United States v. Ressam - Oral Argument

Argument of Michael B. Mukasey

Chief Justice Roberts: We'll hear argument next in Case 07-455, United States versus Ressam.

General Mukasey.

Mr. Mukasey: Mr. Chief Justice, and may it please the Court: The question in this case is whether a panel of the Ninth Circuit was correct when it added the words 844 of Title 18, and we think for at least four reasons, the answer to that question is no.

First, and principally, those words are not in the statute that Congress wrote, and this Court has said many times that courts should not add words or elements to criminal statutes.

Second, Congress knows how to include a relational element when it wants to, and in fact, did that in section 924(c) after which section 844 is otherwise patterned.

And that shows that when Congress chose to leave 844 it did that intentionally.

Third, when section 844 was amended in 1988, one court of appeals, the only court of appeals to rule directly on the question of whether there was a relationship between the carrying of explosives in the commission of a felony, had held that there was no relational element.

Congress was on notice of that fact--

Chief Justice Roberts: Your argument relies on the notion that the word "during" in the statute is solely temporal.

In other words, it just refers to the time?

Mr. Mukasey: --Correct.

Chief Justice Roberts: So... that's not always the case.

If I say, you know, I hung lights during the holiday season, you wouldn't think that I hung a chandelier, right?

There'd be not simply a temporal connection, but also a relation.

Mr. Mukasey: In that instance, that would be correct.

On the other hand, when Congress in... in 924(c) said "during and in relation to", it meant something more than a temporal relationship.

It did not say the same thing in 844, and it failed to say the same thing in 844(f) or the amended 924(c).

Justice Scalia: General, could... could Congress pass a law that said if you wear a wristwatch during the commission of any crime, you get another ten years?

Mr. Mukasey: A statute like that would be entirely unreasonable.

It was not entirely unreasonable for Congress to have said if you carry an explosive during the commission of a felony, you've added something enormously volatile.

Justice Scalia: Surely it depends on what the felony is.

If the felony is the filing of a dishonest tax return and... and you have a can of gasoline with you when you mail the letter, it seems to me quite as absurd as saying wearing a wristwatch in the course of a felony.

That's what troubles me about this.

I'm... I'm tempted to... I think everybody is tempted to distort the "during" to... to mean something else, simply because the consequences of performing a completely lawful act wearing a wristwatch, carrying explosives... given the broad definition of explosives, I guess it would include having... having some cartridges, explosive cartridges?

Mr. Mukasey: It would.

But the temptation--

Justice Scalia: That's perfectly lawful, and you get another 10 years for it just because you're... you're mailing a letter to the IRS at the same time.

Mr. Mukasey: --It is perfectly lawful.

Congress was aware that Title 18, not to mention all the other titles, are chockablock with felonies.

There are thousands of them out there.

But nonetheless, it wanted to make sure that the mainstream that it was concerned with, which is nicely illustrated by the facts of this case, were taken care of; and so it passed a very broad statute.

We concede that it was a very broad statute.

"Any felony" couldn't be broader.

But that was Congress's choice.

And if Congress chooses to amend the statute, respectfully, it ought to be Congress that amends it.

Justice Ginsburg: General Mukasey, is there any indication why this prosecutor chose to hook the carrying an explosive onto a false-statement charge, instead of some charges with which it would have been more logically linked, like the one... the first one, conspiracy to commit an act of terror... terrorism?

Mr. Mukasey: There is.

At the time the case was brought, there was evidence to charge the first count, conspiracy to commit a terrorist act.

There were some evidentiary problems; a great deal of the evidence to support that count did not, in fact, come until almost literally the eve of trial.

A lot of it came from overseas.

The count to which the... the 844... the crime to which 844 was, in fact, attached, the making of a false statement, was, to use a colloquialism, a lead-pipe cinch.

He had clearly made a false statement.

He had clearly carried an explosive while doing it.

That prosecutor's decision, in fact, was a very responsible one, because what was shown when they opened his trunk was that this was a very dangerous person; and they wanted to bring a charge on which they were sure to convict him, so that his carrying of the explosive would get him ten years in addition to that charge.

