Transcript

IN THE SUPREME COURT OF THE UNITED STATES

ROLAND J. BAILEY, Petitioner v. UNITED STATES and CANDISHA SUMMERITA ROBINSON, aka CANDYSHA ROBINSON, Petitioner v. UNITED STATES

Nos. 94-7448, 94-7492

October 30, 1995

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:00 a.m.

APPEARANCES:

ALAN E. UNTEREINER, ESQ., Washington, D.C.; on behalf of the Petitioners.

MICHAEL R. DREEBEN, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.

PROCEEDINGS

10:03 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in Number 94-7448, Roland J. Bailey v. United States, consolidated with Robinson v. United States.

Mr. Untereiner.

ORAL ARGUMENT OF ALAN E. UNTEREINER ON BEHALF OF THE PETITIONERS

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

These consolidated cases present the question of what it means to use or carry a firearm both during and in relation to a predicate drug trafficking offense.

Section 925(c) of title 18 of the U.S. Code makes that conduct a crime punishable by stiff, mandatory minimum sentences ranging from 5 years to life imprisonment without release.

Petitioners Roland Bailey and Candisha Robinson were each convicted of violating section 924(c). Each was sentenced to 5 years imprisonment on that count. Their convictions were upheld by a narrowly divided D.C. Circuit sitting en banc.

The facts of the two cases, briefly stated, illustrate the broad reach given to section 924(c) by the court below. Candisha Robinson was convicted of using or carrying a small firearm known as a Derringer during and in relation to the predicate offense of possession of cocaine with intent to distribute it.

Her section 924(c) conviction rested almost entirely on the fact that the Derringer was found unloaded and in a holster inside a locked footlocker in her bedroom closet. There was no evidence that Ms. Robinson ever touched the firearm, or that the firearm played any role in any sale of narcotics.

QUESTION: Mr. Untereiner, was -- are petitioners in either of these cases challenging the instructions on the law that were given?

MR. UNTEREINER: No, we are not, Your Honor.

QUESTION: So in both cases it amounts to a sufficiency of the evidence question for us?

MR. UNTEREINER: That's correct, Justice O'Connor.

QUESTION: And would you tell me what you think the word carry means? Apparently, in neither of these cases did the indictment or a jury have to decide whether a weapon was being carried.

MR. UNTEREINER: Your Honor, I believe the indictments --

QUESTION: In Bailey, did it?

MR. UNTEREINER: I believe the indictment included uses or carries, and so did he instructions in this case.

We maintain that by carry, Congress meant to bear on one's person.

QUESTION: You don't think that under this statute that a gun could be carried in the trunk of a car --

MR. UNTEREINER: No, we don't --

QUESTION: -- for purposes of this statute?

MR. UNTEREINER: No, Your Honor. We believe that at most that would be transporting the weapon and, in fact, if you look at section 924(b), Congress included the word transport there, and we think there's a difference between carrying and transporting.

The only discussion of this in the lower court's opinion was in the dissent, and Judge Williams went through an analysis why that was, at most, transporting.

QUESTION: But if we agreed with you -- in the Bailey case, if we agreed with you on use, we'd have to remand, wouldn't we, because the lower court -- with the exception of the one dissenting opinion, the lower court didn't get into carrying.

MR. UNTEREINER: Your Honor, we think that the Court can and should reach the issue of what it means to carry --

QUESTION: Yes, but we'd be doing it in the first instance.

MR. UNTEREINER: You would be, Your Honor, that's correct, but we think the meaning is relatively clear, of the word carries, and this Court is fully capable of deciding what that means.

QUESTION: Except that this Court operates as a court of review and not first --

MR. UNTEREINER: Well, that's true, Your Honor. It's possible that the Court could remand that issue, but we think that the issue is presented in this case, and the Court could also decide it.

Moreover, what the Government really tries to do in this case is to ignore the word carry. I think the Government would like the Court to forget that the word carry is in the statute, and the reason for that is fairly simple, and that is that the Government's interpretation of the word use reads the word carry -- carries out of the statute.

According to the Government, whenever someone possesses a firearm so that it emboldens the possessor, or might be available for protection or security, that is a use, and we submit that whenever someone carries a firearm, the firearm is also available for use, and it also emboldens the person, so if the Government is right that Congress meant, by use, what it says, there really would have been no need to include the word carries in the statute.

This Court has repeatedly said that statutes must be read so that every word is given some effect.

QUESTION: Well, Mr. Untereiner, what is your view as to the meaning of uses and the meaning of carries in that phrase?

MR. UNTEREINER: We suggest that the word use means, to actively employ to carry out the predicate offense. By active employment, we mean firing the weapon, discharging it, brandishing it, displaying it --

QUESTION: Well, how about our opinion in the -- wasn't it in the Smith case where we said if you -- that you use a weapon if you barter it for some drugs?

MR. UNTEREINER: That's correct, Your Honor. That's -- that was this Court's holding in Smith.

We think that that holding is fully consistent with our definition of use.

In Smith, the Court held that trading a firearm during and in relation to the predicate offense of attempting to possess cocaine, trading a firearm for the cocaine was a use of the firearm, and we think that was an active employment to carry out the predicate offense.

QUESTION: Well, how about a strategic placement of a firearm, having it right there so that the persons with whom the defendant is dealing in the case of a drug sale has some notion of the power available to the defendant at that time?

MR. UNTEREINER: Well, Your Honor, I think --

QUESTION: Some kind of -- I don't know how to describe it better than a strategic placement of the weapon.

MR. UNTEREINER: I think if the weapon were placed in an open area, it would be displayed, and that would fall within the meaning of active employment as we understand it.

QUESTION: It doesn't have to be held in the hand.

MR. UNTEREINER: That's correct. That's correct.

But the Government makes much of placement. It says that possession plus placement should be enough to qualify as liability for use, and we think there are several problems with the placement theory. For one thing, I think that placement is a kind of preparatory conduct. It's preparation for use, it's not use.

Secondly, I think the Government would --

QUESTION: Lest there seem to be too much agreement between you and Justice O'Connor, your response was, if it's strategically placed and visible it would be use, but let's say I had it in the drawer here, so it's not visible. I'm not carrying it. It's strategically placed. I can whip open the drawer and get to it. You would say that is not being used.

