SIMPSON v. UNITED STATES

Transcript: 

Argument of Robert W. Willmott Jr.

Chief Justice Warren E. Burger: We will hear arguments next in 5761 Simpson v. The United States and 5796, the consolidated case.

Mr. Willmott you may proceed when you are ready.

Mr. Robert W. Willmott Jr.: Mr. Chief Justice and May it please the Court.

The question that I present to the court today is whether or not an individual can be charged, convicted and sentenced under the aggravated bank robbery statute 18, 2113 (d) and additionally charged, convicted and sentenced under 924 (c)(1) for using a firearm during the commission of the felony.

The tenure of our argument has changed somewhat from a double jeopardy question to a question of multiplicity or duplicity, but I still think that the dictates of the Blockburger case are applicable in that you we must show that each offense requires proof of an element that the other does not and it has been our contention since the inception of this case that in order to sustain a conviction under 924 (c)(1) that all of the elements under 2113 (d) must be proven.

Now, the Fourth and Fifth Circuit, and the Sixth Circuit in following the Fourth and the Fifth Circuit in their opinion in the lower court stated that they thought there was a difference in proof of the elements and they base their decision on the language contained in 2113 wherein the government is required to prove that an individual's life was endangered by the use of a dangerous weapon or device and that a dangerous weapon or device was not always a firearm and it is my contention that in getting to the elements in 2113 (d) that you have to prove every single one of them to prove that the felony in 924 (c) was committed and that you cannot sit back and judge the facts of each case in a vacuum.

You have to look at the weapon that was used, and when a firearm or a handgun is used, it fits both in 2113 (d) and 924 (c).

Justice William H. Rehnquist: Well when you say the Blockburger test is not one where you compare the statute, but where you simply compare the evidence in each particular case?

Mr. Robert W. Willmott Jr.: No, I think the test is set down in Blockburger, is that you compare the statutes.

Justice William H. Rehnquist: Well, then I do not see how you can advance the proposition that you compare the weapon involved in each particular case because here clearly a dangerous weapon or a device includes other things than a firearm?

Mr. Robert W. Willmott Jr.: That is correct, but I do say that you have to look at the factual elements in Fifth Amendment of the statute.

You have to draw the statutes sufficiently broad to encompass all the factual situations that may occur, but I do not think that in viewing 924 (c) as opposed to 2113 (d), you can just say, suppose something else was used.

Justice William H. Rehnquist: Well, then it is a case by case, exhibit by exhibit test so far as your concern?

Mr. Robert W. Willmott Jr.: I believe that, that interpretation can be used and should be used in a case where the facts do not really fit in either one of them.

Justice Potter Stewart: Well, your submission is as I understood it that whenever the weapon is a firearm then these charges are necessarily duplicities?

Mr. Robert W. Willmott Jr.: Yes, Your Honor, that is exactly my position.

Chief Justice Warren E. Burger: But if, that were a hand grenade?

Mr. Robert W. Willmott Jr.: Well, then I do not think you could prosecute under 924 (c) because that specifically has to be a firearm.

I do think that the legislators in drafting 2113 (d) had to have thought that the most common weapon or dangerous weapon or device to be used would be a handgun, or firearm, or rifle, or shotgun, something that would be encompassed by 924 (c).

I think that we see it on TV and we read about it occasionally that other weapons are used to rob banks and usually they are more dangerous than a firearm.

Justice Potter Stewart: But it is only when the firearms involved that this question could ever arise because that is the only time that 924 (c) is involved?

Mr. Robert W. Willmott Jr.: That is correct.

Justice Potter Stewart: That is your point, is it not?

Mr. Robert W. Willmott Jr.: That is exactly my point.

Justice William H. Rehnquist: My brother Stewart asked you a question a moment ago which I am sure he knew the meaning of it and which you doubtless know the meaning of it, which I think I did not understand the meaning of one of the words and that is that the indictment is necessarily duplicities this.

What does that mean?

Mr. Robert W. Willmott Jr.: Well, I think --

Justice William H. Rehnquist: If you know (Voice Overlap) I think may be I used the wrong word?

Mr. Robert W. Willmott Jr.: Well, I think it is duplicities or multiplicities.

Justice William H. Rehnquist: What does that mean?

Mr. Robert W. Willmott Jr.: That they are charging two distinct crimes out of the same offense.

Justice William H. Rehnquist: And what is the objection to that, Blockburger?

Justice Potter Stewart: Well, in delinquency United States case is like that.

Justice William H. Rehnquist: Any other objections?

Mr. Robert W. Willmott Jr.: I think I stated it simply to the District Court and again in same scenario that they have charged the petitioners here with robbing a bank using a gun, and using a gun to rob a bank, and I think that is duplicitous.

I think you can adopt the lesser included offense arguments and saying that the elements in manslaughter are the same as murder, but you ought to be required to go one way with the other.

I think in looking at the legislative history, United States has said that you should not put much weight on Representative Poff's comments, he was the sponsor of the 924 (c) amendment and I guess my case rests on the part of his comments in legislative history wherein he says, it should be noted for legislative history that my amendment is not to apply and he named several additional statutes in addition to the 2113 (d) statute.