Justice Kennedy: I guess what's troubling me, Mr. Attorney General, is that it... it does seem to me fair enough to make that charge in this case; but then we... but then we have the tremendous number of cases where the prosecutor is going to be in the position in a plea-bargain context, say, to threaten to charge this offense with a heavy mandatory minimum.

My understanding is that district judges do not and cannot be involved in plea bargain negotiations; they can look at a plea before it is entered.

What can you tell us about the safeguards that might exist in the system generally against... against overcharging, against charging for something where the result is close to absurd, as in some of these hypotheticals about the income tax return and the gasoline and so forth?

Mr. Mukasey: The safeguard... the safeguard that is in the system, in part, involves the history of the system.

Rosenberg was decided, I believe, in 1986.

That's 22 years ago.

There's been no, as far as I know, recorded outbreak of this sort of thing any place, in the Third Circuit or any place else.

And it seems to me that a defendant would be able to challenge that kind of threat, that kind of application, or at least make it known.

We haven't received any notification that that's... that that's going on, although there have been charges of... under 844(h), relating to ammunition.

But that's scarcely... that's scarcely a marginal case.

The hypothetical of the fellow with the... with the firecracker in his back pocket who is simultaneously in possession of a $20 counterfeit bill has no--

Justice Breyer: General, that is... my question would be the converse.

Suppose I agreed with you to this point hypothetically that, of course, there's a relationship here.

In this case, there's a relationship.

He wouldn't have lied if he... if he hadn't had the explosives.

Suppose I accept that.

Now, if I interpret the statute that way... there has to be a relationship, but including that... then what are the other cases you want to prosecute?

In the other briefs they list every funny or comical or absurd example they can find; and so I don't believe you want to prosecute those, but tell me if you do.

And if there are some other ones, what are they?

Mr. Mukasey: --We don't, but, respectfully, "relationship" doesn't mean in a statute what "relationship" means in conversation.

It means facilitation under a knife.

It means that--

Justice Breyer: Fine.

So suppose, in other words, if we... if, hypothetically, I were to say, well, here there's a relationship; after all, it is a necessary condition for the lying that he was carrying explosives; and it is foreseeable that he would lie on his passport, because he was carrying explosives illegally.

So that's all you need.

In other words, if that were the decision, you would say fine, that's the end of it.

Mr. Mukasey: --It was... his carrying of explosives did not facilitate his lying in this case.

Justice Breyer: No, it didn't facilitate it, but it caused it.

Mr. Mukasey: Maybe it caused it, and maybe it didn't.

Justice Breyer: Well, if it didn't... all right.

Would you be satisfied with a result that says, look, if this carrying of explosives is related to the felony in the sense that it is a necessary condition and foreseeable that a person would do such a thing, that's sufficient?

Mr. Mukasey: No, Your Honor, we would not.

Because there are cases in which it may become necessary to prosecute somebody... for example, where we have a situation in which we can charge another crime, but the charge of that crime would involve disclosure of classified information; it would disclose methods and sources... we believe that it was Congress's choice to leave to the judgment of prosecutors the decision of what crimes the charge in conjunction with possession of explosives, and we think that's where the authority should remain.

Chief Justice Roberts: Why is there in the statutes a difference between possession of explosives in this circumstance and possession of firearms?

Mr. Mukasey: Possession of explosives inherently involves volatility.

You asked for a policy explanation.

Possession of explosives inherently involves a degree of volatility.

Explosives cause indiscriminate and potentially vast harm.

Firearms, for all the harm they cause, cause discriminate harm.

And there's every reason for Congress to have treated explosives differently from the way it treated firearms.

Justice Souter: Was... was the further explanation that what they were doing in amending the firearms statute was tailoring it more precisely to the possible felony by a police officer situation, and they simply did not face that possibility in the explosives statute?

Mr. Mukasey: I think the history of the amendments to 924(c) reflects that.

Justice Souter: Yes.

Justice Ginsburg: So it's a difference in two respects.

