Transcript

IN THE SUPREME COURT OF THE UNITED STATES

UNITED STATES, Petitioner v. JACINTO RODRIGUEZ-MORENO

No. 97-1139

December 7, 1998

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:05 a.m.

APPEARANCES:

PAUL R. Q. WOLFSON, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Petitioner.

JOHN P. McDONALD, ESQ., Somerville, New Jersey; on behalf of the Respondent.

PROCEEDINGS

11:05 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in Number 97-1139, United States v. Jacinto Rodriguez-Moreno.

Mr. Wolfson.

ORAL ARGUMENT OF PAUL R. Q. WOLFSON ON BEHALF OF THE PETITIONER

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

Under the Constitution's venue provisions, a criminal trial shall be held in the State where the crime shall have been committed. The issue in this case is how that principle is to be applied in a case where the offense has more than one actus reus element and where one of those actus reus elements was carried out over several States.

QUESTION: What's the English meaning of actus reus?

MR. WOLFSON: The English -- it can be the -- it can be interpreted as the act of the crime, or the act of the thing, and it does not have a universal meaning, but generally speaking the courts have looked at -- have isolated actus reus as the conduct that must be performed by the defendant to make him punishable for a crime.

It is generally distinguishable from two other aspects of the crime, the mens rea, or the mental state, and other circumstances surrounding the crime. This is generally the approach that is taken by the Model Penal Code, which does not use the term, actus reus, but which uses the term -- but which distinguishes among conduct, mental state, and attendant circumstances, and that sort of -- that provision of the various aspects of the crime is also reflected in Justice Holmes' discussion of the common law.

QUESTION: Is conduct an equally satisfactory word, do you think, as actus reus?

MR. WOLFSON: I think conduct is not an equally satisfactory term, because actus reus refers specifically to conduct undertaken by the defendant which society has an interest in punishing.

QUESTION: You could translate it as the criminal, the criminal act.

MR. WOLFSON: The criminal act, or the criminal conduct. I use conduct because one has to take into account certain types of crimes that revolve on failure to perform a duty in which I think one would have to acknowledge that the criminal conduct was the failure to show up at the appointed time and place, as opposed to undertaking some overt act.

QUESTION: You're right. When you use a word like conduct it sort of sucks in surrounding circumstances more than -- you'd better stick with the Latin, I think.

(Laughter.)

MR. WOLFSON: Well, I'm -- I'll do my best, thank you.

But to return, our -- the rule that we propose and that is reflected in this Court's decisions is that in any State where any of the actus reus elements is carried out, that is an appropriate place for the defendant to be prosecuted.

In this case, that means that respondent was properly prosecuted in New Jersey, because one of the elements of the offense, defined by section 924(c), was the kidnapping, which in this case was a continuing, unitary, undivided crime that began in Texas, was continued into New Jersey, which was for some period of time the defendant's base of operations, and then was continued into Maryland.

QUESTION: Is that the criminal act that is being punished by this statute?

MR. WOLFSON: It is part of the criminal act that is being punished by this statute. The statute -- where the court of appeals went wrong, I think, was to say that the statute punishes the use of the firearm only, and they didn't look at the fact that --

QUESTION: No, the use during --

MR. WOLFSON: The use during, that's correct, but that is -- that is our point, which is that it's not just during, it is during and in relation to the underlying crime of violence for which this defendant may be prosecuted, and to obtain a conviction under section 924(c), the Government must prove that the defendant did commit that underlying crime of violence, or was punishable for it under some principle such as Pinkerton liability, or aiding and abetting liability.

It is equally an element of the offense as the use of -- as the use or carrying of the firearm.

In its application, this statute essentially is no different from a statute that might define a crime of aggravated kidnapping.

I mean, suppose, for example -- kidnapping is defined in section 1201(a) of the United States Code, of title 18, as whoever kidnaps and holds for ransom any person shall be punishable by a term of years.

What 924(c) -- it's as if there were an added sentence to that section and says, and whoever, during and in relation to that kidnapping, uses or carries a gun, shall also be punished by an additional 5 years.

I think it would be odd in that situation if someone were prosecuted for aggravated kidnapping to say that the only place he could be prosecuted would be where the aggravation took place, and not over the entirety of -- and not anywhere where the entirety of the kidnapping takes place.

Now, what Congress has done in 924(c) is, it has essentially created sort of an off-the-shelf aggravation element which can be applied to a variety of crimes of violence or drug-trafficking crimes.

QUESTION: What do you think that those who revolted against King George would have thought if -- you know, one of their objections was that he would transport us across the seas to be tried for crimes.

