Smith v. United States - Oral Argument

Argument of Gary Kollin

Chief Justice Rehnquist: We'll hear argument next in No. 91-8674, John Angus Smith v. the United States.

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

Mr. Kollin: Mr. Chief Justice, and may it please the Court:

John Angus Smith was convicted of a violation of title 18, United States Code, 924(c), when he possessed a firearm and offered it as an item in trade for barter for a small quantity of drugs.

As a result of his conviction, he received 30 years minimum sentence, consecutive to the terms he received on his other counts.

The issue today is whether the offering of a firearm solely as an item of barter violates 18 United States Code 924(c) for the use of a firearm during and in relation to a Federal drug trafficking crime.

At the outset, it is important to realize that this statute provides two different methods by which it could be violated: first, by the use of a firearm during and in relation to the Federal drug trafficking crime; and the second way is by carrying the firearm during and in relation to the Federal drug trafficking crime.

John Angus Smith was only charged with the use prong of the statute.

We submit that--

Unknown Speaker: I guess he could have been charged with carrying it.

Mr. Kollin: --That is correct, Justice.

However, the Government elected, for whatever reasons they chose, to only charge him with the use prong.

In fact, this was the third superseding indictment in regard to this matter, and in each one he was only charged with the use prong.

So, they had three times to change that election.

Unknown Speaker: If you had been charged with carrying, I don't suppose... and you had been... your client had been convicted, I don't suppose you would be here.

Mr. Kollin: That is probably correct, Justice.

Unknown Speaker: You wouldn't have much of a case about coverage, would you?

Mr. Kollin: That is probably true, but the Government did choose to and elected to charge him with use, and that is the reason why we're here today and what he is charged with.

Unknown Speaker: You wouldn't argue that use or carry means carry for the purpose of using?

Mr. Kollin: Well--

Unknown Speaker: Really?

I'm surprised.

Mr. Kollin: --Justice Scalia--

Unknown Speaker: Well, that's all right.

Mr. Kollin: --I'm prepared to argue that, and--

Unknown Speaker: Yes, I think you would.

Mr. Kollin: --Because what I want to say here is that if we accept the Government's suggestion of the definition of use, this all-encompassing definition, or the lower courts', then the word use would always swallow up and encompass the word carry.

There could never be a situation where someone could use a firearm under their definition or under the definition of the majority of the lower courts where one would not be also carrying.

I mean, if you would carry it, you always would use it.

And the principles... I cannot think of a situation under their definition where it could not occur.

Unknown Speaker: Anything you're carrying, you're using?

I don't know.

Mr. Kollin: Under their definition, it's to possess with the intent to facilitate the crime, to possess and the presumption of intention.

So, under their definition, any time that one is carrying the firearm, one is always using it in regard to the statute.

And the basic axiomatic rules of construction of this Court is that we should never render a term in a statute to be superfluous and that each word should be given effect.

And if we don't narrow the definition of the word use to the definition that we have suggested here, that is, to define that use means the actual use in the active connotation... according to the active connotation of the word use, then the word carry would have no definition.

Unknown Speaker: I mean, we really haven't accomplished a whole lot if carry means what you say it means.

Really, I mean, it may be important to this case, but use and carry covers everything in the world then.

The dispute between you and the Government is that the Government says use carries everything in the world, and you say, no, it's only use or carry that covers everything in the world.

So, for later cases, this dispute is really not very important I suppose.

With due respect, Justice, I disagree.

And the reason I would disagree is because the decisions that are cited by the Government in its brief and some of the decisions that I cite in our brief is that there are situations that... where somebody has a firearm that is located proximally to where drugs are being held, and those people have been convicted of use, people who have been convicted of use who have firearms that are totally inoperable, that do not have firing pins, do not have ammunition, that are located in remote locations.

Those people have also been convicted of use under their definition and the majority of the lower courts'.

In fact, in Justice White's... in Justice Thomas' dissent in Mewks v. United States, that was their concern that this definition of the word use is... becomes an all-encompassing definition and it means possession and presumes the intent to use.

So, not only is this important to the case of John Angus Smith, but it is important to countless others who may possess firearms and not have a use.

Moreover, with this definition that the Government encourages here, both in the lower courts and from this Court, it also encourages the lower courts to engage in psycho journeys into the defendants' minds to try and determine their intent, and it requires situation-by-situation, case-by-case analyses--

--What do you say use means in the statute?

Mr. Kollin: It means actual use.

Unknown Speaker: Okay, but to say use means actual use doesn't help at all.

Mr. Kollin: Okay.

Well, it means to use it, to brandish it, to fire it as an offensive weapon.

Unknown Speaker: Well, then you're saying that... you're really putting quite a narrow construction on the phrase.

One doesn't ordinarily think of the kind of drug transactions that the statute is... don't you think of them as being more consensual than involving somebody sticking somebody up and getting drugs from them?