Justice William H. Rehnquist: Where was that statement by Representative Poff made to constitute, do you know it was on the floor --?

Mr. Robert W. Willmott Jr.: I believe its during the floor debates.

Justice William H. Rehnquist: During the floor debate?

Mr. Robert W. Willmott Jr.: And there was as pointed out in Counsel for the Government's brief and abrupt cessation of talking about that amendment or that part of it.

They just want to write on to another part of it.

Chief Justice Warren E. Burger: Is there any kind of a weapon or any kind of a dangerous device that could be used in your view that would be sustainable with convictions under both Sections as you have here.

That is, you are arguing that when it is a firearm or pistol for example, they cannot be two.

Is there any kind of a weapon or device that would warrant the conviction under both Sections?

Mr. Robert W. Willmott Jr.: Mr. Chief Justice I do not believe if there is. I believe that Congress provided the enhanced penalty under 2113 (d) if any sort of weapon, dangerous weapon or device was used and endangered anybody's life and I think that 924 (c) was enacted in response to the growing concern for the use of firearm specifically in committing crimes and I have to agree with Representative Poff's comments that it was not intended to be used in cases where there was already an enhanced punishment provided.

Since the time of submission of our briefs, I was sent a copy of letter written from the Department of Justice to United States Attorney in Maryland Mr. I believe it is Beal (Ph) wherein the Department of Justice said, “It was their policy not to prosecute on the 924 (c) charge when the defensible offense was a 2113 (d) charge” and they cited the general principle of law that when a specific statute and a general statute are involved in the same set of facts that the general statute should be used, and additionally they cited Representative Poff's comments.

Now, I think that the legislative history in enacting these statutes should be considered in cases where the statement that Congress' best means what it says has to be looked at when you cannot really determine what Congress says.

In a case of this nature where the government is arguing that they do not mean what they say and that you should not listen to Representative Poff's comments and the fact that you do have what on its face is a conflict, that this Court has to use the tools that are available to it to determine exactly what they did mean and as I have stated before I think that they have created an absurdity and they could carry it one step father by saying that whoever uses a Saturday night special which costs less than $50, shall be guilty of an additional offense and I think that would follow in line with the logic that has been used in allowing a 924 (c) charge to be tacked on to a 2113 (d) charge and basically I rest my case on Representative Poff's comments and the absurdity that is committed when you let a person be charged with robbing a bank using a gun, and using a gun to rob a bank.

Unknown Speaker: What the indictment had been on the, that this what 924 (c)(1)?

Mr. Robert W. Willmott Jr.: Yes, Your Honor.

Unknown Speaker: What is the indictment under (c)(2)?

Mr. Robert W. Willmott Jr.: Well, that was the case I believe in the Crew case where the Fourth Circuit said that that was perfectly acceptable.

Unknown Speaker: And do you agree with that?

Mr. Robert W. Willmott Jr.: No, Your Honor I do not.

Unknown Speaker: Well, because under the 2113 you have to put someone's life in jeopardy?

Mr. Robert W. Willmott Jr.: Your Honor and I think that is conditioned on using the gun, it says “by the use of a dangerous weapon or device” and I think that when you use a dangerous weapon or device, you automatically put somebody's life in danger.

Chief Justice Warren E. Burger: When you use it or --?

Unknown Speaker: Well, when you have 924 (c) it says carries a firearm?

Mr. Robert W. Willmott Jr.: The two charge?

Unknown Speaker: Yes.

Mr. Robert W. Willmott Jr.: Well, that if you --

Unknown Speaker: You do not have to use it when you are robbing the bank?

Mr. Robert W. Willmott Jr.: I can see the circumstance where it would be safe in your pocket, then I do not think they could charge him under 2113 (d) and I think there is a further fact in this case is that the indictment itself specify that the dangerous weapon or device was a handgun under the 2113 (d) charge and then specified that the firearm was a handgun under the 924 (c) charge and so that they moved any possible distinction or difference between the two in each statute.

Unknown Speaker: Mr. Willmott do I understand from your comment before my brother White's question that absent Congressman Poff's comment, you would not be here?

Mr. Robert W. Willmott Jr.: No, Your Honor, I say that I rely heavily --

Unknown Speaker: You say that here basically on it and I wanted to be sure of your status?

Mr. Robert W. Willmott Jr.: No, Your Honor, I do rely heavily on it and we were not aware of Congressman Poff's comments until the decision in the Eagle case came down, and --

Unknown Speaker: In other words if the Congressman had not made his statement you would be here anyway?

Mr. Robert W. Willmott Jr.: Yes, Your Honor.

Unknown Speaker: And then you would rely on what?

Mr. Robert W. Willmott Jr.: Our argument that it is duplicities and possibly places a person in double jeopardy, but trying him twice for the same offense at the same time.

Unknown Speaker: Do you feel the Eighth Circuit case in Eagles essentially at odds with this case or is it rather a --?

Mr. Robert W. Willmott Jr.: I think it is --

Unknown Speaker: Collateral (Voice Overlap)?

Mr. Robert W. Willmott Jr.: It is all our force with this case.

Thank you.

Chief Justice Warren E. Burger: Mr. Farr.

Argument of H. Bartow Farr Iii

Mr. H. Bartow Farr Iii: Mr. Chief Justice and May it please the Court.