What if King George had enacted a statute like this that made it unlawful to use a firearm in connection with a kidnapping offense, and the firearm was only used in Boston, and the kidnapping -- I'm sorry, the -- yes, the firearm was only used in Boston, and some of the kidnapping during which the firearm was used occurred in England.

Do you think they would have thought it was fair to try the defendant --

MR. WOLFSON: Well, if the --

QUESTION: -- in London for this firearm that he possessed in Boston?

MR. WOLFSON: If they assoc -- if the people who used the firearm associated themselves with a kidnapping that takes place in a variety of jurisdictions, the Constitution's venue provisions do recognize that it is proper to bring a defendant to trial in the place where he has committed a criminal activity.

The Constitution does not say that the proper venue for a crime shall be where the defendant, in the State of which a defendant is a citizen.

Now -- or where the defendant has resides. Now, it might have taken that approach if the only principle behind the Constitution's venue provisions was to allow the defendant to be tried in his home district, which one may assume is a more congenial district.

It balanced that with the other -- with another objective, which is that it is appropriate to bring the defendant to justice in the place where he has conducted his criminal activity, and if a defendant undertakes, voluntarily undertakes some purposeful activity that causes harm in a community through the commission of a criminal conduct, there's nothing in the venue provisions of the Constitution that say he can't -- now -- he can't be --

QUESTION: There's another statute that punishes kidnapping, isn't there? I mean, that's a separate offense.

MR. WOLFSON: That is correct.

QUESTION: And this statute says, if during kidnapping you possess a firearm --

MR. WOLFSON: Use and carry.

QUESTION: -- you get an additional penalty, right?

MR. WOLFSON: If during that -- if during your kidnapping, the kidnapping which you carry out --

QUESTION: Uh-huh.

MR. WOLFSON: -- you use and possess a firearm, uses or -- use or carry a firearm, you get an additional penalty, but the penalty --

QUESTION: Let's assume he gets a penalty for the kidnapping, all right.

MR. WOLFSON: Correct.

QUESTION: He could still be tried for using a firearm during that kidnapping, right?

MR. WOLFSON: Yes.

QUESTION: Because that's a separate offense. There's an additional element involved.

MR. WOLFSON: The separate offense is using -- is -- you must --

QUESTION: Using the firearm.

MR. WOLFSON: Right.

QUESTION: That's the only thing he's being punished additionally for, and you say even if he used that firearm only in one State, he could be tried in another State, where the kidnapping for which he's been separately punishing -- punished for, happened also to occur.

MR. WOLFSON: Let me say on that point that it is almost invariably the case that 924(c) charges are brought in conjunction with the charges for the, what one can call the underlying offense, and that is consistent with Congress' expectation that the two charges would be brought together, because it viewed 924(c) in the nature of an enhanced punishment for that underlying offense that was aggravated by the use or carrying of a firearm during and in relation to it.

In other words, Congress believed that when someone carries out this crime of violence or drug trafficking crime, that is more deserving of punishment because it was accompanied by use or carrying of a gun.

It is true that it is a separate offense. The element has to be proven beyond a reasonable doubt. There has to be trial by jury on that offense. It's not a sentencing factor, but nonetheless, it is so closely intertwined with the underlying offense that Congress really saw it as increased punishment for the nature of that offense. It's -- for that particular offense.

QUESTION: Mr. Wolfson, you submitted the revision of 924(c), and I notice that in this respect there's no relevant change, and I wondered whether, in light of Cabrales last term, whether the Government had urged any clarification of this provision to avoid the problem we're dealing with.

MR. WOLFSON: I'm not aware of any discussion about Cabrales in this revision of 924(c), which I understand was more directed towards the Bailey issue about where the gun is possessed, rather than the more active type of uses as in use or carry.

It's not that uncommon for a -- for one of the underlying crimes which 924(c) is added onto to be carried out over a variety of States. I mean, one can imagine that inter -- one can imagine that that drug conspiracy, a drug distribution conspiracy, for example, that was based in Boston, and as part of that conspiracy someone might go to another city, Miami or Houston, to obtain the drugs and then bring them back to Boston.

He might -- one of those coconspirators might use the gun while obtaining the drugs, and I think it would be strange to say that the -- that if Congress wanted the drug conspiracy and the 924(c) charge to be tried together, I think it would be odd to say that the only place it could be tried was in the city where the drugs had been obtained, where the coconspirators had entered for just a moment, when the base of operations of the conspiracy was, say, in Boston.