Mr. Kollin: Well, also but it's an offensive weapon to protect themselves or... as a weapon in the normal connotation of the way the item is used.

As an example, Mr. Chief Justice, let's say a carpenter is carrying a hammer on his side, on his belt.

And an individual would go up to the carpenter and say may I borrow the hammer.

Am I... are you using it?

The carpenter, while he would be carrying the hammer, would say no, I'm not using it now.

You may borrow it.

Secondly, if the carpenter goes ahead and trades that hammer for a board, similar to John Angus Smith trading the gun for drugs, we would not say the carpenter used the hammer under a normal way of speaking or normal connotation.

We would say the carpenter traded the hammer.

And so, in regard to this statute, I believe that--

Unknown Speaker: You could say the carpenter used the hammer to obtain what he traded it for.

Mr. Kollin: --Yes, but I don't think that's the normal connotation of the word use.

I think similarly to this situation is the problem this Court faced in Public Citizen v. Department of Justice.

In that case, the Court said that the word utilized... it's a very similar word I think to the word uses... is a wooly verb, its contours left undefined by the statute itself, and went through its analysis.

And I think similarly the word use here has a certain manner of uncertainty to it, and when it has this manner of uncertainty and ambiguity to it, then we must resort... well, then we have the... we look to the legislative history and also we can look to the rule of lenity.

And in looking to the legislative history in regard to this statute, I think that the legislative history supports the position of the petitioner in regard to this matter.

The original statute... well, the... as this Court has noted in the cases of Simpson and Busic, the legislative history in regard to the statute was rather sparse.

And in this particular case, as presented in our brief, the original bill in regard to adding this... these provisions of 924(c) was added on the floor by Representative Casey, and in his words, he said that without the words... word carry in it, that it would apply to the actual use of the firearm.

And then Representative Poff later proposed an amendment, also on the floor... and I noted in both situations there was a quorum present... that Representative Poff said that his amendment to the Casey proposal was not in derogation of that.

And so, therefore, in conjunction with the fact that the Senate proposal of Senator Dominick was not accepted, which was instead of using... instead of having the words use or carry, they had the word armed, that we must distinguish between use or carry, and in that situation looking at this legislative history, we see that the meaning of the word would not encompass the word... would go to its actual use in its normal capacity.

In our brief, we also present what I presented as the pawn ticket hypothetical... and that's at page 15... in which we have an individual who takes a gun and several weeks before he decides to engage in any type of drug activity, takes the gun and pawns it at a pawn shop.

Later on, he decides to become involved in... excuse me... a drug trafficking event, and then trades the pawn ticket for the drugs.

The Government acknowledges at footnote 20 that perhaps this does not fall within the normal understanding of the word use, and I could submit to you that there could be countless other situations like that, for instance, a bill of lading for gun parts that could be assembled into guns that could be traded, or for instance, other situations where an individual brings... is bringing home a quantity of drugs in a large box, and for some reason, the door keeps swinging shut, and there is a gun lying there that had no part in the transaction.

There was no intent of being used in regard to the case, and takes that gun and places it as a door stop.

And technically under the wording of this statute, that is being used during and in relation to the Federal drug trafficking crime.

So, the statute itself presents an ambiguity and uncertainty as to the meaning of the word use.

And accordingly, we have the right to look at the legislative history, which I presented, and also to the rule of lenity.

Unknown Speaker: Section 924(g) prohibits the transfer of a firearm that's going to be used in drug transfer... in drug trafficking.

I take it that under your view if someone transfers a firearm to a person, knowing that the transferee is going to use it to trade drugs... to trade for drugs, there's no liability under (g).

Mr. Kollin: To be quite truthful, Justice, I have not explored the... those aspects of section (g).

Unknown Speaker: Well, your word... definition of the word use is such that it has to be somehow used in order to protect the person and not for a trade.

So, I take it under your interpretation, the word use has to be given the same definition so that if people trade firearms, knowing that the firearms will be used by the transferees to be traded for drugs, there's no violation of under (g).

It has to be.

Mr. Kollin: I don't know the exact wording of section (g)--

Unknown Speaker: It says whoever knowingly transfers a firearm, knowing that such firearm will be used to commit a crime of drug trafficking.

Mr. Kollin: --Well, I think that the issue there is transfer, and the later aspect is used--

Unknown Speaker: No.

Let's assume that the transfer element of my hypothetical is satisfied.

Under your definition, there is no use of the firearm even though he is... the transferor knows that it's going to be used to trade for drugs.

It's not being used under your theory.

Mr. Kollin: --That is correct, but it could be the person could possibly charge with carrying the firearm under the other prong of the statute.

Unknown Speaker: Well, doesn't the word carrying carry... strike that.

[Laughter]

Doesn't the word carrying suggest even more strongly than the word use in this context an offensive or protective purpose?

