Cases by Issue - Firearms

Small v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:04 +0000

Case:

Small v. United States

Media File:

03-750_20041103-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Paul D. Boas

Justice Stevens: Mr. Boas, the Court will hear argument in Small against the United States.

Mr. Boas: Justice Stevens, and may it please the Court:

This case presents the issue of whether, when deciding the meaning of a statute, we will focus, as the Government suggests, on two words only, any court, or whether we will look at the statute as a whole, whether we will consider the statute as a symmetrical and coherent regulatory scheme and decide the meaning of the statute by appreciating how sections relate to one another.

In this particular case, 922(g)(1) of 18 U.S. Code is a... represents a merger of two old sections, title IV and title VII, that were passed in 1968 in the Omnibus Crime Control Act.

In... in those... in that statute, we had two redundant and overlapping sections, and one talked about prohibiting persons who have been convicted in any court of a crime punishable by more than a year.

One, title VII, talked about prohibiting persons convicted in any court of the United States or a State of a felony.

There were different penalties, slightly different classes of people.

Title IV focused more on the receiver; title VII more on the possessor.

But nothing... nothing about the... these two titles, about the legislative history suggests that Congress at any time meant something different from the term, any court, in title IV and any court of the United States in title VII.

And when these two were merged in 1986 in the Firearms Owners' Protection Act, again, nothing suggests, nothing in the comments, nothing in the statute, that these two terms... that the elimination of the language, any court of the United States, was--

Justice O'Connor: Well, I guess we have held, though, several times that Congress meant to define very broadly when it enacted felon in possession of firearm statutes.

Did we not?

Mr. Boas: --That's... that's correct, Justice O'Connor.

However--

Justice O'Connor: So it makes it a tougher case when you use the word any because we've given the... the word any generally a broad definition.

Mr. Boas: --Well, earlier this year in the Nixon case, this Court said that when we look at any... and that was a case dealing with the meaning of any entity.

Did it mean any entity, public or private, or any private entity?

The Court said any can and does mean different things depending upon the setting, and the Court said when using it broadly would lead to strange and indeterminate results, we'll give it a more narrow reading, which the Court did.

Now, you're right, Justice O'Connor.

This Court has said that the purpose of the felon in possession statute was to be broad and sweeping, but the Government reiterates that view, citing repeatedly three cases, Scarborough, Bass, and Lewis, and all three of those cases in which the Court referred to Congress' comments and this Court's own comments about the broad sweep of the statute were 1202(a) cases.

And so notwithstanding the fact that the Court said this is a broad statute, each one of those cases, Lewis, Bass, and Scarborough, were cases where by definition the prohibition was against persons convicted in any court of the United States or a State.

So that language doesn't help the Government at all because those were 1202(a) cases which limited specifically the Court to any court of the United States.

So to take the... and I... and... the simplistic view that as the... as the Fourth and Sixth Circuit did and as the Government does here, that any means any, without regard to the rest of the statute, is simply... is... is too narrow a focus.

Let's look at the statute.

It's true that the word... the term, the two words, any court, is not defined.

But if we look in the definitions section, the term, crime punishable by more than a year, is defined.

And so what we should really be focusing on is the phrase, convicted in any court of a crime punishable by more than a year.

And that definition says the term, crime punishable by more than a year, excludes any State or Federal antitrust or business regulatory offense.

Now, if we exclude from the definition of crime punishable by more than a year and the Government's... if we exclude from that any State or Federal antitrust law and the Government's interpretation is adopted, then we're left with the anomalous result that if a person is convicted of an antitrust offense in this country, they're allowed to possess a firearm.

If they're convicted of one in France or England, they can't.

Justice Breyer: Are there any such cases?

I mean, I never heard actually--

Mr. Boas: No.

Justice Breyer: --when people... no.

I mean, are there any cases in which France or England has convicted people of an antitrust violation punishable by imprisonment for more than a year?

I... I didn't know that their antitrust laws had a criminal aspect, though I haven't looked it up.

Mr. Boas: Nor have I--

Justice Breyer: Fine.

Well, I... I've never heard if anyone in any foreign country, other than ours, though I gather my law clerk found that in Japan, in fact, Japan does have a criminal antitrust law.

They may be the only ones outside the United States, and I don't know that anyone has ever been convicted under it because they're not too... or they didn't used to be too fierce on antitrust enforcement.

Mr. Boas: --Well, 921(20) or--

Justice Breyer: I'm just wondering how anomalous or your anomaly is.

[Laughter]

Mr. Boas: --Well, the... the limitation not only excludes antitrust offenses, it excludes any business regulatory offense.

Justice Breyer: And are there such?

Mr. Boas: Of course.

I think--

Justice Breyer: I mean, maybe.

Mr. Boas: --Yes.

Justice Breyer: I don't... I don't... but I just... are we sure that there... that, you know, that this anomaly exists?

Mr. Boas: I... I'm certainly that there are business regulatory crimes throughout the world.

Justice Scalia: Why did they say any State or Federal?

I mean, in... in a way this provision... you... you may say that the... that the substantive effect of the provision supports your interpretation, but the text of the provision supports the Government's--

Mr. Boas: Well--

Justice Scalia: --because if any only means State or Federal, there was no need to say State or Federal in this provision.

You could have simply said any in this provision, just as you said it elsewhere.

So one would think that they said State or Federal because they wanted to exclude foreign antitrust matters.

Mr. Boas: --Well, this same limitation, Justice Scalia, existed as a limitation under 1202(a) where any court said any State or Federal court and the exclusion said any State or Federal court.