One is 924(c) has the "in relationship" requirement, and it also has a shorter term.

It's only... in one it is five years, and the other is ten years.

Is that right?

Mr. Mukasey: Yes, that's correct, Justice Ginsburg; and that underlines, I think, the dangerousness, or Congress's perception of the dangerousness, and the volatility of explosives.

And certainly--

Chief Justice Roberts: Is there any--

Mr. Mukasey: --this case bears that out.

Chief Justice Roberts: --Is there any policy limitation within the department not to charge under this provision unless there is a relationship between the underlying felony and the use of... the carrying of explosives?

Mr. Mukasey: There is no policy limitation that I'm aware of.

Justice Stevens: And you do have policy guidelines with money laundering.

Mr. Mukasey: We do.

Justice Kennedy: And I suppose if you thought there was a problem, you could promulgate them out of your department.

Mr. Mukasey: I think I'd be ideally suited to do that.

[Laughter]

Chief Justice Roberts: The ten years, though, is mandatory, correct?

Mr. Mukasey: The ten years is mandatory.

Chief Justice Roberts: So if a prosecutor asks for it and there is an underlying felony and there is an explosive, that's an additional ten years, no matter what.

Mr. Mukasey: That's an additional ten years, no matter what.

Chief Justice Roberts: So if you get... the underlying felony is of the sort Justice Scalia was talking about, and let's say the person gets probation on that because, you know, it is the first offense, no harm, he still gets ten years.

Mr. Mukasey: He still gets ten years.

It is possible, again, to imagine many, many marginal situations; but I think Congress was willing to contemplate that because it wanted to make sure that it swept in the cases that had to be swept in.

And to add a relational element would leave us unprotected against the cases that Congress wanted to include, and protected only against the marginal ones.

Chief Justice Roberts: Well, but how many cases are there likely to be... this isn't one of them... where you have no "in relation to" connection whatsoever?

Mr. Mukasey: How many cases as a matter of common sense?

Chief Justice Roberts: Or any historical record that you're familiar with.

Mr. Mukasey: No historical record that I'm familiar with, but I don't have complete knowledge of the historical record.

Chief Justice Roberts: I mean, in this case, as you point out, there was, of course, a connection.

And I would have thought in most cases where the prosecutor is interested in charging... because, as you have indicated, this case is... there would be an actual connection.

Now, you may have, as you suggest, problems with proof or... or evidence; but, as a practical matter, I'm just wondering how often the question we're concerned about arises.

Mr. Mukasey: I don't think... I'm not aware of any other situation in which it has arisen.

But I don't... I think Congress didn't wanted to rule out anything when it wrote "any felony".

Justice Scalia: This isn't a very good case.

If you wanted to bring a really absurd case, you could have picked a better one than this, because there really is something of a connection.

Mr. Mukasey: I think... I think the lessons we learned, particularly about the history, is that we don't want to bring absurd cases, and... and we don't.

Chief Justice Roberts: But I mean the interesting thing is that you're... the cases where this is going to arise is not where you're really worried about the explosives; it's going to... because in that case, presumably there is going to be a relation, and you can use it as you used it in this case.

The cases where this is going to be problematic is when you are really interested in the underlying felony.

Mr. Mukasey: That--

Chief Justice Roberts: You know, the guy who's driving in his car and calls his broker and is guilty of insider trading and has some firecrackers in the trunk, you're not worried about the firecrackers, but you want to crack down on the insider trading.

Mr. Mukasey: --That has to do more with the breadth of the definition of "explosives" than it has to do with the question of a relationship, because we may very well be concerned with the person who is committing what sounds like an innocuous felony but carrying a load of explosives in his trunk.

So weaving in a relational requirement isn't going to solve the problem that's posed in what I think is Your Honor's hypothetical, which is the fact that firecrackers are as much explosives as bombs under the "explosives" definition contained in the statute.

If there are no further questions, I'd like, Mr. Chief Justice, to reserve the remainder of my time for rebuttal.