I mean, carrying is not a broader term than use, which is what your answer to Justice Kennedy seemed to assume.

Mr. Kollin: Well, I think that one of the courts have held that carrying is a very narrow... the lower courts have held that carry is a very narrow definition and use has a very... has lost its active connotation.

But I think carry means to possess in transit or possess and transport.

Unknown Speaker: But doesn't it also, for purposes of this statute in your judgment at least, require a... an offensive or protective purpose when it is carried--

Mr. Kollin: Not under the definition that I've suggested.

Unknown Speaker: --Well, how about the definition that you would like us to assume in deciding this case?

Do you think carrying has no protective or offensive purpose?

Mr. Kollin: I think generally yes, Justice.

I think generally carry does have that offensive type purpose.

Unknown Speaker: Should we construe the statute to import that requirement of an offensive or protective purpose when we use... when the statute uses the word carry?

Mr. Kollin: I don't think that is necessary in regard to reaching the decision in regards... in this case.

Unknown Speaker: Well, if we don't do that, didn't your client carry the weapon in relation to the barter that he later engaged in?

If we don't adopt that particular construction in this case, don't you lose under the word carry?

Mr. Kollin: No, Justice, because--

Unknown Speaker: Oh, he was discharged.

I see.

Mr. Kollin: --He was discharged under the use prong.

Unknown Speaker: But you would lose if he had been charged with carry if you adopt the broad definition that you're considering.

Mr. Kollin: I think that was the same question Justice White asked earlier which I agreed with, but for whatever reasons, in three superseding indictments the Government chose to only charge John Angus Smith with the use of the firearm during and in relation to the Federal drug trafficking crime.

Unknown Speaker: Mr. Kollin, surely a court that's going to use language reasonably enough so that it interprets using a gun to mean what you say it means, using it in a crime, would also not be so unreasonable as to interpret the phrase carry a gun to mean a longshoreman who's... who has on his shoulder a crate full of weapons that he's taking off the ship.

I mean, if we're reasonable for the one, don't you think we should be reasonable for the other too?

Mr. Kollin: I agree, Justice, that that requires that reasonableness.

In fact, that was suggested in the footnote in the 1984 passage of the bill in which they talked about a firearm merely carried during a pugilistic barroom fight.

Unknown Speaker: You can say in some sense, of course, that the longshoreman carrying this crate is carrying a gun, but that's not what you mean when you say are you carrying a gun.

Or when the policeman in... you know, arrests the person and searches and says are you carrying, I mean, he's not saying are you lifting.

He's talking about whether you have a gun on your person with the intent of using it.

Of course, I suppose the longshoreman also has to be also be carrying some drugs, or the statute doesn't apply.

[Laughter]

Mr. Kollin: That's true, Justice.

Unknown Speaker: I was just curious about your legislative history point.

The ambiguity in using is does the use by means for barter purposes constitute use, and the... you turn us to the legislative history, and Congressman Casey said I mean actually use a gun.

Well, actually use really isn't any different from use.

I'm not sure why that clears up the ambiguity that gets you to look at that.

Mr. Kollin: Well, if there is an ambiguity--

Unknown Speaker: Yes, and then I look at it and I see actually used.

That's got the same ambiguity.

I'm actually using it when I hand it to you in exchange for some prohibited substances, am I not?

Mr. Kollin: --Well, that goes to my... to the next point is the rule of lenity.

Unknown Speaker: Well, I know, but that... I'm just confining on the legislative... my question really is I don't see why your legislative history argument advances us at all.

It seems to me it just gets us to where we started, namely, what do you mean by use.

Mr. Kollin: Well, I think it goes to... well,... perhaps my interpretation of actual use means use an offensive weapon.

Unknown Speaker: Yes, I know, but the Congressman didn't say that.

He didn't say anything about offensive weapons or protective purpose.

He just says actual use, and it seems to me if a barter is a use, it's also an actual use.

I mean, you know, I'm just saying I'm not sure your argument gets us anywhere.

Well, if your argument is it's ambiguous... if use is ambiguous, the two words actual use is even more ambiguous.

[Laughter]

Don't you think?

Mr. Kollin: I agree that that is an argument to be made in regards--

Unknown Speaker: Mr. Kollin, doesn't the language in the statute, use in relation to a drug trafficking crime, clarify it?

It's use in relation to the drug crime.

Mr. Kollin: --Well, I think that was--

Unknown Speaker: It's not just use per se.

It's in relation to the crime, and I suppose bartering it for drugs could be said to be in relation to the drug crime.

Mr. Kollin: --That was the argument that was made in the Phelps case that was... the decision the Ninth Circuit turned on, which... but they said that a firearm that is traded in barter is not used in relation to the Federal drug trafficking crime, and that's the decision they ruled upon.

We are not abandoning that position, but we feel that with regard to the definition of the word use, it presents the ambiguity.

