DEAN v. UNITED STATES

Transcript: 

ORAL ARGUMENT OF SCOTT J. FORSTER ON BEHALF OF THE PETITIONER

Chief Justice Roberts: We will hear argument next in Case 08-5274, Dean v. United States.

Mr. Forster.

Mr. Forster: Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court: The issue before the Court in this case is whether the discharge provision of 924(c) carries with it some requirement of intent.

We believe that the answer to this question is yes.

And to that end, we would cite to the -- to the text of the statute itself as well as the history involved, the presumption of mens rea that is inherent in all statutes such as this Court's case law has been clear on as well as the principle of the rule of lenity, if we get to that point, and if the Court deems that there is some type of ambiguity.

Justice Ginsburg: Mr. Forster, there are three levels under this: Possession, brandishing, and if the gun is discharged.

You -- you don't quarrel with the notion that Dean at least brandished this gun?

Mr. Forster: We -- we do not dispute that, Your Honor.

No, he clearly intentionally brandished the weapon.

Justice Ginsburg: So we're talking about a three-year difference between brandishing and if the gun is discharged?

Mr. Forster: Yes, Your Honor, that's exactly right.

And the statute in 924 requires that the use of the firearm be during and in relation to the underlying crime of violence, which in this case is a bank robbery.

And we believe that the proper reading of the statute would require that the discharge also be done during and in relation to the underlying crime of violence.

Otherwise, the statute simply would not make any sense.

Chief Justice Roberts: I think one of the stronger arguments against you is the use of the passive voice.

It doesn't say anybody who discharges a firearm.

It says "a firearm is discharged".

And that seems to me to take it away from the element of intent that you're trying to focus on.

Mr. Forster: Your Honor, I think that it's a transitive verb the way it's used.

By definition, it would have some object.

Someone would have had to have discharged the weapon.

And so I think that the Court's cases on mens rea and so forth would continue to apply, even given the way that the -- that it's phrased in the statute.

I don't think that--

Chief Justice Roberts: So you think it's different -- I don't remember the grammar too well.

You think "a firearm is discharged" is different than "firearm discharges"; is that your point?

Mr. Forster: --I'm not sure it would make a difference in this case, Your Honor, because I don't think there's any -- I think that by definition the Court would have to ask itself who discharged the weapon.

I don't think you can just use the word "discharge" in a vacuum.

It has to be during and in relation--

Chief Justice Roberts: Well, I'm not sure that's right.

I mean, if in fact the bank robber tries to flee, and the security guard is forced to use his firearm, increasing the danger to everybody else in the bank, I'm not sure this statute wouldn't cover that as well.

Mr. Forster: --Your Honor, I don't believe the statute would, because the individual who would be charged with it would not himself had "during" or "and in relation to" the underlying crime of violence.

Justice Ginsburg: But it doesn't say -- it says, "if the gun is discharged".

And I think on the government's reading, it would cover the police officer who is trying to apprehend the robber and fires a gun.

Mr. Forster: Yes, Your Honor, I think under the government's theory that would be true.

But I think that would open up--

Justice Scalia: Excuse me.

What -- what -- I guess I'm not following this.

You say it would be true that if the blank -- if the bank guard fires his own gun when -- when the bank robber is fleeing, that would come within this?

Mr. Forster: --No, Justice Scalia, not under our reading.

I think--

Justice Scalia: No, you say under the government's it would?

I don't think it would under the government's either.

Do you?

Justice Kennedy: You have to use or carry the firearm before -- before section 2 even applies.

Justice Ginsburg: But it's the police officer who snatches the gun.

Justice Scalia: Ah, that's different, yes.

Justice Kennedy: That's different.

Justice Ginsburg: So it is using the robber's gun, but by the police officer who is apprehending him.

In other words, as I understand the government's view, it doesn't matter whether it's the police officer.

It has to be the gun of the robber, but it doesn't matter whether it's the robber or the police officer who discharges it.

Mr. Forster: --That's true, ma'am.

Justice Scalia: And I guess it's also the government's view -- and this is even weirder -- that it doesn't matter who brandishes the gun.

So the bank -- the bank guard grabs the gun and brandishes the gun, and that also gets additional time served for the bank robber.

It doesn't seem fair.

Mr. Forster: Your Honor, I don't believe that the -- that the hypothetical of the guard waving the gun around -- I don't think that would meet the definition of 924 defines it.

Justice Ginsburg: So it has a very specific -- what are the words that define what is brandishing?

Mr. Forster: Justice Ginsburg, "brandish" is defined under the statute a couple of different ways.

The -- the dictionary definition of "brandish", which is to grab something and wave it around, is certainly contained in that.

But the definition goes further.

The definition also says that if I, for example, make known that I have a gun, if I pass a note saying I have a gun, that would also be brandishing under the statute.

Justice Ginsburg: I -- I didn't think the government or anybody was reading the definition of brandishing to include a police officer.

Mr. Forster: The way the government's brief -- well, with regards to brandish, Your Honor, I don't know that the government goes that far.

Justice Souter: Well, they've run into the problem, which is also a different problem for you, and that is the brandishing must be for the purposes of -- for the purpose of intimidating.

Justice Ginsburg: Right.

Justice Souter: So that's probably going to eliminate the case in which the officer grabs the felon's gun.

So the problem that it seems to me that it creates for you is that "brandish" is specifically defined to have that particular intentional element.

There is, however, no definition of -- of the -- of the term in question here, which suggests that they did not have any discharge -- that they did not have any -- any -- any intent to impose an intent requirement.

When they do it, they know how to do it.

In this case.

They didn't do it.

Mr. Forster: Your Honor, I would disagree with that simply for this reason: This Court's case law is clear that if Congress wants to do away with the mens rea element, they must affirmatively do so.

And I don't think that it's proper to say that because there's a specific definition of "brandish", therefore they meant discharge to be basically strict liability.

Justice Souter: Why is it improper?

I mean, it may not be conclusive, but it seems to me evidence that points in that direction.

Mr. Forster: Your Honor, I think that that would be disregarding the presumption of mens rea that exists pursuant to this Court's case law as well as the requirement--

Justice Souter: We have -- we have lots of cases in which it makes sense to disregard that presumption, and -- and nobody thinks twice about it, I mean, accomplice liability being an example.