Argument of Thomas W. Hillier, II

Chief Justice Roberts: Thank you, Mr. Attorney General.

Mr. Hillier.

Mr. Hillier: Mr. Chief Justice, and may it please the Court: General Mukasey put his finger on the point here when he said we wanted to charge a lead-pipe cinch case.

But in doing so, what we now have is what was a terrorism prosecution and a choice to link the underlying felony... or to link the carrying explosives charges exclusively to count 5 of the indictment, which charged a false statement, an argument which requests that this Court apply this statute to all sorts of situations theoretically that might even involve explosives that were lawfully carried during a completely unrelated felony.

And I would disagree that that's what Congress thought, that's what Congress thought when it was creating this statute.

The words... in applying this Court's statutory construction regime, what we do first of all, of course, is look to the words of the text to see if it means what the government suggests it does in this case.

And as, Chief Justice Roberts, you have already indicated, the word "during" has meanings beyond just the temporal one used here.

But also other words in the text have significance to describing what the meaning of this particular statute is, and important among those are the terms "in which", which is found in the concluding sentence of the statute.

And, of course, that's... the companion word, the largest word in this particular statute, 844(j).

Taking first the term 844(h)... and I'll quote.

And what it says is that the penalty that's going to attach to this prosecution shall run consecutively to, quote,

"the felony in which the explosive was used or carried. "

Justice Scalia: You're saying it should have said "during which"?

Mr. Hillier: Well, I--

Justice Scalia: "During the commission of which the explosive was used or carried? "

Mr. Hillier: --I just think that the words... the words that were used, Your Honor, establish the notion of a relationship between the felony and the explosive.

The word v. Commodity Futures Trading Commission, 519 U.S. 465, is synonymous with the words "in regard to" or "with respect to".

Chief Justice Roberts: Well, but just... just as "during" has more than temporal... can have more than temporal significance, I think "in" can have temporal significance.

Mr. Hillier: It does, Your Honor.

Chief Justice Roberts: We write "in the holiday season".

Mr. Hillier: That's very true.

And it fact, it has a, quote, "locational" sort of significance also.

But as noted in Dunn, its primary definition, its first definition, is this relational one.

And, while it might have--

Chief Justice Roberts: I assume... I haven't looked at the dictionary... but "during's" first relationship... first definition, I suspect, is temporal.

Mr. Hillier: --It's temporal.

That's correct.

Justice Alito: Could you give an example of where it's not temporal, an example of use of "during" that is not temporal?

Mr. Hillier: I think the example posed by the Chief Justice to General Mukasey is an example of that, Your Honor.

Justice Alito: But hanging up lights "during" the... the holiday season doesn't... that's not a temporal relationship?

Mr. Hillier: It's a... it is a temporal relationship, but it's a relationship between the act that's occurring also, that's the underlying act.

But to get to the point of the... Chief Justice Robert's question, the fact that the word may have more than one meaning, particularly in this case, does not exclude the fact that the meaning of "in which" includes a relationship.

And the most naturally suggested reading of these words in this case, "in which" and "explosives" together, is that there is a relationship, but there is--

Justice Souter: Mr. Hillier, I... you know, I will accept maybe more than just for the sake of argument that if you stick to the text alone you've got an argument here for some uncertainty, for some ambiguity.

The trouble that I have with your argument is that we're here to consider not only text but statutory history, And the statutory history seems to me pretty tough for you to get over.

The statute was amended.

The word "unlawfully" was dropped from it, and there was no amendment made, with respect to its cognates, to conform it to the cognate section on carrying a gun that specified "in relation to".

And it seems to me that the most reasonable inference to draw from that statutory history is that when Congress amended and technically re-enacted the statute, when it dropped "unlawfully", that it did not want "during" to be read, as it was in the handgun statute, "in relation to".

And I... that's seems to me the tough point of the argument.

What is your response to that?

Mr. Hillier: --Yes, Your Honor.

Two points: First, the idea... the idea of in pari materia, which would suggest that what's happening in 924(c) ought to be occurring in 844 is... has not the force that it would if we were talking about amendments to and constructions of the same statute, but rather what we have here are two statutes that are being interpreted by two legislators at different times to achieve different objects.

