HOLLOWAY v. UNITED STATES

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Argument of Kevin J. Keating

Chief Justice Rehnquist: We'll hear argument next in Number 97-7164, Francois Holloway v. the United States.

We'll wait just a minute, Mr. Keating.

Mr. Keating.

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

This case presents an issue of fundamental importance to the administration of criminal justice in our Nation, whether judicial expansion of an unambiguous statute based ostensibly on legislative purpose should be permitted.

The Second Circuit's holding that the Federal carjacking statute encompasses the unstated and expansive mens rea element of conditional intent must be reversed, as it contravenes the plain and unequivocal language of the statute and thus violates this Court's longstanding canons of statutory construction.

This alone forecloses the issue.

Moreover, if legislative history is relevant, and we think it is not, the legislative history does not support a finding of conditional intent in the statute.

In fact, a clear reading of the legislative history reveals that Congress could not have intended this statute to be a conditional intent statute.

Finally, the Government's assertion that the concept of conditional intent can simply be read into the specific intent element, as there is a traditional recognition of the concept in our country in statutes analogous to the carjacking statute is a complete fiction.

Justice O'Connor: I have a little trouble with understanding the concept of intent and conditional intent.

I don't find many cases dealing with the so-called conditional intent, but intent is very broad, and is it possible that someone who stops a motorist with a gun, saying, give me your keys, and pointing the gun at him, could be said... could the fact-finder find intent to cause death or serious bodily injury from that...

Mr. Keating: No, Your...

Justice O'Connor: happening?

Mr. Keating: No, Your Honor.

Justice O'Connor: And if not, why not?

Mr. Keating: The answer is no, Your Honor, and that's precisely why the district court improperly instructed the jury on conditional intent, because the district court realized that that would not satisfy the intent element.

Intent is generally defined...

Justice O'Connor: Well, why?

That's up to the jury, and they can determine it from circumstantial evidence.

And if the circumstances are the use of a deadly weapon and the demand for the keys and the vehicle and the use of the weapon in hand, I would think the jury could find intent to cause serious injury.

Mr. Keating: Your Honor, if we define intent as one's conscious objective, which is generally in charges how the concept is defined, the conscious objective of the man who points a gun at somebody and says, give me your keys, is not, not to cause the death or serious physical harm.

In fact, it's mutually exclusive.

The conscious objective...

Chief Justice Rehnquist: Well, but if...

I think there's... I think Justice O'Connor's question is, could a jury find, from the kind of evidence she referred to, could they infer a conditional intent, and I think it's very difficult to say they couldn't.

They might well choose not to.

It seems to me what the case here turns on is what is the meaning of the statutory intent, not what a jury could find from a proper charge.

Mr. Keating: Your Honor, could they infer a conditional intent?

They could, clearly, from the facts presented to the jury.

That inference could be drawn.

Our argument here is not that the concept of conditional intent is an unconstitutional one.

Our argument is relatively straightforward.

It's not here.

This statute doesn't express the concept.

The legislative history never mentions the concept, and there is...

Justice Kennedy: It seems to me that your answer to Justice O'Connor should have been that the Government must have proof of a fixed intent to injure, no matter, and that given her hypothetical there was just not enough.

And if that's the answer... I think that has to be your answer.

Maybe, maybe not.

If that's your answer, it seems to me that the rejoinder is, well, this is very difficult to do.

This makes it a statute which is difficult to prosecute, difficult to implement, and we shouldn't attribute to Congress the objective of having a statute which is really difficult to obtain convictions under.

Mr. Keating: Well, Your Honor, the statute perhaps is difficult to prosecute if conditional intent is read into it, if I'm understanding the Court's question.

If conditional intent is not somehow magically read into the specific intent element, then the statute is not difficult to prosecute.

It's not unlike any other criminal statute that has an actus reis, the taking of a motor vehicle from another by force, violence...

Justice O'Connor: Well, wait a minute.

I don't think you've answered Justice Kennedy's question.

What do you think the Government has to prove under subsection 1 to permit the 15-year penalty because there is in fact no serious injury?

What do you think the Government has to prove to get a conviction, as this statute is now written under 1?

Mr. Keating: The Government would have to prove that the defendant intended to cause the death or serious physical harm.

Justice O'Connor: No matter what.

Mr. Keating: No matter what.

That...

Justice O'Connor: Whether or not he got the car.

Mr. Keating: Certainly.

If intent is to find his conscious objective...

Justice O'Connor: Well, if that was what Congress intended, they sure made a hash of this statute, didn't they, with their amendment.

You think that's what Congress thought they were doing here?

Mr. Keating: Yes, I do.

Justice O'Connor: Yes.

Mr. Keating: I do, Your Honor, and...

Justice O'Connor: Don't you think there are many carjackings that occur all the time without the resulting serious injury?

Mr. Keating: Yes.

Justice O'Connor: And with somebody who says, well, I'll do it if I have to.

I'll hurt them if I have to, but I'm going to get the car.

Mr. Keating: Yes.

Justice O'Connor: But Congress didn't intend to cover those cases, in your view.

Mr. Keating: Well, the... I... Your Honor...

Justice O'Connor: I mean, that's kind of a... I think Congress might be surprised with your view of what it had done.

Mr. Keating: Your Honor, I allow for the possibility that this statute doesn't have the reach that Congress intended.

I allow for that possibility, and I allow for the possibility that possibly Congress didn't think it all the way through when they enacted the amendment, but Your Honor, if you look at...

Justice Ginsburg: Isn't it, Mr. Keating, more than that, because before the amendment, when the statute just said, in possession of a gun, this conduct would have been covered, right?

Mr. Keating: Yes.

Justice Ginsburg: So... and my understanding was that Congress was responding to carjackings that involved weapons other than guns and wanted to take out the gun part in order to broaden, not narrow the reach of the statute.

Is that not so?

Mr. Keating: That is so, Your Honor, but at the same time cries were voiced by a number of Members of Congress that by doing that they would be further diluting the already-attenuated Federal nexus of the carjacking statute.