There are -- there are lots of State crimes in which it is dispensed with, reckless driving, death resulting.

And in all of those cases, what in effect the rationale is that the -- that the individual who is being charged has created a risk.

No one can control that risk, including himself, but he bears the responsibility for, if you will, bad luck if the risk is realized.

And that is the rationale for -- for holding him liable for discharge here without any particular knowing or -- or intentional act in making the discharge.

So why doesn't that make sense, and why is that not an answer to the usual presumption that there will be a specific state of mind required?

Mr. Forster: --Your Honor, I don't think this statute is driven by consequence.

And as I understand Your Honor's hypothetical--

Justice Souter: Why?

Why?

Mr. Forster: --Because the words that the statute uses are directly focused to the -- to the conduct of the defendant:

"Possess, use, brandish, discharge. "

as opposed to, for example, carjacking.

Justice Scalia: Well, this is conduct.

I mean, it isn't just bad luck.

This is -- what we have here is a negligent bank robber.

I mean, he has left the safety off, okay, and -- and trips the gun.

I mean, bank robbing is bad enough, but negligent bank robbing is something ----

[Laughter]

--is something that should be punished more severely.

Mr. Forster: Your Honor, certainly under the statute the court had far more authority than the 10 years it imposed, and I think Congress is clear that they -- they allowed for substantially larger sentences in such a case.

This case obviously just discusses the application of the mandatory minimum.

Chief Justice Roberts: Your -- your argument would give rise to very serious problems of proof.

Every time a gun goes off, the bank robber would be able to say it was an accident.

I mean, we had a particularly klutzy robber here that everybody agrees it was an accident, but, you know, in many cases it won't be clear.

Yes, I was pointing the gun at the person, but I didn't mean to fire it.

It just went off.

And he's sad about it just as everyone else is.

And that would get to the jury in every case.

Just because it was easy here doesn't mean it's going to be easy every time to draw a line.

And it gets back to Justice Souter's point.

If you pose the risk that the gun is going to go off, that's additionally punishable conduct.

Mr. Forster: Your Honor, obviously -- I mean, the risk certainly does go up.

But as I -- as I think the statute is written, it's not driven by what the risk is.

As I say, as opposed to--

Chief Justice Roberts: That's not my question, really.

The question is the problem of proof.

Yours is an easy case.

Most cases it's not going to be.

Most cases, when the gun goes off, the robber will be able to say, I didn't intend that it discharged.

It was -- it was an accident.

Mr. Forster: --Your Honor, I don't believe a jury would be -- would make that decision, because under this Court's authority in Harris, that would be for the judge; and -- and obviously criminals would make these claims, and it would be--

Justice Scalia: Excuse me?

That would be for the judge?

Mr. Forster: --Under this Court's authority in Harris, Your Honor, brandish and discharge are not elements of the offense that must be indicted and proved to a jury.

They are sentencing elements -- or enhancements, if you will, that -- that would be up to the judge, and that's this Court's Harris ruling.

Justice Alito: Doesn't that undermine your argument that there's a presumption that a mens rea has to apply, since this is just a sentencing element?

Mr. Forster: Your Honor, I don't believe so.

This Court has never said that merely because it is a sentencing enhancement, rather than an element of the offense, that somehow the statutory rules of construction cease to apply.

Justice Ginsburg: Isn't it part of the background here that it was proposed at the time these enhancements came into the law.

It was proposed that there be a specific state of mind requirement for the discharge of a gun, and that was not enacted?

Mr. Forster: I didn't hear the -- I'm sorry, Your Honor.

Justice Ginsburg: I thought that part of the legislative history was that there were proposals -- I mean, there is a rather sharp difference between "possess" -- yes, you have to have a knowledge, intent element -- "brandishing", very clear, for purposes of intimidation -- then "discharge" has no -- it's just that the gun is discharged.

Weren't there proposals to include something like what was included for the other two, that is, that there be an intent requirement?

Mr. Forster: Your Honor, there were various drafts in the House and the Senate that -- that specifically provided the intent requirement.

The compromise that came out was basically a disagreement over the penalty, and the language that the Congress used, "during and in relation to", necessarily implies some type of an intent element.

I think the circuits are clear on that; it has to be knowing, otherwise it's not during and in relation to.

And so I believe that the choice of language that Congress uses -- there has to be the connection, we believe, between the use -- during and in relation to and the discharge.

Otherwise the statute makes no sense, because it wouldn't be triggered by anything.

Justice Breyer: Why?

I can't get anywhere with the language, to tell you the truth.

I could read it either way.

It -- the House language is the same.

The person "discharges", yes, but what if he discharges it accidentally?

Is the accidental case or unintended case meant to be covered or not meant to be covered?

Mr. Forster: We don't--

Justice Breyer: And you don't get anywhere -- I just can't get anywhere with the language.

The reason they put the "is discharged" is probably for parallelism.

It was a drafting section in the Senate, and they do their job in a stylistic way.

I found nothing that suggests anything other than that.

So -- so where am I?

Sometimes a person who discharges the weapon accidentally is really much worse than the one who does it purposely.

Purposely, he shoots at the ceiling; accidentally, he kills a person dead; okay?

So I mean, I can't get too far with that.

So where -- so there we are.

Is there anything else -- there is the proof problem that the Chief Justice mentioned.

Is there anything else you can say to me, who really doesn't see it one way or the other way in this statute?

Mr. Forster: --Your Honor--

Justice Breyer: Would you say, look, this is why you win?

Mr. Forster: --Your Honor, in the committee reports and so forth, I think it's pretty clear that they did not intend an unintentional or an accidental discharge to be covered.

Justice Breyer: Why -- why do you think that?

I mean, it is absolutely true that a person who is a bank robber and has a gun and has already shown it, and it goes off accidentally is -- has caused a tremendous harm in certain cases, which traditionally has been thought meriting a higher sentence.

And it is also true that he doesn't have the same state of mind as the one who does it purposely.

That is true, too.

Both are true.

And so now what should I do?

I know what you want me to do, but why?

Mr. Forster: Your Honor, the requirement -- we think that the discharge, again, must be during and in relation to.

There has to be that connection.

And--

Justice Scalia: Which -- it's during the bank robbery.

Justice Breyer: It's in relation to the -- I mean, you know, in a sense it is, and in a sense it isn't; same problem.