And there's no reason to believe that the... well, the force of that--

Justice Souter: The different object... I mean, the trouble with the different object argument is, as the Attorney General said, there was an evident concern in amending the handgun statute not to sweep in the rogue police officer who happens to have a gun on him when he does something that in fact is unlawful.

Mr. Hillier: --Right.

Justice Souter: The negative inference from that is that there was an intent in the cognate explosives statute to sweep in people, whether in fact it was in relation to or not in relation to.

Mr. Hillier: Your Honor, I think that--

Justice Scalia: Including the policeman who had cartridges in his gun, presumably, right?

Mr. Hillier: --Well, Your Honor, I think the... when you're looking at what happened to 844, when "unlawfully" was taken out the words "in which" were added, which I think indicates that Congress had an appreciation of the relationship that's involved in that statute.

While the legislative history doesn't say why "unlawfully" was taken out, it seems reasonable to believe that what they were trying to do was conform the statute to the purpose of... its purpose.

And its purpose did include, when you look at the "explosives" definition, the use of lawful explosives to further crimes.

So if somebody has a can of gasoline and they want to use that to threaten somebody and create a Federal crime or to accomplish a Federal crime, before that amendment occurred that... that would have been a lawful possession of the explosives, so 844(h)(2) would not apply.

Justice Souter: Okay, fair enough so far as the argument goes.

But that still leaves Congress taking the... sort of making it as difficult as possible for you to take the position that you're taking, rather than as easy as possible.

Why didn't it put in "in relation to"?

Mr. Hillier: Well, the... I think we go to yet another statutory construction tool, or at least observation by this Court that said the Congress can use different words in different statutes to accomplish the same thing.

Justice Souter: It can do it, but why would it have done so?

You've the... you've got the gun example sitting there.

And why would it not have done so if, in fact... so obvious a thing to do if that's what... if it intended to come out your way?

Mr. Hillier: Well, Your Honor, we don't know it didn't do that because the legislative history doesn't inform us.

But to draw an analogy from your question with respect to changes done in these two exact statutes, as you read from the government's reply brief, it is trying to establish through the words "during the commission of" the fact that it is the defendant that committed that crime, in other words it was he that did so.

And we don't take any issue with that; in fact, it makes complete sense.

But it's interesting to note that 924(c) in 1971 was amended to put these... to substitute the words

"for which he may be prosecuted. "

instead of "which may be prosecuted".

So one might ask why didn't they put the word 844 at the same time if there was any question about who the perpetrator of the crime was.

Justice Ginsburg: And maybe they said... maybe because they're trying to draft legislation without using pronouns.

[Laughter]

Mr. Hillier: Touche, Your Honor.

Yes.

Justice Kennedy: I take it that one of the reasons you make your argument is so that if you prevail and you go back to trial, you would argue that this is not in relation to?

Is that correct?

Mr. Hillier: Your Honor, perhaps I didn't understand your question.

If you could rephrase it.

Justice Kennedy: If you prevail in this case and we say "in relation to" is part of the statute--

Mr. Hillier: Yes.

Justice Kennedy: --and then you go back to the trial court, I assume you will argue to the jury that the government can't show that it's in relation to.

Mr. Hillier: Well, Your Honor, if you agree that there's a... if you agree with the Ninth Circuit in this case, then the case is over.

Justice Kennedy: That's right.

Mr. Hillier: The government--

Justice Breyer: Why should we agree with that?

Justice Kennedy: But it seems to me that in a prosecution, in this prosecution, it might be somewhat difficult to establish in relation to.

Mr. Hillier: --It would be difficult--

Justice Kennedy: And that would be... even assuming the jury was properly instructed, et cetera, et cetera.

Mr. Hillier: --Right.

Right.

It's as poison here.

They don't have a relationship.

The explosives were not used to--

Justice Kennedy: All right, but doesn't that show the necessity for the very interpretation the attorney general has argued for here?