Within the two month period in the fall of 1975, petitioners in this case robbed two banks in Middlesboro, Kentucky.

They carried and used firearms in the commission of each robbery and while attempting to escape from the second robbery, engaged in an extensive gunfire with the police.

Petitioners' conduct quite plainly violated several provisions of federal law and the juries in both cases so found.

In each instance, petitioners were convicted under 18 U.S.C. 2113 (a) which makes it a felony to rob a federal bank and under 18 U.S.C. 2113 (d) which provides an increased penalty for anyone who are robbing a federal bank in the words of the statute, assaults any person or puts in jeopardy the life of any person by the use of a dangerous weapon or device.

Petitioners were also convicted under 18 U.S.C. 924 (c)(1), a part of the Gun Control Act of 1968, which provides an additional term of imprisonment for anyone who in the words of that statute, uses a firearm to commit any felony for which he may be prosecuted in a court of the United States.

The trial judge sentenced petitioners to the maximum terms of imprisonment allowed for each crime, 25 years for each offense under Section 2113 (d), and another 10 years for each offense under Section 924 (c), all sentences to be served consecutively.

Petitioners have attacked their sentences on the ground that 924 (c) while seeming on its face to apply to any federal felony is not available to punish bank robbers who who used the firearms as makes the absurdity to punishment under Section 2113 (d) as well.

They rely for this proposition on a statement by Congressman Poff who sponsored Section 924 (c) on the house floor that this bill was not intended to apply to various federal offenses of which bank robbery under Section 2113 is one.

This argument in our view raises two questions.

First, did Congress intend Section 924 (c) apply to bank robbers, simultaneously subject to conviction under Section 2113 (d) and if Congress did so intend, secondly does the Double Jeopardy Clause in anyway prohibit that result.

For reasons we shall discuss in a moment, I believe that the intent of Congress to punish for both offenses is evident from the statute itself and from the way to the legislative history.

We furthermore believe that the Double Jeopardy Clause is not prohibited from doing so.

Looking at the language of Section 924(c), we did not perceive any serious question about the meaning of the statute on its face.

Indeed we do not understand petitioners today to say anything to the contrary.

While its terms it applies to any felony for which a person may be prosecuted in a court of the United States, the definition they claim includes all degrees of bank robbery and this case when argued before this Court 50 or 75 years ago, that clear language would likely have been not the starting, but the stop in place for an inquiry into congressional intent.

The Court entered the rigid and vulnerable dictates to the 'plain meaning' rule.

Although, that rule no longer commands absolute allegiance, even today we think that the language of a statute must remain the most secured evidence of the legislative intent.

As Justice Jackson stated, it is the business of Congress to sum up its own debates in its legislation and where Congress is unable to do so clearly --

Justice Potter Stewart: Mr. Farr can I interrupt, supposing a man was indicted for violating 924 (c)(2) carrying a firearm, could he for the same transaction also be indicted for violating 924 (c)(1)?

Mr. H. Bartow Farr Iii: That is the situation that came up in the Crew case Your Honor and the Fourth Circuit held he could not.

Justice Potter Stewart: Well, would you think that decision is right?

Mr. H. Bartow Farr Iii: I think in terms of whether he could be indicted, it perhaps may not be right, but I think he could not properly be convicted and consecutively sentenced for both the violation of (c)(1) and (c)(2).

I think it might be permissible indictments so that you can see what do show --

Justice Potter Stewart: But don't those two Sections have an element, the other does not?

One, he has to carry it and other he has to use it and I suppose you could use it without carrying it?

If you give someone else orders to shoot or something like that?

Mr. H. Bartow Farr Iii: Well, I think that even if that were true that there is no evidence that Congress intended in fact to get at the situation where you are carrying one yourself and also --

Justice Potter Stewart: But what other than the lateral language of the statute, I mean, then you are not relying on the lateral language, what evidence is that the Congress intended to get a 2113 (d)?

Mr. H. Bartow Farr Iii: Well, I think we are not necessarily relying, we are not suggesting that you could rely only on the language of 924 (c) in order to support this.

In fact, we agree that one of the situations which Congressman Poff posed which would be other offenses set forth under Gun Control Act of 1968 itself, might be situations in which the Congressional intent was really not to impose punishment for 924 (c) and perhaps purchasing a gun.

In other words, offenses that cannot be committed without a gun in the first place. However, we do not reach at that conclusion by reliance on what Congressman Poff said directly, but by the fact that what it seems to lead if somewhat awkward result to the fact that it does seem to go beyond the Congressional purpose in this case which is to attach some additional penalty.

So we are doing it really by a construction of the statute in light of its overall purpose and the evils of which it was directed not simply by relying on one's statement by the sponsor's of the Bill.

Justice Thurgood Marshall: Is there any place to show how many bank robberies are made with non lethal weapons?

Mr. H. Bartow Farr Iii: I do not have any statistics on that.

Justice Thurgood Marshall: Have you ever heard of them?

Mr. H. Bartow Farr Iii: Well, I think its possible to, you say non lethal weapons meaning not a firearm?

Justice Thurgood Marshall: Non lethal -- not those mentioned in this statute, pin it down?