Mr. Forster: --I don't think this case -- this Court's case law would support a finding that an accidental use would have been in relation to.

That's this Court's ruling in Smith.

Justice Ginsburg: Well, there's accidents and accidents.

And couldn't one say, looking at this that, well, we will -- the State will find that the culpability that we will attribute to this statute is reckless?

If recklessness were the requirement, certainly the facts of this case would fit, would they not?

Mr. Forster: I think that the evidence would suggest that he was reckless--

Justice Ginsburg: You accept that--

Mr. Forster: --but I don't believe that it was knowing.

And I -- and then I think that--

Justice Ginsburg: --You say reckless is not enough; it has to be knowing.

This is not a mere accident.

It's -- this -- the gun was loaded, it wasn't locked, and he's raking in money with one hand, holding the gun with the other.

The teller is crouching down.

I mean, there was -- there was a pretty substantial risk of something going wrong, right?

Mr. Forster: --Absolutely, there was.

But I think this Court's authority in Smith talks about the -- the intent element that is inherent in this.

It has to be purposeful, it has -- it cannot be by accident, and that's what this Court ruled in Smith.

Justice Scalia: Why?

You place a lot of reliance on this "during and in relation to" any -- any crime of violence or drug trafficking crime.

But that's -- that's in the prologue, and it applies only to the matter covered in the prologue -- to wit,

"During and in relation to any crime of violence or drug trafficking crime, for which the person may be prosecuted in a court of the United States, uses or carries a firearm or in furtherance of any such crime possesses a firearm. "

That's -- that's what all that language "during and in relation to" applies to.

And then it continues: "Shall" -- if that "in relation to" existed --

"in addition to the punishment provided for such crime -- (i) be sentenced to a term of imprisonment of not less than 5. "

(ii) -- and number (iii) -- what we're dealing with here --

"if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years. "

I don't see how that language

"during and in relation to any crime of violence. "

applies to anything, except the use or carrying of a firearm.

Mr. Forster: Justice Scalia, sir, we believe that the proper -- that the better reading would be some connection between those two, between the discharge and the underlying -- the during and relation to.

Justice Scalia: Why is that?

How could you -- how could you make the lack of connection any clearer than by ending the first -- the introduction with a dash, and then putting (i), (ii), and (iii)?

I mean, it seems to me that it applies to the portion before the dash.

Mr. Forster: Your Honor, if that were the -- if that were the interpretation, then it would lead to what we consider to be some of the absurdities as far as the results go.

If there is no connection between "during and in relation to" -- as I will refer to it as "the connection" -- in absence of that connection, any number of different things could occur, and that connection is what makes this statute make sense.

And I believe that the government basically acknowledges that in their brief, that there has to be -- if there's not some connection -- I think it's page 29 of the government's brief.

That when we discussed the absurd results that might flow from a statute where there is no such connection, what the government says -- I believe it's on page 29 -- is that to avoid these absurd results, this connection does exist.

But then the next sentence they say: But it doesn't mean there is a mens rea.

And it seems to me that what the government wants in that case is the "during and in relation to" has to apply to "discharge" to avoid the absurd results, but yet they don't want Smith to go along with it.

And Smith said that during and in relation to is purposeful, has to have an effect, and it can't be done by accident.

Justice Scalia: How would -- how would a discharge not be during and in relation to?

Give me an example of -- of what you're worried about.

Mr. Forster: Any discharge any other time.

Justice Breyer: He sees a duck fly by the window and he's a hunter.

Justice Scalia: But that -- excuse me.

That's not -- that's not covered.

Number (iii) only applies to someone who has already been guilty of what's set forth in the prologue.

Mr. Forster: That's the connection that we believe exists.

Justice Scalia: And that's the only connection that's necessary.

You have to have done what was set forth in the prologue, and it has -- has to be in the course of doing that.

But "the course of doing that" means just in the course of using a firearm in connection with the bank robbery.

Mr. Forster: Your Honor, I don't think that's the -- the best way to read it.

I think it has to be during and in relation to the bank robbery.

Justice Ginsburg: The -- the "use or carry" certainly has to be in relation -- during and in relation to, but that's step one.

So he already is using and carrying or carrying in relation to the bank robbery.

And then -- so that's the starting premise.

That excludes all your things about "years before" or "years after" he carried -- he carried a gun.

You -- step one narrows it to the person who uses or carries a gun in connection with a bank robbery.

Mr. Forster: And -- and I would agree with that, and then when you take this Court's authority in Smith to say that that type use during and in relation to cannot be accidental.

And so I go back to the original question Your Honor asked me, did he intentionally brandish it?

Clearly.

And so we believe that if -- if this case we are here about is fit into Smith, he's on the hook for the seven years under brandish, but because the discharge was accidental, it cannot constitute use under this Court's authority in Smith.

Justice Stevens: Let me ask you a question about that.

I thought that "or possesses" was separate from the "uses or carries".

Is possession an example of using or carrying or is it as it says --

"or who in furtherance of such crime possesses? "

Isn't that a separate -- separate enhancement?

Mr. Forster: I don't know that I would use the word "enhancement", Your Honor.

The principal body of 924--

Justice Stevens: Right.

Mr. Forster: --carries with it "uses" as in this case as well as later on in the statute "possesses".

So it says both.

Justice Stevens: But merely possessing is enough to get the first enhancement of five years.

Mr. Forster: If it is in furtherance--

Justice Stevens: Or relation to.

Mr. Forster: --If it's--

Justice Stevens: The "uses or carries" doesn't -- doesn't necessarily apply to the possession.

Mr. Forster: --The -- I believe, under the reading of the statute, Your Honor, they're separate.

He could have been charged arguably with possession--

Justice Stevens: Right.

Mr. Forster: --in furtherance of, but he wasn't.

He was charged with using during and in relation to the underlying crime of violence.

Justice Scalia: Why do we have to find that the phrase "if a firearm is brandished" and the later phrase "if a firearm is discharged" require intentional brandishing and intentional discharging?

Why can't we limit it by saying, oh, of course it means if the firearm is brandished by the bank robber or by the felon or if it's discharged by the felon, but leaving it quite undetermined whether it has to be intentionally discharged, or even intentionally brandished for that matter.

Mr. Forster: Well--

Justice Scalia: The definition of brandishing, I guess, requires some intent to put another person in fear.