MR. UNTEREINER: That's right. Within the meaning of active -- our definition of use would not include that, Justice Scalia.

QUESTION: At least shown -- it has to be at least shown.

MR. UNTEREINER: That's correct, and the reason for that, if it's displayed, it's actually having an effect in carrying out the predicate offense, whereas if it's hidden somewhere, all it does is embolden the possessor, and emboldening, we submit, really doesn't add anything to possession.

QUESTION: You mean, you would say the same if this were a crack house with machine guns strategically placed, to use Justice O'Connor's phrase, at various points where they could be easily turned on anybody who was trying to get into the house?

MR. UNTEREINER: Justice Kennedy, if they were openly displayed in a crack house --

QUESTION: No, no, they're concealed, but they're --

MR. UNTEREINER: That would not be a use under our theory, that's correct.

I'd like to go back for a moment to this placement theory, because I think that there's another --

QUESTION: Well, I take it that the reason is you have to draw a line some point, and so you want to show that there was an actual, active employment, that it was being used.

Suppose in the crack house example they had two or three people go to man the machine guns to be at the ready. That wouldn't be a use?

MR. UNTEREINER: I'm sorry, I --

QUESTION: That they had two or three people manning the machine guns, but -- at least close by, but they were concealed.

MR. UNTEREINER: Well, it could be that they could be carried in some --

QUESTION: No, they're not carried, they're in a fixed place.

MR. UNTEREINER: And they're not being borne on that -- they're not on the person's person.

QUESTION: No.

MR. UNTEREINER: That would -- that's correct, that would not be a use under our theory.

QUESTION: And I suppose if you had agents stationed around the room, all of whom were carrying firearms, prepared to use them, you would not be using firearms.

MR. UNTEREINER: There might be aiding and abetting liability under the carrying prong there, but there wouldn't be -- there wouldn't be a use.

QUESTION: What if your agents actually used the firearms, actually pointed --

MR. UNTEREINER: There might be aiding and abetting liability for use.

QUESTION: But you would not be using the firearm.

MR. UNTEREINER: No, that's correct.

QUESTION: Well, don't you concede, or isn't it at least consistent with your theory to concede that there can be an overlap between use and carry? Your claim is there's simply got to be a distinctive element in use as well. Use cannot totally -- or a distinctive element in carry, rather, that use cannot totally swallow up carry.

MR. UNTEREINER: That's correct --

QUESTION: There could be an overlap, and there could have been an overlap in Justice Scalia's example.

MR. UNTEREINER: Indeed, there is an overlap under our theory of the statute and under the Government's theory of the statute. I think both sides have to deal with the fact that there is a substantial overlap in terms, but Justice --

QUESTION: Yours is not complete and the Government's is.

MR. UNTEREINER: That's correct, and the Government does not dispute the fact that its reading of use liability would render the word carries in the statute superfluous. The Government does not dispute that. Instead, it asks this Court to create an exception to that cardinal rule of statutory construction, and that exception --

QUESTION: But you, of course -- you also agree that the word use is not superfluous, that there are uses of the gun when it is not being carried.

MR. UNTEREINER: Certainly.

QUESTION: What are the -- what's the best example of that, in your view?

MR. UNTEREINER: Well, displaying a firearm could be a use, would be a use --

QUESTION: Displaying it without carrying it, though.

MR. UNTEREINER: That's correct. That's one.

Referring to a firearm could, under some circumstances, could be a use.

QUESTION: Referring to it in the trunk of a car?

MR. UNTEREINER: Possibly. If --

QUESTION: So in your view, use is broader than carry.

MR. UNTEREINER: No, Your Honor. We think that in general use is narrower than carry. That's what Congress -- that use means to actively deploy the weapon as an instrument of the predicate offense, and carry was intended to pick up a residual category of cases where the weapon was not actually deployed.

QUESTION: But I thought in your -- the hypothetical about the weapon being visibly displayed it wouldn't necessarily have to be on one's person. Perhaps it wouldn't be carried, but then it would be used.

MR. UNTEREINER: In that example it would be, Your Honor.

QUESTION: So then, that example, use would be broader than carry.

MR. UNTEREINER: Well, use --

QUESTION: It would include --

MR. UNTEREINER: Use will certainly cover things that carry --

QUESTION: That carry doesn't.

MR. UNTEREINER: -- doesn't cover. In Smith, this Court --

QUESTION: Your definition of carry is it's on your person, because you excluded having it in the trunk. Having it, say, in the seat next to you in the car wouldn't do.

MR. UNTEREINER: Well, we actually have two -- we have an alternative definition of carries which is slightly broader, but nonetheless would not be a basis for upholding Bailey's conviction under carry.

QUESTION: But you want to concentrate here on use, as I understand it, and from what you've been saying, am I correct in gathering that use means, as you define it, something perceivable by another human on the premises?

MR. UNTEREINER: It's activity with the -- it's some kind of activity with the weapon that carries out -- assists in carrying out the predicate offense.

QUESTION: In other words, a concealed weapon can't be seen, so you say that's carry but not use. Are you saying that use has to be something that another perceives?

You use the example of placement, not mere placement in a drawer, but visible placement.

MR. UNTEREINER: Well, I think that use liability would require that. Whether it would require that because the use wouldn't be in relation to the predicate offense unless it actually helped to carry out the predicate offense, or whether --

QUESTION: Well, what if you blow someone's head off from behind. The person never sees you, but surely you've used a weapon.

MR. UNTEREINER: That's correct.

QUESTION: I suppose you'd say you could use a weapon without carrying it by having some remote -- remote mechanism of discharge. You could have a spring trap, or all sorts of ways, have the gun fired from the other side of the room, without your carrying it, right?

MR. UNTEREINER: That's correct. You could simply refer to a weapon that you have not immediately on your person, and that would be a use.

QUESTION: And what if you direct one of your goons to shoot the person? You're not carrying the gun, but one of your colleagues is and you say, shoot him. Are you using the firearm then?

MR. UNTEREINER: Well, you may be liable for aiding and abetting someone else's use, someone else's --

QUESTION: Might you also be, even under your theory be --

MR. UNTEREINER: It might be. It might be in some circumstances a use. If you have constructive --

QUESTION: If you direct its use by someone else.

