BUSIC v. UNITED STATES

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Argument of Gerald Goldman

Chief Justice Warren E. Burger: We'll hear arguments next in Busic against the United States and LaRocca against the United States, consolidated.

Mr. Goldman, you may proceed whenever you're ready.

Mr. Gerald Goldman: Thank you.

Mr. Chief Justice and may it please the Court.

Petitioner Anthony LaRocca was convicted and sentenced consecutively under the enhanced penalty provisions of two federal statutes for the identical use of a firearm.

Two counts alleged that he had assaulted federal officers with a pistol in violation of Section 111 of Title XVIII, while another count charged that he used the same pistol to commit these same felonies in violation of Section 924 (c) (1).

Petitioner challenges the Section 924 (c) conviction and sentence.

In punishing assaults on federal officers, Section 111 has long provided an augmented penalty if a firearm is used to accomplish the assault.

The issue presented here is this.

When Congress adopted Section 924 (c) in 1968 to provide an enhanced penalty generally for the use of a firearm in the commission of a federal felony, did it intend to duplicate the coverage of Section 111?

Frankly, it's surprising that it's necessary to bring this issue to this Court.

Indeed, adopting petitioner's construction of the statute, the Justice Department in 1971 advised all U.S. attorneys not to prosecute defendants under Section 924 (c) where one of the pre-existing enhanced penalty statutes already applied.

Chief Justice Warren E. Burger: Is that a matter of policy on the part of the department?

Mr. Gerald Goldman: I believe the department was acting on the basis of the very principles of interpretation that guided this Court to come to the same exact conclusion in Simpson against the United States, in particular, the rule on specificity that calls for a more specific criminal statute to govern to the exclusion of a more general statute.

And in addition, in the following year 1972, in a letter to the U.S. Attorney for Baltimore, the department again reiterated the same position and also said, “We adopt the statement of Representative Poff as government policy.”

Representative Poff's statement was precisely on point.

He said his -- his proposal was not intended to apply to the preexisting statutes in as much as they already serve to deter the use of firearms.

Now, the Government of course could change its views on a question like this, but not in this case.

Justice John Paul Stevens: Mr. Goldman, would you also contend that if you -- if LaRocca had not used the gun, but had merely carried it and therefore, there could not have been enhancement under 111 that he could -- there could've been enhancement under 924 (c) (2)?

Mr. Gerald Goldman: Well, Mr. Justice Stevens that is the question that is presented in the companion case, Mr. Busic's case.

Mr. Busic was charged under Section 924 (c) (2).

Justice John Paul Stevens: I understand -- I understand but your -- you said if I understood you correctly, I want to understand if this is your position that if there is a -- an alleged violation of a statute which carries an enhancement provision as 111 does, then 924 (c) in its entirety is simply inapplicable.

Mr. Gerald Goldman: Well, our position, it suffices for our case merely to call attention to the overlap between the preexisting statutes in Section 924 (c) (1).

Our position is that Simpson and the tools of construction relied on there vitiate a conviction under 924 (c) (1) quite clearly.

There is then a separate question whether Simpson and the principles on which it relies also vitiate a conviction under Section 924 (c) (2).

The Court could conclude in the negative with respect to that question that that would in no way diminish the force of Mr. LaRocca's petition.

Justice John Paul Stevens: Why do you suppose Congress would deliberately select a lesser enhancement for a -- a felony described in 111 than in other felonies?

That's your position, isn't it?

Mr. Gerald Goldman: Well, our position is that the preexisting enhanced penalty statutes establish an array of punishments, some more some less than Section 924 (c) and that in enacting 924 (c), Congress chose not to deal with how to reconcile these -- these provisions.

Congress chose rather to extend coverage to felonies that were not already subject to an augmented penalty if a firearm is used.

That's precisely what Representative Poff stated and furthermore --

Justice John Paul Stevens: I understand, if you take his statement literally, then even if there is a -- the gun being used, you couldn't even use 924 (c) (2), I mean, a gun that's being carried but not used?

Mr. Gerald Goldman: Yes.

I think his -- his statement is subject to that interpretation, but at a minimum, he must have meant that if for instance Section 111 applies, then his proposal was not intended to duplicate that coverage.

Justice John Paul Stevens: Well, the minimum of course wouldn't be that if the enhancement provision 111 applies, there shall be no other enhancement.

That would be the real minimum.

Now, you say that's not right, I know but that's also a permissible reading.

Mr. Gerald Goldman: Our -- our minimum position is that if Section 111 applies --

Justice John Paul Stevens: I understand.

Mr. Gerald Goldman: -- 924 (c) does not apply.

Justice John Paul Stevens: I'm saying that minimum permissible reading of what Congressman Poff said was that if the enhancement provision of 111 applies, there should be no other enhancement.

One could also read his statement that way.

Mr. Gerald Goldman: One could read his state -- but the precise words he used were as follows, "My proposal is not intended to apply to Sections 111, 112, 113 of Title XVIII which already define the penalties for the use of a firearm.”

In our case, it precisely involves the use of a firearm, not to carrying but the use.

Furthermore, this statement is entitled, I believe, to great weight.

It was expressly made for the sake of legislative history at the time the amendment was introduced.

Furthermore, it went uncontradicted except for Senator Dominick whose own amendment failed at enactment, no one suggested a different interaction to govern among these provisions.

Chief Justice Warren E. Burger: That's not surprising on the floor debate, is it --

Mr. Gerald Goldman: Well, this was the only source, Mr. Chief Justice, of legislative history.

Any congressman who wished to determine the scope of this provision had to look only to Representative Poff's statement.

Justice William H. Rehnquist: Well, we -- he would look first I would think to the statute itself, wouldn't he?

Mr. Gerald Goldman: Yes, he would but he would also, I presume, look at the discussion when the amendment was introduced.

Justice William H. Rehnquist: If -- if there were ambiguity, your -- in -- uncertainty as to what it meant (Voice Overlap).

Mr. Gerald Goldman: Well, there's no question that there is ambiguity in this statute.

That has to be the necessary conclusion from this Court's decision in Simpson.

At the very least, the parties are -- agree that Simpson holds that 924 (c) does not apply to a violation of an enhancement provision as in the bank robbery statute or as in Section 111.

To that extent, it's agreed that 924 (c) has exceptions.

That is established by Simpson.

Now, what seems very convincing to us is that the Justice Department itself when it first analyzed this statute, focused exactly on Representative Poff's statement and said, “We adopt this as official policy.”

At the very, very least, that must indicate an ambiguity in this situation that under the rule of lenity it must be resolved in the defendant's favor.

That's not all that we have here.

We also have the principle that calls for a more specific criminal statute to govern where two statutes addressed the same concern.

The Court has already analyzed these various considerations and weighed them carefully and come to a conclusion.

It did that in Simpson against United States.

In Simpson, the petitioners attacked sentences under the enhancement provisions of both the bank robbery statute and Section 924 (c), but contrary to the suggestion that the Government is trying to make that Simpson merely forbids double enhancement, the petitioners there weren't arguing simply against double enhancement.

They maintained instead that 924 (c) does not apply at all where its purpose is already served by a preexisting statute that it -- that is designed to deter the use of firearms.

Accordingly, those petitioners asked to have their Section 924 (c) convictions vacated even though the heaviest sentences they received had been imposed under the enhancement paragraph of the bank robbery statute.

And the Court responded by concluding, "Congress cannot be said to have authorized the imposition of the additional penalty of Section 924 (c) for commission of bank robbery with firearms already subject to enhanced punishment."

In fact, the Court went beyond that.

The Court specifically endorsed the Justice Department's original interpretation of this provision.

Furthermore, the reasoning of this Court in Simpson leaves no room for doubt about the true import of that decision.

The Court there found the legislative history instructive not merely because it indicated a congressional version to a cumulative punishment, but because it underlined the limited scope of the provision.

They adopt --

Justice Byron R. White: Was the -- was the 924 conviction vacated in Simpson?

Mr. Gerald Goldman: Yes it was on remand.

The Court remanded the case.

Justice Byron R. White: Well, how about here, did we order it?

Mr. Gerald Goldman: No, the Court ordered that case be remanded for further proceedings in accordance with the opinion.

The opinion specifically concluded that 924 (c) should not apply and that relief was awarded by the lower courts on remand.

