Opposition Brief — Hughes v. United States

No. 92-746

In the Supreme Court of the Cited States

OcTOBER TERM, 1992

MARTIN J. HUGHES, PETITIONER

».

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

Departm« nt of Justices

Washington, D.C. 20530

(202) 514 DPIT7

QUESTION PRESENTED

Whether a 1984 amendment to the Labor-Management

Reporting and Disclosure Act of 1959, which imposed a

13-year disqualification from serving as a union official

on any union employee convicted of a felony involving the

misuse of his position to obtain a gain at the expense of

the union, violates the Ex Post Facto Clause of the

Constitution as applied to a union employee who com-

mitted the disqualifying felony before the effective date

of the amendment.

(I)

TABLE OF CONTENTS

Page

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RE aie elie ani eek ealchneks Mieadidaas seamen 6

nr os ss eaidnasachbansseaphanbaseniereins ao 13

TABLE OF AUTHORITIES

Cases:

premeeee ©. Crete, SEO US. 167 CIGRB) .........cccccccccsccccccccccccus 6

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ...... ATEN Mae LATA 6

Collins v. Youngblood, 497 U.S. 37 (1990) .................0..0e 6, 10

Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867) ........ 12

De Veau v. Braisted, 363 U.S. 144 (1960) ............00.... 5, 7,8

Dent v. West Virginia, 129 U.S. 114 (1889) ............0 13

Dobbert v. Florida, 482 U.S. 282 (1977) ...............cccceeeeeeee 6

Flemming v. Nestor, 363 U.S. 603 (1960) ......000 6.7

Garland, Ex parte, 71 U.S. (4 Wall.) 333 (1867) .............. 12

Hawker v. New York, 170 U.S. 189 (1898) ............ ee 5, 7, 12

Nixon v. Administrator of General Services, 433 U.S. 425

ia olde cchce uss bndnneenneakevbenbacnebeenens 7, i0

Postma v. International Bhd. of Teamsters, Local 294,

ns ss cata densuhabussansadeesnasbasens i)

United States v. Brown, 381 U.S. 437 (1965) .............. 5,9, 10, 11

United States v. Jalas, 409 F.2d 358 (7th Cir. 1969) ....... 13

Weaver v. Graham, 450 U.S. 24 (1981) ............... cece cece eee 7

Constitution and statutes:

U.S. Const. Art. I, § 9, Cl. 3:

ci cscccunsansuanbnisacnesbanwneensas 5

scat nmnannmnennbnpeannenunenn 5, 6, 8, 9, 12

Comprehensive Crime Control Act of 1984, Pub. L. No.

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Tee ass cen cpasbanennndneeetincesnsuabenets 4

IV

Statutes—Continued: Page

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Labor-Management Reporting and Disclosure Act of

1959, Pub. L. No. 86-257, § 504(a), 73 Stat. 5386-537......... passim

ee as IN IED pacdncecnachpstcscicinccnasascaannnsncaiescvnes 5

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Be Fs ANE -nainininiprdeninigatbisaienactnsnt-caeiesinskicdesenamiencunionds 2, 3, 4, 6

Se Sie: PEE sili cntaciteanaiebicisaxstiajaninacnasinentmaennnetn 2

et Rach GUID Nantdaiecscacenhansctunesstindientnbadidabendatbaetouabnies 2

Miscellaneous:

129 Cong. Rec. (1983):

Ii SITIES seasiaisksonieagih-obpndibauensepiahiu slemcashalcaganaendiibanmicabioaenascaniuauioued 8

a INET casnuesidieacel taaseiachcniddalcniellaalacceinsbammaadatinabediaserinasoens 9

H. Rep. No. 1030, 98th Cong., 2d Sess. (1984) .....000.... 11

S. Rep. No. 187, 86th Cong., Ist Sess. (1959) .....0... 9

S. Rep. No. 225, 98th Cong., Ist Sess. (1983) ................. 8, 11

Jn the Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-746

MARTIN J. HUGHES, PETITIONER

(oP

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals on appeal from

petitioner’s resentencing (Pet. App. A2-A17) is re-

ported at 964 F.2d 536. The opinion of the court of

appeals on petitioner’s initial appeal (Pet. App. A38-

A50) is reported at 899 F.2d 1495.

JURISDICTION

The judgment of the court of appeals (Pet. App. Al)

was entered on May 13, 1992. A petition for rehearing

was denied on July 30, 1992 (Pet. App. A86-A87). The

petition for a writ of certiorari was filed on October

28, 1992. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

(1)

STATEMENT

After a jury trial in the United States District

Court for the Northern District of Ohio, petitioy r

was convicted on ten counts of falsification of union

records, in violation of 29 U.S.C. 489(c); two counts of

filing false W-2 and W-3 forms with the Internal

Revenue Service (IRS), in violation of 26 U.S.C.