If you simply strike the word firearm virtually every carjacking committed in our country, some 35,000 at the time of this offense, would be a State crime.

And the concern was raised regarding the principles of Federalism, and this is important...

Justice O'Connor: So you think...

Yes, but...

we should give it your interpretation in the interests of Federalism and leave these things to the States, because under your reading of it very few are going to end up in Federal prosecutions.

Mr. Keating: Your Honor, I don't think that very few would end up in Federal prosecutions.

If a carjacker approaches an individual on the street, points a gun at them, and fires at him and misses, that's a Federal prosecution.

Justice Souter: Well, yes, but that's not the way you engage in carjacking.

Anyone who did that would not only be a carjacker but insane.

If you want to carjack, you point a gun at somebody not because you want to cause him death or a serious bodily injury but because you want the car, and your interpretation would reduce the ambit of this statute to screwballs, not carjackers.

Unidentified Justice: [Laughter]

Mr. Keating: Well...

Justice Souter: Wouldn't it?

Mr. Keating: No, I don't believe so, Your Honor.

And if you look at what Congress did when they amended this statute, when they amended the statute, the word firearm was stricken.

A version of the amended statute came out of the House, a version came out of the Senate.

Neither of those versions had the specific intent element.

They were identical.

They simply said, whoever takes a motor vehicle from another by force, violence, or intimidation...

Justice Stevens: May I just interrupt with one brief question?

Mr. Keating: Sure.

Justice Stevens: Is it not fairly clear that they took the word firearm out because they wanted to include additional weapons?

Mr. Keating: Yes.

That's precisely what they wanted to do.

Those versions of the amended statute go into committee.

There's no record of what transpired in committee.

Out of committee comes the statute with the specific intent element.

If the Government's interpretation is adopted that the specific intent element must be read as including a conditional intent, there would have been no purpose whatsoever in adding the specific intent clause, because the statute already said, whoever takes a motor vehicle from another by force, violence, or intimidation.

It's difficult to imagine a case where that statute, left standing alone, where the Government would not also be able to establish that the perpetrator harbored a conditional intent to harm, so why add the language?

Chief Justice Rehnquist: Wasn't part of it so as to make someone who would violate this eligible for the death penalty?

Mr. Keating: The death penalty provision was added to the statute, but if the Court is asking, is that why the intent language was put into the statute...

Chief Justice Rehnquist: Yes.

Mr. Keating: to constitutionalize the imposition of the death penalty, I believe not, Your Honor, for this reason.

As the Court is aware in its Tison decision it is not necessary to establish, in order to constitutionalize the death penalty, that one intends to cause the death of the victim.

Justice Scalia: Well, it says or serious bodily harm anyway, which wouldn't suffice to comply with our constitutional requirements.

Mr. Keating: That also would not be necessary under the Tison decision.

Justice Scalia: But look...

Chief Justice Rehnquist: We're talking about what Congress thought, not what the law was.

Mr. Keating: Well, we would presume that Congress... and I'll add to it, Your Honor, that there's another section of the amended statute which deals with the constitutionality of the death penalty provisions.

Justice Scalia: Mr. Keating, your case ultimately hangs, it seems to me, on the text.

Whatever Congress meant, whatever they intended, you come up here and you say, this is what they wrote.

And it seems to me that the guts of your case is whether, indeed, that language, with intent to cause death or serious bodily harm, is susceptible of a conditional interpretation.

And that, in turn, depends upon whether there is this lengthy history of interpreting provisions that way.

You started to say that there was no such history.

I'd like to hear you say more about it.

Mr. Keating: Your Honor...

Justice Scalia: The Government says that there... you know, this is... we do this all the time.

Mr. Keating: That's right.

And I'll begin by saying, Your Honor, that it only depends on this lengthy history if, in fact, the statute is deemed to be ambiguous.

And we argue that the statute, the language of the statute is not ambiguous, and Rubin instructs that if the language of a statute is unambiguous, the first canon of statutory construction, that being that you look at the text...

Justice Scalia: Well, it's ambiguous if language like this has, for hundreds of years, been interpreted to be satisfied by conditional intent, okay.

Mr. Keating: In...

Justice Scalia: Can we get to that?

Mr. Keating: In support of their assertion that there is a longstanding recognition of conditional intent, the Government cites to not a single Federal statute which expresses the concept.

They cite to not a single decision of this Court which embraces the concept.

They cite to a handful of State...

Justice Scalia: Cite a handful?

They cited two things.

Mr. Keating: A handful of State court precedents which seem to embrace the concept in varying contexts.

Some of these citations were to attempts.

Attempts is a different animal altogether than a completed crime in the context of a conditional intent.

Justice Kennedy: Well, I'm not too sure I've seen many statutes in which the conditional intent is expressly eliminated in favor of a fixed intent.

I suppose you'd say in this statute whoever hijacks a car and intends in all events to cause injury or death, in order to incorporate your view.

I've just never seen a statute like that.

I'm not sure which way that cuts.

I don't know if that helps you or hurts you.

Mr. Keating: Well, I suppose it cuts both ways, but it would have been very simple, Your Honor, to do this.

With intent to cause death or serious physical harm if necessary.

If necessary.

That's...

Justice Kennedy: Well, have you ever seen a statute like that?

Mr. Keating: No, and Your Honor, that proves the point.

If conditional intent can simply be read into the specific intent element, we would expect to see pages upon pages of citations from the Government expressing that concept.

Justice Stevens: Why?

I think maybe the opposite, because if this had been a problem, it would have come up in hundreds of criminal statutes, and it's never been a problem.

Mr. Keating: Because it's never been applied, Your Honor.

Justice Breyer: Well, you say never, but I mean, I had my law clerk look up all those cites in the Government's brief, and she came back that not only do you have Lafave, you have such conservative things, AmJur, you have about 15 State cases, and the Model Penal Code couldn't be more explicit.

I mean, you know, when a particular purpose is an element of an offense, the element is established, although such purpose is conditional, unless the condition negatives the harm or evil.

I mean, so Cong... I agree with you this is a total error that they put this language in this place.