Moreover, if we turn to the next point, which is the rule of lenity, then we have... where's there's ambiguity exists, then you... the decisions are that we adopt a construction most favorable to the accused.

And if we adopt that construction most favorable to the accused, then in this situation the... we would find that there is no violation on the part of John Angus Smith for bartering the firearm for the drugs.

Unknown Speaker: Well, in our Moskal opinion, Mr. Kollin, we said that a statute isn't ambiguous for purposes of the rule of lenity just because it's possible to articulate a more narrow construction.

Mr. Kollin: I understand that, but I think that in this particular case it is ambiguous, and I think that--

Unknown Speaker: But aren't you saying it's ambiguous simply because it's possible to articulate a more narrow construction?

Mr. Kollin: --No.

I'm saying it's ambiguous because without narrowing the construction, we nullify the word carry, and that the decisions of this Court have held that we should never make a word superfluous in a statute, and we should give each word effect.

There is a minority opinion in regard to the Moskal situation.

Judge Scalia's position is once there is an ambiguity, you don't--

Unknown Speaker: Yes.

That didn't prevail.

Mr. Kollin: --I understand that.

[Laughter]

Unknown Speaker: You could just... you can say that... you can accept the fact that carrying doesn't mean use, but that doesn't mean that bartering it for drugs is not using it.

Mr. Kollin: Well, it's our position--

Unknown Speaker: You're doing more than carrying a gun if you take it out of your pocket and trade it off for some drugs.

Mr. Kollin: --Well, in the situation of our hypothetical, Justice White, in which somebody trades the pawn ticket--

Unknown Speaker: Would they... would the Government really have been describing what happened if it said this fellow was carrying a gun in connection with a drug thing?

What happened was that he was... he bartered, he traded the gun off.

Mr. Kollin: --Yes.

Unknown Speaker: Well, that's more than carrying it, isn't it?

Mr. Kollin: But... well--

Unknown Speaker: That's actually using it.

[Laughter]

Mr. Kollin: --Well, I think it's different than... I think that's different than carrying.

I don't think it's actual use because I think we think of the word use in the normal connotation of that item's utilization.

Unknown Speaker: Well, it's different from shooting somebody.

That's right.

But he has certainly got his money's worth out of that gun.

[Laughter]

Mr. Kollin: Well, never ever traded it.

So, he didn't get to the situation.

Not only does this definition establish the ruling for John Angus Smith, but it established a bright line for the lower courts because as we... as I talked about, that the lower courts have been going through this case-by-case, situation-by-situation analysis to try and determine the intent of the person who possesses that firearm, has gone to situations with... endeavoring to presume an intent in the person's mind in regard to that possession.

And it avoids that case-by-case situation analysis, and it reduces the burdens to the lower court by not having to go through those things, but determines a bright line which somebody either uses it or not uses it and what carry means under these situations.

I also submit that it's consistent with the congressional history with regard to this matter.

Unknown Speaker: I'm not sure you're... let me just challenge you on your bright line argument.

It seems to me one... if we hold that bartering a gun for a... drugs is use, that's... there's nothing fuzzy about that holding.

There may be some fuzziness out in other cases about intent, but there's no doubt about intent in the facts of this case if barter constitutes use.

Mr. Kollin: If barter constitutes use--

Unknown Speaker: That's a very clear... that's at least one area of... that the statute covers that everybody would understand.

You can't trade a gun for drugs--

Mr. Kollin: --That's correct.

Unknown Speaker: --without getting an enhanced penalty.

Mr. Kollin: But it still... as you said, Justice Stevens, it still creates a fuzziness that was mentioned in the dissent... the denial of certiorari in Mewks and the volume of cases that keep on reaching this Court about... in petitions for certiorari in regard to what use is and whether--

Unknown Speaker: You think we can fashion a definition of use that won't have any borderline gray areas that will produce litigation?

Mr. Kollin: --I don't think that's true with regard to anything in the law.

Unknown Speaker: You would suggest that the fuzziness would be in the reasoning, not in the holding I take it.

Mr. Kollin: I'm sorry.

I didn't hear.

Unknown Speaker: I shouldn't have said that.

I said you would suggest that the fuzziness would have been in the reasoning, not in the holding.

That's the one bright line rule.

Strike the question.

[Laughter]

Mr. Kollin: Well, I think that the holding would establish the bright line, and I think... I do submit that I think that the congressional history is consistent with the point that we make that actual use refers to something more than just bartering or trading.

In the instant case, John Angus Smith did not actually use a firearm in the context intended by Congress as an offensive weapon.

This Court should determine that his conduct of trying to trade the firearm for drugs did not violate the use prong of the statute because he did not actually use the firearm in its normal capacity as an offensive weapon.

I'd like to reserve the remainder--

Unknown Speaker: Mr. Kollin, could I ask you just one question?

Let's assume that your client was successful and was not arrested, and a friend approached him the next day and asked him what happened to his Mack 10.