7206(2); and two count’ of making false statements to

the United States through the submission of false

labor reporting documents, in violation of 18 U.S.C.

1001. Following the verdict, the district court

granted petitioner’s motion for a judgment of

acquittal on the two Section 1001 counts. Petitioner

was sentenced to two years’ probation on the tax

counts and fined $10,000 on the ten counts of

falsifying union records. In addition, petitioner was

subject to an employment disability under 29 U.S.C.

504(a), barring him from representing or serving as

an officer of the Communication Workers of America

for three years. Pet. App. A22-A23, A39-A4i.

On appeal, the court of appeals reinstated the two

Section 1001 convictions and ordered the district

court to reduce the felony conviction on one of the tax

counts to a misdemeanor. Pet. App. A41-A45, A47-

A48. Thereafter, petitioner sought a writ of certio-

rari from this Court, and the Court denied the writ.

111 S. Ct. 508 (1990). On resentencing, the district

court sentenced petitioner to an additional three

years’ probation on the Section 1001 counts and

increased his employment disability from three to 13

years. Pet. App. A34-A35. The court of appeals

affirmed. Jd. at A17.

3

1. The evidence at trial showed that petitioner was

a manager of a branch office of the Communication

Workers of America (CWA). In that capacity, he

submitted office expense vouchers to the CWA that

falsely claimed reimbursement for mileage and meal

expenses for union employees. The CWA paid him

nearly $400,000 in reimbursement funds, which he

used to make political contributions and to pay sal-

aries at the United Telephone Credit Union (UTCU).

Pet. App. A89-A40. In addition, petitioner caused the

CWA to file reports with the Department of Labor

falsely representing Gay Griffith to be a CWA

employee who received $7,995 in 1982 and $10,540 in

1983 as reimbursement for expenses. In fact, Griffith,

the manager of the UTCU, received those amounts as

salary from funds generated by the false expense

vouchers filed at the direction of petitioner. Jd. at

A42-A43. Petitioner also caused the CWA to file false

W-2 and W-3 forms for Griffith with the IRS. /d. at

A45, A47.

2. Petitioner was convicted on the Section 1001

counts in November 1987. The convictions were based

on conduct occurring in 1982 and 1983. At the time of

petitioner’s criminal activity, Section 504(a) of the

Labor-Management Reporting and Disclosure Act of

1959, Pub. L. No. 86-257, 73 Stat. 536-537 (codified at

29 U.S.C. 504(a) (1982)), prohibited persons convicted

of certain specified criminal offenses from engaging

in union activities for five years after their term of

imprisonment ended.' In 1982 and 1983, however,

' Section 504(a) provided in relevant part:

No person who is or has been a member of the Commun-

ist Party or who has been convicted of, or served any part

- 4

Section 1001 offenses were not among the crimes

giving rise to the disability. Pet. App. A8-A9.

In 1984, Congress amended the Act by adding to the

offenses giving rise to the disability “any felony in-

volving abuse or misuse of [a] person’s position or

employment in a labor organization * * * to seek or ob-

tain an illegal gain at the expense of the members of

the labor organization.” Comprehensive Crime Con-

trol Act of 1984, Pub. L. No. 98-4738, § 803, 98 Stat.

2133. See 29 U.S.C. 504(a). That language subjects

persons who are found guilty of violating Section 1001

to the disability when, as here, the violation of Sec-

tion 1001 is part of a scheme to obtain union funds

unlawfully. The amendment, which became effective

on October 12, 1984, applies to any judgment of convic-

of a prison term resulting from his conviction of, robbery,

bribery, extortion, embezzlement, grand larceny, burglary,

arson, violation of narcotics laws, murder, rape, assault

with intent to kill, assault which inflicts grievous bodily

injury, or a violation of subchapter III or IV of this

chapter, or conspiracy to commit any such crimes, shall

serve-—

(1) as an officer, director, trustee, member of any

executive board or similar governing body, business

agent, manager, organizer, or other employee (other

than as an employee performing exclusively clerical or

custodial duties) of any labor organization, * * *

* * * *

during or for five years after the termination of his

membership in the Communist Party, or for five years

after such conviction or after the end of such imprison-

ment * * *,

29 U.S.C. 504(a) (1982).

5

tion entered after October 12, 1984, notwithstanding

the date of the conduct that constituted the offense.