It's that conspiracy, that distribution conspiracy that the use of the gun made worse, and that's I think how Congress really looked at the purpose of 9 -- looked at the objective which -- of the 924(c) offense was to punish that aggravation.

QUESTION: Mr. Wolfson, help me out, because it bears some relevance as to how I view this case. I think I may have been wrong when I suggested earlier that you could have tried the kidnapping in one place and then later tried the gun offense. It would be double jeopardy, wouldn't it? Each offense has to contain an element that the other does not.

MR. WOLFSON: It would -- the -- if -- it is -- it's not -- I have to say, under this Court's decisions, it's not clear, because it's true that they satisfy the Blockburger test that the kid -- the 924(c) offense contains all the elements of the kidnapping offense but the kidnapping offense doesn't contain any that the 924(c) --

QUESTION: Right.

MR. WOLFSON: But there are cases of this Court which have said that in certain kinds of complex type crimes like this, that the Blockburger test may not be fully applicable.

I'm not aware of any decided case law in the lower courts in this subject, but I believe Garrett v. United States, which is a decision of this court that talks about the continuing criminal enterprise statute, suggests that, which is sort of similar to this case in that there is an overall statute of carrying out a continuing criminal enterprise, and one might say that there are predicate acts of that that are the commission of other offenses, and there's discussion in that decision that says that the --

QUESTION: Garrett is the name of it?

MR. WOLFSON: I believe that's the case, yes.

One thing, Garrett is sort of -- actually, the CCE type crimes, and crimes like RICO, have been treated by the lower courts roughly similarly to the approach that we've suggested in this case, which is that -- take RICO, for example, where the defendant must manage the affairs of an enterprise through the conduct of racketeering activity.

The approach taken by the lower courts is that the defendant can be brought to trial wherever any of those predicate acts of racketeering activity take place, and though -- now, though there may be situations where those racketeering acts are carried out in more than one State, and it's viewed as appropriate by the lower courts that the defendant may be tried on the overall RICO statute wherever any of those -- any of those racketeering acts were committed.

Similarly, there are other examples where -- other examples of offenses with multiple elements. Another example is the Travel Act, which prohibits crossing State lines with an intent to carry out certain criminal activity and thereafter carrying it out or attempting to do so, and the courts have said -- the lower courts have said that the defendant may be prosecuted either where he leaves or where he arrives, or where he then carries out the criminal act.

QUESTION: What about the Hobbs Act?

MR. WOLFSON: The Hobbs Act? The Hobbs Act has been applied to allow prosecution wherever the obstructing act takes place.

QUESTION: Suppose that a person hijacks a truck in Maryland, and the contents of the truck were intended for distribution everywhere from Puerto Rico to Alaska, does that mean that he -- and it affects commerce in every State of the United States and the territories thereof.

All right, now can this person who hijacked the truck in Maryland, since he's affected commerce everywhere, be tried anywhere?

MR. WOLFSON: The lower courts have said that a Hobbs Act prosecution may be brought where the commerce was affected. Now, the Government would have to prove --

QUESTION: So what's your -- your view is that under --

MR. WOLFSON: That's correct.

QUESTION: And there is no such thing as just a jurisdictional requirement?

MR. WOLFSON: There are -- no, there are jurisdictional requirements. For example, the possession offenses defined by 922(g) of title 18, which prohibit a certain number of -- certain classes of persons from possessing a gun if the gun has traveled in interstate commerce.

One can't prosecute him in any place simply because the gun was there. That is a -- an element that gives the Federal courts jurisdiction. It's not an actus reus type element of the offense on which venue can be predicated.

But the Hobbs Act requires that one obstruct -- one commit an obstructive act and thereby affect commerce, and the courts have said -- the lower courts have said that the effect on commerce is part of the criminal conduct undertaken by the defendant.

QUESTION: So there's nothing -- no contrary authority on that. You mean -- I'm surprised --

MR. WOLFSON: I -- I --

QUESTION: -- that you can't -- anywhere, Alaska -- I mean, most commerce, you know, affects -- it's -- we're all interrelated, quite --

MR. WOLFSON: Well, one does have to prove -- I mean, the Government does have to prove in a Hobbs Act prosecution that the commerce was affected, and it's -- my understanding is that --

QUESTION: Oh, it's all labeled in the truck.

MR. WOLFSON: I'm not sure that the courts have gone so far as -- but my understanding is that the decisions all do say that the -- it may be -- the prosecution may be brought where the commerce was affected.

QUESTION: Can we put it just a different way? If you win this case, would it not mean that in the Hobbs Act case that Justice Breyer posits, the prosecution could be brought anywhere that the goods might have been destined?