It's consistent--

Justice Scalia: Well, I don't care how it got there.

I'm just saying there... there... if... if any means what you said it means, namely State or Federal, there would have been no need to limit this other provision to State or Federal because the whole statute would only cover State or Federal.

Mr. Boas: --Well, but at some point in the statute, Congress has to give an indication of their intent, and this is where it is.

For example, there's another limitation immediately following it which says it shall also not include any State offense which is described as a misdemeanor in the State and carries no more than 2 years.

Justice Kennedy: No.

Well, but... but Justice Scalia's point... and I... I think he's correct... is that this cuts at least as much in favor of the Government as you and probably more because you would make Federal and State unnecessary surplus.

Mr. Boas: Well, there has to be some indication--

Justice Kennedy: You don't... you don't set forth the main qualification to the main definition in a... in a later subsection.

Mr. Boas: --Well, if we go further with 921(20), there's another limitation that again clearly deals with States, and that's the restoration of civil rights provision.

The Government concedes in their brief... and that was an effort to essentially statutorily reverse the Dickerson v. Banner Institute case... that that applies to State situations.

The idea that if a person receives a State pardon or his record is expunged, that wouldn't be a disqualifying factor.

And they talk about the law of the foreign state being what determines whether it's a conviction or not.

Now, clearly we're not looking at going to some pardon process in Germany or Uruguay to decide whether a person still has a conviction.

Another part of the statute that's very clear, 924(e)(1).

That's the armed career criminal section.

That section says that if a person's who's convicted under 922(g)(1), our statute, and has three prior serious drug convictions in a court described in 922(g)(1), then they get 15 years.

Now, that definition of serious drug conviction is a State or Federal conviction.

Now, let's flip over to 21 U.S.C. 802(44), the drug statute where you have a similar recidivist type of statute where you go from a 5-year mandatory to a 10-year mandatory if you have a prior drug conviction.

There in 802(44), a serious drug offense is defined as a State, Federal, or foreign drug offense.

So we see that Congress can differentiate when it wants to.

Now, they're--

Justice Ginsburg: Would... would you concede that... that this is at least sloppy drafting?

Because they said any in one place, they said State or Federal in other places.

Shouldn't they be... be consistent in their terminology?

Mr. Boas: --Well, perhaps they should be more consistent, Justice Ginsburg, but the overall... I mean, if you go down the list of the prohibitions in 922(g)(1), you can see that the thrust of this is... is to deal with domestic situations.

There's one that says you can't own a firearm if you're a... a fugitive from law... a fugitive from justice.

That's specifically defined as a fugitive from another State within the United States.

Justice Stevens: Mr. Boas, I think you make a strong argument that Congress probably didn't think of this particular problem.

Do you suppose if at the hearings before the committee, the process of the legislation, some witness came in and said, do you realize this language is so broad it will cover the person who is convicted of a felony in Japan, as well as person who's convicted of a felony in Illinois, do you think they would have modified the statute?

Mr. Boas: I think they would have.

I think that... I don't concede that there was really a need to, but I think they would have because they would have said it's--

Justice Stevens: Well, there would have been a need to under your view now.

Mr. Boas: --That's right.

But they would have historically going back to '68 and before, we always intended this to just cover domestic situations.

Justice Stevens: But I suppose somebody on the committee might have said, well, we don't want this kind of person to have a gun, and the fact he's convicted in Japan rather than in Brooklyn really doesn't make any difference with regard to the purpose of the statute.

Mr. Boas: If the individual is convicted in Japan, Justice Stevens, then he would not be under our immigration laws allowed to come to this country, and if he did come--

Justice Stevens: Well, but this person--

Mr. Boas: --he'd be an illegal alien.

Justice Stevens: --But the defendant in this case was convicted in Japan and he somehow got to the United States.

Mr. Boas: Well, because he's an American citizen.

Justice Stevens: Well--

Mr. Boas: So... but Congress can't cure every problem that exists in the world, and this statute is fairly comprehensive.

Justice Breyer: Are people really not allowed to come in if they've been convicted of any crime?

Mr. Boas: Any crime that carries more than a year basically.

It's pretty--

Justice Breyer: Suppose it was a crime like not wearing a veil if you're a woman in a country that... suppose it was a crime like criticizing the government if you were in Soviet Russia.

Suppose it was a crime like... you know, there are all kinds of crimes that we... we would never consider crimes--

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

Justice Breyer: --and in other countries there are... we don't let anyone in if they've done any of those things?

Mr. Boas: --No.

Well, those people will probably be seeking political asylum.

Aleksandr Solzhenitsyn... under the Government's interpretation, Nobel Prize winners would be precluded from... Solzhenitsyn did 8 years in a Soviet prison because he said nasty things about Joseph Stalin.

Two American women in Afghanistan, before the fall of the Taliban regime, were arrested and convicted because they possessed Bibles.

Now, the Government says, well, these are anomalies.

These don't occur often.

But Congress had to be aware of the possibility of tinhorn dictatorships all over the world having court systems that were so devoid of due process that we have to take a look at whether we want to--

Justice Ginsburg: Well, the... the court of appeals here said what it would... it read in a check.

It said it wouldn't read it to really mean any conviction.

It had to be in a system that was fundamentally fair.

Wasn't that what the court of appeals said?

Mr. Boas: --That's what they said, but... but when and how do we decide that?

There's another offense under 922(g)(1)... or under 922 that makes it a crime to give a false answer on a... a firearms questionnaire when you go to buy the gun... buy the gun.

Now, what does not individual do?