Pub. L. No. 98-473, § 804, 98 Stat. 2134. See 29 U.S.C.

504(a) note.

3. On appeal, petitioner contended that application

of the 1984 amendment to persons like himself whose

false statements were made before the effective date

of the 1984 amendment would violate the Ex Post

Facto Clause of the Constitution, Art. I, § 9, Cl. 3. In

rejecting that claim, the court of appeals concluded

that the amendment did not designate punishment for

past acts, but instead was “a legislative device aimed

at strengthening regulations in an area susceptible to

corruption.” Pet. App. A9. The court relied on de-

cisions of this Court that held similar forms of

legislation to be non-penal, including De Veaw v.

Braisted, 363 U.S. 144 (1960); Flemming v. Nestor,

363 U.S. 603 (1960), and Hawker v. New York, 170

U.S. 189 (1898).

The court of appeals rejected petitioner’s argument

that this case was controlled by United States v.

Brown, 381 U.S. 487 (1965). Brown held that another

portion of Section 504(a), which disqualified members

of the Communist Party from serving as officers or

employees of a labor union, inflicted punishment

within the meaning of the Bill of Attainder Clause of

the Constitution. 381 U.S. at 458. The court of ap-

peals observed that this Court’s analysis in Brown

“was pointedly aimed at remedying the legislative

hysteria of the preceding decade, which had culmi-

nated in legislation explicitly targeting communists.”

Pet. App. All. The court also noted that Brown ad-

dressed the Bill of Attainder Clause and “was not

6

intended as a disposition of an ex post facto chal-

lenge.” Pet. App. All. Finally, the court explained

that, whereas the Court in Brown found that

Congress intended the anti-communist provision of

Section 504(a) to be penal in nature, the legislative

history of the convicted felon provision indicates that

it was not designed to inflict punishment, but rather

to “protect union members and the public interest

from further meddling by union officials who have

been convicted for certain conduct.” Pet. App. All-

A12. The court concluded that “it would be ill-advised

to extend Brown so as to essentially overturn De

Veau.” Pet. App. All.

ARGUMENT

Petitioner renews his contention that his

employment disability under Section 504(a) violates

the Ex Post Facto Clause because he committed the

Section 1001 offenses before the effective date of the

1984 amendment of the statute.

1. The Ex Post Facto Clause provides that Con-

gress may not “punish as a crime an act previously

committed, which was innocent when done; nor make

more burdensome the punishment for a crime, after

its commission; nor deprive one charged with crime of

any defense available according to law at the time

when the act was committed.” Collins v. Youngblood,

497 US. 37, 52 (1990); see Dobbert v. Florida, 432 U.S.

282, 292 (1977); Beazell v. Ohio, 269 U.S. 167, 169-170

(1925); Calder v. Bull, 3 U.S. (8 Dall.) 386, 390 (1798)

(opinion of Justice Chase). The purpose of the pro-

hibition is “to assure that legislative Acts give fair

warning of their effect and permit individuals to rely

7

on their meaning until explicitly changed.” Weaver

v. Graham, 450 U.S. 24, 28-29 (1981).

Not every statute that brings adverse conse-

quences to bear on an individual for previous conduct

violates the Ex Post Facto Clause. The question in

each case is “whether the legislative aim was to

punish that individual for past activity, or whether

the restriction of the individual comes about as a

relevant incident to a regulation of a present situa-

tion, such as the proper qualifications for a profes-

sion.” De Veau v. Braisted, 363 U.S. 144, 160 (1960).

See also Flemming v. Nestor, 363 U.S. 603, 614 (1960)

(“[w]here the source of legislative concern can be

thought to be the activity or status from which the

individual is barred, the disqualification is not

punishment even though it may bear harshly upon one

affected”); Hawker v. New York, 170 U.S. 189, 200

(1898) (“such legislation is not to be regarded as a

mere imposition of additional penalty, but as prescrib-

ing the qualifications for the duties to be discharged

and the position to be filled”).”

Thus, in De Veau, the petitioner challenged on ex

post facto grounds the retroactive application of a

New York statute that barred any person who had

2 In Nixon v. Administrator of General Services, 433 U.S.

425, 475-476 (1977) (footnote and citations omitted), the Court

held that determining whether a statute is a bill of attainder

requires an analysis of “whether the law under challenge,

viewed in terms of the type and severity of burdens imposed,

reasonably can be said to further nonpunitive legislative

purposes. Where such legitimate legislative purposes do not

appear, it is reasonable to conclude that punishment of

individuals disadvantaged by the enactment was the purpose of

the decisionmakers.”