Mr. H. Bartow Farr Iii: In that by 924 (c).

Well, I think that there probably are some bank robberies that are committed with knives or with some sort of blunt instruments, but I would think the majority of them would be committed with a firearm, but I also should point out the thing --

Justice Thurgood Marshall: How does that cut the --

Mr. H. Bartow Farr Iii: Pardon me?

Justice Thurgood Marshall: Does that help or hurt you?

Mr. H. Bartow Farr Iii: As far as I concerned it is, it does not necessarily make any difference, it seems to me that --

Justice Thurgood Marshall: In fact the Congress meant to put an additional penalty on robberies that were normally going on?

Mr. H. Bartow Farr Iii: I think Congress meant --

Justice Thurgood Marshall: They could have just changed the statute?

Mr. H. Bartow Farr Iii: I think Congress meant to put an additional penalty on any crime that was committed with a firearm.

Justice Thurgood Marshall: Well, then it seems to me that if they wanted to put it on the bank robbery, they could have raised it, could they not?

Mr. H. Bartow Farr Iii: They could in fact have done that.

They could have gone through the United States Code and added an additional penalty to every single offense that was in it.

Justice Thurgood Marshall: In term of bank robbery?

Mr. H. Bartow Farr Iii: They could have done it with bank robbery and they could have done with any other offense.

What they did instead and our belief is that it passed a single statute that applied to any felony, and therefore, just did it in one piece of legislation rather than numerous pieces, but they could have done the way you have suggested, I agree.

Returning for a moment to discussion of the 'plain meaning' rule, I was about to suggest that where Congress has not been able to state its meaning clearly in a statute, but whereby reading the statute in connection with the Congressional purpose, it obviously leads to awkward results, or indeed where the subject to the legislation is so complex that Congress cannot reasonably foresee and provide for all matters that will ultimately arise, some relaxation of the 'plain meaning' rule was inevitably necessary.

Justice Thurgood Marshall: Then I suggest that can he as “is not awkward,” this is more than an awkward result, this is 10 years of the man's life?

Mr. H. Bartow Farr Iii: Well, I am not suggesting that this is an awkward result Mr. Justice Marshall.

I think that in this particular case that the Congress is aiming to impose what is not an awkward result, but a reasonable result on people who use guns to commit crimes.

Where however as we believe it is true in this case, the objects of the legislation are not complex the language is straightforward and the results of adherence to the language of the statute, or equally as reasonable if not more so than the results of departure from it, then it seems that the Court should exercise great caution when it proceeds past the language of the statute to the legislative history, and therefore, we believe it is very important to examine carefully the legislative history, essentially Congressman Poff's statement, the petitioners in this case find so compelling and to give it a proper place in the context, the passage of the Gun Control Act of 1968.

This perhaps will direct more to Mr. Justice Marshall's question about what Congress intended to do in these situations.

We think its first appropriate in doing that to examine the purpose of the Gun Control Act itself.

In this context, there can be a little doubt that about the evils which prompted enactment of the Gun Control Act, the problem simply put was guns.

The Presidential Commission report published in February 1967, and considered by Congress in connection with the passage of several bills had set forth alarming figures on the use of guns to commit crimes.

Figures that had worsened by the end of that year.

For example the House Report on the Gun Control Act show that in the 13 months ending in September 1967, 50,000 people had been murdered or assaulted with guns and similar the number of robberies including bank robberies with guns had taken place.

The Senate Report using figures for all of the 1967 showed over 60,000 murders and assaults and over 70,000 robberies all committed with guns, an average of 150 armed assaults and 190 armed robberies each day.

The House Report accompanying its version of the Gun Control Bill stated plainly that no civilized society can ignore the malignancy, which this senseless slaughter reflects.

You might also note that this concern was not confined to the Congress itself.

The assassinations of Robert Kennedy and of Martin Luther King had mobilized public support for greater controls on firearms as well.

Indeed Senator Davidson (Ph) indicated that in one month alone he received over 100,000 letters favoring gun registration.

The overriding purpose of the Act therefore was to take strong majors to inhibit the use of firearms in serious crimes and those majors took two principle forms.

First, greater federal controls over the sale and shipment of guns, provisions that are not an issue in this case.

Unknown Speaker: Mr. Farr, can I just interrupt with another question?

Mr. H. Bartow Farr Iii: Yes, Mr. Justice.

Unknown Speaker: What would you describe as the purpose of Section 2113 (d)?

Mr. H. Bartow Farr Iii: I would think that the purpose of 2113 (d) is to deter bank robbers from using dangerous weapons in connection with that, not only bank robbers, but people committing any crime under 2113 (a) and (b) which includes larceny and attempts to commit crime.

Unknown Speaker: But to the extent that the most commonly used dangerous weapon in bank robberies is gun, the purpose is identical then, is it not?

Mr. H. Bartow Farr Iii: Well, I think the purpose is identical if you assume that there is no purpose to add increased deterrence to something true and I think that the statistics show that the most commonly used weapon to commit murder is also a gun, but this I do not think anybody would dispute that because the statute would also add a penalty to that crime, that it should be read not to include coverage of murder.

The second measure that the Congress used to attack, increase crime by use of guns was simply increasing the penalties for the use of the firearms in serious crimes.