Does he say to the firearms dealer, do you have a list of countries where our Government has decided it's a fair enough system that I can say no... yes, I have a conviction in view of the list that it's an unfair system so I can say yes, I have no... or no, I have no convictions?

I mean, it... one of the reasons where we employ, for example, the rule of lenity, is... is a person put on notice of what it is that's criminal and what is not.

When does it come up that the system isn't fair enough to count?

Justice Scalia: Well, I think... let... let's put, you know, the worst for you.

If it were put to Congress, which would you prefer, that... that Solzhenitsyn not be able to have a gun or that the worst kind of violent criminal convicted and imprisoned and escaped from a foreign country who manages to get into this country can go in and buy a gun?

Which... which of these two would you prefer?

And I think I'd say, well, you know, it's tough on Solzhenitsyn he can't own a gun, but he'll probably get over it.

[Laughter]

Mr. Boas: Well, what I'd prefer and that the statute means aren't necessarily the same thing, Your Honor.

I'd prefer violent criminals who were dangerous not to have guns.

But again, that--

Justice Breyer: Suppose you put the question to Congress, which would you prefer?

Would you prefer the occasional person who's been convicted of foreign court, comes over here, that this statute doesn't apply to him, or would you prefer that all the refugees from Eastern Europe and people who come from Arab countries and people who come from countries that have quite different systems in places all over the world discover that suddenly they're felons because of things they never would have dreamt of because they were perhaps convicted of selling gasoline on the open market or perhaps they were convicted of any of these religious crimes we've talked about, selling a Bible?

Suppose you put that question to Congress.

Mr. Boas: --I think Congress would say the perils and problems that exist by a blanket inclusion without any method of determining which count and which don't count of foreign convictions are too great.

Now--

Justice Kennedy: Well, if it's a... if it's a matter of notice and... then that's a separate issue.

Plus the Government, it seems to me, should put on its form that this includes foreign conviction, and that solves that problem.

Mr. Boas: --Well, but what if it's a foreign conviction where there's no due process?

Is there a checklist that in that foreign conviction, did you have a jury, did you have the right to confront your accuser, did you have the right to remain silent?

I mean, we all seem to realize that the Government's position that any conviction anywhere is too stark a place.

And again--

Justice Ginsburg: May... may we go back to the... the choice that you were given by Justice Scalia first and then Justice Breyer?

I thought that someone who comes in here illegally and possesses a gun commits an offense.

Mr. Boas: --That's right.

Justice Ginsburg: Isn't it so?

So there's not... Congress would say to that hypothetical, we've got a third choice, much more sensible.

Anybody who sneaks in here without permission and has a gun--

Mr. Boas: That's correct.

Justice Ginsburg: --commits a crime.

Mr. Boas: That's one of the subsections of 922(g)(5).

Anybody who's an illegal alien here illegally can't have a gun.

Anyone--

Justice Scalia: So it doesn't cover Americans, of course--

Mr. Boas: --No.

It doesn't cover--

Justice Scalia: --who go... go and commit crimes abroad, are convicted abroad, and... and come back to home sweet home and then get a gun.

I mean, that seems to me extraordinary.

Mr. Boas: --That... I didn't hear your--

Justice Scalia: That seems to me extraordinary.

I don't think Congress would have wanted that.

Mr. Boas: --Well, I don't think Congress can be said to have intended or envisioned that they would cure every problem in the world.

It's a very, very narrow category of American citizens convicted abroad who come back here.

Justice Scalia: I think if there was a problem that... that they were going to leave unsolved, it is less likely the problem of having an American citizen killed by a gun toted by somebody who has been convicted of a crime abroad than it is the problem of somebody having been convicted abroad of some silly crime like wearing a veil or not wearing a veil or something else.

If... if it's either of those two problems that they meant to leave overlooked, I would say it's the latter.

They might well have said, well, the courts will take care of that.

Mr. Boas: Well, Your Honor, it's unclear what... what their thought process was in this matter.

But I can say this, that the narrow category that escapes the coverage of this statute... there's nothing to indicate anywhere in any of the debates, in the language of the statute that that's what Congress intended.

And again, if you look at the overall view here, I mean, fugitive from justice.

It's limited to someone from the State.

Person... let's look at 922(g)(9).

Very clear, incapable of misunderstanding.

The same prefatory language.

A person convicted in any court... exactly the same, and it ends with the same language... cannot ship, possess, receive.

And what does it say?

Instead of saying convicted of a crime punishable by more than a year, it says convicted of a misdemeanor crime of domestic violence.

And that's defined as a State or Federal misdemeanor.

Justice Scalia: Where... where is that defined?

Mr. Boas: That's defined in 921(a)(33), Your Honor.

It's specifically limited.

Now, here we are.

A person who beats his wife in England can have a gun in this country, but a person who commits a business regulatory offense in Germany can't.

It makes no sense.

The... it... it's a very clear statement by Congress that a misdemeanor crime of domestic violence... they're only intending it to be a State or Federal crime.

Justice Scalia: Once again, that... that cuts both ways.

Why would they... if the text reads the way you say it reads, why did they have to say is a misdemeanor under Federal or State law?

Because it wouldn't have mattered.

The only courts... the only convictions that would be covered would be Federal or State convictions.

They would not need that... that qualification.

Mr. Boas: At... at some point a person has to be told what Congress was intending.

This language goes back to '68 where the language in the exclusion limiting it to State... excluding Federal and State convictions matched the language in the term, any court, in 1202(a), which was title VII.

They were... they were complementing each other.