Justice Byron R. White: Well, you said that -- you say we -- we held that -- that there can be no conviction under 924 (c) and also 111?

Mr. Gerald Goldman: Yes and the reason for that -- the way I would put it is, the Court held that there could not be sentences under both provisions because 924 (c) did not apply where the statutes overlap.

Justice John Paul Stevens: But Mr. Goldman --

Justice Byron R. White: And so you -- you think that means that that we held that he could not be convicted under -- a defendant couldn't be convicted under both?

Mr. Gerald Goldman: Exactly.

Justice John Paul Stevens: Then shouldn't our disposition have been to vacate the sentence under 924 (c) instead of sending it back and letting the lower courts take their choice?

Mr. Gerald Goldman: Well I don't believe the lower courts really had a choice because the Court instructed that there be further proceedings in accordance with the opinion and the opinion specifically endorsed the Justice Department's position that 924 (c) doesn't apply because of the rule of specificity.

Justice John Paul Stevens: No, but the mandate did not direct that the 924(c) --

Mr. Gerald Goldman: That -- that is literally so, yes.

Justice John Paul Stevens: Yes.

Justice Byron R. White: If you say Simpson held that there -- that the Government could not have convicted under 924 (c) alone?

Mr. Gerald Goldman: Yes, that is our position.

Justice Byron R. White: What -- that's what you think the -- Simpson held that?

Mr. Gerald Goldman: Yes.

Justice Byron R. White: That if you're going to -- if you're going to attempt to get enhancement at -- at all in a bank robbery case, you must proceed under 111?

Mr. Gerald Goldman: That's correct.

I'm sorry, in a -- in a assault case.

Justice Byron R. White: In assault case, yes.

Mr. Gerald Goldman: But the same principle would be also true for the bank robbery.

Justice Byron R. White: So that you -- you may -- you -- you have no choice -- the Government has no choice to proceed under 924 alone?

Mr. Gerald Goldman: That's correct.

Justice Byron R. White: And I -- I think that -- do you think that's essential in -- that position is essential to -- for you to win here?

Mr. Gerald Goldman: Yes and we also maintain that the rationale of Simpson permits no other no other -- no other conclusion.

The adoption of the Poff amendment said by its author not to apply to preexisting enhancement statutes and the rejection of the Dominick Amendment said by its author to apply to these statutes, persuaded the Court that Congress meant to confine 924 (c) to felonies that were not already subject to an enhanced penalty for firearm was used in their commission.

Even more pointedly, the Court's invocation of the rule that dictates that the more specific criminal statute governs, it leaves no choice about this matter.

That principle could only have been invoked to dictate that 924 (c) gave way to the bank robbery statute.

Logically, there was no other way of -- of invoking that principle.

Now, considerations of stare decisis ought to weigh very heavily in this area.

Not only is this a question purely of statutory interpretation, but Congress at this very moment has under act of consideration, legislation directly on point.

In proposing bills to recodify Title XVIII, both the House and the Senate have suggested provisions that would unify and rationalize the entire field of enhanced penalties to deter the use of firearms.

Both statu -- both proposed statutes would bring together in one section all preexisting provisions and furthermore would've proposed penalties much more in line with Section 111 than with Section 924 (c).

Chief Justice Warren E. Burger: Are these -- are these parts of the criminal code revision or independent of the criminal code revision?

Mr. Gerald Goldman: These are the pending bills to recodify it, yes.

Chief Justice Warren E. Burger: The -- the package.

Mr. Gerald Goldman: Yes.

Justice William H. Rehnquist: Do you make anything of Congressman Poff's vote against the conference report in your interpretation of legislative history?

Mr. Gerald Goldman: We don't believe that that vote undercuts his initial explanation in any way, no.

Justice William H. Rehnquist: The explanation of why he voted against it?

Mr. Gerald Goldman: That's correct.

I don't believe there's any ambiguity in his introductory explanation that makes it necessary to look at later events to decipher what he meant.

The interesting thing is that the action actually taken by the Conference Committee cuts just the other way.

It shows that Congress was prepared to have litigation in these circumstances.

So that there was -- there'd be no inconsistency in concluding that Congress intended Section 111 to govern to the exclusion of 924 (c).

It's very difficult to make anything of an action taken by the Conference Committee against us on this point notwithstanding that Representative Poff voted against the bill, fact is that Congress adopted it.

Justice William H. Rehnquist: Well, but it says we -- you -- your -- you had to take the bitter with a sweet to a certain extent, that we -- you used Congressman Poff when he's available to help you, but you reject him when he is not on your side.

Mr. Gerald Goldman: Well, I guess our position is that we don't really see any tension between his introductory statement and his ultimate vote.

What Congressman Poff was concerned about was establishing a deterrent to the use of firearms where no deterrent already existed.

Where one already existed, he wasn't concerned with the problem.

Congress simply didn't choose to duplicate coverage that already existed.

As I say, the -- at the very least, given the fact that the Justice Department agreed with us only -- less than 10 years ago, one has to conclude that there's ambiguity about this matter and if that's true, we have to win under the rule of lenity.

Justice Byron R. White: Could I ask you -- I suppose the Government really couldn't in any event proceed under 924 alone, it doesn't describe an offense, does it?

Mr. Gerald Goldman: I believe the Court held in Simpson that 924 (c) does constitute a separate crime.

Justice Byron R. White: And -- so that -- if the Government -- if the Government -- with respect to some other felony that isn't covered by an enhancement, a non-111 felony, you can just say you violated 924.

Chief Justice Warren E. Burger: Yes, alone.

Mr. Gerald Goldman: Yes, I think you could although 924 (c) by its terms contemplates that there will be --

Justice Byron R. White: You did -- then you have to go to some other felony statute?

Mr. Gerald Goldman: Yes.

Justice Byron R. White: And have to prove a felony under another statute?

Justice Potter Stewart: You have to prove the commission of that felony before 924 becomes operative.

Mr. Gerald Goldman: That's correct, yes.

It's unclear, I'm not sure the Government would have to actually charge --

Justice Potter Stewart: No.

Mr. Gerald Goldman: -- the other felony, but yes it would most certainly have to prove it.

Justice Byron R. White: Well -- well, it's an element of the offense anyway?

Mr. Gerald Goldman: That's correct.

Justice Potter Stewart: Right.

Justice Byron R. White: So -- so 924 itself doesn't describe a separate offense?

Mr. Gerald Goldman: Well, I believe the course --

Justice Byron R. White: I mean the underlying -- there's an underlying offense that's described by another statute.

Mr. Gerald Goldman: That's true.

There is a lesser included offense which is the other felony.

Chief Justice Warren E. Burger: Mr. Goldman, we'll resume there at 1 o'clock, I'll have a question for you then.

Mr. Gerald Goldman: Thank you, Mr. Chief Justice.

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Argument of Samuel J. Reich

Chief Justice Warren E. Burger: Mr. Reich, you -- you may proceed whenever you're ready.

Mr. Samuel J. Reich: Mr. Chief Justice and may it please the Court.

I represent Michael Busic under the evidence.

While the assaults were taking place, Mr. Busic carried a gun in his belt.

This weapon was never drawn, never pointed or fired.

By his conduct, he didn't endanger any lives.

The evidence shows that while most of these incidents were taking place, Mr. Busic had stopped in a drugstore to buy a pack of cigarettes.

When he came out and he was confronted by the authorities, he surrendered without resistance.

As to the assault charges of and these actual assaults were --

Chief Justice Warren E. Burger: I take if that was in face of greater finer power?

Mr. Samuel J. Reich: That was disputed, Your Honor.

He certainly surrendered himself and the evidence is clear that he never rendered any active assistance during the assaults.

Justice Potter Stewart: And he some sort of statement to that effect --

Mr. Samuel J. Reich: Yes.

He said, “Remember, I never drew my weapon or never fired my weapon.”

He didn't -- he wasn't familiar with the Pinkerton doctrine, but that's what he said.

Justice John Paul Stevens: Mr. Reich, you don't contest the sufficiency of the evidence to prove the aided and abetted in the -- in the other offense, do you?

Mr. Samuel J. Reich: We did in the lower court, yes, Your Honor.

Justice John Paul Stevens: But that's not before --

Mr. Samuel J. Reich: That is not before you when --

Justice John Paul Stevens: So we must assume that he did aide and abetter.

Mr. Samuel J. Reich: Yes, yes.