Mr. Forster: --Your Honor, I think that you would then have to turn to this Court's -- well, first of all, I think it's the best reading of the statute.

It doesn't make sense any other way to say that you can have the gun discharged but not be during and in relation to the underlying crime of violence.

It doesn't make sense.

Second, I believe that this Court's statutory rules of construction would say that if Congress wanted to do away with the mens rea element in this case, they would have had to have done so expressly.

And we don't believe that they did.

Now, every circuit that has discussed the requirement of "during and in relation to" has found a knowledge requirement, that you can't not know the gun is there, for example.

There has to be the knowledge requirement.

And that this Court's authority in Smith suggests or says clearly that it cannot be used accidentally.

So now the question becomes this: If the Court decides that during -- that the discharge must be during and in relation to, and when the Court does that it takes its own authority in Smith to say that it has to be purposeful, it has to have the effect of the commission of the crime, now is -- would the use in this case be subject to Smith?

And Smith was clear that accidental discharge simply -- or accidental use, rather -- it didn't talk about discharge exactly -- but that accidental use would never be, because it--

Justice Ginsburg: Why -- you say that this background principle, that there has to be a state of mind element -- and we can accept that that's a general principle.

But here we have a provision that does require a state of mind -- specifically requires a state of mind for the possession, for the brandishing, intent to intimidate, but here is this other one that suddenly doesn't.

So wouldn't the text of this statute say -- well, the third one, discharging a gun, they didn't mean to have any element because -- any element of mens rea -- because they had it in number (i) and (ii), and (iii) leaves it out.

Mr. Forster: --Your Honor, if -- I believe such an interpretation would basically mean that that silence would be interpreted as a strict liability, that silence with regards to the specific intent requirement would mean the Congress meant that no intent was necessary.

And that's simply never what these cases from this Court have held.

There is the presumption that Congress operates against, and if they wish to eliminate the mens rea element, they must do so expressly.

And we simply do not believe that it -- that it happened in this case.

One last point is, we believe there's nothing else that Congress would have had to have done to establish a general intent, and if that's true, then I think the very least that could be said about our interpretation is that it would be a reasonable one, in which case lenity principles would then come into play.

Mr. Chief Justice, if there's no other questions, I would like to reserve the remainder of my time.

Chief Justice Roberts: Thank you, counsel.

Mr. Forster: Thank you.

Chief Justice Roberts: Ms. Maynard.

ORAL ARGUMENT OF DEANNE E. MAYNARD ON BEHALF OF THE RESPONDENT

Ms Maynard: Mr. Chief Justice, and may it please the Court: By its terms, the sentencing factor in section 924(c)(1)(A)(iii) contains no mens rea requirement.

Rather, it requires a certain fact to be present in the course of the section 924(c) offense, namely that the firearm is discharged.

Justice Scalia: Does it -- does it require that the discharge be during and in relation to the crime?

I mean, suppose the bank robber, you know, he sees -- son of a gun, he sees among the customers a man that ran off with his wife a year ago, and he is just overcome with anger, and he -- you know, he takes a shot at this guy.

It's not in relation to the bank robbery.

Would -- would that discharge be covered?

Ms Maynard: As long as the discharge occurs while the 924(c) offense is going on--

Justice Scalia: Yes.

Ms Maynard: --yes, Justice Scalia, it would -- it would apply.

The "during and in relation to" language from the principal paragraph is part of the offense, but it does not carry down to the separate sentencing factors.

Chief Justice Roberts: What about the police come in and say, "Drop it"; he says, "Oh, my robbery's over"; he drops it, and it goes off?

Ms Maynard: That case might present a question about whether or not, once he drops it in compliance with a lawful order to do so, he is still committing the section 924(c) offense.

If the section 924(c) offense is deemed to be over at that point, then, no, the firearm would not -- the fact would not have been present while the course of the section 924(c)--

Chief Justice Roberts: All right.

So that's the line between is it going on.

But assuming the offense is -- the bank robbery is still going on, like he's got confederates gathering up the money or something, does that fall under your theory that the gun is discharged?

Ms Maynard: --In our -- under our theory, the -- there must be a temporal connection between the offense that -- for which the defendant is being sentenced, which is a section 924(c) offense, the using or carrying the firearm during and in relation to the bank robbery in your hypothetical or possessing it in furtherance of the bank robbery in your hypothetical.

If one concluded that because the bank robbery continued, even though he was no longer using or carrying the firearm or no longer possessing it, that the 924(c) offense also continued, and the firearm discharges when he drops it, then, yes, the firearm is discharged while the section 924(c) offense is ongoing, and, yes, the mandatory minimum would apply.

But -- but that hypothetical presents questions about the beginning and end of the section 924(c) itself, not questions about whether or not the discharge was intentional or accidental.

Justice Scalia: Do you think that -- regardless of whether it's intentional or accidental, do you think that he has to discharge it or that he has to brandish it?

It is the passive voice.

Does it mean if anybody discharges it or brandishes it?

Ms Maynard: Two -- at least two points about that, Your Honor: The passive voice makes clear that Congress cared about the fact of a discharge, that Congress was indifferent as to who discharged the weapon.

Because the "is brandished" is also stated in the passive voice, we think Congress was also indifferent as to who brandished the firearm, although there is a separate provision giving content to what it means to brandish, and brandish must be done in order to intimidate.

So -- but if a confederate, for example--

Justice Scalia: Grabs it out of his hand and brandishes it.

Ms Maynard: --and brandishes it in order to intimidate the victims in the bank, then, yes, both of them would be subject to the brand -- to the brandishing enhancement.

And even if one thought that the language in the -- in the sentencing factor, "if the firearm is discharged", applied only to the defendant's conduct, which -- that's not our position, and we think that clearly -- it clearly encompasses others -- ordinary liability rules under Pinkerton and aiding and abetting principles would hold a confederate liable for discharge by another.

Chief Justice Roberts: So even a police officer -- the police officer disarms the robber and 10 minutes later mishandles the gun and it goes off.

Ms Maynard: Again, I think that would present questions about whether or not the section 924(c) offense was still continuing, if the law enforcement officer has the weapon.

Chief Justice Roberts: Well, assuming it is.

I mean, he has got the one guy neutralized, but the others are still, you know, under the teller's window, and that isn't over.