And... and if you look at even as far back as the Batchelder decision in the '70's from this Court, the Court talked about these two being redundant, overlapping, the only difference being that one uses the term felony, one uses the term crime punishable by more than a year.

Justice Ginsburg: Mr. Boas, when they combined these two--

Mr. Boas: Yes.

Justice Ginsburg: --and ones... the 1202 did say Federal or State... they made other changes, harmonizations.

In the explanation of their consolidation of the two sections, to what extent did they discuss changes and the reasons for them?

Mr. Boas: The... they made no discussion of the reason for taking out the language, of the United States or of any State, and what they... the only language was that we're intending to merge these into one statute--

Justice Ginsburg: But they did... they did explain other things--

Mr. Boas: --Yes.

Justice Ginsburg: --other changes, but this one... there's silence--

Mr. Boas: Exactly.

Justice Ginsburg: --as far as I understand.

Mr. Boas: And... and by keeping in the exclusions, by... by looking at 924(e)(1) where it... what's very important to me is that 924(e)(1) says if you have three prior drug... serious drug offenses in a court referred to in 922(g)(1), you get 15 years.

Those three prior three drug offenses in a court referred to in 922(g)(1) are State or Federal drug offenses by definition.

It seems to me that it really couldn't be any more clear.

And frankly, to the extent it's not totally clear and it could go either way, I think then the rule of lenity requires that it be decided with a more narrow construction, that is, that any court meant any court of the State or of the United States.

I believe it was in the... in the '90's when this Court's opinion, authored by Justice Thomas in I think it was called Alvarez-Sanchez, dealt with a statute, 3105 dealing with the admissibility of confessions in Federal cases and that they won't be inadmissible if they're taken by any law enforcement official more than 6 hours after the arrest.

And the issue what does any mean in terms of any law enforcement official.

And the Court said it means any State or Federal law enforcement official.

Now, it didn't have to reach the issue of whether it included foreign law enforcement officials, but certain things are obvious without an... an explanation.

And you're right.

There was some sloppy drafting here and it could have been more clear, but when we look at the statute as a whole and try to harmonize the various parts of that statute, it would be almost absurd to think, when we look... and... and maybe these anomalies won't occur all the time, as you point out, Justice Breyer, but it would almost be absurd to think that with all of these limitations, exclusions, when we run down the list under 922(g)(1), that Congress was talking about any court in the world.

Now--

Justice Scalia: Let me... let me ask you the question the... the Chief Justice would ask, were he here, because he always asked this kind of a question.

What... if you had to pick your best case of ours which interpreted the word any in the way that you would like us to interpret here, what's... what's the best case you have?

Mr. Boas: --I'd say... that's... there's a question--

Justice Scalia: It's a good question.

He asked a good question.

Mr. Boas: --It's a good question.

[Laughter]

I'd say the Nixon case decided this year which said that any can and does mean different things depending upon the setting and whether it works strange and indeterminate results would be one of my best cases.

There's... when I sit down, I'll probably think of a better one, but--

Justice Stevens: --Maybe you can think--

Justice Ginsburg: How... how about--

Justice Stevens: --Maybe you can think of a unanimous case.

Mr. Boas: --Well--

[Laughter]

Justice Ginsburg: --And this is one I'm... I'm surprised that you didn't cite, but it... I don't think you did... EEOC against Arabian American Oil Company, where the wording of the statute was anyplace outside the United States, title VII coverage, and this Court held that anyplace outside the United States did not mean that a U.S. employer operating abroad had to abide by the anti-discrimination norms with respect to hiring in some place abroad because Congress was thinking in terms of the inter-State sitting... in the setting and not international.

Mr. Boas: Well, I... I'm not familiar with that case.

Justice Ginsburg: That... that was a decision by the Chief.

So--

[Laughter]

Mr. Boas: That's should be... that's a good one too, Judge... Justice.

I... I... there's... there's another case that I'd refer to which is the... the Gonzales case, which is cited by the Government.

Gonzales is interesting because it deals with 924(c)(1), which is the section that says you get 5 consecutive years if you're convicted of... 5 years consecutive to any other sentence if you're convicted of possessing a firearm during the course of a serious drug offense.

And in that case, the Court concluded that any other sentence meant any State or Federal sentence, not just a Federal sentence.

Now, the Government might argue that that helps them because the... the defendant in that case wanted it to be limited to any Federal sentence because he was serving a State sentence, and the question was would the 5 years for the 924 violation be consecutive or concurrent, as the trial court gave it.

But it... what the Court did was say any depends on the context of the rest of the statute.

And here, we think it means State and Federal.

They didn't talk about foreign convictions.

You know, it's interesting.

It's ironic that... that while we're debating how American citizens should be impacted by foreign convictions, the administration is unwilling to sign the treaty that would make American citizens subject to the International Criminal Court because there's concern about what would happen to Americans abroad, even in that court, not in a court in... in Uruguay or in North Korea, but in the International Criminal Court.

In fact, in the preliminary findings of the FOPA statute, the... the Congress said... and this Court doesn't have to decide and I'm not asking the Court to decide the Second Amendment issue, but Congress found the Second Amendment was a fundamental constitutional right.

And the name of the statute is the Firearms Owners' Protection Act.

Congress had in mind protecting the owners of firearms when necessary, and--

Justice Scalia: You call that FOPA?

That's the name of the statute?

[Laughter]

It's an unfortunate acronym, isn't it?

[Laughter]

Mr. Boas: --That's right.

The spelling is a little bit different, Justice Scalia.

But Congress... the... the name of the statute tells you something about Congress' intent.

The otherwise licit and blameless activity of possessing a firearm isn't the equivalent of selling drugs.