MR. WOLFSON: I think that's probably correct, yes.

The court of appeals, instead of -- instead of looking at the actual nature of the offense laid great emphasis on the fact that Congress had only used the active verbs, uses and carries, in defining section 924(c), and that approach, what's been called the key verb test, or the active verb test, is defective because it makes venue turn on aspects of the statute that are really immaterial, do not go to the -- they don't capture the offense that Congress actually defined when it passed 924(c).

And on that point, as Judge Alito pointed out in the dissent below, Congress could have easily restated the offense by using slightly different language, but if to have reached an exactly identical result.

Congress could have said, whoever commits a crime of violence, or -- commits a crime of violence or is punishable -- and is punishable therefor, and during and in relation to that crime of violence uses or carries a firearm, may be punished, and the majority in the court of appeals agreed that the defendant, if Congress had stated the statute that way that the defendant could be prosecuted in New Jersey, and it seems odd to say that the venue decision should turn on just certain grammatical aspects --

QUESTION: Why does it? I mean, why does it seem strange that what -- that effects should hinge upon what you say?

MR. WOLFSON: No, I --

QUESTION: I mean --

MR. WOLFSON: The point is not that the language that Congress chose is irrelevant. I mean, clearly, if Congress chooses one verb rather than another it may be getting at a different point. I mean, there are cases, for example, that have said, if Congress defines an offense as depositing in the mails rather than using the mails, that it may have -- it may have been aiming at a particular --

QUESTION: Right.

MR. WOLFSON: -- a substantive difference.

The point is, where everybody agrees what the offenses are -- excuse me, what the actus reus elements are of the offense, there's not really any disagreement on that, I don't think, it -- then the fact that Congress captured it with one active verb and a prepositional phrase, whereas it could have just as easily been restated using two active verbs, should not affect the venue outcome.

QUESTION: What about whoever -- suppose they say, whoever, knowing that a gun will be used in a crime of violence, carries a gun. Whoever knowing. See, it says knowing, rather than in relation to, and of course he carries the gun in Maryland and he knows that the crime will be committed in California.

MR. WOLFSON: Whoever --

QUESTION: So knowing, the reason I picked knowing is because I'm thinking of the laundering, the money laundering.

MR. WOLFSON: Right.

QUESTION: Whoever knowing that this came from a crime of violence, this money, deposits it. Well, we know that the fact that the crime is in -- you know, that the crime of violence, or the underlying crime was in some other State, you can't try it there.

MR. WOLFSON: Well, in that case it would -- in that case, if I understand the hypothetical correctly, there's no requirement that the crime -- that the crime actually be used in the crime of violence.

It's simply carrying a gun, you know, knowing -- having some evil intent, it would seem that the crime is committed where the gun is carried and the knowledge is had. If it's not required that the Government also prove that the gun therefore be actually used by the defendant in the commission of a crime, so I think it would be distinguishable on that, on that point, that --

QUESTION: In the present case, the only difference it would have made is, how many months in the -- I mean, if you could have brought the whole prosecution where the gun was used -- I forget what the different States were. Where was it, New Jersey that the gun was used?

MR. WOLFSON: The gun was used -- the use element was satis -- was carried out in Maryland.

QUESTION: In Maryland.

MR. WOLFSON: The kidnapping began in Texas, continued into New Jersey, and was completed in Maryland.

QUESTION: It's clear you could have prosecuted the whole case in Maryland.

MR. WOLFSON: Not the whole case.

QUESTION: Why?

MR. WOLFSON: We couldn't have prosecuted the kidnapping of Mrs. Avendano in Maryland --

QUESTION: I see.

MR. WOLFSON: -- because she -- and that's -- that is -- and she was not -- she was left behind in New Jersey --

QUESTION: I see. I see.

MR. WOLFSON: -- when the kidnappers went on, and that is a -- there is an independent interest that the Government has in punishing that offense.

QUESTION: Okay, but that's -- but that's just sort of accidental in this case. I mean, let's assume the kidnapping of just one person and the use of the gun, never mind the other kidnapping. It was a separate kidnapping.

This kidnapping could have been prosecuted, plus the use of the gun, the separate offense for use of the gun, in Maryland, or you could have prosecuted just the kidnapping in either New Jersey or Texas, I assume.

MR. WOLFSON: Correct.

QUESTION: And had you prosecuted it there, you would have gotten a sentencing enhancement for the use of the gun.

MR. WOLFSON: That is correct.