So then the guy who is captured already gets an extra three years because the officer mishandled the gun?

Ms Maynard: If the section 924(c) offense is -- is -- is ongoing and if the firearm is discharged, the mandatory minimum sentence applies.

One might conclude that if third parties take the weapon and discharge it -- and, by the way, I do believe these are purely hypotheticals.

They point to no case where that's actually been the case -- but--

Chief Justice Roberts: Well, there probably aren't a lot of cases where the bank robbers are such klutzes that they're fumbling with the gun and it goes off, either.

[Laughter]

Ms Maynard: --That's true.

There may not be very many accidental discharges, but there's no reason to believe Congress wanted courts to engage in the inquiry about whether or not the defendant accidentally discharged the weapon.

If this Court were to -- to hold that accident -- accidental discharges are not covered by the sentencing factor, I think that we would see more claims of accidental discharge.

Chief Justice Roberts: I interrupted your answer.

Ms Maynard: About the third -- if one is concerned about the actions of third parties who are not confederates in any way taking the weapon -- and we do believe it does under the statute's language need to be the firearm that is the basis of the section 924(c) offense, and not someone else's firearm.

But if -- if -- in other words, not the security guard's firearm.

If the firearm is discharged by a third party -- causes you concern, one could conclude that that is not the manner in which the defendant committed the offense.

And that this Court's decision in Harris described this type of sentencing factor, these very sentencing factors, as the kind of factor that one looks at: Is a fact present in the manner in which the defendant committed the offense?

And so one might conclude that if the law enforcement officer disarms the robber and then later discharges the weapon, that that fact of a discharge is not part of the manner in which the defendant committed the offense.

We don't think that's compelled, by the way.

Justice Ginsburg: It would be the same -- you would give the same answer if the teller grabbed the gun from the robber and it went off?

Ms Maynard: If the teller grabs the gun from the -- from the robber and it discharges, as long as the section 924(c) offense is continuing, then the firearm is discharged.

But--

Justice Ginsburg: But your alternate position would apply to the teller as well as the police officer?

Ms Maynard: --One could reasonably conclude that if the teller discharges it isn't a fact in the manner in which the defendant committed the offense.

But I do think there's reason to believe Congress may have been concerned about the fact of the discharge by anyone.

I mean, what you're talking about is someone who's engaging in inherently dangerous activity.

They brought an armed weapon to commit a crime of violence or a drug trafficking crime, and they've handled it in such a way that either it is discharged--

Justice Breyer: There is another--

Justice Scalia: We don't really have to decide all this stuff, do we?

We just have to decide whether, if he discharges it, the discharge has to be intentional.

Ms Maynard: --There is no question here, Your Honor, but that it was the robber that discharged the weapon.

And in fact the Petitioner testified that:

"I pulled the trigger when I was switching the gun from one hand to the other. "

Justice Stevens: But it's also uncontested it was accidental, I think.

Ms Maynard: We have not challenged that it was accidental.

But I think that it--

Justice Stevens: What do you say to your opponent's argument -- I don't know if it's right or not -- but that there's sort of a background rule that generally we assume, when Congress prohibits conduct, it means intentional conduct; and normally if they don't mean that, they make it rather clear in the statute.

Is that a correct -- is his background principle correct?

Ms Maynard: --I don't think so, Justice Stevens, with respect to sentencing factors.

I think there's no case in which this Court has indicated -- and no common law principles--

Justice Stevens: What's the difference between a sentencing factor that adds five years to a sentence and an element of the crime?

There are a lot of us who think that -- you've read Harris and Apprendi.

You know there's -- that there's some debate about whether that really makes all that much difference.

Ms Maynard: --Well, in Harris, which was -- in which this Court was interpreting these very sentencing factors here, the Court note -- noted that--

Justice Stevens: Let me -- let me rephrase the question.

Ms Maynard: --Yes.

Justice Stevens: If it were an element of the crime, would you then agree with his background rule?

Ms Maynard: No, Your Honor, because if it were an element--

Justice Stevens: Then the fact that the sentencing factor is an element really isn't significant.

Ms Maynard: --I think it might be a harder case for us if it were an element of the crime, but it wouldn't be an element that would be necessary.

Justice Stevens: But why would it be a harder case for you?

Ms Maynard: Why would it be a harder case for us?

Because if it were a harbor -- hard -- if it were an element of the crime, then it would be an aggravated offense, and then one could debate whether or not the--

Justice Stevens: But in that situation, would there be a background rule that we normally think Congress intends to punish intentional conduct?

Ms Maynard: --I think there is a background rule with respect to the definition of criminal offenses that Congress intends some mens rea.

Justice Stevens: So you really then are relying on the difference between an element of the crime and a sentencing factor?

Ms Maynard: Not -- no, Your Honor, not in this way, because it -- it would -- it would be a more difficult -- case for us, I can see, but that you would still be talking about somebody who was engaged in wrongful conduct.

There would be no danger.

I mean, one of the reasons the Court assumes a mens rea requirement, or reads in a mens rea requirement when one's not there, is because of the fear of capturing innocent conduct.

But what you would be talking about is someone who has taken a loaded weapon to commit a crime of violence or a drug trafficking crime and used it during and in relation to that crime or to -- possessed it in furtherance of that crime and is already guilty.

They are engaged in--

Chief Justice Roberts: It's entirely fortuitous.

You have two bank robbers.

They both do exactly the same thing.

In one case, the gun goes off; and the other, it doesn't.

Does that -- does it seem -- does it seem fair to add three years onto the sentence of the one whose gun happens to go off but not on the sentence of the one whose doesn't?

Ms Maynard: --They both engaged in inherently dangerous activity.

Chief Justice Roberts: Yes, they both did.

That's my point.

Ms Maynard: Right.

Chief Justice Roberts: They both did exactly the same thing.

Ms Maynard: And it's common in criminal law to hold criminals responsible for their unintended consequences of their criminal acts, and that's -- in your hypothetical it wouldn't be unusual at all to hold someone liable for the accidental discharge when they've taken a loaded weapon to commit a violent crime, here a bank robbery, and handled it in such a way that it goes off.

It's completely reasonable for Congress to conclude--

Chief Justice Roberts: You get three extra years for having bad luck?