As to the assault charges that Busic was indicted for aiding and abetting LaRocca's use of the firearm which LaRocca was using during the assaults.

As to the count under 924 (c), Busic was charged with carrying the weapon he had in his gun belt although he could have been charge under the indictment with using LaRocca's firearm under Part I of Section 924 (c).

Justice William H. Rehnquist: He was also – could have – could and probably was on the evidence convicted of carrying a firearm unlawfully, wasn't he?

Mr. Samuel J. Reich: I --

Justice William H. Rehnquist: Didn't he -- didn't he -- didn't he have a felony record or --

Mr. Samuel J. Reich: Yes.

Yes.

He did have a felony record and he was convicted.

He was indicted with every charge conceivable for possession of every weapon in sight.

Under the 924 (c) count, there is no question that he carried a gun in his belt.

Justice William H. Rehnquist: And it was carried unlawfully?

Mr. Samuel J. Reich: It was carried unlawfully.

That is also correct, Your Honor.

Justice Potter Stewart: Just unlawfully.

Mr. Samuel J. Reich: Under Section 924 (c), one can violate the chapter and -- or the statute in one of two ways, alternatively by using or by carrying the firearm during the commission of the underlying federal felony.

A reading of the statutes indicates that the unit of prosecution is the underlying federal felony and not the number of weapons involved.

And as we see it this becomes very critical in showing the similarity between Busic's case and that is his codefendant, LaRocca.

Chief Justice Warren E. Burger: Do you think it makes no difference that the one of these fellows sprayed the parking lot with the machine gun and the other one didn't hear his gun? It has nothing to do with this case I suppose.

Mr. Samuel J. Reich: No, it does not have anything to do with this case, although under the -- under the evidence and under the law that was applicable which is not disputed in this Court both could be convicted for their participation in the assault and that is --

Chief Justice Warren E. Burger: Is it one carried and the other used his firearms?

Mr. Samuel J. Reich: The -- the point that I'm making about Section 924 (c) Your Honor is that the possibilities of prosection are not multiplied because of the number of weapons involved.

One is liable under 924 (c) either for using or for carrying firearm and the important distinction here is that Busic could have been convicted either for using vicariously LaRocca's firearm or carrying his own.

Now, what the Third Circuit has said in this case is that LaRocca who is the one spraying the parking lot with the bullets, to use the Chief Justice's observation, can be sentenced only once whereas Busic who watched and stood by and is only responsible vicariously can be punished twice.

As we read the Simpson case, we read Simpson to establish that a Simpson or a LaRocca type defendant can be convicted and punished only once, and that is for the underlying federal offense when that offense contained its own enhancement provision and it our position that Busic is entitled to identical treatment as LaRocca.

Now, the Government assumes in its brief that the Blockburger issues vanish because Busic was charged and sentenced for carrying his own weapon.

Even (c) (2) is superimposed on an underlying or the underlying assault felonies and different elements are not required as to each.

There is an additional element for the 924 (c) (2) violation and that is the carrying of the firearm.

I point out to the Court that under Section 111, the basic charge is forcible, assault or resistance or impeding a federal officer.

There is an enhanced provision if one uses a dangerous or deadly weapon or such as a firearm in doing that, but the underlying charge is fully included in the 924 (c) violation and therefore if this Court were to hold that our statutory contentions are invalid the Court would still be required to move on to the Blockburger issues and the Double Jeopardy issues.

I also point out that these assault incidents involve the same transactions.

The unit of prosecution as I understand it is the assaults charged in the indictments.

There are two transactions, the 924 (c) seems to apply to both of them.

Justice William H. Rehnquist: Is the term “unit of prosecution” a “word of art” --

Mr. Samuel J. Reich: I believe so, yes sir.

I'm using at that way.

Justice William H. Rehnquist: I know but I – do you derive it from a higher authority than your own use?

Mr. Samuel J. Reich: I believe that this is – this was based on my analysis of the – of the cases, although --

Chief Justice Warren E. Burger: Are there any cases you treat it as a term of art?

Mr. Samuel J. Reich: No, no.

The cases, the most recent cases in this Court talk of the Blockburger test, but I believe that even in Simpson, this Court did acknowledge in passing that we were talking about – the Court was talking about the one transaction which was the bank robbery.

If Busic and LaRocca are to be treated differently, obviously this will result in creating a very easy way to evade the protections which Simpson sought to create against double jeopardy.

We point out that using always includes carrying and using can never be less serious misconduct than carrying and usually it involves more serious misconduct.

Simpson itself involved two or more weapons.

As I understand the facts of Simpson both of the defendants in that bank brandished their firearms and possessed their firearms.

Justice William H. Rehnquist: Does -- does 924 (c) involved just the firearms?

Justice Potter Stewart: Yes.

Mr. Samuel J. Reich: 924 (c) involves firearms, but firearms is broader than guns.

Chief Justice Warren E. Burger: Yes –

Justice William H. Rehnquist: But the dead -- deadly weapon is broader which is in term I believe the use of 111 is broader than firearm.

Mr. Samuel J. Reich: That is true and as this Court noted in the Simpson case, the primary purpose of the -- of 2113 in that case and we believe that the assault case was to deal with the use of firearms, handguns and the like.

Chief Justice Warren E. Burger: Well, 111 would include a hatchet or a --

Mr. Samuel J. Reich: It would include any -- any deadly weapon.

Yes -- yes Your Honor, but I believe that the legislative history on that point is similar to the bank robbery statute.

Those provisions were included primarily to cover handguns, but to cover anything -- anything else.

As a matter of fact, there are some cases I believe it hold – you're going to have a violation of – of that provision using a shoe and possibly a fist, but primarily it is directed towards the gun.

Justice Potter Stewart: Well conversely, I -- I suppose both in 924 (c) with respect to firearm or within 111 with respect to the aggravation use of a deadly or dangerous weapon, the use have to -- has to be of the firearm or of the weapon as a firearm or as a weapon I suppose --

Mr. Samuel J. Reich: In 924 (c), yes.

Justice Potter Stewart: In other words, a bank robber who used this gun to bang down the door at the bank wouldn't be using -- probably be using a firearm he wouldn't be using it as a firearm.

Mr. Samuel J. Reich: I -- I don't believe that the --

Justice Potter Stewart: Conversely, the cases you've just cited where a person's fist if used as a weapon is a weapon.

Mr. Samuel J. Reich: Yes.

Justice Potter Stewart: But normally isn't, right?

Mr. Samuel J. Reich: Well, whether it would constitute a deadly weapon or dangerous weapon, it would depend on who – who the person is, but I think your observation is correct Your Honor.

Justice Potter Stewart: Luckily, that's one of the few questions that's not involved in this case.

Mr. Samuel J. Reich: Yes.

If there is to be disparity treatment as to Busic and LaRocca because LaRocca used one gun and Busic carried another, the Simpson division can be evaded by selective theories of prosecution even in this case.

There --

Chief Justice Warren E. Burger: There's nothing new or improper about using selective theories as you could to the prosection, is it?

Mr. Samuel J. Reich: There is nothing new or novel except when the theories arise under the same statute or under the -- and entirely the same set of facts.

Chief Justice Warren E. Burger: The same transaction --

Mr. Samuel J. Reich: Well, there are a number of transactions where you can -- where the Government could indict the person for tax evasion and bribery and everything that seems to relate without controverting any constitutional provision.

Here, we're talking about a situation where the Government has the choice of charging simple assault and either charging or not charging the enhanced violation by using the dangerous or deadly weapon.

They can charge the defendants with using their own weapons or each defendant with using the weapon of the codefendant.

And then when you come to 924 (c), you can charge a defendant with use either of his own weapon or his codefendant's weapon were carrying one or the other weapon.

If there is a distinction based on the fact that one defendant uses and one defendant carries a firearm or a distinction based on the number of firearms involved, Simpson itself means nothing under the facts of the -- of the Simpson case.

Justice William H. Rehnquist: You -- you can -- I would think we had Simpson to say you -- the holding is you cannot have consecutive sentences.

You're asking for a much broader reading that says, “You can't choose which statute to prosecute under even though it's only imposed only one sentence.”

Mr. Samuel J. Reich: I believe that Simpson held that you cannot have multiple sentences where the two types of statutes are involved, but I also believe that the language of the statute -- of the Simpson case establishes the underlying reasoning that you can't have consecutive sentences because the statute 924 (c) is inapplicable to a felony which already has its own enhancement provision.