8

been convicted of a felony from holding office in any

waterfront labor organization. This Court examined

the statute’s legislative history and determined that

“New York sought not to punish ex-felons, but to

devise what was felt to be a much-needed scheme of

regulation of the waterfront, and for the effectuation

of that scheme it became important whether individ-

uals had previously been convicted of a felony.” 363

U.S. at 160. Because the purpose of the statute was

regulatory rather than punitive, the Court held that

its retroactive application did not violate the Ex Post

Facto Clause. /bid.*

Like the statute at issue in De Veau, the purpose of

the 1984 amendment to Section 504(a) was not penal in

nature. Rather, the amendment was designed “to

afford unions * * * greater protection from corrupt

union and managemehft officials.” S. Rep. No. 225, 98th

Cong., Ist Sess. 297 (1983). As Sen. Hatch, one of the

chief sponsors of the legislation, explained, “[t]he

purpose of the retroactive provision * * * is not to

inflict new punishment. It is intended to bring

immediate relief to the union rank and file from abuse

by convicted officials.” 129 Cong. Rec. 16,371 (1983).‘

3 Similarly, in Flemming, tke Court held that a federal

statute terminating social security benefits to an alien who was

deported on certain specified grounds was not an ex post facto

law, and in Hawker, the Court reached the same conclusion

with respect to a New York statute prohibiting previously

convicted felons from practicing medicine.

* Likewise, the legislative history of the 1959 Act indicates

that the employment disqualification was

not conceived by the committee as additional punishment

for the crimes mentioned in the section. The punishment

of these kinds of crimes and the enactment of laws relating

—e

9

The legislative history of the 1984 amendment

shows that, in providing that the amendment should

apply retroactively, Congress was well aware of the

prohibitions of the Ex Post Facto Clause, but con-

cluded, chiefly on the authority of De Veaw, that the

statute “stands upon firm constitutional ground.” 129

Cong. Rec. 16,372 (1983) (remarks of Sen. Nunn). See

also ibid. (remarks of Sen. Nunn) (“the bill [does not]

impose punishment for past acts in violation of the

prohibition of ex post facto law”). In light of the

regulatory purpose of the amendment, the court of

appeals correctly concluded that “the disability

imposed on [petitioner] is not an ex pest facto imposi-

tion of punishment.” Pet. App. Al2. See Postma v.

International Bhd. of Teamsters, Local 294, 337 F.2d

609 (2d Cir. 1964) (upholding retroactive application of

the employment disability to convicted felons in the

1959 version of Section 504(a)).°

2. Petitioner’s reliance (Pet. 10-11, 14-15) on

United States v. Brown, 381 U.S. 487 (1965), is mis-

placed. In Brown, the Court held that the provision of

to them are and should be the province of the States. This

pros-:sion is designed to further protect union members’

ed ‘ne public interest by establishing certain standards for

persons holding union office.

S. Rep. No. 187, 86th Cong., Ist Sess. 49 (1959).

° Petitioner asserts that Postma is of no relevance because it

was decided prior to this Court’s decision in Brown. Pet. 14

n.4. Postma, however, was decided after this Court’s decisions

in De Veau, Flemming, and Hawker, and the Second Circuit in

Postma expressly found De Veau to be “dispositive.” 337 F.2d

at 611. As argued below, there is no basis for concluding that

this Court in Brown overruled De Veau, Flemming, and

Hawker sub silentio. Postma thus remains good law.

10

Section 504(a) that makes it a crime for a former

member of the Communist Party to hold union office

was a bill of attainder. In so holding, the Court

concluded that that provision “inflicts ‘punishment’

within the meaning of the Bill of Attainder Clause.”

381 U.S. at 458. In petitioner’s view, the Court’s

conclusion that the anti-communist provision of

Section 504(a) “inflicts ‘punishment’ ” for purposes of

analyzing whether it is a bill of attainder establishes

that the provisions of Section 504(a) imposing the

same disability on the specified classes of convicted

felons “make more burdensome the punishment for a

crime,” Collins v. Youngblood, 497 U.S. at 52, for

purposes of ex post facto analysis.

Petitioner’s view is mistaken. The Court in Brown

relied on the fact that Congress “cannot specify the

people upon whom the sanction it prescribes is to be

levied,” 381 U.S. at 461, and that Section 504(a)’s

proscription on former communists “does not set

forth a generally applicable rule decreeing that any

person who commits certain acts or possesses certain

characteristics * * * shall not hold union office.” 381

U.S. at 450. In enacting the proscription on former

communists, Congress failed to specify any acts or

characteristics on the basis of which it intended to

regulate union governance, but instead simply

identified an organization whose members it sought

to disable. In light of Congress’s failure to articulate

a regulatory objective, “it is reasonable to conclude

that punishment of individuals disadvantaged by the

enactment was the purpose of the decisionmakers.”