MR. UNTEREINER: If you have constructive possession of a weapon by -- and you have control over your accomplice, and you direct that it be used, that could be a use, I suppose.

I'd like to say a few words about section 924(d) as well. That's the forfeiture provision of section 924.

In Smith, this Court explained that the word use is fairly elastic, and must be understood in light of its context in the statute, and part of the context this Court looked at in Smith was the forfeiture provision, section 924(d).

Now, that provision makes a distinction between guns that are used, those that are involved in, and those --

QUESTION: Where do we find section 924(d) in the papers?

MR. UNTEREINER: 924(d) is in our opening brief, the appendix, page 3a.

QUESTION: Thank you.

MR. UNTEREINER: Section 924(d) draws this distinction between firearms that are used, those that are involved in, and those that are merely intended to be used.

In Smith, this Court relied heavily, I think, on this provision, because these words make cross-references to other crimes in which firearms are traded, and I think that was an important part of this Court's holding in Smith.

We suggest that this shows Congress knows full well that there's a difference between using a firearm and merely intending that the firearm be used, or involving a firearm in a predicate offense.

The Government's theory, however, would collapse that, and essentially is based on the premise that Congress doesn't know how to distinguish those things, and rather, when it says use, it includes all of those things.

I'd like to say a little bit also about the Rule of Lenity here.

QUESTION: Before you get to that, Mr. Untereiner, may I ask you how your definition, your active definition of use, fits in with one of the underlying crimes, and that's possession with intent to distribute, which is a passive crime, no activity involved, so how do you get an active use tied together with such an offense?

MR. UNTEREINER: Justice Ginsburg, it's quite possible, we think, that a firearm can be actively employed in a predicate offense of that kind. You can brandish a firearm to ward off a rival drug dealer who's trying to take away the drugs, you could fire it, or you could brandish it at the police who are trying to arrest you, so it's quite possible that active employment goes together with even a passive drug crime such as possession with intent to distribute.

The Rule of Lenity is an important principle in this Court's jurisprudence. It says that when a statute is ambiguous, a conviction based on language that -- whose scope is uncertain should be reversed.

The rule serves a number of important purposes. It ensures that everyone has fair notice of what conduct constitutes a crime.

QUESTION: Do you think we followed that in Smith?

MR. UNTEREINER: The --

QUESTION: Do you think we follow that rule with respect to the phrase, use a firearm? That's an exception to it, isn't it?

MR. UNTEREINER: I think the majority in Smith concluded that the level of ambiguity was not sufficient to trigger the Rule of Lenity in Smith. I think the dissent had a good point that --

(Laughter.)

MR. UNTEREINER: That --

QUESTION: Well, I'm not sure it did.

(Laughter.)

MR. UNTEREINER: Well, I think in Smith, Your Honor, the Court was looking at the statute as a whole, and I think here again the language of section 924(d) was significant because of this distinction between -- well, the fact that that made cross-reference to crimes that clearly involved trading firearms, and I think that, and I think the Court, the majority in Smith was also somewhat troubled with the possibility that bludgeoning someone with a firearm might not be a use under the dissent's theory. Those considerations really --

QUESTION: Would it be in your view?

MR. UNTEREINER: Yes, it would, Your Honor.

QUESTION: You don't quarrel with the Smith holding at all, as I understand your brief.

MR. UNTEREINER: No, Your Honor, we don't ask -- no. No, we don't think that -- we think Smith is fully consistent with our theory of active employment.

QUESTION: It may be, but with the argument you're making now, with the Rule of Lenity, was there any less ambiguity -- do you think there was less ambiguity in Smith than there was here?

MR. UNTEREINER: We do believe there was less, yes --

QUESTION: You do.

MR. UNTEREINER: -- because of the presence of subsection (d), the forfeiture provision, where the word use also appeared, and where Congress was making a cross-reference to crimes where a firearm was traded, and I think that the Court relied heavily on that in Smith, and that --

QUESTION: Well, as I understand your position, you agree that the trading of a firearm is an active use of the firearm.

MR. UNTEREINER: That's correct.

QUESTION: Sticking it in the trunk or some locked compartment where it's not used at all is not use within the meaning of the statute.

MR. UNTEREINER: That's correct.

QUESTION: You say use goes beyond carry, don't you?

MR. UNTEREINER: Yes.

QUESTION: Yes, well then, how do you explain, let's see, 5 -- it's on page la of the petitioner's appendix. (B) -- way at the bottom of the page. If a person sold, delivered, or otherwise transferred a handgun or ammunition to a juvenile knowing or having reasonable cause to know that the juvenile intended to carry or otherwise possess or discharge or otherwise use -- or otherwise use -- the handgun or ammunition.

MR. UNTEREINER: We think that that, the language that, Justice Scalia, you've just read strongly supports our position, because -- for a number of reasons.

Number 1, it shows that the phrase -- carry or otherwise possess shows that carry is a particular kind of possession, and that the only kind of possession that Congress has made a crime under 924 (c) is carrying, whereas the Government, I think, suggests that other kinds of possession would qualify as use under 924(c).

The second half of that, discharge or otherwise use, I think suggests under the various cannons of construction that this Court otherwise applies that use is a -- that discharge is a kind of use, and it must be of the same kind, that the broader category, use, refers to a kind of employment of the weapon that discharge is an example of, and I think that's fully consistent with -- indeed, I think it supports our active employment reading of the statute.

We'd like to also remind the Court that, when all is said and done, this case is really about a choice between two sentencing regimes. Under the Sentencing Guidelines, there's a two-level enhancement for possession of a firearm, so really, if the Court accepts our argument in this case, it doesn't mean that conduct like that involved in this case will go unpunished. It will go punished, instead, under a two-level enhancement under the Sentencing Guidelines.

And as Justice Breyer explained in his McFadden dissent on the First Circuit, the Sentencing Guidelines reflect a more calibrated and nuanced and sophisticated approach to sentencing than --

QUESTION: Why should we prefer one to the other in making a decision in this case?

MR. UNTEREINER: Well, I think, Your Honor, that the Court should strive not to read use in 924(c) in a way that simply eradicates another provision of Federal law, namely, the two-level enhancement provision.