I think they did want to... they wanted to amend section 3 on the death penalty.

But nonetheless we have the statute in front of us, and there is this history, so what... I mean, if I've looked up these sources, which my law clerk did, Lafave, other treatises, the Model Penal Code, 10 cases, all of which, or more, which read it that way is... you've done a heroic job, but is there something to say about that?

Mr. Keating: Yes, Your Honor.

Justice Breyer: Yes.

Mr. Keating: The Government cites 10 cases, 10 State cases that stand for the proposition; 10, of course, out of 50, hardly a traditional recognition of the concept.

With regard to the Model Penal Code, Your Honor, while the Model Penal Code embraces the concept of conditional intent, it then greatly limits its application, and the Government provides half a definition of the code's concept of conditional intent in the brief.

Conditional intent will always depend on the attendant circumstances.

I will take your car unless you give... or, I will shoot you unless you give me the keys.

The giving of the keys are the attendant circumstances.

The code states that where attendant circumstances is an element, the element can be satisfied if the actor is aware of the attendant circumstances or hopes or believes in its existence.

As awareness of the attendant circumstance can never be guaranteed, the code allows for conviction if the actor is aware of a high probability.

Therefore, under the Model Penal Code they allow for the recognition of conditional intent, but only if the actor is aware of a high probability of the condition occurring, or is aware or hopes in its existence.

And that interpretation of the code has been adopted by at least one circuit, the First Circuit, in recognizing conditional intent.

Chief Justice Rehnquist: How would that apply here?

Mr. Keating: It would apply here, Your Honor, at a minimum to the fact that the district court improperly charged the jury on the notion of conditional intent.

Chief Justice Rehnquist: But we're reviewing the court of appeals' opinion.

Mr. Keating: That is one of our points in the opinion, Your Honor.

Justice Breyer: I thought that you're referring now to 2.02(2)(a) small (ii), and small (ii) refers to the instance well-known, I blow up the coach to kill the king, and in fact the footman is also killed.

I think, you know, I didn't want the footman to be killed, but I knew it was likely to happen.

I think that's (2).

I don't... I mean, I think it's as easy to put this within (1), where it's... the intent, the element of the intent is part of the nature of the person's conduct.

I mean, I don't think it fits... I thought maybe you were awash on that.

It's a wash.

It could go in (1), it could go in (2), and then they have the very explicit thing I read.

Mr. Keating: Your Honor, at bottom the statute doesn't express the concept of conditional intent.

In support of their position that there's a general recognition of it, there's 10 States that seem to embrace the concept out of 50.

Justice Scalia: How many States do you...

Justice Kennedy: When you say 10 States, you suggest that perhaps 40 have gone the other way, but I gather that it's 10 States who have weighed in, a total.

Chief Justice Rehnquist: Or have some States rejected the idea of conditional intent?

Mr. Keating: Some have rejected it, as cited in our brief.

They cite for approximately... I think it was 12 States.

We cite to five States who have rejected the concept altogether.

And if, in fact, there are only... if it is 10 States, again, we would expect to see some statutory construction.

There aren't any which embrace the concept of conditional intent.

Your Honor, the Second Circuit's decision here was in part based upon the view that congressional inadvertence had led to this statute that has unintended consequences.

If that's the case, if this Court feels that that's the case, the Court has already passed on that issue.

The Casey case in 1991, where that exact claim was made that a congressional omission had led to a statute with unintended consequences, the Court held that so long as the text is unambiguous, the text is the text.

In 1926, the Court held the same in the Iselin case.

There, the claim was...

Justice Stevens: Could you just help me?

Which is the Casey case again?

I don't remember that one.

Mr. Keating: Casey was in 1991, Your Honor.

Justice Stevens: Is it cited in your brief?

Mr. Keating: I think it's cited in the amicus brief.

Justice Stevens: Oh.

Do you have the citation?

Mr. Keating: Yes.

Justice Stevens: Was it a criminal case?

Do you know if it was a criminal case?

Mr. Keating: I don't recall, Your Honor, candidly.

Chief Justice Rehnquist: Why don't you file it later?

Justice Stevens: File it later, then.

Mr. Keating: I will.

Chief Justice Rehnquist: Mr....

Mr. Keating: Your Honor, the principle is applied with equal force to claims of congressional forgetfulness.

In Iselin, the very claim was made that again an omission by Congress led to a statute with unintended consequences, and once more, this Court held that to rewrite the statute transcends the function of the Court.

It's important to note the Government's retreat on this issue.

Earlier, in the Second Circuit, the Government argued, indeed, that this statute resulted from congressional inadvertence.

They now...

Justice Stevens: May I just follow... your position is that even if we're totally convinced that Congress meant the statute to read the way the Government would have us read it, we should nevertheless reject that reading because the plain language counsels a different result.

Mr. Keating: Could you repeat that, Your Honor, please?

Justice Stevens: Your view is that even if each of us is totally convinced that Congress intended to enact the statute that the... reading the way the Government reads it, we should nevertheless reject that construction because the text is controlling.

Mr. Keating: Yes, that is our view, and our view is also that Congress did not intend it to be a conditional intent statute.

They couldn't have, for the reasons I've already argued, because it would read the specific intent element right out of the statute.

There would be no purpose at all in putting the specific intent element in.

Justice Breyer: Yes, there would, actually.

Justice O'Connor: Well...

Justice Breyer: You can intimidate somebody by saying, your money or your life, all right, and you point the gun at them, but you know the gun is empty, all right.

That person would have satisfied the intimidation element, but that person would not have... you know, the specific intent would have been different.

That person wouldn't satisfy that.

They wouldn't satisfy it under the Government's reading.

Mr. Keating: Maybe that's one hypothetical that fits, Your Honor.

I can't imagine that Congress decided to enact this statute for the purposes of that hypothetical.

The...

Justice Ginsburg: It's not just a hypothetical.

I mean, it's bluffing, and there certainly is a difference between somebody who says, your car or I'll shoot, and has a loaded gun, and somebody who has a toy pistol.