QUESTION: So what difference are we talking about between getting the additional sentence for use of the gun, convicting of a separate crime, and simply getting the sentencing enhancement for kidnapping with the use of --

MR. WOLFSON: It could be about 40 months' difference. It could be from 12 to 40 months' difference, depending on where the district court chose to sentence the person in -- within the guidelines range. That's in this case.

I do also want to say, though, that this defendant -- this respondent had a criminal history III. For defendants the difference grows as you get lower down in the criminal history, so that for someone with less criminal history, the disparity becomes greater, but in this case it's between 12 and 40 --

QUESTION: You could generalize as to the relative --

MR. WOLFSON: Right.

QUESTION: -- insignificance of the difference in this case, you say.

MR. WOLFSON: Right. Right. There is a difference. It's 12 to, I believe it's 39 -- 12 would be 12 -- he got a sentence of 147 months, and under the situation that Justice Scalia posits it would be 108 to 135 months, but the disparity grows as I explained, and so there is -- I mean, there is a substantial difference, and that reflects the fact that Congress imposed what is a rather strict penalty. It's a -- in 924(c). It's a 5-year mandatory add-on.

It can't be -- it has to be consecutive. It can't be paroled. It doesn't matter whether -- you know, it applies even whether the defendant -- whether the offense contains its own enhancement statutory element for use of a dangerous weapon, or use of a firearm, but it is -- Congress did view it as a very serious matter when an offense is aggravated through the use of a firearm.

QUESTION: Mr. Wolfson, you said that the majority in the Third Circuit agreed that if the statute had been reworded as Judge Alito proposed, there wouldn't be any question about proper venue here. Was that implicit in his decision? I didn't see an expressed --

MR. WOLFSON: Right.

QUESTION: -- agreement to that effect.

MR. WOLFSON: On page 18a of the petition appendix the Court said, in the specific context of section 924(c), Congress could have drafted -- I'm sorry.

QUESTION: -- the page you're reading?

MR. WOLFSON: I'm sorry. It's at the very top of the page.

QUESTION: Okay.

MR. WOLFSON: 18a of the petition appendix.

Congress could have drafted the statute to allow venue to lie in any district where the Government could properly bring the related crime of violence or drug-trafficking offense, and then there's a footnote, footnote 80(d), the defense artfully suggests how such a statute might be written, and then the Court goes on to say, Congress did not do so.

I'd like to reserve the remainder of my time for rebuttal.

QUESTION: Very well, Mr. Wolfson.

Mr. McDonald, we'll hear from you.

ORAL ARGUMENT OF JOHN P. MCDONALD ON BEHALF OF THE RESPONDENT

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

There is no escape from the logic that a 924(c)(1) violation is not committed unless and until a firearm is used or carried. When or where the underlying predicate offense began is simply unimportant.

QUESTION: It's not committed either until there's been a kidnapping.

MR. MCDONALD: That's correct, Your Honor. You have to have -- 924(c) is a point-in-time offense. It is not necessarily a continuing offense. It occurs only when and only where the weapon is used during and in relation to the underlying crime of violence. Venue, in our opinion, can never relate back to the anterior or predicate offense.

QUESTION: What about a kidnapping that, as in this case, simply continued from one State to another?

MR. MCDONALD: Had Mr. Moreno used a weapon at the inception of the kidnapping, and had he kept it with him, then he would -- 924(c) under those circumstances would be a continuing offense, and he could simply be prosecuted --

QUESTION: What's your authority for saying that this is not a continuing offense? The kidnapping surely is a continuing offense.

MR. MCDONALD: The underlying crime of kidnapping is a continuing offense.

This Court's analysis of the statute in Bailey said, and these other cases in Busic and Simpson a number of years ago, clearly said that this not a sentencing enhancement. 924(c) is a separate and distinct crime, and the --

QUESTION: You don't deny it could be a continuing offense. You just say it only continues as long as the firearm is being used during the other crime.

MR. MCDONALD: That's correct.

QUESTION: And if you continue to use the firearm during the entire kidnapping, it's a continuing offense.

MR. MCDONALD: Under those set of facts that is correct, Your Honor.

QUESTION: Your position is that the duration of the continuity is limited by the use of the firearm.

MR. MCDONALD: It is limited by the time and place that they are together as one.

QUESTION: As the statute says, whoever uses a firearm during, and there's only one point in time here that the firearm was used during the kidnapping.

MR. MCDONALD: That's correct, Your Honor. Under the facts of this case, the 924(c) violation probably occurred in about 1 minute. Mr. Moreno, out of a sense of desperation, threatened a -- the -- Mr. Avendano with the gun. Shortly thereafter, at the same time --

QUESTION: What do you mean, out of a sense of desperation? You'd think it was Mr. Avendano who'd be desperate.