QUESTION: Well, that's an argument of statutory construction. I thought you were urging something more, that there's one sentencing regime would prevail if your client -- if you won, another if the Government won, and the one was just basically a better sentencing regime than the other. It doesn't seem to me that's our decision to make.

MR. UNTEREINER: Well, we think that the statutory construction argument is also available in that situation, and I guess that's the argument we're --

QUESTION: May I ask, you commented on Justice Breyer's opinion on the First Circuit. Do you think then-Judge Kennedy's opinion in the early case on the Ninth Circuit supports you or is against you?

MR. UNTEREINER: I think that case is clearly distinguishable for two reasons, number 1, that was a case about carrying. A lot of the subsequent cases that cited that did not make that distinction, and seized on this later language in that opinion that talked about emboldening.

Number 2, the case was not about sufficiency of the evidence. If you read that case carefully, you'll see it was a case about an instructional error, and the court reversed because the instruction was deficient, so any statement in that case about the sufficiency of the evidence, I mean, there was some discussion in there, but it's not necessary to the outcome of that decision.

QUESTION: Well, if the firearm were traded, exactly as occurred in Smith, would that be use within the meaning of this statutory provision?

MR. UNTEREINER: Yes.

QUESTION: It would.

MR. UNTEREINER: A firearm traded as in Smith.

QUESTION: Yes.

MR. UNTEREINER: Yes, Your Honor.

QUESTION: That would be used, in your meaning.

MR. UNTEREINER: Yes, within the meaning of -- yes. Under our definition, that would be a use of the firearm.

QUESTION: Why?

MR. UNTEREINER: Because in -- because you are -- you -- it's activity with the weapon in such a way that you carry out the predicate offense.

The predicate offense in Smith was attempt to possess cocaine. That attempt was carried out by offering to trade what was in that case the machine gun for the drugs, so we think that falls squarely within our definition of the active employment.

If I may, I'd like to reserve the balance of my time for rebuttal.

QUESTION: Very well, Mr. Untereiner.

Mr. Dreeben, we'll hear from you.

ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE RESPONDENT

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

Our position is that a firearm is used within the meaning of section 924(c) when the defendant puts or keeps it in a place where it is available to protect himself during drug trafficking operations and to embolden him to commit that offense, and we believe that, applying that definition, the evidence was sufficient in both of these cases to support petitioners' convictions.

QUESTION: Is that an intentional part of the crime, and that we infer that intent from all the circumstances?

MR. DREEBEN: That's correct, Justice Kennedy. The jury was instructed that the use of the firearm had to be knowing and intentional, and the evidence in this case was sufficient for the jury to draw the inference that Roland Bailey had the 9 millimeter Smith & Wesson automatic pistol in his trunk to protect his possession of cocaine and the proceeds of that drug trafficking, and that Candisha Robinson had a Derringer in a locked foot locker in her apartment bedroom, where drugs were kept and from which drugs were dealt both on the day of the drug trafficking crime that was charged in the indictment and on the previous day.

So the jury could readily draw the inference that the defendant, or the defendant's agents perhaps, in Candisha Robinson's case, had put the firearm in that place so that it would be available if the need arose during the drug trafficking crime that was charged in section 924(c).

QUESTION: There was -- in Robinson's case, were the drugs that were part of the transaction taken out of that foot locker?

MR. DREEBEN: The jury could draw that inference, yes, because there was a drug transaction within about a half-an-hour of the execution of the search warrant, and after the search warrant was executed, cocaine was found, crack cocaine was found in the trunk in the bedroom, so the jury could -- and marked money from that transaction was also found in that trunk.

So the jury could readily infer that Candisha Robinson's agent, Parker, had gone to the trunk and had retrieved the cocaine from that place, and during that time had the gun available to him for the purpose of protecting him if the need arose.

QUESTION: Mr. Dreeben, you're not -- the Government's not making the argument, I take it, that having a gun in a locked trunk when the drug transaction is being completed is enough to constitute its use.

MR. DREEBEN: Well, neither -- Justice Scalia, neither of the violations in these cases involved the offense of distribution. They involved possession with intent to distribute.

QUESTION: All right.

MR. DREEBEN: So the crucial issue is whether the gun was available to the defendant for the purpose of protecting his possession --

QUESTION: His possession.

MR. DREEBEN: -- of the drugs. That's right.

QUESTION: Now, suppose I keep the drugs under my bed, and I have the gun in a locked trunk two rooms away, in a closet. Is that sufficient?

MR. DREEBEN: That may not be sufficient for the jury to draw the inference. Under the standard that was adopted by the D.C. Circuit in this case, two facts were required to be established before the jury could draw the inference.

First, the drugs and the gun had to be in reasonable proximity to each other. They had to be near to each other, so that there should be -- there could be a reasonable basis for the jury to conclude that the gun was in a place where it could serve the protective purpose, and second, it had to be accessible to the defendant when the defendant was handling the drugs or the drug proceeds, so that the jury could reasonably conclude that the defendant did, indeed, knowingly and intentionally put or keep the firearm there for the purpose of protecting his stash of drugs.

QUESTION: So in the case in which the drugs were kept in the locked trunk, and the trunk is in, let's say, the next room, your theory is that use is proven by the fact that at the time the drugs were put in the trunk, possessed in that sense, the handgun was handy and therefore was used. Your theory is not that it's being used now, with the trunk locked in the next room and the gun in the trunk.

MR. DREEBEN: Well, I -- not necessarily. I think that the point is that the possession of cocaine with the intent to distribute it is a continuing offense.

QUESTION: Yes, but am I continuing to use the gun? On your theory -- I thought in your answer to the last question your theory was, well, the use occurred at the time the drugs were handled and put in the trunk, et cetera, because the gun was right there.

MR. DREEBEN: And at every time in which the defendant --

QUESTION: Okay, now --

MR. DREEBEN: -- goes to the trunk.

QUESTION: -- is the gun also being used after the trunk is locked with the gun in it and the drugs in it, and the dealer goes into the next room?

MR. DREEBEN: Possibly, but not necessarily. That certainly is not essential to our theory of the case, and nor is it essential --

QUESTION: You could give that away and still win.