In the latter case they're intending to hijack the car but they're not going to shoot, so that seems to me is a line that comes out of this statute, that the bluffer doesn't qualify, but the one who says, I don't want to do it, but if I have to I will, does.

Mr. Keating: Well, under the Government's reading, though, with conditional intent, of course, they all qualify, and they all would have qualified, Your Honor, under the prior statute, without the specific intent element.

Justice Kennedy: Well, I don't see how the Government would prosecute the person with the water pistol.

Am I wrong about that?

Mr. Keating: Under which version, Your Honor?

Justice Kennedy: Justice Ginsburg gave you the idea of the toy pistol, or the water pistol.

Under the present statute that doesn't...

Mr. Keating: Under the present statute...

Justice Kennedy: That doesn't meet even the Government's standard, does it?

Mr. Keating: No.

Justice Kennedy: No.

Mr. Keating: It would be difficult to prove a conditional intent to...

Justice Kennedy: Is the word conditional intent something we have to be stuck with?

It seems to me that specific intent is difficult enough to do... how specific.

The hijacker intends to hijack the car and rape the woman because he saw the woman in the store.

It turns out to be a different woman, but he rapes her anyway.

Well, in a way that's not quite specific enough.

In a way it meets the usual standard of specific intent.

It seems to me it's a question of how specific, not whether or not conditional or not.

Mr. Keating: Your Honor, I don't agree.

I don't think it's a matter of specificity.

They are different terms altogether.

One is a conscious intention.

If somebody points a gun at another person, their intent to cause their death or serious physical harm is evidenced by one thing, pulling that trigger.

They have a conscious design, a conscious intention to cause death or serious physical harm.

Justice Scalia: It's the difference between first degree murder and manslaughter, or at least second degree murder.

You intend the death, and that's a traditional distinction in the common law, isn't it?

Mr. Keating: Yes, but there's no conditionality of purpose...

Justice Scalia: No, I'm... I'm not attacking you.

Mr. Keating: Right, I understand.

[Laughter]

I understand.

I'm just... I'm expanding on that thought, Your Honor.

Justice Scalia: It's a fairly well-known distinction in the common law, to require a specific intent to kill.

I mean, that's what first degree murder statutes are based on.

Mr. Keating: I agree, Your Honor, and it's evidenced by one thing, one's conscious design.

Chief Justice Rehnquist: But here the debate really isn't over whether there was a specific intent to kill, because there was, on a condition.

I mean, it isn't that we're talking about a broader intent, but a specific intent to kill, but it was not unconditional.

Mr. Keating: Not at the time of the commission of the crime, Your Honor.

At the time this crime was committed, the taking of the motor vehicle, there was not an intention to kill.

Chief Justice Rehnquist: You say a jury could not find the intent to kill from the facts presented here?

Mr. Keating: No, which is precisely why the district court charged on conditional intent.

Chief Justice Rehnquist: Well, but... oh, you're saying after the vehicle was turned over, there was no intent to kill.

Mr. Keating: There was no conduct at all which evidenced an intention to kill.

There was conduct which evidenced the fact that the defendants prepared, perhaps, or anticipated forming an intention to kill in the future, but there was nothing the jury can rest on to conclude that they intended to kill these people.

Chief Justice Rehnquist: You're saying they couldn't even... they couldn't conclude that they intended to kill them if the car was not turned over?

Mr. Keating: That they could have concluded that, and that fits the conditional intent...

Chief Justice Rehnquist: Yes.

Mr. Keating: requirement, of course.

Chief Justice Rehnquist: So we're talking not about kind of a very specific intent to kill, as opposed to a more general type of intent to... but we're talking about a conditional intent of a very specific kind.

Mr. Keating: Yes, Your Honor.

Justice O'Connor: Well, I thought here the perpetrators had a weapon and told a victim, I have a gun, I'm going to shoot, let me have the car, in effect, or the keys, and that was the evidence.

Mr. Keating: That was one of the three carjackings, yes.

Justice O'Connor: Right.

Mr. Keating: In the other two carjackings, in one of them the gun never came out of the pocket, which was possessed by a codefendant.

In one of the others, the gun was brandished but a threat was not uttered.

Justice O'Connor: And one was, get out of the car or I'll shoot, and so forth.

Mr. Keating: That's correct, Your Honor.

Justice O'Connor: Uh-huh.

Mr. Keating: If there are no further questions, I'll reserve time for rebuttal.

Argument of Barbara D. Underwood

Chief Justice Rehnquist: Very well, Mr. Keating.

Ms. Underwood, we'll hear from you.

Ms Underwood: The carjacking statute makes it a Federal crime to take a car from a person by force or intimidation with intent to cause death or serious bodily harm.

Petitioner suggests that the statute only punishes carjackers who intend to cause death or serious bodily harm whether or not their victims resist, but that interpretation makes no sense.

The way this phrase came into the statute, the traditional meaning of the phrase used in this way in penal codes and at common law, and the structure of the statute, all show that Congress could not have used the word intent with that limited meaning.

I'd like to talk about the way the phrase came into the statute.

In 1992, Congress made it a crime to take a car by force and violence or intimidation from a person while possessing a firearm.

In 1994, Congress took out the firearm and substituted the requirement of intent to cause death or serious bodily harm.

When they took out the firearm requirement, as several justices have noticed, they thought they were broadening the statute, not narrowing it.

The supporters of the amendment wanted to reach the carjacker who drags the victim along behind the car, or who uses a knife or a pipe or some other instrument rather than a gun.

The original proposal was to take out the firearm requirement without putting anything new in, but Congress eventually decided to replace one limitation with another.

It substituted a dangerous state of mind for a dangerous weapon, so that Federal carjackings would continue to be those that present a serious risk of death or serious bodily harm.

And precisely what that condition rules out is the extremely common, not at all uncommon practice of committing a robbery with an unloaded gun or a water pistol or a toy gun, or a finger in a pocket purporting to be a gun, a frightening experience but not one that risks killing someone the way committing a robbery with a weapon, under the old statute, or with intent to kill, under the new statute does.