Now, maybe if you have a prior drug offense and you're a drug dealer, under 802 of 21, Congress said you get your sentence doubled whether it's a State, Federal, or foreign conviction, but under 924(e) for a conviction under a court defined in 922(g)(1), the prior only ups your sentence if it's a State or Federal conviction.

We can't ignore the overall statutory scheme here, which time and time again refers to domestic matters.

The Government in their brief says foreign convictions are used all the time, and they give three examples.

They say we recognize them for the purpose of extraditing American citizens.

They say we recognize them because if you're convicted of a... a sex offense in certain foreign countries, you have to register here.

And they say we recognize them... I forget what their third reason is.

But there's no example that they gave or that they can give where a foreign conviction is ever used anywhere else in this country as an element of the crime.

I mean, it's used for recidivist purposes and State courts have debated back and forth whether we're going to double somebody's sentence because of a foreign conviction, but it's never used anywhere else as an element of the crime.

This... this would be a first, and it's pretty significant.

To me it's ironic that the Sentencing Commission said you can't use a foreign conviction simply to up somebody a few months in the guidelines.

But the Government here argues that we can use it to satisfy an element of the crime--

Justice Scalia: Recidivism is an element of the crime.

If... if you have a crime of, you know, repeated felony, recidivism is an element.

Mr. Boas: --Well, that... that's correct, Your Honor.

Of course, the... it's an exception under Apprendi that the... the prior crime.

But what... what I'm saying is it's... it's a slightly different situation in terms of it being... I know we have Blakely and the whole sentencing factor issue.

But it... it's a slightly different use of a prior and making... in other... in all those cases, the... it's a crime whether or not you have a felony.

The felony might make it a more serious crime.

In our case, this isn't a crime without this felony.

That's the thing that makes it a crime.

And what I'm saying is the only situation we have where something that's otherwise blameless conduct becomes a crime is the use of a felony.

There's no other situation where a foreign felony is employed or has been employed in that situation.

If there's no other questions, I'd like to, if it would please the Court, reserve the--

Justice Stevens: I'm sorry.

You've exhausted your time.

Mr. Boas: --I have.

Well, thank you.

Justice Stevens: Ms. Millett.

Argument of Patricia A. Millett

Ms Millett: Justice Stevens, and may it please the Court:

Justice Scalia, you asked about what case we would want to adopt and be our strongest case on the meaning of the word any in the statute, and my answer to that question, although I take the liberty of answering it, though you didn't ask me--

Justice Scalia: You can ask it as well--

[Laughter]

Ms Millett: --is the Gonzales case where this Court said that the word any in the gun control law, in this context, in this framework means, read naturally... I'm quoting here.

Read naturally, the word any has an expansive meaning, that is, one or some indiscriminately of whatever kind.

This is not, Justice Ginsburg, a statute where Congress wrote sloppily.

In fact, in Barrett and Huddleston, this Court specifically said and noted that excruciating care with which Congress wrote title IV, section--

Justice Ginsburg: There is... there's an overarching concern and I'll... I'd like to put it to you right from the beginning.

When a legislature legislates, be it the State or Federal Government, it is generally thinking in terms of its own domain, its own bailiwick.

When Congress legislates, it's thinking about the United States.

Sometimes it's thinking about abroad, but most of the time when it is, it says so.

And we have a number of cases, not just the Arabian American Oil Company.

I mean, that... the language of title VII was between a State and anyplace outside thereof, anyplace outside thereof.

And in that very case, the Chief made the point that I'm putting to you now, that Congress thinks about the United States, our country, and if it means to say something that will take in other places in the world, it says so clearly.

And we don't make the assumption that Congress was intending to have any extraterritorial flip to its law unless it tells us that.

That's my overall concern about the Government's position in this case.

Ms Millett: --Justice Ginsburg, this is not an extraterritorial application of a statute.

This regulates a threat to American public safety within the United States by someone within the United States based on their conduct, possession of a firearm by a dangerous person within the United States.

That is not extraterritorial application of the law.

Justice Stevens: --Yes, but--

Ms Millett: That's no more--

Justice Stevens: --but let me just interrupt on your... your best case suggestion.

I don't think the test is when has the word any been used in different ways, but has the word any court ever been used by Congress to include foreign courts.

Ms Millett: --The... the phrase convicted in any court--

Justice Stevens: No.

I'm asking about just the words, any court.

What's your best case for the proposition that that would normally be construed by Congress to include foreign courts?

Ms Millett: --I don't... I don't have a case that specifically talks about--

Justice Stevens: You don't have a case.

Ms Millett: --that yet, but if I can... if I can explain why the phrase convicted in any court... because any any court... the... the problem is you're not... there's not a case for that.

The word, any court, that... those two words appear in a lot of places in the United States Code.

Justice Stevens: And do they ever refer to foreign courts?

That's the question.

Ms Millett: The... not... not that I'm aware of, but... but they don't... it... it doesn't address it one way or the other.

Most of the times, the vast majority of the times that you see any court in the United States, it... in the United States Code, it's followed by qualifying terms.

What's very important here is that the phrase convicted in any court without qualifications.

There's lots of any courts in the United States--

Justice Stevens: But the reason you often need qualification is there's... there's sort of basic question, does this include State courts as where as... as well as Federal, and it's often necessary to spell it out one way or the other.

But I don't... I'm not aware of any precedent for trying to decide whether it also embraces foreign courts.

Ms Millett: --Justice Stevens, if I could make two points.

Again, convicted in any court is rarely employed by Congress.

Rarely.