(Laughter.)

MR. MCDONALD: Out of a sense of frustration, he pulled the weapon and used it, Your Honor.

Immediately thereafter, one of his codefendants said, don't do it, this is not the way we're conducting ourselves, words to that effect which are on page 27 of the joint appendix.

QUESTION: I think everybody understands that this -- where the kidnapping took place and where the gun took place. The real question for me anywhere -- anyway, is, under this statute is the kidnapping part of the offense?

I know it wasn't completed till he had the gun, but is the kidnapping part of it?

MR. MCDONALD: It --

QUESTION: And you cite a bunch of cases, and what the, I take it the Solicitor General has said is, I can look far and wide for a case. I may find one that has a clear jurisdictional element where they said that isn't part.

But aside from those cases, all the other cases are against you, so I want to know which is the example that you would pick out and say, no, no, here is a statute, it refers to several separate things, one of them is a big one, the others seem minor, all are elements, and a court has held that one or more of those elements, not jurisdictional, is not, for purposes of venue, part of the offense.

MR. MCDONALD: There is a case on point.

QUESTION: Which one?

MR. MCDONALD: Midstate Horticultural. It's this Court's opinion in 1939, and if I may, it was an Elkins Act prosecution.

The Elkins Act prohibited the illegal payments of rebates in interstate rail shipping. It was a very broad venue provision under that statute, and it said, in essence, that the crime could be charged anywhere where either the payment was made or received, or anywhere where the shipment took place in any State, similar to this case.

When the court of -- when this Court had the case in 1939, it was a unique set of facts. The facts were, Your Honor, that the shipment had been made in 1932 and 1933 from California to New Jersey, but the payment was only made in 1935 in the City of New York, and the case was tried in Philadelphia, and this Court said no, you can't do that.

They said that you must look at the acts of the accused, where they were committed, and that is where venue was laid.

QUESTION: Well, that was a case involving the granting or the receiving of rebates. Were there other elements of the crime?

MR. MCDONALD: There were -- yes. The --

QUESTION: And those other elements had occurred other places?

MR. MCDONALD: That's correct. The elements -- the other element of the crime was the interstate shipment, and in that case, that part of the crime occurred from California to New Jersey, and in every State, and as this case found in Armour Packing, 30 years before that in 1909, that had the payment been made before, and the shipping continued, it could be tried in any case through which the shipments proceeded.

QUESTION: It seems to me in the Cabrales case the Court was actually rather careful not to say that the only place for the venue is where all of the elements of the crimes have occurred, all of the active conduct necessary to commit the crimes have -- it seems to me Cabrales is very important for what it did not say in that respect, as we look at this case.

MR. MCDONALD: Well, Your Honor, I believe that Cabrales supports our position. What Cabrales said was, in Cabrales the money laundering had to be the result of an illegal crime. That was part of the statute, that it had to be -- at least for the 957, that there had to be shown that the money was illegally obtained.

QUESTION: But it didn't have to be illegally obtained by that particular defendant.

MR. MCDONALD: That's correct, Your Honor, but what this Court said was, look at Cabrales and what she did, and where she did it, and what happened before is not important. It is not necessary for the conviction of the --

QUESTION: But that was an after-the-fact crime. In Cabrales the opinion repeatedly says, this is -- you have to type this case. It's in the after-the-fact category.

Here we have a during situation. That's quite different.

MR. MCDONALD: Well, it was, in fact, an after-the-fact crime. That was set forth in the opinion.

Here, if the Government's theory on where venue can be laid under -- where either the kidnapping took place or either the gun was used, and takes out the during and in relation to argument, then venue could be laid in any number of States all over the country, and is not limited by the words, during and in relation to.

QUESTION: No, but isn't the response to that argument -- I mean, that's a fair argument, but isn't the response to that argument a very practical one, that we're getting at a problem of practical unfairness when we devise venue rules and Congress passes them.

There isn't any practical unfairness here, for the simple reason that in -- on the Government's theory in a case like this, your client can be prosecuted in any one of those other jurisdictions anyway, so that your client is not being, as it were, transported across the seas in the sort of Declaration of Independence sense, and isn't that sort of argument for fairness the response to the argument that you have just made?

MR. MCDONALD: No, Your Honor. Venue must be determined on each count in the indictment separately, and just merely because three or four counts in the indictment confer venue in one place and one does not, there's no practical application that permits the Court to try them all in one place. That is simply what the Constitution does not permit.