Justice Byron R. White: (Inaudible) you can't even be under Simpson arguably.

You can't even be convicted under 924 (c) if it -- where the underlying felony already has enhancement provision?

Mr. Samuel J. Reich: -- that is the way I read Simpson, yes Your Honor.

Justice Byron R. White: Which would mean that that's 924 in all of its sections, none of these sections are applicable?

Mr. Samuel J. Reich: 924 (c), I don't address myself to the rest of the statute because Representative Poff was only speaking of 924 (c).

As I read the Gun Control Act, even though there are different -- well different statues were put in there because of different considerations, but as far as 924 (c) is concerned --

Justice Byron R. White: That's what I mean in 924 (c) would -- and that reasoning would cover both (c) (1) and (c) (2).

Mr. Samuel J. Reich: I believe it must.

Now, (c) (1) is not even a separate sentence.

(c) (1) is a phrase which is joined by an or, and the sentence is completed in (c) (2) and I find it difficult to conclude that when Representative Poff made that statement for legislative history, he was stopping in mid-sentence as to his views regarding the applicability of the statute.

He said the statute is not applicable where the underlying felony contains its own enhancement provision.

I'm not -- obviously, I'm not quoting of that, I'm paraphrasing it.

Justice Potter Stewart: But if a person at a time he made out a fraudulent income tax return unlawfully had a gun on his pocket, he could -- could he or could he not in your submission be prosecuted both under 924 (c) (2) and under the income tax evasion of criminal statute?

Mr. Samuel J. Reich: In the lower court -- in the lower court, we made precisely that observation to the -- to the Court --

Justice Potter Stewart: What --

Mr. Samuel J. Reich: My answer is as I understand the opinion, he could if --

Justice Potter Stewart: On both?

Mr. Samuel J. Reich: Yes.

I find that -- I find that result to be illogical and absurd, but under 924 (c) we were making the point in the lower court that you have to have more than a conspiracy involved and if someone's carrying a firearm during a tax conspiracy, an income tax conspiracy, the logic of the Government's position in the lower court was that he could be convicted of attacks conspiracy and also the 924 (c) violation.

Chief Justice Warren E. Burger: But the legislative history show pretty clearly that what Congress was concerned about was the use of firearms or weapons as an implement of the particular crime and would arguably implemented if he cited as just making a false income tax return.

Mr. Samuel J. Reich: That is the argument --

Chief Justice Warren E. Burger: And upon his desk.

Mr. Samuel J. Reich: That is the argument that I would – I would make if it's part of the issue.

Chief Justice Warren E. Burger: (Inaudible) legislative history?

Mr. Samuel J. Reich: I -- in terms of the use of the statute to apply to conspiracies, they doesn't -- the legislative history seem to speak very broadly in terms of covering all kinds of federal felonies and we had the same argument come up if the person is involved in a continuing drug conspiracy.

Chief Justice Warren E. Burger: Well, aren't you really -- aren't doing something that would come from Senator Dominick's amendment hadn't been adapted.

He wanted a broad scale.

Mr. Samuel J. Reich: I think they both did.

I think Representative Poff did.

Well I think Representative Poff drew the line is that he did not want to have broad coverage under the Act and create Double Jeopardy problems, and that's the way I read the legislative history.

I don't think Representative Poff --

Justice Potter Stewart: At least he didn't want to have double enhancement.

Mr. Samuel J. Reich: He did not want to have double enhancement and I believe that that -- that is clear from -- from his statement.

Now, the -- the question that has come up that I feel requires a response is exactly what kind of relief are we asking for on behalf of the carrier of a different firearm.

The ultimate position that this Court might reach and I think properly so is that consistent with the Simpson language and Representative Poff's statement, no carrier can be convicted where there is an -- an underlying felony with an enhancement provision, but that is not necessary to give Busic relief in this case.

All that is necessary to give Busic relief in this case is that the Court conclude that he cannot -- that 924 (c) consistent with Simpson is not applicable where the defendant carried a firearm, but could have been -- but was subject to enhancement because of use of a firearm, not necessarily the same firearm.

I go back to the language of 924 (c) which is alternative and not base on the -- on the number of firearms involved but merely the existence of the underlying federal felony.

The crux of the case that I think makes Busic's case identical to LaRocca's case is that Busic was subject to sentence enhancement because of his use of a firearm.

Justice John Paul Stevens: Mr. Reich, supposing LaRocca had not used his firearms, suppose they're both just carried, in your judgment, but nevertheless there was a –

Justice Potter Stewart: Assult.

Justice John Paul Stevens: -- principle part of 111 was violated, would you say that Busic would be subject to enhancement under (c) (2) or not?

Mr. Samuel J. Reich: I would say he would not be.

That would require the Court to accept the ultimate position which we're arguing that 924 (c) has no application whatever where the underlying felony already contains an enhancement position --

Justice John Paul Stevens: Even though the reason for enhancement in (c) (2) is not a reason for enhancement of the underlying felony?

Mr. Samuel J. Reich: In view of the legislative history I believe that there is a gap there, but I hasten to point out that in this case as to Busic and LaRocca, it's not necessary to get to that issue since Busic --

Justice John Paul Stevens: Because you do rely on the fact of enhancement by reason of the aiding and abetting a felony where a gun was used?

Mr. Samuel J. Reich: Right.

Justice Potter Stewart: Are you saying that the prosecutor must charge a person either under (c) (1) or (c) (2) and make up his mind and if you charge them under (c) (1), you can't be charged under (c) (2)?

Mr. Samuel J. Reich: I'm saying that he cannot -- the prosecutor cannot use 924 (c) at all where the underlying felony is one which already subjects that defendant to enhancement.

Justice Potter Stewart: Well, that's LaRocca's basic argument, isn't it?

Isn't that LaRocca's basic argument?

Mr. Samuel J. Reich: Yes but there -- I see my time up is up.

There is a difference between the using and the carrying --

Justice Potter Stewart: Well, I know, the statute --

Mr. Samuel J. Reich: And I'm showing the relationships between the two.

Justice Potter Stewart: Yes.

Mr. Samuel J. Reich: The difference is that the Busic's sentence could be enhanced because he used LaRocca's firearm and a gun -- and the statute wouldn't permit multiple punishments if there were 10 guns used.

Justice Potter Stewart: Yes, yes.

And I think your time is up.

Mr. Samuel J. Reich: Thank you, Your Honors.

Chief Justice Warren E. Burger: Mr. Levy.

Argument of Mark I. Levy

Mr. Mark I. Levy: Mr. Chief Justice, and may it please the Court.

In June of 1968, the Congress alarmed by recent public tragedies and arising incidents of firearm related crimes passed the Gun Control Act.

Among the principal provisions of that Act is Section 924 (c) which focuses directly on the crime problem by punishing the use and unlawful carrying of firearms in a commission of federal felonies.

By its terms, Section 924 (c) is applicable to the commission of any federal felony, nevertheless, petitioners argued that they fall outside the scope of Section 924 (c) because the underlying or predicate felony of which they where convicted, assault on federal officers, provides an enhance penalty for using a deadly or dangerous weapon to commit the assault.

They contend that the enhancement provision of the predicate felony operates to the absolute exclusion of Section 924 (c) and that the Government is not authorized to prosecute under or the District Court to sentence under Section 924 (c) whenever the underlying offense contains its own enhancement provision for the use of a dangerous weapon.

In support of their contention, petitioners rely on this Court's decision in Simpson versus United States.

They assert first that the holding in Simpson governs the instant case and second, that the Court's analysis in Simpson compels the result they urge here.

We submit however that the issue in Simpson and the issue in this case are quite different and that neither the holding nor the reasoning of Simpson is controlling here.

The defendants in Simpson having convicted of armed bank robbery and have been given both an enhanced punishment under the bank robbery statute and a consecutive punishment under Section 924 (c).

Thus, the issue in Simpson was whether cumulative sentences for the use of a firearm could be imposed under the enhancement provision of the bank robbery statute and under 9 -- Section 924 (c).

In other words, whether the defendant's sentence could be doubly enhances.

After noting at several places in the opinion that this was the issue for decision, the Court held that Congress had not intended to authorize such double enhancement and therefore that the defendant's use of a firearm could not be consecutively punished for the Section 924 (c) offense and for the aggravated bank robbery.