MR. DREEBEN: Well, I think that the connotation of use that we're proposing at least embraces the availability of the firearm for protection --

QUESTION: Well, I thought the connotation of use you were proposing would have given a yes answer. Yes, he is still using the gun, even though it's in the next room with the trunk and the drugs, and the only reason I asked the question is, I thought your answer to an earlier question concentrated on the time when he, the drugs, and the gun were all together.

MR. DREEBEN: I think that's the time when it's clearest. Our theory of what the use --

QUESTION: But your theory is broader, and you're --

MR. DREEBEN: That's right. That's right.

QUESTION: -- claiming that even when he's in the next room --

MR. DREEBEN: That's right.

QUESTION: -- he's still using.

MR. DREEBEN: That's right, Justice Souter, we are, and because the use of the gun consists of two different purposes. First, it gives the drug dealer the security and the confidence to know that he can protect himself when he is actually on the site, accessing the drugs, near to them, protecting --

QUESTION: Well, true, but everybody who possesses a gun constructively, I suppose, has that same -- gains that same confidence.

MR. DREEBEN: I think that that --

QUESTION: Why do they use use -- why do they employ use, rather than possess?

MR. DREEBEN: Well, the evolution of the statute I think reflects that originally the word use was put in the statute to define one branch of liability which is probably narrower than the liability that's currently in the statute.

Originally, in 1968, the statute was written to prohibit the use of a firearm to commit any felony which can be prosecuted in Federal court, or carrying a gun unlawfully during a felony, and those were two very separate kinds of liability.

In 1984, Congress decided to merge those two forms of liability, and to delete the very specific qualifications that gave use and carry different connotations.

QUESTION: But they still have -- the statute still has the qualification that the use or the carrying must occur during and in relation to a drug trafficking crime, a specific crime.

MR. DREEBEN: That's absolutely correct.

QUESTION: Which seems -- maybe I'm missing your point. It seems to me that that qualification renders the statute just as specific in identifying, as it were, the mode of use, or the mode of carrying, as the statute was before the amendment.

MR. DREEBEN: No, I don't think that it does. In fact, I think that the formulation that Congress chose, use or carry during and in relation to, is a very, very broad way of describing the nexus.

QUESTION: Well, that's broad --

MR. DREEBEN: That's right.

QUESTION: -- but the word crime is very specific.

MR. DREEBEN: Well, it is, and it depends on what the crime is, and if the crime is one that takes place only in a very brief span of time, such as assault on a bank teller with a deadly weapon, then indeed you have to find that the use is during that crime.

QUESTION: Well, let's concentrate on this crime. This is possession with intent to distribute, correct?

MR. DREEBEN: That's correct, Justice Ginsburg.

QUESTION: And can you explain to me what difference, if any, there is in using a firearm in relation to a possession with intent to distribute and possessing a firearm?

Did -- does -- are you treating the two as synonymous? You seem to be from the answers you've been giving.

MR. DREEBEN: I think, Justice Ginsburg, that if the requirement is added, during and in relation to, then the verb possess would probably pick up the same scope of liability that we are describing, but that's -- it would not by itself, of course. Merely to possess a firearm is not prohibited under this statute, or punished.

QUESTION: So when Congress said use in relation to a drug trafficking offense --

MR. DREEBEN: That's right.

QUESTION: -- it would have achieved the same purpose if it had said possessed, so that the word use in your view is not narrower than the word possess would be in that context.

MR. DREEBEN: Well, it -- I mean, use I think requires more in and of itself than merely possession. Use requires at least --

QUESTION: Well, I'm connecting it to the words, in relation to.

MR. DREEBEN: That's right. That's right.

QUESTION: In other words, your view is, Congress could have picked either word. They would have accomplished the same thing.

MR. DREEBEN: That's pretty much correct, Justice Ginsburg. We think that by using the verb use, Congress did pick a very broad verb, that in fact probably picks up more than possess in relation to the offense. It also picks up the kinds of uses that people think of as the paradigmatic uses of firearms.

QUESTION: Mr. Dreeben, is it possible that it's -- is it possible that it's impossible to use a firearm for or in connection with some of the felonies punishable under the Controlled Substances Act, the Controlled Substances Import and Export Act, or the Maritime Drug Law Enforcement Act?

MR. DREEBEN: Not that I'm aware of, Justice Scalia.

QUESTION: You think every single felony punishable under those acts can be --

MR. DREEBEN: I do, and I further think that the specific felony that we have at issue here, possession with intent to distribute, is one that Congress singled out for inclusion, because when it added drug trafficking crime to the statute in 1986, it spoke of manufacturing, distributing, or selling, I believe, verbs that left some courts -- at least it left a legal issue open to litigate about whether possession with intent to distribute was, in fact, covered.

In 1988, Congress amended the statute for the specific purpose of ensuring that possession with intent to distribute was covered, and I don't think there can be any doubt any more that, under section 924(c), that Congress specifically intended that there be uses of firearms in connection with possession with intent to distribute offenses.

QUESTION: Mr. Dreeben, under your interpretation of use, which is quite broad, as you describe it, what does the word carry add in addition, or would every offense charged under the use prong, as you would define it, pick up the word carry as well, automatically?

MR. DREEBEN: I think it probably would, Justice O'Connor. I would not leave out some possibilities of different situations.

QUESTION: That's one reason why I question the Government's interpretation of the word use here.

MR. DREEBEN: Well, we have --

QUESTION: I would have thought that the words use and carry might refer to different things, and that use might be a word that envisions something more than mere possession, and I'm concerned that the Government is interpreting it so broadly that it swallows up the word carry, and swallows up the offense of possession of a weapon while committing a crime.

MR. DREEBEN: I think, Justice O'Connor, that both sides in this case are grappling with the question of whether there is a distinction between the two offenses, and what it is.

In the reported cases, there really are not any examples that I can see where we could not have charged a use under our theory even if the defendant was carrying it.

Under their theory, I think you could always charge every offense as a carry, and there would be nothing additional that use would pick up, with the possible exception of the one example that I think proves our point. They concede that it would be a use of a firearm to refer to the firearm during and in relation to a drug trafficking offense.