Could he reasonably respond I used it to obtain cocaine?

Mr. Kollin: --Not in the context that the statute prescribes.

I think that--

Unknown Speaker: But could he respond to his friend I used it to obtain cocaine, and would that be a reasonably understandable response?

Mr. Kollin: --I do not believe that's how someone would normally say it.

I think they would say I traded the firearm for the drugs.

Unknown Speaker: If he did say that, might not somebody... if he did say that to you, wouldn't you think that what he meant was he stuck it in somebody's face in order to compel the person to give him the cocaine?

He said I used the gun to get some cocaine.

Mr. Kollin: I think that would be a very reasonable interpretation.

Unknown Speaker: Thank you, Mr. Kollin.

With your carpenter, if he traded his hammer for the board, and he was asked what happened to his hammer, and he reasonably... he said I used it to obtain this board, would one reasonably think that he used it to hammer someone's head to obtain the board?

[Laughter]

Mr. Kollin: No.

I think he... somebody could reasonably interpret that he pulled the board off a wall by pulling out the nails.

Unknown Speaker: I pass on this round, Mr.--

[Laughter]

Mr. Hungar, we'll hear from you.

Argument of Thomas G. Hungar

Mr. Hungar: Thank you, Mr. Chief Justice, and may it please the Court:

On its face, the language of section 924(c) encompasses the use of a firearm as a medium of exchange to buy illegal drugs.

If I purchase illegal drugs with a $100 bill, I have used that $100 bill to buy drugs.

By the same token, if I--

Unknown Speaker: Yes, but there is this difference.

The purpose of manufacturing and printing $100 bills is to use them as a medium of exchange.

The purpose of manufacturing and selling guns is not to use them as a medium of exchange.

Couldn't one define use to be use for the purpose that the item was created for?

Mr. Hungar: --No, Your Honor.

The word use does not imply use for a... for the particular purpose the item was created for.

It implies any use.

Unknown Speaker: Well, that's the question in the case, of course.

Mr. Hungar: Well, the definition of the word use encompasses all uses.

If I use a gun to pound a nail into the wall, that's not the purpose for which guns are designed, but I would say in common parlance I used the gun to pound the nail into the wall.

Unknown Speaker: But, Mr. Hungar, maybe our problem is that we're focusing on the word use, and words are not used one at a time.

They're used in phrases.

Hence, there... you know, there is a maxim of construction, notiatur ex sociates.

You know the word from the company of words in which it's used.

And here we say it says use a gun.

If you had to answer a questionnaire as to whether you used drugs and you were a pharmacist... that was your profession... would you have to answer yes?

Of course, you wouldn't, would you?

Mr. Hungar: Well, it would depend on the purpose of the questionnaire.

Unknown Speaker: Well, because the phrase use drugs means something even though the word use by itself can mean a lot of things.

And when you say use a gun, did he use a gun, I don't think it means did he use it to scratch his head.

[Laughter]

Or did he use it to pry the door open?

It means he used a gun as a gun.

Gee, I--

Mr. Hungar: With respect, Your Honor--

Unknown Speaker: --At least if you're working with the doctrine of the rule of lenity, it seems to me you have to take that into consideration.

Mr. Hungar: --To the contrary, Your Honor.

The rule of lenity is particularly inappropriate I think to apply in this case because the conduct at issue here falls within the literal definition of the words use, within the literal meaning of the words use.

This isn't a case in which we're arguing for something other than the actual definition of the words use.

Petitioner had fair notice that if he used a gun in relation to a crime, he was running risks of being incarcerated for a very long time, and that's exactly what he did.

This isn't the case for the rule of lenity at all.

The definition of the word use is very broad.

It means to employ, to carry out a purpose or action by means of, to make instrumental to an end.

Congress chose not to use specific narrow words like fire, shoot, or brandish in order to limit the types of uses that would be covered by the statute.

Instead, Congress used sweeping language which suggests that it didn't intend the courts to draw fine distinctions among the various ways in which criminals can employ firearms in furtherance of their criminal conduct.

Unknown Speaker: Why didn't the Government avoid all this ambiguity and cause this split in the circuits?

Why didn't you just indict him for carrying the gun in connection with a drug crime?

Mr. Hungar: I don't know why he wasn't indicted for carrying in this case, Your Honor, but I would point out that that would not have alleviated the split in the circuits because what the Ninth Circuit held in the Phelps case is that... they conceded in the Phelps case that the defendant there had used the gun by trying to trade it for drugs, but what they said was that that use was not in relation to the drug trafficking crime.

So, they went off on the in relation to prong which, of course, applies to the carrying of the firearm.

Unknown Speaker: Well, but you wouldn't have had much problem indicting... convicting this person for carrying, would you?

Mr. Hungar: Well, again, Your Honor, in the Ninth Circuit--

Unknown Speaker: Well, would or not?