It is just too difficult to establish and very dangerous?

Mr. Hillier: --Your Honor, if we can look at the facts of this case, I would respectfully disagree.

What was done here was a charging decision which made that task impossible.

The government could have simply charged this count with count 1, and we wouldn't be here today because surely the explosives were carried for the purpose of accomplishing the act of terrorism that was charged count 1.

Justice Alito: Well, if there's an "in relationship" requirement, why would it be necessary for the explosives to facilitate the false statement?

Why wouldn't it be sufficient if the false statement facilitated the unlawful use of the explosives?

Mr. Hillier: We have a reverse sort of relationship.

Your Honor, two answers to that: First, it would be at odds with the structure of the statute.

If you look at the whole of 844(h), you see in (h)(1), the crime of using an explosive to... an explosive to commit an underlying felony.

And that is that sort of direct relationship that is carried forward in the language of (h)(2).

But, secondly, that language... that sort of relationship has been interpreted by this Court in Smith as acknowledged by the government in its briefing to mean the relationship that we're talking about.

Justice Breyer: That's exactly what's bothering me.

The issue in this case doesn't seem to me to be these weird hypotheticals.

Of course it requires a relationship, in my mind.

But I don't see why the relationship couldn't be exactly the one Justice Alito was talking about.

I mean, imagine a person has a packed car filled with explosives.

He's going to blow something up.

A policemen comes up; he shoots the policeman.

The reason he shot the policeman was because he had his car packed with explosives.

And if this... if this provision... I mean, I can't understand why this provision wouldn't be aimed directly at that kind of thing.

Mr. Hillier: Your Honor, I can't say too much more than what I have.

When you look at the statute--

Justice Breyer: All right.

Suppose I don't agree with you about that--

Justice Scalia: You could say it is not a question on which we grant certiorari.

Mr. Hillier: --Well, that's...--

[Laughter]

Justice Breyer: --That may be, but I don't know... but you could say that.

You could say that.

But the problem is I have to answer the question... I have to reach an answer that I believe should be sensible.

Mr. Hillier: Yes, sir.

Justice Breyer: So what should I do--

Mr. Hillier: Well, Your Honor--

Justice Breyer: --if I think that shooting the policeman because he's going to catch the criminal filled with explosives is within this statute?

And similarly, lying to a customs officer so he won't catch me when my car is filled with explosives is within the statute?

Suppose I believe that, but I also think the statute is not meant to govern those odd hypotheticals that you come up with?

There has to be a relationship, but the one I described falls within the word "relationship".

Now what do I do?

Mr. Hillier: --Well, Your Honor, the relationship... if you look at the structure of the statute, surely (h)(1) does not describe that sort of relationship; (h)(2) is the next statute or the next subsection of that statute, and its purpose is simply to capture the same criminal objective here, that is to say, the marriage of explosives and a felony.

Justice Breyer: I understand that argument.

But suppose I don't accept the argument?

Then what do I do in this case?

That's what I'm asking.

Mr. Hillier: I would ask the Court... well, I would think the Court would draw some... an answer from Smith which did describe a relationship contrary to the way Your Honor is doing with respect to this case that goes back to... goes... wasn't instructed that way; and so it can't be... this case still has to go back.

Justice Kennedy: You think on this evidence, on this record, that a jury, if it were instructed to... that it had to find "in relation to" could return a conviction of guilty including the "in relation to"?

Mr. Hillier: If this case had been instructed correctly?

Justice Kennedy: If this case had been instructed according to your theory of the statute and on this record and on this evidence, could a jury find your client guilty?

Mr. Hillier: No, Your Honor.

Justice Kennedy: That's exactly why the attorney general says he needs it.

Justice Scalia: Yes, you got it anyway.

Mr. Hillier: Beg your pardon, Your Honor?

Justice Scalia: Could I ask you about the "in which", the "in which" thing?

It has just occurred to me that "in which" is in a very sloppy clause anyway, because it says

"shall run concurrently with any other term of imprisonment, including that imposed for the felony in which the explosive was used or carried. "

What about the fire?