And we've cited in our brief on the occasions it has been employed, the context and structure are wholly consistent with including foreign judgments.

The PATRIOT Act created a ban on the possession of biological agents or toxins, and it... it picked up this same phrase and put it in there, and I think it is... would... and that is also a statute that in a separate provision has extraterritorial application.

Justice Breyer: How many times have you used this statute to go after people who were convicted in a foreign court?

Ms Millett: It... it's... I can't give you an exact number because we--

Justice Breyer: About, approximate.

Ms Millett: --we don't know about the ones that we never hear about.

Justice Breyer: More like 100, more like 50, more like 10, more like 5?

About how many?

Ms Millett: It's... it's not that... I would... I would say there's probably 10 to a dozen, but I... I have to--

Justice Breyer: 10 to a dozen over how long a period of time?

20 years, 18 years?

Ms Millett: --Since 1968.

It's been on the books since 1968.

Justice Breyer: '68.

Now... so 35-40 years.

Now... now, how many times do you think that people... I mean, the... the... if you've used it only a dozen times or so in about 40 years, then it doesn't sound like a major threat.

What I'm weighing against that is the possibility that people are really convicted abroad of selling Bibles.

That really does happen, and there really were economic crimes in 1968 in all the Eastern European countries, and these aren't fanciful examples I've been giving you.

And so if you were in Congress... or... or why do you think that Congress would have wanted to get the courts into the mess of trying to decide why wouldn't those crimes be covered and were the procedures fair?

And we start distinguishing one country from another.

And what are the procedures in the Ukraine or Kazakhstan anyway?

I mean, my goodness, what a mess for the sake of a dozen cases in 40 years.

Ms Millett: Justice Breyer... and Justice Stevens, I do want to get back because I do have a lower court case that interprets any court in the way you discussed.

I want to get back to that.

But Justice Breyer, I understand this being a very important concern, and... and there are no doubt particular applications that could seem unappealing, just as in Lewis v. United States where this Court held that an invalid, a patently unconstitutional State conviction counts for section 922(g)(1).

The reason that the... the convictions are covered here is Congress was not--

Justice Ginsburg: Which was it?

Just... what was the case you just mentioned?

Ms Millett: --Lewis v. United States, and that is... that's really our favorite case, although we like the word of... definition Gonzales has for any.

But in Lewis v. United States, this Court addressed the question whether the ban on possession of firearms by someone convicted of, I'll say, a felony, a term of imprisonment of more than 1 year, applies to... to convictions that are allegedly unconstitutional under State law or may, in fact, be unconstitutionally entered.

They could have been the product of a coerced confession.

The allegation there was lack of representation of counsel.

Justice Ginsburg: Well, that... that example, what you gave in your brief, gave me this concern.

The problem that you've just been describing, the State convictions that may be invalid but is being used under 922, I regard that as a kind of a venue question because you can go back to the State that rendered the conviction and say, State, I was convicted in violation of the Constitution, give me my good habeas writ that I get... can get from the State.

Then I wipe out that conviction and I don't have it anymore.

But the person who's been convicted, say, in whatever examples... take... Zimbabwe would be another example.

Libya.

To go back to that system and get a conviction expunged.

That's why you can't use a case within the U.S. system where it's a question of where do you go to wipe out your prior conviction.

And for someone abroad, there isn't that option.

Ms Millett: Justice Ginsburg, in Daniels v. United States, which dealt with 924, the sentencing enhancement provision, but it has a... the parallel and incorporates 922(g)(1) convictions, this Court held... a plurality of this Court held in five opinions that... in fact, that the... the bar... or that you still count an unconstitutional or allegedly unconstitutional State conviction, even if it was never appealed and that... and there is no more opportunity for appeal.

The time has passed.

And under 922(g)(1), we also count.

Justice Ginsburg: But that's... that's a question of waiver or forfeiture.

Those are the ordinary rules that apply.

Ms Millett: Yes, but that--

Justice Ginsburg: But... but there's a basic rule in civil as well as criminal procedure, that if you want to attack a judgment, you go where that judgment was rendered.

And of course, you should abide by the timing rules of that, but that's just a very sensible thing within a federal union.

If you're... if you're attacking what State A does, go to State A, don't tell State C.

Ms Millett: --And--

Justice Ginsburg: But that... that doesn't operate internationally.

Ms Millett: --Well, it does certainly in this case.

He could have appealed his conviction in Japan and he did not.

So he had a forum to do that in.

But--

Justice Ginsburg: Yes, but you're not building that into your interpretation of the statute at all because you have said in your brief... and correct me if I've got you wrong... you don't like what the Third Circuit did.

You say just the fact of the conviction counts.

Don't investigate, court, whether it was a fair system that comports with fundamental notions of due process.

Just see if there's a conviction anyplace in the world.

And so what... what you're telling me is that it doesn't matter that you didn't appeal because even if he were precluded from appealing for some reason that we would consider totally unfair, it doesn't matter on your view of this statute.

Ms Millett: --That... that's right, Justice Ginsburg, and that is... you know, the... the statute also bars receipt of firearms by anyone who's under indictment.

And that application applies even though you can't appeal, except for exceptional circumstances.

You can't appeal an indictment.

And the 922(g)(1) bar, this Court's decision in Lewis made clear, is that it still applies unless and until your conviction is overturned.

So you don't have to have had a... a conviction vetted through the appellate process before the bar attaches.

In... in the immigration context--

Justice Ginsburg: But that's... that's standard for judgments anyway.

When the judgment is final, it means you've gotten through the first... it has preclusive effect.