Both of those, those are alternative ways of restricting Federal carjacking to the most dangerous sorts of carjacking.

Justice Scalia: Is there anything that would not be covered by your interpretation of the statute, short of the water pistol or the index finger in the pocket?

Ms Underwood: Its intent to scare, essentially, and it is just what this defendant argued to the jury.

Justice Scalia: I mean, suppose they hadn't put in, with intend to cause death or serious bodily harm, would there be any difference between a statute without that phrase, and your interpretation of the statute with that phrase...

Ms Underwood: Yes.

Justice Scalia: except the instance of the water gun and the, you know, the phony pistol?

Ms Underwood: Well, it's the water gun, the phony pistol, or even a loaded gun if the jury is convinced, or is not convinced that he intended to use it.

That is, this defendant argued to the jury when he lost on the construction of the statute that nevertheless I never intended that this gun be fired.

I never intended... I was only intending to scare.

He didn't testify to this effect.

It was his lawyer's argument that the Government had not proved that he had any intent that his threat would materialize, and that was a fair... that argument was allowed to go to the jury, and if they had failed to find intent actually to deliver on the threat, he should have been acquitted.

That's what the jury was charged.

There was additional evidence beyond the loaded gun in this case.

There was the evidence that he and his accomplice had discussed the use of the gun, and there was the evidence that he had actually used physical force, not deadly force, that he had punched one of the victims, so it was a case in which the claim that he didn't actually intend to deliver on the threat was less likely to be well received.

Justice Breyer: So one possibility is that this language was put in to remove from the statute any instance in which the offender either could not or did not intend to carry out the threat.

Ms Underwood: That's correct.

Justice Breyer: All right.

The other possibility is that this language appears in the statute because Congress, in committee, thought it was doing what it says up here.

It was amending 21193, namely the death penalty provision, and it thought that it had to put this intent language in there about death, anyway, in order to make their death penalty constitutional, and then they thought for good measure they'd put in an intent to do a seriously bodily harm, and then they wrote language that amended the wrong words in the statute, and I mean...

Ms Underwood: Well, sometimes it's...

Justice Breyer: there's certainly a good case that that's what happened.

Ms Underwood: I think the evidence is to the contrary, though, for two reasons.

One is that Congress in this omnibus crime bill added the death penalty to a great many crimes and didn't adjust the intent requirements for those crimes.

It took care of that problem in a separate statute, in separate provisions that were also part of this omnibus crime bill where it said, established the procedures for the death penalty and found that in addition to finding the defendant guilty of whatever crime it was, the appropriate intent requirements had to be satisfied, so there was no need to adjust the particular crime, the carjacking crime and, indeed, no other of the crimes that were made capital were adjusted in that way in their intent requirements.

The other...

Justice Scalia: Why didn't Congress just say what it meant, if it meant what you say it meant?

It could have said, by threat of force or violence, which the... which the individual was prepared to follow through on.

Ms Underwood: Well...

Justice Scalia: But the language, with intent to cause death or serious bodily harm, I mean, you know, whatever Congress meant, I don't think that if I threaten someone with a gun hoping that the person will turn over the car, I don't want to kill the person.

Why do I want to be running from a murder rap instead of a carjacking?

I definitely hope not to have to kill the person.

I just don't describe that by the intent to cause death or serious bodily harm.

It's a very unreasonable interpretation of that language, it seems to me.

Ms Underwood: Well, except for the fact that there is a long tradition of using it precisely that way where the phrase is being used as an aggrevator, as it is here.

That is to say, the more usual place for such a phrase is in an assault statute, assault, and then assault is made more serious when it's committed with intent to kill, or with intent to do bodily injury.

Justice Scalia: And doesn't that require the actual assault intending to hurt the person?

Ms Underwood: No.

What that requires, it's just those cases... many of the cases that we've cited for this conditional intent proposition are cases of assault with intent to injure or do serious bodily harm.

And there's a Federal case involving some because the Federal assault statute, the one about assault on special maritime or special Federal territorial jurisdiction, has such a provision.

And in the Shaffer case cited in the brief somebody escapes from a military stockade, points a gun at the guards and says, wait in the latrine or I'll shoot.

And he then escapes, doesn't shoot, and he is convicted, and the conviction is sustained over just such an attack, on the grounds that his intent was to injure if the threat wasn't enough, and that that satisfies the requirement of this statute.

It's a particular way of structuring statutes where there's a base crime and then they're made more serious...

Justice Scalia: Not in my lexicon.

I mean... you mean if someone... you think it's assault with intent to do serious bodily harm if you tell someone, get out of the way or I'll punch you in the nose.

That is assault with intent to do serious bodily harm.

Ms Underwood: With the qualification that I'm not sure punching you in the nose qualifies as seriously bodily harm, but with intent to...

Justice Scalia: I'll break your nose, okay.

Unidentified Justice: [Laughter]

Ms Underwood: At the point... well, serious bodily harm... how about, I'll shoot, or I'll... you know.

Justice Scalia: Let's keep guns out of it.

I mean, this is an assault statute, serious bodily harm.

It seems to me... it seems to me you have to intend to hurt the person, not just intend to get the person out of the way.

Maybe you have a case or two that interprets it the other way, but that's not how I read the language, anyway.

It just doesn't mean that.

Ms Underwood: Well, I think, 1) the words bear that meaning; 2) this kind of statute, this... not just the phrase intent sitting by itself, but intent to cause death or serious bodily harm is a standard phrase that is used to escalate a statute.

The other place it appears is in burglary statutes.

Burglary is commonly defined as entering a premises, sometimes entering it unlawfully, and then there's a further intent, an intent to do a crime therein, sometimes there's a list of specified crimes, and the intent need not be carried out, and it need not be unconditional.

One example that is given is assault with... I mean, burglary, entering a house with intent to have consensual sexual relations with the person inside, but if not successful in accomplishing that, then to rape.

Chief Justice Rehnquist: Well, what about, you enter a house to steal a TV and you find there's no TV in the house.

Ms Underwood: That's another example of an intent that...