But if that is a use of the firearm, I don't understand why it's also not a use of a firearm for a drug dealer to say to himself, or to a confederate, we can undertake this transaction with full confidence, because we can protect ourselves no matter what happens.

Surely they would agree that that is a use, if two defendants said that to each other. I don't see why it's not a use if one defendant says it to himself. The firearm serves the same purpose.

And that's not an unusual or a strained application of the word use in our language. Somebody would readily say that they use a firearm to enable themselves to sleep at night by keeping it in their dresser drawer and having it available, or that they use a burglar alarm to protect their house.

QUESTION: Well, people do use the word that way, but perhaps that isn't how Congress used the word use, because it had a separate offense for possession, and a separate offense for transporting, and a separate term carry, and so we have to try to figure out what in the world Congress meant with this scheme.

MR. DREEBEN: I think I've tried to explain that the evolution of this statute shows why the normal presumption that the conjunction of two words must have different meanings shouldn't be rigorously applied in this case with the ultimate impact of defeating Congress' intent.

Originally, the use and carry liability under the statute did refer to quite different things. Use had to be use to commit the offense, which is more specific than the current statute, and carry only applied when a firearm was carried unlawfully.

When Congress amended the statute in 1984, it specifically took those restrictions off, and it merged the liability prong of the offense into use or carries, and it added the words, during and in relation to, to describe the nexus, which is a very loose nexus, but I think the upshot --

QUESTION: But that nexus, it seems to me, is important.

You say some people sleep better if they have firearms. Assuming that's true, then I suppose that the 71 percent of adults in rural America who have guns use guns for almost everything they do. If that gun -- in your sense of the word, if the gun is in the home, or the farmhouse, say, then they're using the gun for almost everything they're doing.

MR. DREEBEN: Well, I think --

QUESTION: It seems strange to me that Congress intended to pick that up, especially when it has the extra phrase, in relation to.

MR. DREEBEN: Well, the in relation to, I think, Justice Kennedy, makes clear that a gun owner who has -- even if he is a drug dealer, if the gun has nothing to do with the drugs, isn't violating this statute.

There has to be some prepositive use. The juries in these cases were instructed that there had to be a knowing and intentional use of the firearm in relation to the drug trafficking --

QUESTION: Well, but on your theory the gun owner who happens to have the gun in his pocket is always going to be using it in relation to as well as during the offense if he commits a drug offense --

MR. DREEBEN: If he commits an offense.

QUESTION: -- at that time. So it's quite true, you say on the one hand yes, the in-relation-to adds something, but on your theory it's always going to be added.

MR. DREEBEN: Well, it's going to be an issue for the jury to determine, and yes, Justice Souter, the jury could determine it.

QUESTION: You're always going to make the same argument and the jury is always going to be free to find, in fact, that he was comforted by having the gun there.

MR. DREEBEN: Or to reject the inference if they conclude that the gun had simply a coincidental relationship to the offense and really wasn't --

QUESTION: Is there testimony on this stuff? I mean, you have him -- did he take the stand and said yeah, I was really comforted by that, or I was not at all comforted by it? I mean --

MR. DREEBEN: No.

QUESTION: -- is this a real --

MR. DREEBEN: We don't think that it was necessary.

QUESTION: Is this a real legal issue? That is the issue in the case, whether he is comforted by the possession, by the fact that the gun is in the house?

MR. DREEBEN: No. I think it is whether it enables him to carry out the offense, whether he's using it to have enough confidence --

QUESTION: Well, I can see that if you adopted your opponent's theory, whether he brandishes it, and so forth, but you're saying the mere fact that he has a gun in the house, a jury may find that that enables him to -- he's using that in the possession of everything in the house.

MR. DREEBEN: Well, he's not charged with that, of course. He's charged with --

QUESTION: Well --

MR. DREEBEN: -- using the gun in relation to the drugs --

QUESTION: -- all he has to have is the gun and possessing drugs with intent to distribute, and the jury can find that he's using the gun in order to possess with the intent to distribute.

MR. DREEBEN: We don't think that it's essential that there be expert testimony, but there was expert testimony in this case that described the habits and patterns of drug dealers and the frequent association of firearms with them, and the point of Congress' enactment of this statute --

QUESTION: Because they often use firearms.

MR. DREEBEN: That's because the firearms create --

QUESTION: In the real sense of use them.

MR. DREEBEN: Well, I think that this Court in Smith adopted the broadest reading of use that's consistent with dictionary definitions.

QUESTION: It was an active use, and you have suggested that one might say the gun that's hidden in my drawer, I use the gun for protection, but one might equally say about a gun that one has bought and never fired, I bought a gun but I've never used it, or I don't use it. Those are two uses of the word use.

If we have a Rule of Lenity and it's a criminal statute, why don't we pick the narrower one, the one that implies active use?

MR. DREEBEN: Well, I think for several reasons, Justice Ginsburg. First of all, the Rule of Lenity doesn't justify creating an ambiguity in a statute.

QUESTION: I just gave you two distinct uses. One is, it's in my drawer, I've never fired it, but I say, I use it for protection.

MR. DREEBEN: Well, I think the same distinction could have been drawn in the Smith case, and this Court quite clearly recognized that the word use, as employed in section 924(c), had its natural, broad meaning without additional qualifiers that limited it, such as active use. Congress --

QUESTION: But that was an active use, Mr. Dreeben. To trade the gun for drugs is a form of active use, is it not?

MR. DREEBEN: It is true, Justice O'Connor, that it involved handling the firearm and trading it, but it is not the first use of a firearm that springs to mind, and I think the Court quite correctly recognized that it wasn't.

QUESTION: No, but --

QUESTION: Yes, but if the distinction is active versus passive, it was an active use to the extent we're concerned about that.

MR. DREEBEN: Well, I don't disagree with that, but I think --

QUESTION: So there was no ambiguity as among, or as between several active, possible active uses, but there still can be an ambiguity as between active and passive use.

MR. DREEBEN: Well, I think there could, but the way that the Court --

QUESTION: Well, if there could, then why shouldn't the Rule of Lenity apply as Justice Ginsburg suggested?

MR. DREEBEN: Because the Court resolved the issue in Smith not by saying that this was an active use, and that's a requirement of the word, but by adopting the definition of the word use that one finds if one looks to dictionaries.