Almost always, when a judgment is overturned on appeal, then you go back to State 2 and say, look, it's been overturned on appeal, and at least in the civil side, almost always State 2 will say, okay, we'll give you post-judgment relief because what we were relying on as our sister State judgment is no longer on the books.

I can't imagine that in our criminal system it doesn't work the same way.

Ms Millett: --Well, certainly in immigration and extradition, you don't get to appeal the validity of your foreign conviction or the... the processes that led to it.

So this is not an alien concept.

And it's very important to understand what Congress was doing here.

This isn't--

Justice Ginsburg: I'm asking if it's alien in our criminal justice system, not in deportation, not in... extradition is somebody who did somebody... something abroad, and we don't send people just to anyplace.

Don't we have to have a treaty?

Ms Millett: --Right.

We have treaties with more than 100 countries and we don't... and... and the courts do not examine the fairness of the proceedings or--

Justice Ginsburg: Because the person is going to be tried in that other system, and we have bound... within our international system, we say we're part of a world community and we want Japan to extradite people who have done bad things here to the United States, and so similarly, we will extradite to Japan.

We don't want them to look at our system and judge it.

We're sending somebody to be tried there.

So extradition is... is something entirely different than--

Ms Millett: --Although we... we do also extradite, just to serve sentences, where there may have already been a trial that could be as flawed as anyone could conceive or articulate.

So--

Justice Ginsburg: --Well, we have the check already that these are... these places with whom we want to do criminal justice business together.

So--

Ms Millett: --Well, what we have is the check that the political branches have decided that it's important to attach significance to foreign court--

Justice Ginsburg: --And then we have the... we have the document where it's very clear we want to have extradition with the UK, with Japan.

Here, you're relying on the word court, and you don't have it all spelled out like you do in an extradition treaty.

And that's the problem here.

Sure, if Congress had said we mean foreign court, then that would be it, but it hasn't said that and we have to determine does it mean the same thing as it means in the extradition context or the deportation context where you have a clear statement that Congress means a tribunal abroad.

Ms Millett: --In fact, in 8 U.S.C. 1182(a) which... which... inadmissibility criterion for aliens, convictions of moral turpitude, there's no reference to whether it's a conviction by a foreign court or a domestic court.

Justice Ginsburg: But if somebody is coming into the country, somebody is asking to come in, any conviction that you're talking about, of course, refers to someplace abroad.

Ms Millett: No.

No, it doesn't, Justice Ginsburg, because frequently and throughout that same statute, it refers to convictions in the United States.

A lot of times the reason for inadmissibility, including the Mariel Cubans cases this Court heard last month, is... is convictions committed in the United States.

Justice Stevens: May... may I interrupt this--

Ms Millett: Now, surely the context--

Justice Stevens: --this colloquy to raise another question, if I may?

Would you concede that there are some tribunals in the world that are comparable to what you might call a kangaroo court that Congress would not have intended to include within the term court?

Ms Millett: --Yes, Justice Stevens.

And I think that's an important thing here.

There has been no contest, for obvious reasons... we're dealing with Japan... as to what Congress meant by court.

And sometimes if it's Saddam Hussein's--

Justice Stevens: And how are we to decide whether such tribunal should be treated as a court within the meaning of the statute when there is no statutory definition of the term court?

Ms Millett: --Through traditional rules of statutory construction.

I think that would involve looking at the other... the... the background that Congress would have enacted the statute against, first of all, and that... that may well have... it may not have been courts of just the United States because, as we know, Congress twice deleted that limitation from the statute.

Justice Stevens: But if you concede that there are some tribunals that are not courts within the meaning of the statute, are you not conceding that the word court is inherently ambiguous?

Ms Millett: I... I am... I am conceding that... that it has to be given meaning.

I don't know that I would call it ambiguous, is we have to figure out.

But I... what I will say is that the phrase--

Justice Stevens: But it's something less than the all-inclusive term, any court, in a literal sense.

Ms Millett: --Any... it has to be... it has to be a court capable of entering convictions.

I don't... I don't think it's ambiguous in a sense--

Justice Kennedy: Well, I mean, it doesn't... it's... it's not a tennis court or an inner court.

[Laughter]

Ms Millett: --Right.

Justice Kennedy: If... if somebody asked where this man was convicted, they'd say in a Japanese court.

Ms Millett: Right.

And... and I think, in addition, we don't decide that a word is ambiguous just at looking at that word.

We would look at the overall structure of the statute, and we would decide that it has to be a governmental entity capable of entering convictions.

Justice Breyer: You didn't really have a chance--

Justice Scalia: Can I assume that there's some prosecutorial discretion in the application of this statute?

I mean, have you--

Ms Millett: Absolutely, Justice--

Justice Scalia: --have you prosecuted any... any woman who tried to buy a firearm because she had been convicted of wearing... not... not wearing a veil?

Ms Millett: --No, Justice Scalia.

Justice Scalia: Do you think any United States attorney would do that?

Ms Millett: I would hope not, Justice Scalia.

I think--

Justice Scalia: Or... or somebody who was convicted of treason in Cuba?

You... you think that... that that would be a... a case that would be prosecuted vigorously by a United States attorney?

Ms Millett: --I... I wouldn't think so.

I think--

Justice Stevens: Do you know any cases in which we've construed a statute narrowly on the ground that we're confident the prosecutor won't bring any such cases?

Ms Millett: --That... well, again, just last... this isn't... this isn't quite the same context.

But just this... just last term in the Cheney case, this Court recognized the limitations on prosecutors.