Chief Justice Rehnquist: A less likely one, perhaps.

Unidentified Justice: [Laughter]

Justice Breyer: What about if you intend to go to the Super Bowl if the Patriots are in it?

Unidentified Justice: [Laughter]

Justice O'Connor: But aren't those...

Ms Underwood: Those various condition...

Justice O'Connor: Aren't those examples of cases where the evidence could show the necessary intent?

The jury could determine it from the evidence.

I don't see how it necessarily invokes the conditional intent doctrine.

Ms Underwood: Well, I agree that you don't need to use the word, conditional intent, if you adopt an appropriate notion of intent, but if we... but on these instructions, this defendant was found...

Justice O'Connor: Well, you go into a house, break and enter with the intent to steal a television and it turns out there isn't a television.

If there's evidence introduced that can establish that that was the intent, that would suffice.

I don't think you'd speak in terms of conditional intent, would you?

Ms Underwood: You don't need to speak in terms of conditional intent.

Justice Scalia: No.

You don't in that case because you hope that there will be a television set there, and the difference here is that you don't hope that the person will resist and cause you to kill him.

Your hope is just the opposite.

Ms Underwood: That's correct.

Justice Scalia: In the television set case, I agree with you, that kind of statute covers the person breaking in and there's no television set, but he hoped that there would be a television set, and the whole intent in breaking in was to take it.

Whereas here, he doesn't hope to kill the person.

He had no intent to kill the person.

I mean...

Ms Underwood: He did have intent...

Justice Scalia: no intent in the normal... in the way I normally use intent, anyway.

Ms Underwood: He had intent to kill the person in precisely the way that intent has commonly been understood in statutes of this general form.

Justice Breyer: Well, can you say anything...

Justice Ginsburg: The example that the Chief gave I think is more in line with the distinction you're trying to draw, and it is the explanation in the Model Penal Code commentary.

That is, he hopes that she will submit, but if she doesn't, he will rape her.

Ms Underwood: That's correct, and that's...

Justice Scalia: Yes, but...

Ms Underwood: burglary, entering a house with intent to rape, even though it isn't necessary to use force, then the rape won't happen, and he undoubtedly hopes he won't have to.

I'd like to...

Justice Scalia: I can... I mean, I can accept the Model Penal Code thing if you're hoping for something that is very unlikely to occur.

You break into a house of a woman you don't know from Adam, and you hope she'll consent to have sex with you, but you know, the chances are 99... 999 to 1,000 that she won't, and now I'm perfectly willing to put that person away for breaking with intent to commit rape, because he knew that what he was hoping for, you know, would virtually be impossible to happen.

But it's not virtually impossible to happen when you point a gun at somebody and say, your car or your life, it's very unlikely the... you know, the old Jack Benny bit, he's not going to say, well, you know, I'm thinking.

I'm thinking.

[Laughter]

Take the car.

Ms Underwood: Another common circumstance for finding burglary, entry with intent to commit a crime, is when a person breaks... you have essentially domestic violence, when a person breaks... goes into either the house of his ex-wife or his girlfriend and hopes that they will reconcile, but if they... but has the plan that if he can't persuade her to reconcile he will shoot her, and that's been found to be burglary, entering the house with intent to commit a crime, even though he hopes he won't have to commit the crime.

I don't say that... the point is, Congress used these words against a background in which that kind of phrase, as an aggrevator to an underlying...

Justice O'Connor: Well, that gets us to how clear that background is, and is there more than just a handful of State cases?

Ms Underwood: There's...

Justice O'Connor: How do we know that's the background?

Ms Underwood: Well, we have... we have the State cases that we've cited.

We have some Federal cases that we've also cited.

The one I've just described is one of them.

We have the universal view, universal view of the treatise writers, and if I might just address the suggestion that the Model Penal Code is awash because of this provision about attendant circumstances, that provision has absolutely nothing to do with what we have here.

That's a provision... an attendant circumstance is an element of the crime in the Model Penal Code's terminology, other than what he does or what he thinks.

For example, in this case, the fact that the car had to travel in interstate commerce is an attendant circumstance, and what the Model Penal Code is talking about is, what kind of intent... when the statute requires the defendant to intend or know about attendant circumstances, what does that mean, and since you don't intend, it doesn't make sense linguistically to talk about intending something you don't do.

They say what it means is, you have to know about it, or believe it's true, or hope it's true, or something like that.

This is not a case involving an attendant circumstance.

This is a case involving the defendant's intent to kill, or to inflict serious bodily injury.

That provision simply has nothing to do with the matter.

We're simply construing intent, and we're construing it against the background of the use of the phrase, and we're... and the fact, I would say, that there are not more cases, that might be said to be awash.

It is so traditionally understood that this is so, you only get an appellate case when somebody raises the suggestion that the evidence is insufficient, or the charge was wrong, and there's litigation about it.

This is an accepted and traditional use.

Justice Ginsburg: The Government would have to prove that if the car wasn't turned over, that the defendant in fact would use...

Ms Underwood: That he had the intent to... that he ex... that he had the plan to do so, that it was his purpose to do so if necessary to effectuate the objective here if necessary to get the car, or if the car wasn't turned over.

That's exactly what this jury was charged, and this defendant took issue with that, and put his case to the jury that he didn't have that intent, and the jury found that he did.

And so the question now is only whether... whether that's enough, whether that satisfies Congress' purpose here, and it did.

I think the structure of the statute makes that plain.

The statute provides for taking a car either by force or by intimidation.

It's pretty hard to injure or kill somebody by intimidation alone, so it's hard to see how someone with unconditional intent to injure or kill could commit a carjacking by intimidation.

And the statute provides three penalty levels, one of them involving no serious injury.

And again, it would be an unusual case where a person took a car by force from a person right up close, intending to injure him no matter what, and didn't succeed in injuring him.

Petitioner says that the provision...

Justice O'Connor: Now, these... the people before us here, were they prosecuted under the first subsection, because no serious bodily injury occurred?

Ms Underwood: Yes.

Justice O'Connor: Thank you.

Ms Underwood: Yes, they were.