This holding, the cumulative enhanced punishment for use of a firearm, are not permitted by Section 924 (c), does not dispose of the distinct issue presented in this case whether Section 924 (c) is applicable at all where the predicate felony contains an enhancement provision but their provision is not invoked and that's the defendant's sentence is not doubly enhanced.

It is one thing to hold that Congress did not intend that the aggravating circumstances of using a gun be twice punished.

It is a far different matter to hold, as petitioner seek here, that Congress intended the penalties provided in Section 924 (c) to be wholly irrelevant.

Justice Byron R. White: I suppose if Simpson just in so many words said -- said that 924 (c) is just isn't applicable at all when you're dealing with an underlying felony that has an enhancement provision that that sort of language would be very relevant in this case.

Mr. Mark I. Levy: It would be relevant.

I think that sort of language would exceed the scope of the issue presented in Simpson.

Justice Byron R. White: Well, maybe -- maybe but that -- it would be -- it would be at least reflect that eight justices then opinion that --

Mr. Mark I. Levy: Yes, it would.

Justice Potter Stewart: And would have been deciding that case on a very broad ground.

Justice Byron R. White: Yes.

Justice Potter Stewart: It would have been dicta -- it would have been the grounds of decision, had the Court said that?

Mr. Mark I. Levy: Had the Court said that?

I think that's right but I don't -- (Voice Overlap)

Justice Byron R. White: What do you think its reasoning was?

How did it arrive with its result?

You said Congress didn't intend the double -- these consecutive punishments because they understood Mr. Poff in certain way or not?

Mr. Mark I. Levy: Well, I think starting a step further back the Court was confronted with a somewhat unusual issue in Simpson of double enhancing use of a firearm.

That's quite uncommon under the Federal Code and I think the Court was simply not satisfied that Congress had intended that unusually severe result given the language and legislative history and other factors that were cited by the Court in Simpson.

I don't think that the Court in Simpson held that they – that the defendants there couldn't be twice punished because they couldn't be punished at all under 924 (c).

I do not read the opinion to say that.

Justice Byron R. White: You certainly don't agree with your colleague on the other side then that the –

Justice Potter Stewart: No.

Justice Byron R. White: -- that the Government couldn't proceed under 924 (c) alone where the underlying felony already has an enhancement provision.

Mr. Mark I. Levy: That's right.

I do disagree with that.

Justice Byron R. White: You have to.

Mr. Mark I. Levy: Absolutely.

That is this case.

Beyond the holding, the analysis employed in Simpson also does not require the conclusion that Section 924 (c) is applicable simply because the underlying felony provides an enhanced penalty for use of a dangerous weapon.

The Court in Simpson relied on three general considerations.

First, that the double enhancement of punishments was not necessary to promote the purpose or the deterrence rationale of Section 924 (c).

Second that the legislative history and particularly a statement by Congressman Poff on the Floor of the House pointed in the direction of a congressional intent not to allow sentences to be doubly enhanced.

And third, that several canons of statutory construction supported the view that double enhancement was not authorized by Section 924 (c).

Looking to each of these factors in turn, it can be seen that none of them supports the result urged by petitioners.

First, the statutory structure and purpose; the penalty provision of Section 924 (c) are unique and having been specifically designed to punish and deter firearm violations, they are fundamentally different both quantitatively and qualitatively from the penalties provided in Section 111.

With respect to the length of sentences, Section 924 (c) specifies an increased punishment for using a firearm of up to 10 years for first offense and up to 25 years for a second or subsequent offense.

In contrast, Section 111 increases the penalty where a dangerous weapon is used by only seven years.

In addition, Section 924 (c) provides a mandatory minimum sentence of one year for first offenders and two years for second and subsequent offenders.

Section 111 provides no mandatory minimum penalty.

Section 924 (c) also establishes more severe penalties for recidivists than for first offenders.

Section 111 on the other hand makes no provision for the imposition of increased sentences on recidivists.

Finally, Section 924 (c) restricts the availability of probation, suspended sentences, and concurrent sentences.

In contrast, Section 111 provides no such limitations on the discretion of the sentencing judge to exercise leniency.

Petitioners have offered no reason why Congress would have meant Section 924 (c) to be inapplicable here.

In our view given the differences and penalty structures and given that the Gun Control Act was specifically designed to address the problem of firearms, it seems inconceivable that Congress intended that a defendant who uses a firearm to assault the federal officer would be completely exempt from sentence under Section 924 (c) and would instead be subject only to the lesser punishment provided in Section 111.

Thus, unlike in Simpson where the Court concluded that double enhancement was unnecessary to achieve the deterrence rationale in Section 924 (c).

The decision in Section 924 (c) is wholly inapplicable in the instant case would disregard the special penalties provided in that statute and what frustrate the purposes of the Gun Control Act.

Moreover, again in contrast to Simpson to hold here that Section 924 (c) does not apply whenever the predicate felony contains an enhancement provision for the use of a dangerous weapon would lead to several illogical results that are inconsistent with the purposes of the Act and that Congress surely did not intend.

The first consequences of such a holding would be that the defendant who uses a firearm to assault the federal officer would be subject to different and less onerous penalties than one who uses a firearm to commit virtually any other federal offense.

Indeed, this result would have the particularly perverse effect rendering stiff penalty provisions of Section 924 (c) inapplicable to the very felonies that Congress had previously singled out for greater rather than lesser deterrence and punishment.

Congress could not rationally have intended Section 924 (c) to produce such a result.

Justice William H. Rehnquist: Mr. Levy.

Mr. Mark I. Levy: Yes sir.

Justice William H. Rehnquist: Your opposing counsel points to irrational results, you point to irrational results.

Do you think it's fair to say that the comment anomalies and bizarre cases under one or both constructions more or less balance out?

Mr. Mark I. Levy: I do not.

I don't think our position does produce any anomalous results.

First Section 2114 upon which petitioners rely to produce such results, I understand does not have the same sorts of limitations on probations, suspended sentences, and concurrent sentences that Section 924 (c) does.

But beyond that it seems to me the correct answer to these asserted anomalies is to vest in the prosecutor the discretion in this area as in virtually all other areas to select the proper charge in any given case commensurate with the conduct that is alleged.

I think that prosecutor of discretion would eliminate any conceivable anomalies that might otherwise arise.

Justice Potter Stewart: But otherwise wholly uncontrolled and uninstructed discretion and we all know as a matter of fact that in some areas prosecutors just have such tradition in the prosecutor's office just to overcharge in every case.

Mr. Mark I. Levy: There are differences among prosecutors.

Justice Potter Stewart: -- or in certain types of cases and in other areas it's the tradition as otherwise and it's wholly unreviewable and uncontrolled of that discretion.

Mr. Mark I. Levy: That is correct it's on review when uncontrolled and it is also quite common there is nothing different about this area.

Justice Potter Stewart: They're not instructed I mean there no -- there no agreed upon criteria.

Mr. Mark I. Levy: Well, within the executive branch in terms of an administrative criteria there are guidelines that are used in some areas to control prosecutors in U.S. Attorney's Office it's -- we -- I agree that those are not subject to review by a court.

Justice William H. Rehnquist: Certainly the executive branch is not alone if there are anomalies because there are certainly are wide variances in exercise of sentencing --

Justice Potter Stewart: Yes.

Justice William H. Rehnquist: -- power by the federal judges as well.

Mr. Mark I. Levy: That's correct.

That's correct.

Justice Potter Stewart: But this, perhaps doesn't that we should be invited to promote or encourage.

Mr. Mark I. Levy: Well I think they're all – well first, I don't think again that this area is any different than any other and it seems to me the prosecutorial discretion is at the very least unavoidable and is in fact desirable in order to fit the charge to the particular case.

But beyond that I think that the consequences of not allowing such discretion here and imposing the rigid and very narrow view words by petitioners would be far worst.

Another illogical result of the petitioners; construction would be the defendant who use a gun to assault a federal officer and one who uses some other dangerous weapon such as a knife would both be sentenced under exactly the same penalty provisions of Section 111.

Such a result would be contrary to the purpose of Section 924 to punish with special severity the criminal use of firearms.