Mr. Hungar: --we would.

In the Ninth Circuit, under the rule of the Phelps case we could not convict him for carrying in relation to an offense because what the Ninth Circuit in Phelps said was that trading of a firearm--

Unknown Speaker: Well, I know, but--

Mr. Hungar: --for drugs is not in relation to.

Unknown Speaker: --I know, but it didn't help you any to use "use" either, did it?

Mr. Hungar: Well, it did until the Court granted cert, Your Honor.

[Laughter]

Unknown Speaker: Yes, but it shouldn't have.

But if you won in the Eleventh Circuit on the "use" theory, you certainly could have won it on the "carrying" theory.

Mr. Hungar: Yes, Your Honor.

Unknown Speaker: And we wouldn't... you wouldn't be here.

Mr. Hungar: Well, I think we might well be here because petitioner could have argued that by holding that the carrying of a firearm for the purpose of trading it for drugs is in relation to a drug offense, that would have created a direct, square conflict with what the Phelps case said in the Ninth Circuit, which is that the trading of a gun for drugs is not in relation to a drug offense.

We think that--

Unknown Speaker: But the issue would certainly be different here.

Mr. Hungar: --It would be different, yes, Your Honor.

Unknown Speaker: Yes.

Mr. Hungar, in subsection (d), the statute refers to any firearm or ammunition involved in or used in any knowing violation.

Under your definition in your interpretation of the statute, is there a difference in involved in and use?

Mr. Hungar: I'm not sure, Your Honor.

If that statute doesn't have an in relation to requirement, there might be... involved in might be broader than in relation to, although I wouldn't think it would be.

Unknown Speaker: I cannot offhand think of a difference of involved and use under your interpretation, and it seems to me that under your interpretation, at least it renders involved in in (d) superfluous.

Mr. Hungar: Well, use implies some active... I mean, some active use, not to be redundant, but something could be involved in an offense without having been used by the particular defendant.

Use implies, on the part of the defendant charged, some ability to guide the destiny of the gun, if you will, to control the gun, at least in the sense of constructive possession as Justice Thomas' opinion for the D.C. circuit in the Long case said.

"Involved in" would not necessarily imply that.

In any event, it may be that in that statute Congress was simply... again, similarly to what it was trying to do here, was using multiple words to ensure that the statute would given its full scope and construed broadly in order to get at the full range of conduct that Congress wanted to proscribe.

Petitioner argues that our interpretation of the word "uses" renders the word "carries" superfluous.

We disagree with that.

There are certainly cases in which a defendant could carry a gun without using it in relation to the crime.

For example, a member of a bank robbery conspiracy who goes to the store and buys a gun and brings it back and then turns it over to the member of the conspiracy who's actually going to rob the bank.

That individual has not used the gun in any way, but he has certainly carried it during and in relation to the bank robbery conspiracy.

Unknown Speaker: Well, why hasn't he used it to facilitate the bank robbery?

Mr. Hungar: Because he hasn't used it in any way.

Unknown Speaker: Sure, he has.

He handed it over to somebody and said, here, you can use this in the robbery.

He's using it to perform his act of facilitation.

Mr. Hungar: Well, I don't think that we would say that the mere carrying of a gun without more is the use of a gun.

The use implies--

Unknown Speaker: Because it would just be absurdly broad, wouldn't it?

Mr. Hungar: --Because I don't think that's how we would use the word use in common parlance.

If you were using--

Unknown Speaker: If you want to start referring to common parlance, it seems to me you're getting into... onto pretty thin ice because a minute ago you were saying, no, look, we're going to use use in the literal dictionary definition.

That's not common parlance.

Mr. Hungar: --Well, I think when we speak of common parlance, we speak of the way words are ordinarily used which is I think the way the dictionary defines them.

Unknown Speaker: And doesn't the dictionary frequently contain definitions which are at least possible uses of the word, but which do not reflect common, everyday usage?

Mr. Hungar: Yes, but the dictionary definition of the word use and the common parlance use of the word use means to employ something, to carry out some purpose.

It doesn't mean to employ something only in a manner for which it is designed.

Unknown Speaker: Yes, but as Justice Scalia suggested to you, when you say use a gun, in common parlance it doesn't mean trading a gun, does it?

Mr. Hungar: Not necessarily, Your Honor, but it can mean that.

It depends on the circumstances.

Unknown Speaker: Not necessarily or even commonly.

Mr. Hungar: Again, if I... if a burglar uses a gun to break open a window in order to gain access to a house, or if he uses the butt of his shotgun to smash open a closet door in order to ransack its contents, he is--

Unknown Speaker: But that isn't what... you say using a gun in common parlance means opening a door with it.

Mr. Hungar: --It can.

I can certainly say I... if I were the burglar who smashed open the closet door with the gun and someone asked me how I smashed open the closet door, I would say I used my gun.

That's common parlance.