We do think it is significant. Every Court of Appeals that has placed principle emphasis on the language in purpose of Section 924 (c) has concluded that it is available to convict and punish bank robbers also subject to punishment under Section 2113 (d).

In addition to the Sixth Circuit in this case, the Second Circuit, Fourth Circuit, and Fifth Circuit have so decided.

Unknown Speaker: Mr. Farr, undoubtedly, perhaps as in this case or perhaps not, there will be instances where the facts of the crime, where the facts necessary to prove the crime under 2113 will be the identical facts which would be used to prove the crime under 924 (c) to use a gun to rob a bank and put somebody's life in jeopardy, you are going to violate both Sections?

Mr. H. Bartow Farr Iii: That is correct and in fact this is a --

Unknown Speaker: And so that in the particular instance you do not have to prove any different facts to violate one Section as compared with the other?

Mr. H. Bartow Farr Iii: That is correct, but I think that, that is coincidental rather than something that derives directly from the requirements of the statute itself.

Unknown Speaker: It may be, but how about double jeopardy?

Mr. H. Bartow Farr Iii: Well, I think that the court said in Iannelli, if each statute requires a different element and the other does.

Unknown Speaker: Well, it does in this case.

Mr. H. Bartow Farr Iii: The statute does, the statute requires proof of different elements --

Unknown Speaker: Not in this case to violate the statute, you do not have to prove any different facts.

Mr. H. Bartow Farr Iii: Well, it seems to me that in order to prove, you have to prove certain different facts --

Unknown Speaker: In other instances there --

Mr. H. Bartow Farr Iii: In order to prove a violation of the statute.

The fact that you are able to prove them by the same evidence, does not seem to me to put you on double jeopardy.

Unknown Speaker: But you just do not have to prove any different facts in a situation that I posed to you.

In other instances you will have a crime under one that is in the crime on to the other, but in this instance the same facts prove a violation of both statutes?

Mr. H. Bartow Farr Iii: Well, as I said it seems to me that, that there are situations.

We are not suggesting that they will not be situations where the proof does not overlap, but it does not seem to me that that it was --

Unknown Speaker: Do they overlap in this case?

Mr. H. Bartow Farr Iii: The proof does overlap in this case.

There is no question about that.

These people took a gun.

The petitioners brought guns into the bank, used to them to assault people while they were robbing the bank.

Unknown Speaker: And you think is it enough Mr. Farr to put a man, a person's life in jeopardy in robbing a bank to point the gun at somebody.

Just as you say, if you have used the gun to commit the bank robbery have you put a person's life in jeopardy?

Mr. H. Bartow Farr Iii: Well, it seems to me, if you are using the gun, if you are directing the gun at people, yes.

I do not think that it is absolutely sensible.

Unknown Speaker: Well, how do you use it otherwise?

Chief Justice Warren E. Burger: What other purpose does the bank robber have, having the gun, except --?

Mr. H. Bartow Farr Iii: Oh! Assuming there are several --

Chief Justice Warren E. Burger: Make people believe that their lives are in jeopardy?

Mr. H. Bartow Farr Iii: I assume that there are several reasons that he could be carrying a gun, whether he is going to use it or not.

Chief Justice Warren E. Burger: I asked you about using it?

Mr. H. Bartow Farr Iii: In connection with using it, I suppose it is possible for him to use a gun for instance to shoot open the door of the bank to break the glass.

Chief Justice Warren E. Burger: Well, does not he use it when he carries it in his hand, walking in the bank, is he not using it for the bank robbery?

Mr. H. Bartow Farr Iii: In that case, certainly --

Chief Justice Warren E. Burger: He does not have to pull the trigger -

Mr. H. Bartow Farr Iii: My understanding of Justice White's question is that there are possible cases in which he could be carrying it and in which he would be not using it.

Chief Justice Warren E. Burger: But how could he carry it without using it?

Mr. H. Bartow Farr Iii: Well, to begin he could carry it in this pocket, but that would violation of Section (c)(2) not (c)(1).

Unknown Speaker: Well, I am just suggesting to you that even on the language of the statute it is plain that there will be all sorts of instances where the proof is identical?

Mr. H. Bartow Farr Iii: I think that is correct.

I think that there will be numerous instances in which the proof is identical.

Well, in fact there will be instances in which the proof is not identical.

Unknown Speaker: Let me ask you this, in a charge of violation of 2113(d), where the dangerous weapon or device is a firearm, loaded always inevitably, universally also include the same identical proof as necessary to prove the violation of 18 U.S.C., 924(c)(1) always, inevitably and universally?

Mr. H. Bartow Farr Iii: I think in the majority of cases it will.

I am not sure that --

Unknown Speaker: When possibly could it not?

When the (Voice Overlap)

Mr. H. Bartow Farr Iii: What seems to me is possible to use a gun in attempting to commit for instance a crime under the part of 2113 (a) which requires --

Unknown Speaker: Requires more than just use of the gun, but it always does require use of the gun?

Mr. H. Bartow Farr Iii: It does require use of the gun.

Unknown Speaker: And requires use plus other things and 924 (c)(1) requires use?

Mr. H. Bartow Farr Iii: However, it requires use of the gun in a bank robbery.