Petitioner says that these provisions, the intimidation provisions...

Justice Scalia: Excuse me, what would they have been prosecuted for if subsection (1) was not applicable?

Would they have gotten off Scott free, or is there some other offense they could have been convicted of?

Ms Underwood: Some Federal offense?

I don't think there...

Justice Scalia: No other Federal...

Ms Underwood: I don't believe there... there would be a State robbery prosecution.

Justice Scalia: State robbery...

Ms Underwood: Well, I'm sorry.

There were chop shop offenses here.

I mean, this was... the reason, or a reason why this was prosecuted federally is that this is a group of people who are stealing cars to order, and the indictment also charges the conspiracy and charges the chop shop offenses.

Chief Justice Rehnquist: How about the Dyer act?

Was it transported interstate?

Ms Underwood: I don't... these are cars which could be proved to have traveled interstate.

I'm not sure there was proof...

Chief Justice Rehnquist: But it has to be...

Ms Underwood: that these defendants...

Justice Ginsburg: Yes.

Chief Justice Rehnquist: It would have be stolen, then.

Ms Underwood: Right.

I don't believe there's proof of that in this case.

On petitioner's interpretation, the statute punishes simply a combination of two unrelated crimes, robbery of a car, and murder or attempted murder or serious assault.

People who set out to steal a car don't usually have the independent intent to kill or injure no matter what, and if they do we call the crime murder or attempted murder.

We don't call it robbery of a motor vehicle resulting in death.

Congress put this crime in the robbery chapter of Title 18, along with all the other robberies, and captioned it motor vehicles, showing that the heart of this offense was forcibly stealing a car.

Justice Scalia: But it wouldn't be attempted murder.

They didn't try to kill anybody.

They stole a car.

It's not totally irrational to say that if you steal a car with the intent to do serious personal injury or murder you're going to get a higher offense, a higher Federal crime.

I mean, they... this isn't attempted murder.

You couldn't have gotten them on attempted murder.

I mean, assuming somebody had the intent.

Ms Underwood: No, but the intent that petitioner would like to read into the statute turns it into attempted murder.

You have to actually... you intend to kill somebody and rob and take his car, and you take some steps toward that end.

Namely, you take the car and stick... and point a gun at him.

If you have that state of mind, you are engaging, I would say, in attempted murder, and that is not what Congress was driving at here.

What Congress was driving at, dangerous... or, dangerous robberies.

Justice Scalia: Don't you have to go further along the line?

I mean, to intend to murder somebody is not attempted murder.

Ms Underwood: No.

Justice Scalia: Don't you have to have... taken a certain number of steps along the line to be guilty of an attempt?

Ms Underwood: You do, but I would suggest that taking a gun and pointing it at him and saying... and taking his car could well qualify as getting to the point of attempted murder.

Justice Souter: You may not even have to go that... I mean, doesn't the Model Penal Code use substantial steps?

Ms Underwood: Yes, it does.

Justice Souter: And I suppose if you take the gun and you set out in the direction, I suppose you've taken a substantial step, haven't you?

Ms Underwood: No, I mean, there are cases about when mere preparation becomes attempt, but it seems to me when you've come into direct confrontation with him and taken out the gun with an... with, contrary to what we believe the statute requires, or perhaps what the evidence proved, you have an unconditional intent to kill him.

Justice Scalia: But there's no Federal attempted murder statute.

There's no Federal general murder statute.

It's not irrational for Congress to say, you know, we're going to expand Federal criminal law, but we're not going to expand it to all carjackings.

We're going to expand it to a carjacking where there's attempted murder involved, if...

Ms Underwood: They might have done that, but what they had... remember that where this came from is, it was a statute that punished carjackings with weapons.

The weapon was removed to reach analogous crimes that happened without... excuse me, without firearms but with something else, and then there was a concern that that expanded the statute too far, so the idea was to bring it back to close to where it was before, but put in a dangerous intent instead of a dangerous... instead of a dangerous weapon.

Justice Ginsburg: But there's nothing that shows that Congress was homing in on the difference between the bluffer and the one who says, well, if I have to do it, I will.

Ms Underwood: No.

There's no... what we have in this case is no expressed statement about what that was... what was happening when that provision came in.

We have that it was... it resolved a compromise between the Senate, which had taken out the weapon and not put anything in, and the House, which did not take out the weapon.

That's how matters stood when this went to conference.

They both were adding the death penalty to fatal carjackings, but... actually, another indication...

Justice Kennedy: If the petitioner were correct and we were to adopt the conditional intent rule, and you have a case where the person... or, the case that Justice O'Connor put at the very outset of the argument... points a gun and say, give me your car or I'll shoot, and the person gives the car, could you go to the jury on that under a conditional intent theory, or would you have to have something more?

Ms Underwood: Well, I would say you could go to the jury on an unconditional intent theory, but it would be somewhat unlikely that you could persuade a jury beyond a reasonable doubt that the person had an unconditional intent to kill in circumstances in which it's... which he didn't in fact shoot and in which he got his... in which he got the car.

So I think you could go to the jury on that, but might not prevail.

What we went to the jury on in this... the Government went to the jury on in this case was an instruction that said, if you find that he intended to kill or inflict serious bodily injury if necessary to effectuate his objectives, that's sufficient.

That's what we've been describing, is conditional intent, but you could as well simply describe it as embraced within the concept of intent, and that's how this conviction was obtained.

I want to say something about the... another piece of evidence about what Congress was thinking about, since that question was asked, is that originally Senator Lieberman introduced in May of '93 a provision that clearly was designed to do two separate things... this was before the omnibus crime bill... to add the death penalty to fatal carjackings, and to remove the weapons requirement from all carjackings, and there isn't the little problem about which section number is being modified in that proposal.

A few months later, when the omnibus crime bill was in the Congress, in the Senate, and there was a long list of crimes to which the death penalty was to be added, he added to the provision that said, add the death penalty to carjackings, his old proposal to also remove the weapons requirement.

And it was that amendment that was adopted by the Senate and ultimately went to a compromise.