Moreover, since the recidivist provisions of Section 924 extend only to a second or subsequent conviction under that section, petitioners' interpretation would mean that a defendant who on several occasions uses a firearm to assault federal officers would not be covered by those repeat offender provisions and indeed he would remain outside those provisions even if he later uses a firearm to commit some other federal offence.

On the other hand, the defendant who twice uses a firearm to commit virtually any other federal felony would be subject to those harsher penalties.

The recidivist provisions were designed to punish with heightened severity.

Those people who have shown themselves to be recurrent abusers of firearms and no reason suggested so why Congress would have wanted the applicability of the recidivist provisions to depend upon whether the prior armed offense consisted of an assault instead of almost any other federal felony.

Finally if we are correct as we contend in our brief and we rely on the argument there that Section 924 (c) at all events prohibits the unlawful carrying of a firearm during the commission of an assault on a federal officer.

Petitioners' construction would mean that the defendant who actually uses the firearm would be subject solely to Section 111 while the defendant who only carries but does not use a firearm would be sentenced under the more stringent provisions of Section 924 (c).

Well Congress wanted to punish and deter both the use and the unlawful carrying of firearms.

It is impossible to believe that Congress intended to authorize more severe sanctions for unlawfully carrying a firearm and for its actual use.

In sum, the first consideration relied on in Simpson, the purpose of the statute, demonstrates here that Section 924 (c) is not inapplicable where the predicate felony contains its own enhancement provision.

The legislative history of Section 924 (c) the second factor relied on in Simpson also demonstrates that an armed assault on a federal officer is punishable under Section 924 (c).

This history makes it plain that Congress wanted to punish and to deter by means of stern measures the criminal use of firearms.

Congress recognized that this objective turned on a certainty as well as the severity of punishment.

Congressman Poff in introducing the Amendment that ultimately formed the basis for Section 924 (c) expressly stated that his proposal was stronger than the then pending Casey Amendment because it restricted the imposition of concurrent sentences, suspended sentences and probation.

The importance of this --

Justice Byron R. White: Do you think your position is consistent with the passage quoted by the Court in Simpson or the statement of Representative Poff?

Mr. Mark I. Levy: Yes I do.

Justice Byron R. White: How is that?

Mr. Mark I. Levy: Well I think it's consistent if you look at Senator -- Congressman Poff's statements in their entirety.

We do not believe that the statement relied on by the Court in Simpson which was an isolated statement which elicited no discussion and which was not directed to the issue presented in this case can be given dispositive weight here.

Chief Justice Warren E. Burger: What else did Congressman Poff say that you're – for my part I'm waiting to hear, what else he said that --

Mr. Mark I. Levy: Alright.

Chief Justice Warren E. Burger: -- you think where you have overlooked.

Mr. Mark I. Levy: In introducing his amendment, Congressman Poff emphasized that his proposal was stronger than the Casey Amendment which was then pending before the Congress because it had the limitations on the exercise of the trial judges' leniency discretion.

Congressman Poff later reiterated the importance of these features of his amendment and they were likewise stressed by other Congressmen who stressed the need to confine sentencing discretion in order to provide a significant only greater deterrent and generally was found an existing law and in the end after this discussion the house adopted the Poff amendment by vote of 412 to 11.

Justice Byron R. White: Well in accord in Simpson said that wasn't -- it wouldn't give this positive weight to the statement that Mr. Poff made but then it went on to the other parts of legislative history and held or at least it was the Court's opinion there is that the other parts of legislative history supported that statement of Mr. Poff.

Mr. Mark I. Levy: Well --

Justice Byron R. White: (Inaudible) your submission here --

Mr. Mark I. Levy: No if I could finish reciting the general legislative history and Congressman Poff's statements as I said Congress of Poff had emphasized several times the importance of the unique provisions of his proposal and indeed he felt so strongly about these provisions that when a Conference Committee weakened to some extent his amendment, he eventually voted against the conference report.

The Conference Committee had weakened his proposal by eliminating the restriction on concurrent sentences and limiting to repeat offenders the restrictions on suspended sentences and probation.

Congressman Poff found it so insignificant that he voted against the report.

That time he said it is not the severity of punishment that deters, it is the certainty of punishment that deters.

In a posture which the conference report leaves it the Amendment will not promote certainty of punishment whether with respect to the first offence actual time in jail will be no more certain than it is today.

Given these clear views underneath for certainty of punishment to deter armed felons, it is impossible we think to conclude that Congressman Poff intended that defendants who use firearms to assault federal officers would be excluded all together from Section 924 (c) and instead would be punished solely under the existing enhancement provision of Section 111.

A provi --

Justice Potter Stewart: Which is – it's literal language did say that 924 (c) was simply enactable to offences under those -- under those statutes, didn't he?

Mr. Mark I. Levy: He said it did not apply where the provision provided a penalty for the use of the dangerous weapon.

Justice Potter Stewart: My substitute is not intended to apply to Title XVII Section so on or the -- other two other Sections 2113 and 2114, 2231 or with Chapter XXXXV.

Substitute is simply not intended to apply the felonies under those Sections.

That's what he said.

Mr. Mark I. Levy: Well that is --

Justice Potter Stewart: Now, maybe he was speaking carelessly but that is what he said.

Mr. Mark I. Levy: That is what he said.

We think the construction of those words is best used what the Court held in Simpson that Congressman Poff was concerned about the double enhancement of penalties where the underlying the predicate felony.

Justice Potter Stewart: That's what the Court said.

Mr. Mark I. Levy: Excuse me?

Justice Potter Stewart: That is what the Court said.

Mr. Mark I. Levy: I think that that is what --

Justice Byron R. White: (Inaudible) you could say maybe that's what it held but isn't it what it said in – with respect to Mr. Poff's statement and the – and the other parts of legislative history that supported that statement that my brother Stewart just referred to.

Mr. Mark I. Levy: What the Court said about Poff's statement after quoting it was that his view was consistent with the deterrent rationale of Section 924 (c).

I read that to mean that it was consistent because there was no need for double enhancement in order to promote the deterrent rationale of the statute.

With respect to the other portions of the legislative history --

Justice Potter Stewart: Did you read Mr. Poff's statement if I understand your argument as though he had said my substitute is not intended to apply to those portions of Sections 111 and 12 which already define the penalties for use of firearms, a portion to which would be then the enhancement portion?

Mr. Mark I. Levy: No I think even more accurately we would say that 924 (c) does not apply when the enhancement provision of those predicate felonies has been involved.

Justice Potter Stewart: -- is invoked and the sentence is imposed under them.

Mr. Mark I. Levy: Exactly.

Justice Potter Stewart: Well that's why you read it, isn't it?

Mr. Mark I. Levy: Exactly yes sir.

Justice John Paul Stevens: Could I ask --

Mr. Mark I. Levy: I read it in light of the other statements and actions by Congressman Poff in the house.

Justice John Paul Stevens: I submit that's the same reading as the one I suggested.

Mr. Mark I. Levy: If it is then I agree.

Justice John Paul Stevens: Because it's the second paragraph that defines the penalty for the use of a firearm into assaulting an officer.

If you recall 111 has two paragraphs.

Mr. Mark I. Levy: Yes sir.

Justice John Paul Stevens: And it is the second paragraph that talks about the use of a fire -- use of a deadly weapon in assaulting an officer.

Mr. Mark I. Levy: That's correct, Mr. Justice Stevens.

Justice Potter Stewart: Well here's what the Court cited in -- wherein Simpson said the subsequent events in the Senate and Conference Committee pertaining to the statute, but for certain exclusion of Congress' view of the proper scope in 924 (c) was that expressed by representative Poff.

Mr. Mark I. Levy: I think the subsequent event that you just referred to was the Conference Committee's rejection of the Dominick Amendment which has been passed by the Senate.

Justice Byron R. White: Well I was just telling you and suggesting to you that the Court found other evidence in legislative history that supported this statement of Mr. Poff.

Mr. Mark I. Levy: I believe that the other evidence the Court found was the Committee's rejection of the Dominick Amendment.

Justice Byron R. White: I know, but the Court – but – but that evidence the Court thought maybe erroneously.

The Court thought it supported the statement of Mr. Poff.

Mr. Mark I. Levy: It supported the statement of Congressman Poff in the context of double enhancement.

The Dominick Amendment had been limited to certain enumerated predicate felonies and we read the Committee's rejection of that Amendment in favor of the broader Poff proposal to mean that Congress intended that 924 (c) would be broadly rather than narrowly applicable.