Unknown Speaker: Yes, as I say use of a gun plus other elements.

Mr. H. Bartow Farr Iii: Possibly, that is right.

Unknown Speaker: But use of the gun as a single element in 924 (c)(1)?

Mr. H. Bartow Farr Iii: That is right, but of course 21 --

Unknown Speaker: So that evidence will always going to include it?

Mr. H. Bartow Farr Iii: Well, if the statute said, if 2113 (d) said, whoever puts anybody's life in jeopardy by the use of a firearm --

Unknown Speaker: Well, I say whenever the weapon is a firearm?

Mr. H. Bartow Farr Iii: That in fact would be a different case --

Unknown Speaker: Always going to do it --

Mr. H. Bartow Farr Iii: But the statute of course does not --

Unknown Speaker: Inevitably and universally?

Mr. H. Bartow Farr Iii: Right.

Justice Thurgood Marshall: What about the argument that had made that Congress could now pay us one and said if you use an automatic, it's a third one?

Mr. H. Bartow Farr Iii: It does not seem to me that if Congress is able to pass the statute where the terms of the statute require proof of different elements it seems to me that they are permitted to do that under the Double Jeopardy Clause.

It does not strike me that the statute is positing – no, it does not.

Justice Thurgood Marshall: It goes on and on.

Mr. H. Bartow Farr Iii: It does not strike me that the statute here positing would in fact, it would be a different element in terms of that statute would have an additional element that the 924 (c) does, but not sure what 924 (c) would have.

Justice Thurgood Marshall: That it was an automatic?

Mr. H. Bartow Farr Iii: That it was an automatic.

Justice Thurgood Marshall: I suppose as it is in working condition, it says the gun that is in working condition?

Mr. H. Bartow Farr Iii: That would be an additional requirement that 924 (c) does not have, but that statute does not have --

Justice Thurgood Marshall: But suppose it says that the person assumed it was loaded?

Mr. H. Bartow Farr Iii: Which person assumed that it was loaded?

Justice Thurgood Marshall: The people in the bank?

Mr. H. Bartow Farr Iii: Well, in other words you can keep on spinning examples Mr. Justice Marshall.

It will add elements --

Justice Thurgood Marshall: Well, as for me --

Mr. H. Bartow Farr Iii: To a particular crime.

Justice Thurgood Marshall: What I am trying to tell you that I want to spin with the first one?

Mr. H. Bartow Farr Iii: But the fact is, that the fact that crime contains an element that the first crime did not, does not meant that the reverse is true --

Justice Thurgood Marshall: But what am I trying to exercise is --

Mr. H. Bartow Farr Iii: And that is what the double jeopardy clause is --

Justice Thurgood Marshall: That in this one it is identical.

Mr. H. Bartow Farr Iii: It is identical if 2113 (d) said, if 2113 (d) required that the weapon be a firearm it seems to me it would be a different case.

The fact that it may be a firearm --

Justice Byron R. White: But in this case it ism there was a firearm so you do not have to theorize --

Mr. H. Bartow Farr Iii: In this case it was.

Justice Byron R. White: Where the weapon or device used under 2113 (d) is a firearm, proof of the violation inevitably includes the single element of 924 (c)(1)?

Mr. H. Bartow Farr Iii: That is correct, but I do not --

Unknown Speaker: 924 (c) will.

Justice Byron R. White: Probably.

Mr. H. Bartow Farr Iii: Well, except to that has to be carried unlawfully, so it is not necessarily true, but it seems to me --

Unknown Speaker: And if you prove that a robbery of the bank? If that is unlawful, I do not know what it is.

Mr. H. Bartow Farr Iii: I am not sure that makes to carrying of the firearm.

Chief Justice Warren E. Burger: Does it mean to imply that if he had a license for the firearm, that would give him some immunity nothing under that one Section?

Mr. H. Bartow Farr Iii: That would certainly remove one of the possible ways in which the carrying would be unlawful.

Chief Justice Warren E. Burger: That is what Mr. Justice White suggests, if he is carrying a gun in a bank in the course of a bank robbery, does not the unlawful aspect change everything?

Mr. H. Bartow Farr Iii: Well, I think that is part of what we are trying to find out in this case.

Unknown Speaker: There is something that you have not answered Mr. Justice Stewart yet why that (c)(1) would not be included in the bank robbery crime and anytime it is a gun that he uses?

Mr. H. Bartow Farr Iii: Well, anytime that it is a gun, I mean, if you take a situation and posit all the facts to being identical or even posit some of them as being identical, you can make the statute is dovetail. The fact is that the statutes do not have to dovetail.

It seems to me the question that Congress is entitled to define crimes differently and still remain flexible under the Double Jeopardy Clause, even though the elements of proof may substantially overlap and in fact it seems that the Court said that in Iannelli.

Unknown Speaker: Mr. Farr could I ask it from the other point of view?

Mr. H. Bartow Farr Iii: Yes, Mr. Justice --

Unknown Speaker: You stress the fact that use of a firearm is an element in 924 (c), putting life in jeopardy is the element in 2113 (d).

The elements are different, therefore, even though the Act is the same, there are two different offenses, but is it possible that one could use a firearm and that fact be brought before the jury and that, that fact itself is sufficient proof of putting a life in jeopardy so there really is no difference between the two elements?