QUESTION: Mr. McDonald, on your theory, what would be the result under Judge Alito's suggested revision of this statute, whoever commits any crime of violence or drug trafficking crime for which he may be prosecuted in a court of the United States and during and in relation to that crime uses or carries a firearm.

Would that be a different result under your theory as to venue?

MR. MCDONALD: I believe it is. That is nothing more than a sentencing enhancement at that point. It is no longer a separate and distinct crime.

Your Honor, it seems that everybody wants to rewrite this statute. The dissent wanted to rewrite it, the Government wants to rewrite it, and Congress has, in fact, in the last month rewritten the statute, but that's not the statute under which Mr. Moreno was tried and convicted.

QUESTION: Well, but if under the dissent's rewriting the venue would have been proper even under your view, it is just strictly, then, a matter almost of grammar to decide where venue can be.

MR. MCDONALD: No, Your Honor, because --

QUESTION: Maybe that's the way it should be, but it's what it boils down to.

MR. MCDONALD: I don't believe so, Your Honor, because no matter how you rewrite the statute, you -- I don't believe that you can escape the clear language that the gun must be used during and in relation to an underlying crime of violence.

QUESTION: Well, but that's -- that would be the language in the rewritten version that I read you, and during and in relation to that crime uses or carries a firearm.

MR. MCDONALD: Well, Your Honor, it would be our position that that would -- trial would still have to be held in the place where the gun was used during and in relation to the underlying felony.

QUESTION: Well then, that isn't the same answer, though, you gave me a couple of minutes ago.

MR. MCDONALD: Is it an easier case for the Government under the statute the way it is -- would be rewritten? Yes. I think that the -- you could argue --

QUESTION: Would the Government still lose?

MR. MCDONALD: I believe they would, Your Honor.

QUESTION: Yes, but your first answer was, because under that statute it becomes a sentencing factor rather than a different crime.

MR. MCDONALD: That is part of it.

QUESTION: What we've got before us is two separate crimes.

MR. MCDONALD: That is right, Your Honor.

Mr. Moreno was tried and convicted and punished for kidnapping. That was a continuing offense, and it could have been tried in any number of districts in this United States.

It is only when it comes together with the gun, when he begins to use the weapon, as this Court said in Bailey, when he torques up the stakes, when he makes it more dangerous, when he commits another offense, that is when 924(c)(1) begins, and not a moment before.

We believe that the Cabrales decision warrants rejection of the Government's position in this case. The Government's petition for certiorari in this case recognizes the Cabrales decision would be dispositive of this case, and they ask that the petition for writ of certiorari be held pending the Court's disposition in U.S. v. Cabrales, and disposed of as appropriate in light of the resolution of that case.

Now, at that time the decision had not been written, and I understand that, but Cabrales simply said, it reaffirmed this Court's rulings for the last 90 years, particularly that cite -- the standard cited in Anderson, and it said, you must look to where the acts of the accused, what acts were committed and violated the statute in question.

QUESTION: I'd like you to go back to what you said just before. It seems to me that this case was held for Cabrales because if Cabrales had come out the other way --

QUESTION: It would have been cert denied.

QUESTION: Yes.

MR. MCDONALD: If Cabrales had --

QUESTION: Suppose Cabrales had come out the other way.

MR. MCDONALD: In favor of the Government.

QUESTION: Right.

MR. MCDONALD: Then I imagine that they were asking that it be remanded to the Third Circuit Court of Appeals in -- for determination and resolution in recognition of that holding, because we prevailed in the Third Circuit.

QUESTION: Yes.

MR. MCDONALD: And had the Court just simply denied cert, we would still prevail.

Am I answering your question, Your Honor?

QUESTION: Yes. Yes.

QUESTION: Mr. McDonald, are you defending what is called the active verb theory? I haven't heard you really put much emphasis on that. Is --

MR. MCDONALD: The active --

QUESTION: Do you find that a useful mode of analysis?

MR. MCDONALD: I think the active verb test has best been described by the courts of appeals and the authorities as a very good first cut at understanding the statute.

Most of the courts of appeals have not held that it is an exclusive analysis of any criminal case, but they have held that it is something that they utilize in their examination of the statute as to where venue should lie.

If this Court adopted the active verb test, and the active verbs in this case are use and carry, we would prevail without much further discussion.

It dawned on us that there are a number of circuits that have adopted this test, but this Court -- that test, but this Court has not. If this Court adopts that test, I believe that we would prevail under that test. It is a straightforward test.