Ms Maynard: --Well, no -- well, they're -- just to be clear, they're both subject to life imprisonment for taking the gun and committing -- and using it to commit the bank robbery.

So it's not tacking on three years; it's increasing the minimum.

And that is a significant difference, Justice Stevens said this Court has recognized with respect to these various factors in Harris itself, that the -- whether or not there was a discharge is--

Chief Justice Roberts: Well, is this guy likely to get life for a bank robbery -- the gun accidentally goes off?

I don't know whether it's his first offense or not.

Ms Maynard: --As a practical matter, no, Your Honor.

However, had the accidental discharge caused a death, then he would have committed a more serious offense, and that may have been the penalty.

But the point is that one is often subject to higher penalties than one might have expected by the unintended consequences of one's criminal act.

Justice Breyer: --What would you think -- to go back to Justice Stevens's question.

I would start with the assumption that, normally, not always, where you have a criminal statute and the crime has elements, that Congress intends that the elements be carried out with a guilty state of mind.

I would start with that assumption.

And I would agree with you that sentencing is different, and the reason that it's different is because sentencing often goes up or down depending upon whether the harm that is foreseen does or does not occur, irrespective of the state of mind.

So we couldn't apply that normal background rule, in my view.

Ms Maynard: I think that's correct, Your Honor--

Justice Breyer: All right.

All right.

Ms Maynard: --and that's our view.

Justice Breyer: Now -- now, having done that I wonder if the background rule should come into play once again where a mandatory minimum sentence is at stake, for the reason that if the harm eventuates, there are many ways in which the sentence will go up.

If this person had been killed, for example, it becomes a murder in the course of a felony.

There are all kinds of other statutes that can aggravate the felony.

And if you don't apply the mandatory minimum, the judge still can give him the higher sentence, if he warrants it.

But if you apply the mandatory minimum where the judge wouldn't go up, the only impact that has is to take people who the judge and others think fall into the minimal category of bad behavior plus consequences, and force them to have a higher sentence.

Now, that would be a rationale for a rule of lenity in mandatory minimum sentencing matters.

Ms Maynard: But that would be a reconceptualization of the rule of lenity, Justice Breyer.

Justice Breyer: Yes, it would.

It would.

Ms Maynard: And one -- it would be a -- as you said for this Court, in Muscarello, the rule of lenity has never been a rule where the defendant always prevails.

And it would be an odd notion to have a more muscular rule of lenity in the sentencing enhancement context than you have with respect to the crime itself.

The whole point of having the mandatory minimum is to take away discretion from judges.

What -- and the language of the statute here in our view is clear.

It says "if the firearm is discharged", and I think it's the present tense that gets you the -- the temporal connection to the crime here.

If it is discharged while you are using or carrying it or possessing it, in the offense in the principal paragraph, Congress wanted you to have 10 years.

Justice Breyer: No, I can't -- I can't -- the trouble is I can't find anything in the history of this that really says why they use "is discharged" or used -- as opposed to "discharges".

And I find those very metaphysical, those arguments, unless I -- I can see either something in the history or some functional consideration.

Ms Maynard: Well, in the blue brief, they lay out the House's final version, and we have the House's final version in one of our footnotes.

And then they lay out the Senate's final version.

And one important distinction, Justice Breyer, between those two versions is that the House's version would have made it active voice, but not only active, but it would have been amenable to the argument that "during and in relation to" modifies "discharges", because the structure was different.

But the House would have set the penalty for a discharge at 20 years.

Okay.

That's -- you can infer from that that the House thought an intentional discharge should subject you to 20 years.

The Senate's version, which put it in the passive voice, said 10 years.

And I think you can infer from that, Justice Breyer, the -- the current structure allows what you're positing, which is more culpable defendants who intend to discharge the firearm to receive a higher sentence.

And one could infer, I think, that the House thinks that should be 20 years.

So I think the -- the current structure does allow judges to take into consideration.

It just sets the floor.

And Congress is entitled to do that, and I think they have clearly done that and then to take out of the realm of debate whether or not the defendant intended to discharge the firearm or didn't mean to discharge the firearm.

I would like to -- to say one factual point, which is in the -- in the indictment Petitioner actually was charged with use or carrying.

It just seems -- if I could explain, the

"use or carry during or in relation to. "

is one prong, one way in which to commit the principal offense.

"Possessing in furtherance" is another way to commit the principal offense.

The "use or carry" is not modified by "possession in furtherance of", and "possess" is not modified by -- by "during or in relation to", which is another reason it makes no sense to -- to trail the "during or in relation to" down to the generally applicable sentencing factors.

Justice Ginsburg: Is there a difference, a practical difference, between the two formulations?

Ms Maynard: The legislative -- well, the words are obviously different; the text is different; and the legislative history suggests that Congress wanted a beefed-up "in relation to" requirement for possession in order to make sure that incidental possession during -- you know, incidental possession while one was also committing a crime wasn't captured.

So the "in furtherance of"--

Justice Stevens: What you're saying, to make sure I understand, is that the "in relation to" language modifies both "use" and "possession"?

Ms Maynard: --No, sir.

The "in relation to" -- the "during or in relation to" modifier modifies only "use or carry".

And if one is charged with a "use or carry" offense, then the government must show that you

"used or carried during or in relation to. "

in the way those words have been given meaning by this Court.

If you're charged with possession, the government must show that you possessed the firearm in furtherance of.

Now, the -- the "in furtherance of" and the "in relation to" prong have been given similar meanings by the courts, although generally it's thought that the "in furtherance of", like I say, is a sort of beefed-up "in relation to" requirement -- requires a--

Justice Breyer: "Carries" -- what about "carries"?

Is the -- if a person is carrying a gun in his pocket but he doesn't know it, which could happen, does that fall within "carries" or not?

Ms Maynard: --He would be carrying, Justice Breyer.

Justice Breyer: So is he guilty of the first; do we know?

Ms Maynard: He would be carrying -- if I understood you, he would be carrying.

And if he was also committing a crime, he would be carrying -- if he was also committing a crime of violence, he would be carrying it during the crime of violence.

Justice Breyer: Yes.

Ms Maynard: But under this Court's decision in Smith, if it were--

Justice Breyer: The carrying has to be -- although the statute doesn't say it, Smith says the carrying has to be in relation to the crime.

Ms Maynard: --The statute does say carrying has to be in relation to--

Justice Breyer: It does?