But with particular respect to Simpson, the Dominick Amendment had also allowed the double enhancement of penalties in exactly the way that the defendants in Simpson had been punished and --

Justice Potter Stewart: How Mr. Levy do you think the Simpson court limits a sentencing judge?

The only that he may if there's an armed bank robbery that he may sentence the convicted defendant either under the enhancement provision of the bank robbery statute or the 924 (c) and he has to choose and that -- that you think that's the stand of the Simpson holding?

Mr. Mark I. Levy: For the aggravated offence I think --

Justice Potter Stewart: Yeah, that's what I mean.

Mr. Mark I. Levy: -- that Simpson holds that he has to choose between them and that they cannot sentence under both.

Justice Potter Stewart: But that the – you think it doesn't limit the prosecution and what it can charge?

Mr. Mark I. Levy: I do not think it limits the prosecution.

Justice Potter Stewart: And it simply imposes that limitation upon a sentencing judge.

Mr. Mark I. Levy: That's correct.

I believe -- the Court thought that Congress could not authorize the double enhancement of punishment to the consecutive sentences under both statutes.

Justice Potter Stewart: And you think that's the extent of the holding of Simpson or the stand of the limitation that imposes upon government prosecution.

Mr. Mark I. Levy: I do.

I think that is the full extent of the Simpson holding.

Justice Potter Stewart: Thank you.

Mr. Mark I. Levy: The Dominick Amendment had allowed the double enhancement of punishments in a way that the Court in Simpson held Congress had not intended.

The Court in reaching that result had relied on the rejection of the Dominick Amendment that in the Court's in view corroborated their reading of the Poff statement.

I don't think that the rejection of the Dominick Amendment bears on the issue before the Court in this case whether the prosecutor has discretion to prosecute under 924 (c) in lieu of prosecution under the enhancement provision of Section 111.

In addition to the legislative history, the Court in Simpson also relied on several maximums of statutory construction.

In this case those maximums do not lead to the conclusion that section 924 (c) is inapplicable whenever the predicate felony provides for an enhanced penalty.

The Court in Simpson first invoked the usual role of avoiding constitutional decisions where possible.

In Simpson, the Government had relied on identical evidence to prove violations of Sections 924 (c) and 2113 (d) the aggravated provision of the bank robbery statute and the defendants who'd received consecutive sentences under those statutes.

In such circumstances the Court observed that there was the prospect of double jeopardy and following settled practice, it does look to see whether an interpretation of the statute was fairly possible to avoid the potential constitutional issue.

Here in contrast no analogous constitutional question is involved because under the Court of Appeals decision, petitioner's sentence cannot be doubly enhanced for the use of a firearm and hence this cannon of construction is not pertinent here.

The Court in Simpson also relied on the rule of lenity.

However, this rule is simply an auxiliary aid in discerning the congressional intent and it applies only when a Court has looked to all other available sources for guidance on the meaning of a statute and is still left with a serious ambiguity or uncertainty.

Moreover as the Court has recognized on other occasions even a criminal statute is not to be so strictly construed that the legislative purpose is defeated.

Given the structure, purpose, and legislative history of Section 924 (c) in giving the untenable results to what occur under petitioners' construction, the rule of lenity does not bear on a present issue.

Finally the Court in Simpson referred to the principle that precedents be given to the more specific of the two statutes.

However, this principle cannot be determinative whereas here the language, purpose, and history of the Act consistently point in the opposite direction.

Moreover, we do not understand the Court in Simpson to have held as a general matter that only one criminal statute can apply to a given situation simply because that statute maybe considered to be the most specific.

Such a proposition would be of dubious soundness and would contradict many long standing decisions of this Court and of the Court of Appeals that have consistently held to the contrary and have allowed the prosecutor discretion to choose among two or more statutes that apply to a given set of facts.

Justice Byron R. White: And what happened on remand in the Simpson.

Mr. Mark I. Levy: In Simpson on remand, the Court of Appeals they carried the 924 (c) sentences.

Justice Byron R. White: How about the conviction?

Mr. Mark I. Levy: I do not believe they vacated the conviction.

Justice Byron R. White: And did the Government take the position there that it could choose which to vacate or not?

Mr. Mark I. Levy: In Simpson the more severe penalty had been imposed on a 2113 (d) count.

Justice Byron R. White: I see.

Mr. Mark I. Levy: And so the issue didn't really arise whether the Government wanted to proceed with the 924 account.

We think the Court in Simpson relied on the Doctrine of Specificity only to illustrate that there are instances other than the particular one in Simpson in which two statutes are not simultaneously applicable to a given situation despite their literal language.

In this way the notion of specificity served to corroborate the conclusion already drawn from a legislative history of Section 924 (c) and from the rule of lenity.

However, this doctrine is in opposite in the instant case.

Since Section 924 (c) and the enhancement provision of Section 111 are not being simultaneously applied to petitioners.

The Court in Simpson also cited to a prior Department of Justice position on the applicability of Section 924 (c).

I think a reading of the United States Attorney's bulletin and cited by the Court in Simpson will show that – that the bulletin was not meant to be a definitive legal interpretation of the statute but rather was designed as advise to U.S. attorneys to be aware of and avoid possible problems under the statute.

Indeed the bulletin and expressly recognized that Section 924 (c) could be charged in the discretion of the prosecutor even where the predicate offense contained in enhancement provision.

Therefore we do not feel that the Court's citation to the U.S. Attorneys bulletin.

Justice Byron R. White: Do you agree that 924 is a separate crime?

Mr. Mark I. Levy: Yes we do.

Justice Byron R. White: And you charge under that section?

Mr. Mark I. Levy: Yes in the separate count of the indictment --

Justice Byron R. White: Suppose you -- suppose the underlying felony has no enhancement provision and you want to proceed under 924, I suppose you have to, don't, you in order to impose the penalty and you have to impose the penalty.

There's no -- the statute says shall.

Mr. Mark I. Levy: That's correct the statute shall.

Justice Byron R. White: And so if you have a non enhanced underlying felony you must proceed under 924.

Mr. Mark I. Levy: In order to have an enhanced sentence.

Justice Byron R. White: Well you have to have the enhanced sentence.

Mr. Mark I. Levy: I would think a prosecutor would have discretion not to try the 9 --

Justice Byron R. White: Well that's what the statute says -- the statute says --

Mr. Mark I. Levy: The statute says --

Justice Byron R. White: The statute says they -- he shall be punished.

Mr. Mark I. Levy: He shall be punished when he had been convicted, I don't think the statute directs that the prosecutor in ever in case bring all conceivable --

Justice Byron R. White: So you think -- you think that it would be quite proper under it to charge both 924 and that the underlying felony in separate counts?

Mr. Mark I. Levy: Yes I do and I also think it would be quite proper in an appropriate case to charge just the underlying felony and not charge 924 (c).

There's no requirement that the prosecutor in all cases where it is available prosecute the defendants to the fullest maximum extent.

Justice Potter Stewart: But if the charges of enhancement of bank robbery or use of firearm whatever that is, 2113 (b) I think it is, and also violation of 18 U.S.C. 924 (c) and the -- he's convicted of both, you told me a moment ago and in fact I invited you to tell me that you thought Simpson gave the judge an option of sentencing either on the enhancement provision or under 924 (c) but in light of the language that my brother White has just called our attention to I suppose the judge doesn't have an option.

He has sentence him under 924 (c) and under Simpson he cannot sentence him then under the enhancement provision because it says “shall” because of that word shall.

Isn't that – wouldn't that follow?

Mr. Mark I. Levy: If I understand --

Justice Potter Stewart: Shall is directory language.

It takes a way any discretion of the judge might -- sentencing judge might otherwise have.

Mr. Mark I. Levy: Yes, if the defendant were convicted under both.

Justice Byron R. White: Well, he was.

Mr. Mark I. Levy: The petitioners' argument in this case was not that it was mandatorily sense in the 924 (c).

Justice Potter Stewart: No --

Mr. Mark I. Levy: But only that he shouldn't have been prosecuted at all.

Justice Potter Stewart: But under your theory of the case that you had amended to say the judge has no discretion.

He has to do it under 924 (c) and when he does he cannot under Simpson do it under 2113 (d), isn't that correct?