QUESTION: Well, perhaps we were imprecise, and perhaps Smith can be preserved without any difficulty if we simply now recognize that Smith was a choice between two active uses, and what we have here is a choice between active and passive.

MR. DREEBEN: Well, I don't think that that would be consistent with the rationale that Smith used in order to decide the case.

Smith relied on the fact that use entails more than paradigmatic uses of a gun, that it covers the natural dictionary meanings, and that it applies when English speakers can understand that the object is being put or employed for some purpose and in this case, all of those requirements are satisfied.

I contend that the petitioner's position here is analogous to the position that was taken by the defendant in Smith, that you should add words to the statute to limit what Congress has written, and that is not a reading of the statute --

QUESTION: May I ask you one question?

The thing that gives the statute its breadth is its coverage of passive use -- I mean, passive possession with ultimate intent to sell -- and I suppose under your theory anyone who has drugs in his or her home on a sort of permanent basis, intending to sell some from time to time, and who carries a gun when coming home at night, or in case somebody might be there to steal the drugs, would always be using the gun in connection with the transaction, which would seem to me to mean that if a person was in California, carrying the gun as he always carries his gun with him, and the drugs are at home in New York and found during a search pursuant to a warrant, he would be liable under the statute.

MR. DREEBEN: I think that he would clearly be liable under the carrying prong. Whether he would be liable under the use prong is a --

QUESTION: He would be carrying during the commission --

MR. DREEBEN: That's right.

QUESTION: -- of the offense back in New York.

MR. DREEBEN: That's right, and that may be -- that is the example that I'm thinking of that may differentiate carrying liability from use liability.

In fact, in the reported cases that have addressed the issue, I haven't seen any that are precisely like that, but if it's necessary for the Court to find a distinction between the two, I think your hypothetical, Justice Stevens, is precisely the distinction that I would suggest.

Again, I don't think that in the context of this statute the statute is best read as requiring that one looks for a hypothetical to distinguish the two, because Congress clearly had a broad objective in mind.

QUESTION: Well, Congress had a broad -- but Congress didn't say, although I suppose it could have, you know, anyone who possesses drugs and who, in addition, possesses a firearm, shall be punished with an additional penalty. I suppose it could say that, couldn't it?

MR. DREEBEN: They could have, and the Sentencing Guidelines have a provision --

QUESTION: That's not much further than what you say they've said.

MR. DREEBEN: Well, I think it bears a --

QUESTION: It can always go to the jury, right, virtually always. If you possess drugs and own a gun, it will get to the jury.

MR. DREEBEN: I think that it won't if there isn't any evidence of a conjunction between the two, but in the cases that we would bring where the gun is found right with the drugs --

QUESTION: There's always a -- it's my gun, it's my drugs. That's a connection.

MR. DREEBEN: Well, without more facts, it's a little hard to say, but I would think that you're right, essentially most of these cases will go to the jury, and the reason they go to the jury is that the firearms are found in strategic places where they facilitate the offense, and they inject the very danger and hazards that guns have in these kinds of transactions that Congress wanted to prohibit, and that is why we have treated these cases as uses, as have all of the regional courts of appeals.

It would be strange to think that if this were an unnatural or somehow foreign way to use the word use, that it would have been adopted so widely in the courts of appeals.

QUESTION: Well --

QUESTION: Isn't it true -- let me just check about one other thing that runs through my mind. I gather the use or a possession must be proven beyond a reasonable doubt, the way this statute is now phrased.

MR. DREEBEN: That's correct.

QUESTION: And I think -- I suppose you would say that it wouldn't have to be. It could be -- you could change the language of the statute a little bit and make this an enhancement factor, and it would only have to be proved by a preponderance of evidence then and you'd still get the 5-year mandatory.

MR. DREEBEN: Well, if that was a sentencing enhancement statute, it could be written that way, Justice Stevens.

QUESTION: Yes.

MR. DREEBEN: It's been long understood --

QUESTION: With the same breadth of coverage.

MR. DREEBEN: That's right. It's a separate offense, and all of the elements --

QUESTION: Yes.

MR. DREEBEN: -- have to be proved beyond a reasonable doubt.

QUESTION: Yes.

MR. DREEBEN: You have to prove that he engaged in a drug trafficking offense --

QUESTION: Yes.

MR. DREEBEN: -- and you have to prove that there was a use or carry, and you have to prove that the use or carry was during and in relation to the offense, and the jury was instructed on all of those elements here.

Now, the standard that petitioners offer for a sufficiency of the evidence review in this case would require reviewing courts to go over a number of different factors and make their own judgments about whether the firearm that was found is consistent with the kinds that drug dealers might use, or whether there were a number of firearms found at the location, and would inject into the sufficiency of the evidence review process considerations that are normally foreign to that.

Reviewing courts normally leave it to the jury to draw the proper inference on the record once the legal standard is established and the evidence has been put before them.

QUESTION: I just want you to have a chance to answer the question I had, which is, what happened in 1984 that is -- I take it -- the dictionary, at least to me, doesn't answer the question. It's -- you can have -- the person keeps his gun in the drawer the whole time and then sells it. He could say, used gun, never used.

MR. DREEBEN: That's right.

QUESTION: Right?

MR. DREEBEN: That's right.

QUESTION: And so it isn't going to tell us. That makes sense, unfortunately -- or fortunately, it makes sense, so the question is, what does it mean in this context, all right?

MR. DREEBEN: Well, I would add --

QUESTION: And you yourself say that prior to 1984, what Congress had in mind was, you take the gun out and you pull the trigger. That's using it. Pointing it, that's using it -- hitting somebody over the head with it. We mean something active, otherwise we wouldn't have added the word carry.

Now, you say something happened in '84. Well, what they say happened, and they quote a lot of legislative history, they say what happened is, all that happened is they consolidated these provisions and, of course, they added this other gun, but it's perfectly -- this other crime about possession. It's perfectly reasonable, in possessing with intent to distribute, sometimes a guy takes out a gun and points it.

So what is it that you think happened in '84 or '86 that in your view radically changed the meaning of the word use?