Would it not be a sufficient, an instruction of the jury on the issue of when does the man's life is put, when is someone's life is put in jeopardy, would the judge not be correct in instructing a jury that merely evidence showing that a firearm has been used is sufficient to establish that kind of jeopardy that 2113 (d) (Voice Overlap)?

Mr. H. Bartow Farr Iii: I do not think necessarily, I do not think that the fact --

Unknown Speaker: You do not think that during the commission of a bank robbery?

Mr. H. Bartow Farr Iii: Well, it depends, I mean, it depends on what the facts of the robbery were.

Unknown Speaker: You do not think that you have to fire the firearm, do you?

Mr. H. Bartow Farr Iii: Pardon me?

Unknown Speaker: You are contending a 2113 (d) requires the firearm to be fired?

Mr. H. Bartow Farr Iii: No, we are not contending that.

Unknown Speaker: Just has to be used during the --?

Mr. H. Bartow Farr Iii: That is correct, but it does --

Unknown Speaker: To put someone's life in jeopardy and as soon as it is used someone's life is in jeopardy and also you have established the element in 924 (c)?

Mr. H. Bartow Farr Iii: Again, I think in most cases that will be true, but I do not think that it is --

Unknown Speaker: But when would it not be true?

That you use a firearm in a bank robbery without putting anyone's life in jeopardy within the meaning of that --?

Mr. H. Bartow Farr Iii: What seems to me if you have to use -- what is perhaps a strange example, but I think one is legitimate under the facts if he used a firearm to shoot open the door to a bank and broke in and (Voice Overlap)

Unknown Speaker: And you do not think evidence of that could be taken as sufficient to show jeopardy to life?

Mr. H. Bartow Farr Iii: Not, if there was nobody in the bank, no.

Chief Justice Warren E. Burger: A Blockburger case was not double jeopardy case, was it?

Mr. H. Bartow Farr Iii: The Blockburger case was not a double jeopardy case.

Chief Justice Warren E. Burger: But it has been used in subsequent double jeopardy --

Mr. H. Bartow Farr Iii: But it seems to me for instance in Gore (ph) that it was used, clearly they used the same sort of arguments to deal with it in a double jeopardy context in Brown v. Ohio last year.

It seems to me the court quite finally stated that that was the test, but I think in speaking of Gore (Ph), it seems to me that that provides a different way of looking at the statute.

It seems to me that the Congress is free in defining crimes and fixing punishments to pass the statute that says if you rob a bank, you face a maximum penalty of 20 years.

If you use a dangerous in the course of that 25 years, and if that weapon is a gun 35 years is the maximum penalty, and it does not seem to me that the effects of this statute are necessarily any different than that one.

Justice Potter Stewart: What about this communication we were told about from the Justice Department to the US attorney?

Mr. H. Bartow Farr Iii: Mr. Justice Stewart, I am unaware of that letter and we did not get a copy of it from petitioners and --

Justice Potter Stewart: Have you been supplied with a copy of it?

Mr. H. Bartow Farr Iii: I am sorry.

Justice Potter Stewart: As a member of the court, you have been supplied with copies of it?

Mr. H. Bartow Farr Iii: No, no.

Justice Potter Stewart: As soon when counsel referred to that that it was something that had been made available, if not, it certainly should be if any reliance is placed on it?

Mr. H. Bartow Farr Iii: It is something that has not been made available to me and I understand from what petitioners’ counsel said this afternoon about it, that it is a policy statement by the Department of Justice which --

Justice Potter Stewart: You might be interested in seeing if it, or either seeing it or having forget that there is no such thing?

Mr. H. Bartow Farr Iii: And I will, if I can have a copy of it from petitioners’ counsel, if tell me, I will track it down and I will find out what it involves and report to the court.

Justice Potter Stewart: And you will make it available?

Mr. H. Bartow Farr Iii: I would like to point out before the questioning started a few moments ago I was discussing the figures that were in front of Congress showing the increasing number of crimes committed with guns and I pointed out in the course of that that among the most serious figures which Congress specifically included in its reports, were figures relating to armed robberies and aggravated assaults.

Now, where Congressman Poff's statements about the scope of Section 924 (c) allowed to override the language of the statute, in fact the Congressional solution to the problem they perceive would be much narrower than the problem that it addressed.

If the Court --

Unknown Speaker: Mr. Farr can I ask, I am sorry to keep interrupting, the figures relate to crimes like armed robbery and assault, the statute relates to use of a firearm in a felony for which you can be prosecute in a federal court.

Mr. H. Bartow Farr Iii: That is correct.

Unknown Speaker: Now, are most of these armed robberies and assaults federal offense?

Mr. H. Bartow Farr Iii: I would think that most of them, that this includes federal and state offenses and I would think that --

Unknown Speaker: So most of those figures really are not relevant to what the element of statute came --

Mr. H. Bartow Farr Iii: I do not think the figures in terms of their absolute numbers are necessarily allow them.

Unknown Speaker: Do the figures tell us how many of those assaults were in violation of federal law?