That's the way the word is ordinarily used in that context, and there's nothing to suggest that Congress intended a narrower definition.

The literal--

Unknown Speaker: So that in this case, if you used the gun at home in order to grind the powder, you used the butt of the gun, and then left the gun at home, that would be the use of a gun in connection with a drug transaction?

Mr. Hungar: --Well, it depends on the crime being charged.

Unknown Speaker: This charge... this statute.

Mr. Hungar: The... it depends on the predicate offense that's being charged, whether it's a use in relation to the predicate offense.

Certainly there's no question--

Unknown Speaker: Under your interpretation of the statute and under my hypothetical, would there be a violation under this statute?

Mr. Hungar: --Well--

Unknown Speaker: Would he be using the gun in a drug... for drug trafficking?

Mr. Hungar: --Well, there has to be a use in relation to a specific drug trafficking crime.

Certainly the defendant has used the gun--

Unknown Speaker: Well, at 10 o'clock in the morning, he grinds the cocaine powder using the butt of the gun, and at 11 o'clock in the morning, he takes the powder that's so created and goes out and sells it.

A violation of this statute?

Mr. Hungar: --Well, again, Your Honor, it might not be a violation of the statute depending on how you construe the limitation of during.

Unknown Speaker: Well, how--

Mr. Hungar: It has to be during the commission of the crime, and it depends on what the crime charged is.

If the crime is distribution of cocaine, which occurs at 11 o'clock, I don't think he has violated the statute.

But even if he has... if the charge is possession of cocaine with intent to distribute it, the presence of the gun at the scene of the cocaine would permit a jury to infer that he is, indeed, using it in relation to the crime and is, therefore, guilty of the crime.

But it depends on the predicate drug crime being charged.

Unknown Speaker: --What if the barter arrangement was I will mail you the gun in exchange for the drugs?

Has he used the gun within the meaning of the statute here?

Mr. Hungar: Well, that's a more difficult question, Your Honor, because many courts of appeals have construed the use in relation to requirement to require some proximity, some availability of the gun, and it's unclear how that requirement would apply in this context, but--

Unknown Speaker: Well, what's your position on--

Mr. Hungar: --I think that you could certainly have--

Unknown Speaker: --the meaning of the word in relation to, and... the words, rather?

Mr. Hungar: --I think that that would be a use in relation to the crime, Your Honor.

And again, there's nothing surprising or absurd about that result.

Congress was concerned about the involvement of firearms in criminal activity.

And in particular, when it amended the statute in 1986 to extend the statute to drug trafficking crimes, the legislative history indicates that Congress did so because of the increasing proliferation of machine guns and other dangerous weapons among drug trafficking criminals and other criminals and the dangers that posed to law enforcement officials and other members of society.

And it's entirely in keeping with that purpose to construe the statute as we would.

Unknown Speaker: I suppose if there was a drug dealer who wasn't so much interested in money as collecting guns to defend himself and his colleagues, he let it be known that I am trading cocaine for guns.

That certainly would be using a gun?

Mr. Hungar: If he were trading cocaine for guns?

Unknown Speaker: Yes.

Mr. Hungar: And he were intending to... he were letting it be known to people--

Unknown Speaker: Could you indict him who is... who... the cocaine dealer.

Could you indict him under this statute?

Mr. Hungar: --It depends.

It's a more difficult question because we might not... depending on the circumstances of the case, we might not say that the drug seller--

Unknown Speaker: He wants the gun and the gun... and he never would have entered into this drug transaction unless he got the gun.

Mr. Hungar: --In that case, it probably would be a violation of the statute.

If the drug dealer had no actual interest in obtaining the gun and the person with the gun who was trying to buy the drugs volunteered this, the drug dealer might not be using the gun in any sense of the word, and therefore, the drug dealer might not be himself liable, although he would probably be liable as an aider and abetter even under that statute.

But again, that's not this case because in this case it's perfectly clear that, as you said, the defendant was actually using the gun in order to get drugs and, therefore, was actually violating the statute.

Unknown Speaker: Your answer to Justice O'Connor suggests, I believe, that you would answer their hypothetical about the pawn ticket by saying that's use of a gun too.

Mr. Hungar: I think that's right, Your Honor.

The pawn ticket is a particularly difficult one because a pawn ticket, at least normally, does not in itself entail the right to obtain a gun.

So, you have to go pay money for it.

In a sense it's sort of like saying if you give me the drugs, you can go to the store and buy a gun, and I'm not sure that's that the use of a gun.

Unknown Speaker: Maybe change the example to one where he gave him a bill of sale to the gun.

Mr. Hungar: Yes.

Unknown Speaker: That would clearly be--

Mr. Hungar: I think that would be.

Again, that's further from... that's quite a distance from this case because there's no question about constructive or actual possession, as some of the courts of appeals have acquired.

The gun here was actually in the possession.