Nixon v. Administrator of General Services, 433

U.S. at 476. Accordingly, the Court in Brown found

11

no need to discuss De Veau, Flemming, and Hawker,

in all of which Congress had articulated a valid

regulatory goal. See 381 U.S. at 452 n.26.

This case is governed by De Veau, Flemming, and

Hawker, not by Brown. The portion of Section 504(a)

at issue in this case does specify certain specific acts

—the “misuse of [a] person’s position or employment

in a labor organization * * * to seek or obtain an

illegal gain at the expense of the members of the labor

organization,” 29 U.S.C. 504(a)—whose commission

would, in Congress’s view, render the offender a

threat to labor unions and their members. That

determination was certainly not irrational, nor is

there any basis to conclude that it was merely a

pretext for the imposition of additional criminal

punishment for previously committed offenses.°

® The only source petitioner cites for the proposition that

the disability at issue was intended to be penal in nature is a

congressional report that, petitioner asserts, stated that the

disability was imposed “to increase available penalties because

the penalties used to protect labor relations had proven to be

‘inadequate.’” Pet. 9-10. (Petitioner incorrectly cites H. Rep.

No. 1030, 98th Cong., 2d Sess. 297-299 (1984). That report does

not mention or discuss any of the provisions of the Comprehen-

sive Crime Control Act of 1984. The correct citation is S. Rep.

No. 225, 98th Cong., Ist Sess. 297 (1983), a Senate report on a

precursor bill). The word petitioner quotes from the report is

taken out of context from the following sentence: “Current

Federal prohibitions and penalties designed to protect the

legitimacy of labor relations have, in certain respects, proved

to be inadequate.” S. Rep. No. 225, supra, at 297 (emphasis

added). That sentence generally explained a number of

provisions of the Comprehensive Crime Control Act of 1984,

including the amendment to Section 504(a). The disability

imposed by Section 504(a) is a regulatory “prohibition * * *

12

Therefore, the portion of Section 504(a) at issue in

this case is appropriately viewed as regulatory, not

punitive.

3. Nor is petitioner helped by Cummings v.

Missouri, 71 U.S. (4 Wall.) 277 (1867), or Ex parte

Garland, 71 U.S. (4 Wall.) 333 (1867), which he also

cites. See Pet. 12-13. In those cases, the Court was

confronted with challenges under the Ex Post Facto

Clause to statutes excluding persons from practicing

a profession based on conduct preceding the enact-

ment of the statutes. The Court concluded in each

case that the statute at issue violated the Ex Post

Facto Clause, finding that the legislative purpose in

enacting it was to inflict punishment for the past

conduct. Cummings, 71 U.S. (4 Wall.) at 320, 327-329;

Gar-land, 71 U.S. (4 Wall.) at 377-378, 380.

Hawker v. New York establishes that Cummings

and Garland do not govern this case. In Hawker, the

Court upheld the retroactive application of a New

York statute making it a crime for a previously

convicted felon to practice medicine. In reaching that

conclusion, the Court reasoned that “[t]he State is

not seeking to further punish a criminal, but only to

protect its citizens from physicians of bad character.”

170 U.S. at 196. The Court distinguished Cummings

and Garland on the ground that the statutes in those

cases “were designed to deprive parties of their right

to continue in their professions for past acts * * *,

many of which had no bearing upon their fitness to

continue in their professions.” 170 U.S. at 198-199

designed to protect the legitimacy of labor relations,” not a

“penalty.”

13

(quoting Dent v. West Virginia, 129 U.S. 114, 128

(1889)). As we have shown, the 1984 amendment to

Section 504(a) was of the regulatory type at issue in

Hawker, not the punitive type at issue in Cummings

and Garland.’

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

DECEMBER 1992

’ Likewise unavailing is petitioner’s reliance (Pet. 9, 14 n.4)

on United States v. Jalas, 409 F.2d 358 (7th Cir. 1969). In that

case, the court of appeals held that the government has no

standing to seek an injunction barring a person disqualified

under Section 504(a) from holding union office. The court

explained that Section 504(a) is “a criminal statute contemplat-

ing proceeding by indictment or information.” 409 F.2d at 360.

The fact that it is a criminal offense to hold union office in

violation of Section 504(a) has no bearing on whether the

disqualification in Section 504(a) is a criminal punishment.