Mr. H. Bartow Farr Iii: The figures do not no, but what the figures do do is indicate that there is a substantial problem with which Congress was concerned and that dealt with a state problem and the federal problem with the licensing requirements, but obviously it did not feel that that was sufficient to take care of all the crimes because it did add a Section 924 (c) that applies to federal crimes alone.

So we are not suggesting that it will effect every crime, but that the problem was both state and the federal and Congress recognized it.

Justice Thurgood Marshall: It did not show that there was an increase in bank robberies with guns?

Mr. H. Bartow Farr Iii: The figures specifically did not, no, but Congressman Poff --

Justice Thurgood Marshall: That is what we are talking about?

Mr. H. Bartow Farr Iii: Well, we are talking about that in this particular case, but Congressman Poff in fact fact was talking about something more than that, because he said that his statute would not only be inapplicable to the bank robberies under Section 2113, but certain other robberies, including armed robberies of the mails and also to virtually all armed assaults under all of the federal assault statutes.

So that in order to accept his version of 924 (c) you would have to believe that though Congress was very concerned about the rise in crimes, including armed robberies and armed assaults, that it deliberately enacted legislation which would not apply to federal armed robberies, most of them or some, at least bank robberies and mail robberies or federal assault which does not strike me as making much sense.

We have also pointed out in our brief that the other amendments introduced on this subject do not make any such distinction between felonies that already have a penalty for use of a dangerous weapon put into them in the House Congressman Casey had introduced an amendment, putting substantial additional penalties on persons who used a gun during certain federal crimes, including robbery and assault.

So far from exempting bank robberies and armed assaults, the Casey Amendments specifically included them.

In the Senate, Senator Dominick introduced a bill which impose similar penalties for use of guns in any federal crime of violence and that was defined specifically to include assault with a dangerous weapon and robbery and Senator Dominick was fully aware that there were statutes which already provided increased penalties such as 2113 (d) and said that his amendment was not intended to detract form or repeal those provisions, but would be available to prosecutors, in addition to them for stronger penalties if they so desire.

Now, the Casey Amendment was replaced by the Poff Bill and then in conference committee, the Poff Amendment was used rather than the Dominick Amendment, but there is no indication anywhere that the House and Senate as a whole or the conference committee of which Congressman Poff incidentally was not a member deliberately endorsed an effort to immunize serious federal crimes, certain serious federal crimes and the remedy set forth in that Act.

In fact, given the overall purpose of the Gun Control Act and given the apparent common understanding of the Poff Amendment and the alternatives in the House and Senate, it is difficult to conceive a language that would express more clearly an intent, restraint for the laws relating to the use of guns in all federal felonies.

Unknown Speaker: Would not Congressional purpose in the Gun Control Act with respect to bank robberies or with respect to 2113 have been satisfied if the indictment had simply been under 2113 (a) and then 18, 924 (c)?

Mr. H. Bartow Farr Iii: Well, some of it. If you assume that the purpose of Congress was to put a special --

Unknown Speaker: If it was to put a special penalty on for committing felonies with gun that would have --

Mr. H. Bartow Farr Iii: If it is to put a special penalty on that perhaps would suffice to put an additional and special penalty for.

Unknown Speaker: And that will allow the 30 years instead of 25?

Mr. H. Bartow Farr Iii: In that particular case that is true.

However, there are other statutes where it does not work out so cleanly.

As we have indicated in other statutes even within 2113 (d), the governing felony statute, the larceny statute would provide for much lower penalty than 20 years which is the 2113 (a), so by adding on the additional penalty, you do not really get up to the same place that you would under 2113 (d).

Chief Justice Warren E. Burger: You time is expired now Mr. Farr.

Mr. H. Bartow Farr Iii: Thank you Mr. Chief Justice.

No further questions?

Chief Justice Warren E. Burger: Do you have anything further Mr. Willmott?

Rebuttal of Robert W. Willmott Jr.

Mr. Robert W. Willmott Jr.: Mr. Chief Justice, I would like to make one final comment in response to Mr. Justice Stewart's comments and I think that anytime a firearm is used to commit a bank robbery that you automatically have the conditions of 924 (c)(1) and 2113 (d) satisfied, but that anytime a weapon other than a firearm is used you cannot get a conviction under 924 (c)(1) and I would be most happy to make copies of the United States Department of Justice's letter wherein they have referred to United State's Attorney Bulletin 519, number 3, February 05, 1971, available to Mr. Farr.

Chief Justice Warren E. Burger: Make it available to your friend and he will see it to it that we get that and anything that may occur directly on it?

Unknown Speaker: But what is the date of the letter?

Mr. Robert W. Willmott Jr.: The date of the letter is January 13, 1972, and refers to the United States --

Unknown Speaker: Is the same Bulletin extent now?

Mr. Robert W. Willmott Jr.: Well --

Unknown Speaker: In the same manual, the same manual as --

Mr. Robert W. Willmott Jr.: I received this letter through my co-counsel in Lexington and the letter itself refers to United States Attorney Bulletin 519, number 3, February.

I have just received this last week before coming up here.

Chief Justice Warren E. Burger: That is the reason for my suggesting you give it to Mr. Farr because there may be other methods that relate to it and to explain it.

Mr. Robert W. Willmott Jr.: Yes, Your Honor.

Thank you.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.