QUESTION: I've looked at the case you cited, the United States v. Midstate Co., and there the Court was very careful to say that the transport of the goods through Pennsylvania was a lawful act, and that Congress did not intend that subsequent conduct or events should stamp criminality upon an act that was lawful, and so there's no continuing event.

That's quite different from kidnapping, which was unlawful at all times.

MR. MCDONALD: In that respect, it is --

QUESTION: I think the case is just not so helpful for your position.

MR. MCDONALD: Well, if you consider the essential elements, it is true that in Midstate Horticultural the underlying essential element was not criminal in and of itself, but it was still an essential element of the offense.

Here, the kidnapping is an essential element of the offense. It happens to be criminal.

QUESTION: That wasn't the distinction the Court made. The Court said, if you have a continuous offense, then it must be an offense in the State which is -- where the case is being tried, and it found that that was just not that -- not true.

MR. MCDONALD: Well, under the Elkins Act, most of those offenses -- and as this Court has said time and again in venue cases, they are fact-sensitive and we must look closely at the facts of the case.

In almost all the Elkins Act prosecutions it was a continuing offense. It was an offense that started with the payment or receipt of an illegal gratuity, or a kick-back, and then that offense occurred each and every placed that the goods were shipped, so for that -- for the reasons of that statute, it would be a continuing offense.

Here --

QUESTION: That's not what -- I just got that to look at it. I just agree with Justice Kennedy. It seemed as if the statute said it's an illegal offense to give or receive a rebate, and what it seemed to say -- I just looked at it quickly -- is that in Pennsylvania the transportation continued, it went through Pennsylvania, but it wasn't given in Pennsylvania, the rebate, nor was it received in Pennsylvania. What happened is, the goods passed through Pennsylvania.

So it sounds as if the Court's saying, Pennsylvania had nothing to do with this under the statute.

MR. MCDONALD: Well, under the Armour --

QUESTION: In connection with is a preposition, just like during. I mean, it's the same structure --

QUESTION: It sounds like it.

QUESTION: -- that you have in front of us here.

MR. MCDONALD: Well, Your Honor, if you read the Armour Packing case, the Armour Packing case said that under the Elkins Act the -- it could well be a continuing -- it is a continuing offense, under -- through each and every State that the transportation occurred, and that was by statute. The venue provisions there were very, very broad.

QUESTION: Well, is there a case where I could look at it and find the following, any case in any court.

What I'd look at is, there'd be a statute, and the statute would have several elements, and I'd leave out of the picture any element that the defendant -- that does not involve the defendant's doing something, or being personally involved.

For example, if an element is at night, the defendant doesn't create night, so leave that out of it.

Also leave out of it any jurisdictional part, pure jurisdiction, like the gun statute.

All right, now are you thinking of a set of elements? Give me a case which said that venue is improper in any one of those elements.

MR. MCDONALD: I don't believe that there is a case one way or the other for a point-in-time case.

QUESTION: Or any -- anything. See, what they're saying is that, despite perhaps the appeal of your argument, they have a clear test, and moreover it's one that the courts have never -- never, never, never departed from.

I think that's putting their argument as strongly as I can, perhaps too strongly in their favor, but the -- a clear answer that would be, look, here are three cases which have said that there are five elements to this crime, and four of those elements involve the defendant, and as to number 4, you can't put it there. It's just peripheral. It's too irrelevant, too far away.

MR. MCDONALD: Well, there are no cases that I know of that have held that, but what the cases have said is that you must look at the acts of the accused, and they are fact-specific, and I don't know of -- I'm trying to think of cases where the defendant where it'd be as fact-specific as this, where the gun and the kidnapping came together only in one place and only at one time.

QUESTION: Okay. Suppose, then, we said, you're right. This is going to be a clear case. This is a clear case, and so now you're trying to write the words that create a workable precedent for lower courts.

We will be faced with statutes of several elements. The defendant will be involved in all of them. Some of those elements, venue is proper. Others, they're not. The test that distinguishes the one from the other, in your opinion, is?

MR. MCDONALD: That if -- if the elements all must come together under that particular statute, and that is what the statute says, that they must come together at some point in time, then it is only in that place where they came together at a point in time where venue is proper. That would be the ruling that I would suggest.

If there are no further questions --

QUESTION: Very well, Mr. McDonald.

MR. MCDONALD: Thank you.

QUESTION: Thank you.

Mr. Wolfson, you have 6 minutes remaining.

MR. WOLFSON: Unless there are any questions, I have nothing further. Thank you.

CHIEF JUSTICE REHNQUIST: Very well.

The case is submitted.

(Whereupon, at 11:48 a.m., the case in the above-entitled matter was submitted.)