MR. DREEBEN: Well, our position is that the word use didn't change its meaning, but the word use takes its meaning from context, and in the original version of this statute, use was embedded in the phrase, used to commit any felony, and the connotation of used in that context may require a higher linkage or more prepositive use of the gun to actually carry out the crime.

In 1984, Congress deleted that qualification.

QUESTION: They deleted it, that's right. They say that that happened because that was grammatical, in context, and then they quote some legislative history, what people said at the time that suggested that when they defined carry, because they focused specifically on carry, so they had some stuff there that suggests that it wasn't intended to make a big difference, omitting those two words, to commit.

MR. DREEBEN: No, I --

QUESTION: They say no difference.

MR. DREEBEN: I don't think that --

QUESTION: I want to know what you -- I know you don't think that. I want to know what you say to back that up, your view.

MR. DREEBEN: Well, I don't think that there is any legislative history that specifically addresses the meaning of the term use and attempt to define it. What Congress addressed in the legislative history was the impact of deleting the words unlawfully from carries, and how that would broaden the liability for carrying --

QUESTION: Mr. Dreeben, who addressed it in the legislative history?

MR. DREEBEN: This was in a Senate report, Senate Report 225 --

QUESTION: Why don't you say what the Senate committee addressed in the legislative history.

MR. DREEBEN: I stand corrected, Justice Scalia. The Senate committee gave several examples in the report of how it thought the new statute would work, particularly in conjunction with the main purpose of the overhaul, which was to reverse the results in this Court's decisions in United States v. Simpson and United States v. Busic, which prohibited the application of 924(c) when the underlying predicate felony had its own enhancement provision.

And in the course of discussing that change, Congress gave an example of how you could commit armed bank robbery and be subject also to the offense of using or carrying a firearm under section 924(c), and they added a footnote to make clear that even if you didn't do what is paradigmatically done to commit a bank robbery with a weapon, namely point it or shoot it, you could still be liable under the carrying prong, and the footnote -- the footnote then continues to explain that the carrying prong was broadened because the unlawfully aspect of the former branch of liability under that provision had been deleted.

None of that was devoted to determining what kinds of uses fell within the statute. The basic point of the footnote was to explain the ways in which the statute had been broadened, and the final sentence of the footnote that I think you're referring to simply made clear that if there's no conjunction at all between the carrying of a firearm and the underlying offense, but it was just there coincidentally, then you're not liable at all, and I think read in context, that committee report doesn't shed much light at all on this issue.

What does shed light on the issue, I believe, is that when Congress amended the statute in 1984, it eliminated the qualifications on carrying liability, namely, unlawfully, and on using liability, namely, using to commit. They had given them different connotations.

And as for your hypothetical, Justice Breyer, about what it would mean if you put an ad in the paper and said, I'm selling a firearm, not used, that would also certainly be true if you had acquired the firearm because it had been bartered for drugs but it had been contained in shrink wrap.

The meaning of the word use in section 924(c) is a broader meaning than that which could be applied in some other context.

QUESTION: Could you comment on petitioner's argument with respect to subsection (d) of the statute, which uses the term, involved in or used?

MR. DREEBEN: Well, I think that the Smith opinion explained why Congress chose the broader form, involved in, in that forfeiture provision. If you make false statements on an application to acquire a firearm license, the firearm is involved in that offense, although it wouldn't be used in the offense, I think, on anybody's understanding of that word, so the fact that there were broader and additional verbs that were put in the forfeiture provision really doesn't shed any light at all on the meaning of use.

QUESTION: Thank you, Mr. Dreeben.

MR. DREEBEN: Thank you.

QUESTION: Mr. Untereiner, you have 7 minutes remaining.

REBUTTAL ARGUMENT OF ALAN E. UNTEREINER ON BEHALF OF THE PETITIONERS

MR. UNTEREINER: I think that Justice O'Connor put her finger on a critical flaw in the Government's theory in this case, and that is that its interpretation of use reads the word carries out of the statute. I think the Government conceded that, that under its theory the word carries has no independent meaning.

QUESTION: But aren't there a lot of statutes like that? I mean, that's, you know, a handy rule of construction, but it's not rigid.

I'm sure there are a lot of statutes, for example, that say kill or injure. No one shall kill or injure. Maybe the Endangered Species Act says that. Now, it's very hard to kill something without injuring it.

MR. DREEBEN: There are statutes --

QUESTION: And so also it's, you know, it's hard to use it without carrying it, so it's just making clear that I don't only mean the big thing, kill, but even the less thing, injure. So also here you could say, I not only mean the big thing, use, I even mean the lesser thing, carry but not use. Justices talk that way sometimes, don't we?

MR. DREEBEN: Sometimes we talk that way and sometimes Congress talks that way. Under the Government's theory of how the statute evolved, however, that's not what this statute meant.

In other words -- and I think Justice Breyer's question pointed to this. The Government also concedes in this case that prior to 1984 use and carry had, as they put it, a fundamentally different meaning than it had after 1984.

That theory, we suggest, simply does not hold up if you look at the available evidence, and it's somewhat ironic, because the possession with intent -- well, the drug trafficking offenses were -- although they were included in the 1968 version of the statute, they were eliminated in 1984, and they were added back in 1986, and possession with intent to distribute was added in 1988.

QUESTION: Mr. Untereiner, you agree with the active-passive distinction, I take it, that --

MR. UNTEREINER: That's correct. We say that active -- that use means active employment to carry out the predicate offense.

QUESTION: Now, if I have a gun lying passively on the table within a few feet from me, that is an active use, right?

MR. UNTEREINER: That is a -- it can --

QUESTION: But if I have a gun two rooms away lying passively on the table, or passively in the closet, that is inactive use.

MR. UNTEREINER: The issue is, what is the defendant doing, if anything, with the firearm, and in your first hypothetical, I think it could be said if the firearm is visible that the defendant is displaying --

QUESTION: I see.

MR. UNTEREINER: -- the firearm.

QUESTION: If it was in the drawer, though, you would say that is a passive use.

MR. UNTEREINER: That's correct. If there are no further questions, we would ask that these convictions be reversed.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Untereiner.

The case is submitted.

(Whereupon, at 10:59 a.m., the case in the above-entitled matter was submitted.)