct. 1578 (2000). The plaintiffs in Abbott Laboratories brought an antitrust class action under Louisiana law and alleged $20,000 in actual damages. Because a state statute provided that attorneys' fees would be awarded to the "representative parties" in a class action, the attorneys' fees increased the amount in controversy so that the claims of the named plaintiffs satisfied the jurisdictional amount. See id.
In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys' fees based on the work reasonably performed by an attorney and not on the amount of recovery. In a class action in which there is no monetary recovery, but other relief is granted on behalf of a class, the court may award, to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorneys' fees.
Conn. Gen. Stat. Ann. § 42-110g(d) (West 1992). The use of the word "plaintiff" in this statute does not dictate that any fee award must be attributed solely to the representative party in a class action.7 The fee award could also be attributed to the plaintiff class as a whole and therefore allocated pro rata among its members for purposes of determining the amount in controversy. Cf. Goldberg v. CPC Int'l, Inc., 678 F.2d 1365, 1367 (9th Cir. 1982) (attorneys' fees cannot be aggregated to reach jurisdictional amount).
Because the Connecticut statute does not specifically provide that attorneys' fees are awarded to the class representatives, we decline to attribute the attorneys' fees solely to the named plaintiffs to determine whether the amount in controversy is sufficient. Compare Abbott Lab., 51 F.3d at 526-27, with Cohen v. Office Depot, Inc., 204 F.3d 1069, 1080 & n.11 (11th Cir. 2000) (finding no basis for attributing award of attorneys' fees to class representative where statutes award fees to "prevailing party" or " [a]ny person prevailing"), petition for cert. filed, No. 00-246 (U.S. Aug. 14, 2000), and Darden v. Ford Consumer Fin. Co., 200 F.3d 753, 758 & n.4 (11th Cir. 2000) (declining to aggregate attorneys' fees for jurisdictional purposes where statute entitled "any person who is injured" to attorneys' fees).
Because the amount in controversy requirement was not fulfilled when Pitney Bowes removed this case or at the time of judgment, the district court did not have jurisdiction. We vacate its judgment and instruct it to remand this case to the state court in which it was initially filed.
Circuit Judge of the Eighth Circuit, sitting by designation.
After the case was removed to federal court, H & D Tire and Beard Plumbing's First Amended Complaint added Jones & Jones as a plaintiff.
When a case is removed and the complaint does not allege a specific amount of damages, the defendant must prove by a preponderance of the evidence that the amount in controversy requirement is met. See De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993).
The district court's denial of class certification is not relevant to our analysis. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292-93 (1938) (if district court had jurisdiction at time of removal, subsequent event that decreases amount in controversy does not defeat jurisdiction).
These documents, which are appended to an affidavit from an attorney for the plaintiffs, include copies of the replacement leases executed by H & D Tire and Jones & Jones and a copy of a Pitney Bowes internal worksheet for Beard Plumbing's lease.
Although the plaintiffs did not request a specific amount of punitive damages in their state court petition, they did allege that the class contained "thousands of persons and entities." For purposes of our analysis, we assume that if punitive damages were awarded to a class this size, they would exceed $50,000.
When the magistrate judge concluded that punitive damages could be aggregated and recommended denial of the plaintiffs' motion to remand, Ard had not yet been decided.
Until 1976, a court could award attorneys' fees to either the plaintiff or the defendant under this statute; an amendment substituted the words "the plaintiff" for "either party" that year. See Conn. Gen. Stat. Ann. § 42-110g (West 1992) (historical and statutory notes); Staehle v. Michael's Garage, Inc., 646 A.2d 888, 890-91 n.8 (Conn. App. Ct. 1994). Presumably, the Connecticut legislature wanted to limit awards of attorneys' fees to the side bringing the action, but that does not indicate that the change was intended to limit the award of attorneys' fees to the named representatives in a class action.