Unknown Speaker: --But it really would be use in the same sense, consideration in an exchange for guns--

Mr. Hungar: I think that's right, Your Honor.

Unknown Speaker: --for drugs.

Mr. Hungar: And again, there's nothing absurd--

Unknown Speaker: That's not absurd.

I'm not suggesting that it's absurd, but that is the scope of your position.

Mr. Hungar: --That's correct.

Unknown Speaker: Yes.

Mr. Hungar: Given the literal language that Congress has used, we think that the statute should be construed in accordance with that literal language, as the original sponsor of the statute indicated, Congressman Poff.

The purpose of the statute was broader than what petitioner has suggested.

The purpose of the statute was to persuade the man who was tempted to commit a Federal felony to leave his gun at home.

Congress didn't want guns involved in the commission of felonies.

Unknown Speaker: You see, the point of my hypothetical was he could do that and leave his gun at home.

Mr. Hungar: That's true, Your Honor, and again, that might be a reason for a court concluding... we don't think it would be, but it might be a reason for a court concluding in that hypothetical that it's absurd to construe the statute that way.

But this case doesn't present that question.

This case falls squarely at the core of Congress' concern in adopting the statute.

Petitioner appears to concede that the use of a firearm... that the involvement of the firearm in this case was in relation to the predicate drug offense, and we agree that under any reasonable construction of the in relation to requirement, it has been satisfied in this case, despite the fact, as I said, that the Phelps court in the Ninth Circuit reached the opposite conclusion.

Unknown Speaker: So, did you think we're... be authorized in this case to say that it is in relation to?

That isn't the issue we took it on, is it?

Mr. Hungar: Well, I believe the Court granted certiorari to decide whether this constitutes a use in relation to a drug trafficking crime, and we submit that it is.

But in order to uphold the conviction, the use has... in order for the conviction to be valid, the use has to have been in relation to--

Unknown Speaker: Well, the question presented is whether the act of offering a firearm solely as an item of barter in trade for drugs violates 1924(c) for use of a firearm during and in relation to a drug trafficking felony.

So, you can say that certainly that question is subsumed.

But you would like us to... if you win the case, you would like us also to overrule the Ninth Circuit.

Mr. Hungar: --That would be nice, Your Honor, but... and I think, as the Chief Justice pointed out, in order to answer the question presented as we would, necessarily the Phelps decision has to be overruled.

In urging a narrower interpretation of section 924(c), petitioner in effect is asking this Court to rewrite the plain language of the statute to construe the term uses a firearm as if it read uses a firearm as a weapon.

In our view, the statutory text forecloses that approach.

Congress specified the limitations it wanted to impose on the scope of the statute.

The use or carrying of a firearm must be during the commission of the predicate offense, and it must be in relation to the predicate offense.

Those two limitations do not include the ones sought by petitioner.

So, the obvious inference is that Congress did not intend to adopt petitioner's version of the statute.

As I was discussing earlier, petitioner argues that our interpretation of the statute would render the word carries as superfluous, but in fact, that's not correct.

If anything, it's petitioner's interpretation of the statute that would render a word superfluous because if petitioner is correct that the statute applies only to actual physical uses of firearms as an offensive weapon, it's difficult to see how one can actually use a firearm as an offensive weapon without also carrying it.

And so, it's petitioner's interpretation of the statute that runs afoul of the rule that statutes should not be construed in order to render words superfluous.

If there are no further questions, I thank the Court.

Unknown Speaker: Thank you, Mr. Hungar.

Mr. Kollin, you have 2 minutes remaining.

Rebuttal of Gary Kollin

Mr. Kollin: As express words are placed in statutes and have to be read in their context, like use or carry, involved in, or used in, and not to make other words superfluous, in these cases with use or carry or involved in or used in, they are not mere iterations of spanning out of different methods of commission of the crimes, and we look at them in the normal parlance.

The bank robbery conspiracy.

Yes, I would agree that that is the facilitation of the commission of the crime and the person... other persons would be guilty under the concept of 18 United States Code, subsection... section 2 for aiding and abetting, just as the theory was tried to be made in the Busic case.

I do not believe that the Government has been able to establish any example where someone can carry without using under its definition or the definitions accepted by the majority of the lower courts.

The problem with regard to this definition is that it criminalizes the fact that somebody may have drugs that are proximate to a gun even where the guns are inoperable.

There are situations where guns were at remote locations where the drug transactions weren't being committed.

This also... this same definition of use in this statute also accomplishes the law enforcement goal because it still allows law enforcement to encourage the person to leave the gun at home because if he is carrying the gun on his way to committing the crime, he is still guilty under the statute, and therefore is the same goal and same purpose of the statute.

And the examples in the later 1984 statute... the versions talk about the methods of using it and they give examples by pointing it out in regard to the bank teller and individuals of that nature.

Chief Justice Rehnquist: Okay, Mr. Kollin.

The case is submitted.