Ms Maynard: --Yes.

Justice Breyer: I thought it just said

"who in furtherance of any such crime possesses a firearm. "

Ms Maynard: I am sorry.

I thought you were asking me a "carry" hypothetical.

If you are asking me a "possession" hypothetical--

Justice Breyer: No, it's a "carrying".

My -- my interest is the -- whoever, blah, blah, blah, for which the person may be prosecuted uses or carries a firearm, or who in furtherance of any such crime possesses a firearm.

So I thought that the "in furtherance" does not modify "carry".

Ms Maynard: --It doesn't.

Justice Breyer: Okay.

Ms Maynard: You are right.

Okay.

I am sorry.

I answered--

Justice Breyer: So, you know, what happens if the person has the firearm -- he is carrying the firearm in his pocket and doesn't know it?

He picked it up from the tailor, and now is -- is there an intent requirement there?

Do we know?

Did Smith talk about that?

Do we know?

I mean, is there, you know, a state of mind requirement?

Ms Maynard: --It's hard to see how one could meet this Court's definition in Smith for--

Justice Breyer: See, I look at Smith--

Ms Maynard: --for "in relation to", which was to have--

Justice Breyer: --Smith says "in relation to" and so the carrying has to be in relation to.

And since the carrying has to be in relation to, that pretty much--

Ms Maynard: --The underlying--

Justice Breyer: --covers the state of mind.

Ms Maynard: --The carrying has to be in relation to the underlying drug crime or crime of violence.

This Court gave content to "in relation to" in Smith to mean have some purpose or effect, facilitate or further the underlying crime, not be by accident or coincidence.

The gist of Petitioner's argument here is they want to read that "accident or coincidence" language down to modify "discharge".

And structurally that -- that just doesn't work.

And if -- if I can make one more point about why it's clear it isn't that, which is that the -- the

"in possession in furtherance of requirement. "

--I mean one of the things they say in response to our argument is that we are willing to put a temporal limitation on the sentencing factors, but not an "in relation to"--

Justice Stevens: May I just make sure I understand your position?

"During and in relation to" modifies the first words that follow it.

"In furtherance to" modifies "possession".

Now, do either "in relation to" or "in furtherance" modify the three subsequent subparagraphs?

Ms Maynard: --Definitely not, no.

Justice Stevens: So neither of them applies.

So it doesn't have to be "in furtherance of" or "in relation to"?

Ms Maynard: The -- the sentencing factors are set out separately.

And you don't get to them--

Justice Stevens: None of the sentencing factors require that that factor be in -- either in relation to the crime or in furtherance of the crime?

It could be just walking down the street, you happen to have a gun?

Ms Maynard: --Well, you have to be guilty of the principal offense, Justice Stevens, before you get to the sentencing factors.

So you have to have either--

Justice Stevens: But the sentencing factors need not be in relation to the crime nor in furtherance of the crime.

Ms Maynard: --Right.

The definitive--

Justice Scalia: It has to be during the crime.

Ms Maynard: --It has to be during and -- but there -- but it's not because the word "during" appears in the principal offense, which is how they would have our argument be.

The -- the -- it has to -- the sentencing factor has to occur.

First you have to commit the principal -- let me just back up.

You have to commit the principal offense.

So, you've used--

Justice Stevens: Why does it have to be "during"?

It -- it doesn't in the statute?

Ms Maynard: --It has to be "during" for three reasons: One, the -- the language of the sentencing factor says "if the firearm is discharged".

It's in the present tense.

So the present tense of the "is discharged" language -- it has to be while you're using, carrying --

"uses, carries, or possesses. "

is also in the act.

The "is discharged" has to happen while you're using, carrying, or possessing.

That takes out hypotheticals about, well, it was discharged at the factory before I got it, and law enforcement discharged it well after they took it from me to test the ballistics on it.

Those aren't covered because it's not "is discharged" while you're using, carrying, or possessing.

Secondly, this Court in Harris recognized that these are the types of sentencing factors that one considers when deciding whether a certain fact is present in the manner in which an offense is committed.

So the fact has to be present in the commission of the offense.

That's just the way this type of sentencing factor operates, and the Court so interpreted these particular sentencing factors in Harris.

And we know that it's not because of the "during" in the principal paragraph, Justice Stevens, because there is no "during" element to the "possession" prong.

Nevertheless, the sentencing factors apply to that prong, and we would apply temporal limitations to them.

Justice Stevens: There is an "in furtherance".

There's an "in furtherance of the crime".

Ms Maynard: Yes, Your Honor, and if you possess a firearm--

Justice Stevens: I want to make sure I understand.

You are saying it need not be "during" or -- you said it has to be "during" but not because the statute includes the word "during".

Ms Maynard: --Yes.

Justice Stevens: Well, what does -- where does the "during" come from then?

Ms Maynard: The "during" comes from the fact that the sentencing factor is in the present tense, and says "is discharged".

That means that the "is discharged" must occur while the offense is -- is occurring.

So the temporal limitation comes from -- and is from the nature of these types of sentencing factors, which ask: Is this fact present?

That's what Congress cared about.

Justice Scalia: And you say it can't come from the prologue, because if it came from the prologue, it wouldn't apply to the mere possession.

Ms Maynard: Exactly.

Justice Scalia: And the possession could be at any time, before the crime, after the crime, whatever.

Ms Maynard: Possession -- it would just have to be possession that was in furtherance of an underlying crime.

Once you're guilty of that, if the firearm was discharged while you were guilty of that--

Justice Scalia: So you have to import some -- some contemporaneous -- contemporaneous requirement into the (i), (ii), and (iii).

Ms Maynard: --Some temporal limitation, and the limitation is what -- is that it must be discharged while you're committing the offense for which you're being sentenced when we're looking at sentencing factors, which is -- as set forth in 924(c).

Justice Stevens: Well, what if it's committed when the guy is trying to escape, and the gun goes off accidentally?

Is that in -- I mean is that during the crime?

Ms Maynard: Again, it would turn on -- on -- it wouldn't turn on whether accidental or intentional discharge, Justice Stevens.

That would present a difficult hypothetical about whether or not the 924(c)--

Justice Stevens: No, but assume that two hours later when he's -- when he got home, he carried the gun in -- in furtherance of the crime.