The House simply adopted the... didn't have that.

The House added the death penalty to carjackings but didn't fool around with this other element.

Justice Scalia: They knew all this background that you're telling us now.

Ms Underwood: I'm not suggesting that the House knew all that background.

I am describing where it came from, and to the extent we're looking for an indication about what it was doing, what is clear... forget intent about all this background... is that the intent requirement comes in as a substitute for the weapons requirement.

And that, I think, without reading anybody's mind, shows that it was designed to do what the weapons requirement had previously done, and not to fix... to adapt this statute for death penalty purposes, which was a separate project.

Justice Stevens: Of course, removing the weapons requirement removed the unloaded gun case from the statute, the unloaded gun, water pistol, finger...

Ms Underwood: Put them all in.

I mean, made them all criminal, that's right.

Justice Stevens: It...

Ms Underwood: That's right.

Justice Stevens: Well, before, they would have been criminal.

A firearm... you can have an unloaded firearm.

You would have been guilty of carjacking in the original...

Ms Underwood: Probably not a water pistol, though.

I guess I'm not sure...

Justice Stevens: No, but an unloaded firearm.

Ms Underwood: Perhaps.

I'm not sure.

In New York State law a firearm has to be loaded to qualify as a firearm in a...

Justice Stevens: Yes, but it's... firearm as defined in section 921 of a Federal statute.

Ms Underwood: That's right.

Justice Stevens: Not the New York statute.

Ms Underwood: That's right.

Justice Stevens: And I would think such a firearm would make it a carjacking even if unloaded, under the old statute.

Ms Underwood: Quite likely, but the carjacking with a pipe or with a knife weren't, and so that's why the weapons requirement came out, and then there was the search for some compromise, because the House hadn't removed the weapons requirement and the compromise was this new intent requirement.

If there are no further questions...

Rebuttal of Kevin J. Keating

Chief Justice Rehnquist: Thank you, Ms. Underwood.

Mr. Keating, you have 3 minutes remaining.

Mr. Keating: Thank you, Your Honor.

The burglary example.

When the burglar enters the dwelling in an unauthorized fashion, at that time he has an intention to commit a crime therein.

That is why the burglary cases don't stand for the proposition, or don't stand for a recognition of conditional intent, absent a hypothetical involving...

Justice Stevens: But why isn't it a conditional intent, intent to commit rape if necessary?

I mean, granting the probability Justice Scalia talks about, why isn't that a conditional intent?

Mr. Keating: But Your Honor, at the time of the commission of the crime...

Justice Stevens: Entering the building.

Mr. Keating: Entering the building, that intention he has.

He had...

Justice Stevens: If.

If necessary.

Mr. Keating: Well, he may have alternative intentions at that time, but he has the presently-held intention to do future harm.

Justice Stevens: Well, the carjacker has a presently-held intention to do future harm if necessary.

Mr. Keating: Your Honor, I would disagree under the facts of this case.

At the time of...

Justice Stevens: Well, that's what the jury found.

Mr. Keating: Well, I think there is a distinction between a conditional intent and alternative intentions.

The carjacker at the time he took the car, the jury found that had certain future acts occurred, which they didn't, they would have done something, different from, at the time of the commission of the crime he has the presently-held intention to cause harm.

That's...

Justice Stevens: If necessary.

Mr. Keating: In the future, not at the time of the commission of the crime, unlike the burglar who enters the dwelling.

Conditional intent was not expressed in the statute.

The concept was never discussed in the legislative history.

10 States recognize it in various forms.

Five don't, as cited in our brief.

The Model Penal Code, of course, has never been adopted.

The Model Penal Code doesn't stand for the concept of conditional intent endorsed by the Government.

Our argument is simple.

What happened here is that the court below was unhappy with the reach of this statute.

It didn't reach out to where it thought it should, and the court below twisted the statute to get the bad guy.

That's what happened here, and for that reason, this conviction should be reversed.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Keating.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o'clock.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 97-7164, Holloway against United States will be announced by Justice Stevens.

Argument of Justice Stevens

Mr. Stevens: In 1994 the Congress amended the Federal Carjacking statute to provide that “whoever with the intent to cause death or serious bodily harm, takes a motor vehicle” from another person by force and violence or by intimidation shall be guilty of the federal crime.

The question in this case is one of the concerns the meaning of that definition of intent, does it require the government to prove that the defendant had an unconditional intent to kill or harm in all events or does it just require proof of an intent to kill or harm, if necessary to complete the carjacking?

The petitioner François Holloway and an accomplice committed three carjackings.

They approached each driver produced a gun and threatened to shoot unless the driver handed over the keys.

The plan was to steal the cars without harming the victims, but the accomplice testified that he would have used the gun if any of the drivers had given him a hard time.

At trial the District Judge instructed the jury that merely using a gun to frighten a victim was insufficient to establish an attempt to cause death or bodily harm, but the Judge continued that the government could satisfy this element if it established that the defendant intended to use the gun to cause death or serious harm in the event the alleged victim refused to turnover their cars.

The jury convicted petitioner of all three carjacking counts.

The Court of Appeals for the Second Circuit affirmed.

We granted certiorari to resolve an apparent conflict between that decision and the decision of the Ninth Circuit.

We now affirm.

Congress enacted the carjacking statute essentially to provide a federal penalty for a particular type of robbery.

The intended element of that statute thus modifies the act of taking the motor vehicle.

We think that when a person points a gun at the driver, having decided to pull the trigger if the driver does not comply with the demands of the car keys, the person posses at that moment, an intent to seriously harm or kill the driver as Congress intended that term to be understood.

Two considerations strongly support this conclusion: First excluding conditional attempt from the ambit of the statute, would exclude from its coverage most of the conduct that Congress obviously intended to prohibit.

Only in the highly unusual carjacking does the offender intend to harm or kill the driver regardless of whether the driver resists.

Second, it is reasonable to presume that Congress was familiar with the cases and scholarly writing that have recognized that specific intent to commit a wrongful act maybe conditional.

Justice Scalia and Justice Thomas have filed dissenting opinions.