It omits fire entirely... in which fire or the explosive.

Fire or the explosive was used or the explosive was carried.

It's a pretty sloppy job down at the end of (h), isn't it?

So I wouldn't put a whole lot of weight on the "in which" given that the rest of it is so sloppy.

Mr. Hillier: Well, Your Honor, the "in which"... the point obviously was that it strengthens and informs the relationship here to be more than the coincidental or temporal one the government--

Justice Scalia: If you are being very precise, but whoever wrote that was, obviously, not being very precise because he left out "fire" entirely.

Mr. Hillier: --I suppose that goes to the idea that we shouldn't draw a lot of information from the amendments that were occurring on 924 when they weren't even looking at this statute and considering it and its consequences to the changes in 844... or having effect in 844.

Your Honor, I would just simply conclude by indicating that the terms, which I think we agree, naturally suggest that there must be a relationship, and the breadth of the term 844's effect and its purpose, because when you look at the purpose of the act and the way that they constructed it so carefully and thoughtfully in terms of the crimes that were... or the... the use of explosives, it applies only to that portion of the statute that involves illegal use of criminal... of explosives.

And the combination of all of these elements certainly gives force to our argument and tends to rub... tends to do the opposite to the government.

At the end of the day, if there's anything to be said for the government's argument, then there is an ambiguity, and it should be construed in favor of the defendant.

And I... just a concluding point to answer Justice Kennedy's questions, the government could have avoided all of this by simply charging this case, as it should have, by linking count 9 with count 1, where the proof problem wouldn't have been a... the only difference in the proof would have been... there would have been no difference in the proof.

The only difference in the case would have been they would have submitted a different instruction.

Chief Justice Roberts: Your friend indicated that this issue doesn't come up very often as a practical matter.

Do you disagree with that?

Mr. Hillier: Well, Your Honor... no, I don't disagree with that, and I'm not sure why that is.

But I think it's been alluded to by the Court already in its questioning.

It could be that prosecutors simply recognized this to be a good plea bargaining chip and maybe the other prosecutors understand that there's a relationship required.

Rebuttal of Michael B. Mukasey

Chief Justice Roberts: Thank you, counsel.

Mr. Attorney General, you have 14 minutes remaining.

Mr. Mukasey: I just wanted to make two brief points on rebuttal.

First, Justice Breyer's question and position appears to read in a relational element that's also not in this statute.

And our view is that that is something that should be done, if anybody, by Congress.

And secondly, that the Respondent's reference to gasoline as an explosive I think is a bit of... is a bit of a reach.

I don't think gasoline is generally regarded as an explosive unless it is prepared and processed and presented in a certain way with... in ways that are not present simply by carrying a can of gasoline to help a... to help out a friend who's run out of gas.

Justice Scalia: And maybe gunpowder doesn't include the little bit that's in a cartridge either.

You think it does?

Mr. Mukasey: I think it does.

Chief Justice Roberts: Counsel, could I ask you, do you have an answer to your friend's point about the "in which" language?

Mr. Mukasey: The "in which" simply includes both, number one, the use... the actual use and, number two, the carrying.

I agree that it's not a model of elegant construction, but "in which" does include the two, both the actual use and the mere carrying.

Chief Justice Roberts: I understood his point to be that it's surprising that they refer to use of the explosives or carrying of the explosives with reference to the underlying felony, "in which" the... suggests that the explosive was used or carried with respect to the underlying felony.

And I understood your position to be that it doesn't have to be.

Mr. Mukasey: No, I think it suggests simply that the underlying felony was, in fact, committed.

Justice Scalia: Well, it was going to be... it was going to be inaccurate as to one or the other of one or two.

If you said "during", that would be... that would be inaccurate as to one.

And "in" is accurate as to one but inaccurate as to two.

I guess they should have said "in or during" or "in which".

They should have added "fire", too, right?

[Laughter]

Mr. Mukasey: If there are no further questions--

Chief Justice Roberts: Thank you, Mr. Attorney General.

Thank you, counsel.

The case is submitted.