He still had it with him all the way through, and the gun went off after he left the bank.

Ms Maynard: --If -- if it were determined that the -- the 924(c) offense, which is the possession in furtherance of a crime, were still going on at that point -- in other words, he was still possessing it in furtherance of the underlying crime of violence, and it discharges -- then, yes, the sentencing factor, by its plain terms, applies.

Justice Stevens: But then you're telling me that it need not be during as long as it's in furtherance of.

So the "in furtherance of" is also incorporated implicitly in the sentencing factors.

Ms Maynard: Well, the -- no, the "in furtherance of", it -- the inquiry we would be making at sentencing, Justice Stevens, is not was the discharge in furtherance of.

You would -- you would -- all you would be asking is, were you still possessing a firearm in furtherance--

Justice Stevens: The discharge must be during?

Ms Maynard: --The discharge must be temporally related to the principal offense, yes, because the discharge is -- is discharged while you're in the course of the principal offense.

That's the way these types of sentencing factors--

Justice Breyer: I think I got everybody mixed up, because the first sentence of the statute is on the preceding page.

And if I start at the beginning, I would discover -- of my memo -- if -- it says, if -- in -- who -- any person who during and in relation -- during and in relation to any crime of violence or drug trafficking crime, blah, blah, blah, of a certain kind uses or carries a firearm.

Ms Maynard: --Right.

Justice Breyer: So there it is right there.

Ms Maynard: The "during and"--

Justice Breyer: "Or who in furtherance of such a crime possesses shall be sentenced. "

Okay.

So we've got the during and in relation to covering the whole bunch.

Then we have to read that into (ii) and (iii).

Ms Maynard: --No, Your Honor.

I mean, just to make sure I understand what you're saying.

The "during and in relation to" only modifies the verbs "uses or carries"?

Justice Breyer: Yes, exactly.

Ms Maynard: Okay.

The two--

Justice Breyer: Then we have to read that by implication where it says

"if the firearm is brandished during or. "

--you have to imply that.

Ms Maynard: --That's their argument.

Justice Breyer: Yes.

That's not your argument?

Ms Maynard: No, Your Honor.

[Laughter]

Justice Breyer: Forget it.

[Laughter]

Justice Scalia: It's not your argument because if that was the only -- if that was the source of the contemporaneous requirement, there would be no contemporaneous requirement for the "in furtherance"?

Ms Maynard: That's right.

And also--

Justice Scalia: The provision -- "in furtherance" provision--

Ms Maynard: --The reason we don't believe that's the correct reading is because, as this Court indicated in Harris, the principal offense -- the principal paragraph sets forth the complete crime, and it ends with "shall".

So once you do the things in the principal for crime, you're guilty.

And then the only question is, what shall your sentence be?

Justice Scalia: --And, of course, some of these difficult hypotheticals such as the one that Justice Stevens put about the gun going off while the -- while the individual is escaping, that's going to be a problem whether you adopt your interpretation or the -- or the Petitioner's interpretation.

Even if you assume that it has to be during and in relation to, it's still going to be a problem.

Is this -- is this during and in relation to the crime--

Ms Maynard: Well, just to be--

Justice Scalia: --if it occurs, you know, five hours later while he's escaping?

I don't know.

Ms Maynard: --Just to be clear about--

Justice Scalia: We don't have to decide that, do we?

Ms Maynard: --It wouldn't have anything to do with whether or not it intentionally went off, Justice Stevens.

Your hypothetical could still raise a question--

Justice Stevens: The strange thing about this case is we're talking about a category of crimes in which somebody mistakenly fires the gun.

That doesn't happen very often.

The whole -- the whole dispute is about really a trivial set of crimes.

Ms Maynard: --Well, I think it's important to recognize, though, that Congress didn't want to open the door to claims that -- that the firearm was discharged accidentally.

Justice Stevens: Sure.

The defendant gets up and says, I didn't really mean to shoot the guy.

Ms Maynard: Right.

I mean, the -- the fact of a discharge is what Congress was clearly concerned about, and you can tell that from the text.

What I did want to say is that in the indictment here he was actually charged with uses, carries, and possesses.

The indictment is not perfectly worded.

It only has the "during and in relation to" in it, but the -- the instructions were proper and there were no -- the jury instructions at trial were proper and there were no -- no objection to the instructions, but I did want to correct one point about that.

And if there are no further questions--

Chief Justice Roberts: Thank you, counsel.

Four minutes, Mr. Forster.

REBUTTAL ARGUMENT OF SCOTT J. FORSTER ON BEHALF OF THE PETITIONER

Mr. Forster: This Court in U.S. Gypsum was very clear when it said that far more than the simple omission of the appropriate phrase of a statutory definition is necessary to justify dispensing with the intent requirement.

And our argument is simply this: Merely because this might be a sentencing enhancement, rather than an element of the offense, this Court never said that the normal rules of statutory construction cease to apply under those circumstances, which means that the mens rea presumption is appropriate in this case.

And just like this Court said in the passage I just cited, if Congress wants to dispense with that requirement, they must do so clearly, and they simply did not do that in this case.

If they wanted to do that, they could insert the words "intentionally" or "unintentionally discharge", in which case that would be clear.

And that simply is not the way this statute reads.

The best reading of the statute, I believe, and this is what Your Honor was headed toward, is to read the discharge to require during and in relation to.

I just think that's the best--

Justice Breyer: Is that helping?

I mean, this did take place during, and you would have thought when something goes off accidentally, it's in relation to.

I mean, you know, I can imagine an argument to the contrary, but it isn't obvious.

It just is--

Mr. Forster: --But, Your Honor--

Justice Breyer: --It just is -- they have "during", "in relation to", and "in furtherance of".

So their -- in furtherance of doesn't carry over.

The first two do.

An accidental discharge -- is it not in relation to the crime?

Mr. Forster: --Not under this Court's authority in Smith.

I think Smith is clear.

It must have purpose and effect and not be used by accident.

Justice Stevens: What was the case you cited when you started your rebuttal?

Mr. Forster: U.S. Gypsum.

Justice Stevens: Is that the antitrust case?

You caught me by surprise.

Mr. Forster: I believe it is.

I believe it is, Your Honor.

Mr. Chief Justice, if there are no other questions, I thank the Court.

Chief Justice Roberts: Thank you, counsel, the case is submitted.