Mr. Mark I. Levy: In this case the issue doesn't arise because the more severe sentence was given under 924 (c)

Justice William H. Rehnquist: Providing that he was charged under 9 --

Justice Potter Stewart: That's right.

In a hypothetical case he was charged and convicted under both.

Justice Byron R. White: Well he would have to be charged under 924 and even they have the 924 (c) enhancement?

Mr. Mark I. Levy: That's right.

Justice Potter Stewart: That's right.

Mr. Mark I. Levy: That's right.

Justice William H. Rehnquist: So the judge under Simpson must now in view of the word shall give him a sentence under 924 (c)

Mr. Mark I. Levy: Now I think the words --

Justice Potter Stewart: And he may not, under Simpson, give him a sentence any sentence at all under 2113 (d), isn't that correct?

Mr. Mark I. Levy: I'm not sure.

I think the work “shall” in the portion of 924 (c) you just quoted say “shall” in addition to the penalty for the predicate offense and I think the purpose of the word shall --

Justice Potter Stewart: Shall be sentenced.

Mr. Mark I. Levy: I think the purpose of the word there shall is to make it clear that the penalty for 924 (c) was in addition to the penalty for the underlying predicate felony.

Justice Potter Stewart: It said shall be sentenced, that's way the present (Inaudible)

Mr. Mark I. Levy: Yes it does Mr. Justice Stewart.

Justice Byron R. White: So what the -- so you're saying that where the underlying felony has an enhancement provision and you're charged in the 924 you would – you would add the 924 enhancement to the unenhanced penalty.

Justice Potter Stewart: That's right.

That's right.

Mr. Mark I. Levy: We think that is --

Justice Byron R. White: -- of the underlying felony.

Mr. Mark I. Levy: We think that is a correct interpretation –

Justice Byron R. White: But nevertheless you have to sentence under 924 (c).

Mr. Mark I. Levy: That's correct.

Justice John Paul Stevens: I'm not sure you haven't over simplified it because the world shall I think is also on the bank robbery statute, 2113 (d).

It would tell you can't use both and --

Justice Potter Stewart: You can't use both.

Justice John Paul Stevens: -- and neither shell what seems to me would take precedents over the other.

Justice Potter Stewart: That maybe the answer.

Mr. Mark I. Levy: I think that's certainly the effect of the holding in Simpson.

Justice Potter Stewart: In both places.

Justice John Paul Stevens: You mean you just had to choose one or the other, is what it's all about.

Justice Byron R. White: Well about the only position you have suggested it is that you couldn't sentence under either.

Justice Potter Stewart: But that's – that's what your brother suggested.[Laughter]

Mr. Mark I. Levy: In sum we think the structured purpose in legislative history all establish that Section 924 (c) is applicable, whereas in this case the predicate felony contains its own enhancement provision.

If the Court has no further questions, we respectfully request that the judgment of the Court of Appeals be affirmed.

Chief Justice Warren E. Burger: Very well.

Do you have anything further, Mr. Goldman?

Argument of Gerald Goldman

Mr. Gerald Goldman: Yes Mr. Chief Justice, I'll try to be brief.

I think the most recent colloquy very happily demonstrates that this case cannot be resolved on the basis of an analysis of anomalies.

There are anomalies all over the place and it won't do for the Government to point to those to justify its position.

Chief Justice Warren E. Burger: Does it suggest to you, Mr. Goldman that those members of the House who were present when Mr. Poff made his statement, there's a question how many of them do you think understood what he was saying and what its impact was and what the whole problem was?

Mr. Gerald Goldman: Well I think he very accurately stated what he meant.

We are not addressing the interplay of these provisions --

Chief Justice Warren E. Burger: I'm not I wasn't -- I wasn't pointing at what he meant.

How many of them do you think understood what you understand his statement to be let's put it that way?

Mr. Gerald Goldman: Well because I think his words accurately conveyed his thoughts.

I believe those who listened to him and read what had to say agreed with that.

The fact is that some of these preexisting statutes do read in terms of shall.

That's true of the provision in 2114 and under Simpson its clear that a prosecution can't rely under 2114 and under 924 (c).

The proper resolution is indeed the one that Representative Poff said he intend to.

Justice Byron R. White: Well if the Government says you can convict under both and that you can sentence only on the one.

Mr. Gerald Goldman: But that would be to contradict the shall mandatory language in one or the other of these two statutes both of which provide for mandatory sentencing.

Justice Byron R. White: Well Simpson did that?

Mr. Gerald Goldman: Well Simpson was quite clearly correctly decided this.

The -- at a minimum.

Justice Potter Stewart: At a minimum.

Mr. Gerald Goldman: Mr. Poff's statement is understood by everybody to forbid cumulative sentencing.

In fact I think it's helpful just to quote for a second from the Justice Department's own U.S. Attorneys bulletin in the 1971.

They said then a number of federal statutes already include special provisions providing for increase penalties where firearms is used in the commission of the offense and they gave some examples including Section 111.

Since the specific provisions of these statutes may take precedence over the general provisions of Section 924 (c) (1), the specific provision should be used where applicable.

Now, it doesn't assist the Government's case to emphasize the deterrent purpose of Section 924 (c).

If it is necessary to accomplish Congress' purpose to apply 924 (c) then it's necessary to do that in every single case and yet even the Government concedes that there's been no implied repeal of Section 111.

Just to --

Justice John Paul Stevens: (Inaudible) Section 111 anyway because it covers thing -- weapons other than guns.

Justice Potter Stewart: That's right.

Mr. Gerald Goldman: But there is even an implied repealed pro tanto for the area of the overlap, the Government concedes that.

Justice John Paul Stevens: No its just like -- that's right.

They claim that there's the alternatives were available but we've held it wasn't bad older or the other, not long ago that you can have alternative provisions of the same conduct.

Mr. Gerald Goldman: Yes that's true but in Bachelder there was affirmative evidence that Congress intended precisely that result.

Moreover neither statute in Bachelder there could be said to be more specific than the other.

Present case is distinguishable in both counts.

Justice John Paul Stevens: Mr. Goldman the thing when you look through the whole argument before the statute was passed Congress has said there shall be specially severe penalties for carrying a gun with certain limited numbers of offences and you construe it as anyone when they wanted to deter the use of guns they decided to get have the penalty for those offences to be less rather than greater.

It just doesn't seem to make much sense.

Mr. Gerald Goldman: But that's not true across the board.

Some of the penalties in the preexisting statutes -- are more serious.

Justice John Paul Stevens: But where it is true doesn't it seem to fit more squarely under the congressional purpose to say that Congress intended generally speaking to make more severe punishment applicable to using guns and you've been affected, that applies everywhere expect where they'd already taking care of the gun problem.

Mr. Gerald Goldman: Well I can only repeat our position that the person who sponsored this provision said in what we regard to be absolutely unequivocal language that he did not intend to address the problem of statutes where there is already a deterrent purpose being served.

The normal presumption I would think would be that Congress does not intend to duplicate itself in enacting criminal laws and yet that's exactly what the Government is suggesting here.

Now that happened in Bachelder, but there was affirmative evidence to that effect.

In this case the evidence is just the other way.

In addition, there is an additional tool of statutory construction in the interpretive preference for specific criminal laws that applies here and it did not apply in Bachelder.

One last word it's our position that when a sentence is vacated that also serves to vacate the conviction because a judgment of conviction requires a sentence under the federal rules so that when the sentence was vacated on remand in Simpson that also served to vacate the conviction.

Justice William H. Rehnquist: We made a lot of errors than in our vacation of sentences after the Furman case where we vacated sentences, but left conviction standing.

Justice Potter Stewart: That's right.

Mr. Gerald Goldman: Well I -- I think the question is whether --

Justice Byron R. White: (Inaudible) we just didn't know.

Justice Potter Stewart: You haven't educated us since that.

Mr. Gerald Goldman: Well I think the question is whether resentencing --

Justice John Paul Stevens: Maybe that the thing in what you say is true in federal cases and not in --

Mr. Gerald Goldman: And in addition to the question is whether resentencing is permissible under any circumstances.

Justice John Paul Stevens: That's right and that would be -- might or could be a matter of state law.

Mr. Gerald Goldman: And in Simpson --

Justice John Paul Stevens: But does in federal case (Voice Overlap)

Mr. Gerald Goldman: -- there should be no new sentence.

Yes sir.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Mr. Gerald Goldman: Thank you