And in Atwater v. City of Lago Vista, in determining the scope of the Fourth Amendment and the capacity to arrest for misdemeanors, this Court recognized that not all checks have to come from the courts.

They can come from the political process here.

And it's very important to keep in mind that these hypothesized problems, bad applications, are that.

Purely hypothesized.

This has been on the books for almost 40 years.

Justice Stevens: But it's... it's been on the books for so long with very, very few prosecutions.

So it's one... it's not exactly an urgent question.

But it does seem to me if this... this problem had been brought to the attention of Congress, they would have defined the term court, and I don't... they haven't done that but probably because they didn't think of the problem.

And you can argue, well, they surely would have wanted to have this particular person prosecuted, but would they have wanted everyone with every foreign court all over the world.

That's the question.

Ms Millett: And in Beecham v. United States, in Justice O'Connor's opinion for the Court, this Court recognized there... it was dealing with another issue, whether the jurisdiction that restores civil rights is different from the convicting jurisdiction.

It said we don't have any way of knowing whether Congress thought about that.

That's not the question.

Congress passed a statute here.

It passed a statute that's been written very carefully.

It's passed a statute where the definition of the word any in the statute has already been defined.

And the... what the statute has been used for is to prosecute exactly the people that Congress wanted to capture.

It's international gun smugglers--

Justice Ginsburg: Ms.--

Ms Millett: --violent assailants--

Justice Souter: Well, Ms.... Ms. Millett, my... my problem with that argument and I guess my basic problem with... with the case is Congress did not just sort of stop when it got to the point that would support your Lewis argument.

It went a step... it went several steps further.

But one of the steps further that it went to was... was in... in a certain fussiness about the definition of crime, and it said, well, we want to make sure that... that no State or... or Federal business criminals are... are put at a disadvantage by this.

It then accepted anything that a State might call a misdemeanor if it carried no more than 2 years.

And it just seems very odd to me that Congress would have been that careful in putting these limitations on State and Federal crimes and would totally have ignored any category of crime under foreign law, any conviction under foreign law in... in light of some of the hypotheses that have been thrown out this morning.

It just seems strange that it would have ignored foreign law and foreign courts if it thought they were included.

Ms Millett: --I don't think it's strange at all, Justice Souter, and that is because that the business exception, if I can call it that, is a carve-out.

What you have here, in this Court's word, is a sweeping prophylaxis against the misuse of firearms.

That's what this Court called it in Lewis, a sweeping prophylaxis.

And what Congress did was back out--

Justice Souter: Well, it called it that, but it didn't... it didn't have this issue in front of it.

Ms Millett: --That's... that's right.

Justice Souter: I... I realize you've got the language, but it... it wasn't addressing this issue.

Ms Millett: Right, and... and the language should be what counts most.

But beyond that, you're talking about Congress--

Justice Souter: Well, I was talking about our language.

Ms Millett: --Right.

You--

Justice Souter: But... and I think that ought to count for a lot too.

[Laughter]

Justice Scalia: Well, not too much.

Ms Millett: --But what Congress was doing there was backing out.

It was making an exception, and it was doing this against a backdrop of a lot of violence with guns.

And so it makes sense that Congress would proceed carefully and deal with matters with which it was familiar and not want to carve out things that it wasn't familiar with.

Justice Souter: No, but how... how familiar an example is it that price-fixers would... would be placed in... in a terrible position if they couldn't carry guns?

I mean, that was not a pressing problem, so far as I know.

And yet, Congress dealt with it.

Ms Millett: Well, the problem--

Justice Souter: And if it can deal with a problem that is as little pressing as that, it seems odd that it would not have averted in any way to equally non-pressing problems under... under foreign convictions if that's what they had in mind.

Ms Millett: --It dealt with that.

I mean, specifically at the legislative history level, it dealt... it enacted that statutory exception because some States had made these types of business crimes punishable on more than a year.

So that's what it was responding to.

Justice Souter: All right.

What... what--

Ms Millett: I can't... I--

Justice Souter: --No.

I... finish your answer.

Ms Millett: --I can't... I'm not going to stand here and tell you that Congress specifically thought about this.

Justice Souter: Oh, there's no--

Ms Millett: Right, but--

Justice Souter: --We both know there's no--

Ms Millett: --But... but what Congress did here... and it's very important to understand... it was throwing a broad net--

Justice Ginsburg: --Ms. Millett.

Justice Souter: --All right.

Justice Ginsburg: Ms. Millett, there are many lawyers in Congress and at least the law students of my generation... some of them are of that elder age.

We learned in law school one country doesn't enforce the penal judgments of another.

This is a kind of enforcement of a penal judgment of another, not exactly, but something like it.

Another reason why I would expect a Congress, knowing that background norm, would say, when it meant foreign, foreign.

Unlike the context of the immigration, yes, there are some people who left and came back, but many... and... and we have all this whole line of cases.

Is adultery a crime of moral turpitude, and you know, those go back to the '20's.

But this, which came about only because of the merger of two statutes, one saying Federal and State, the other not, and no explanation at all, in light of all these anomalies that have been brought out.

Shouldn't we say to Congress maybe that's what you meant, but if you did, you have an opportunity to say so before we read in foreign?

Ms Millett: --Two answers, Justice Ginsburg.

First, this was the second time in 1986 that Congress refused to include that limitation on courts.

The prior law, before the 1968 act, specifically referred to courts of the United States, States, and territories.

It did not pick up that language in title IV in 1968, and they took it out--

Justice Souter: But neither did it give any explanation for not carrying it forward.

Ms Millett: --No, but I don't... that--

Justice Souter: It's... it's the silence at the... at the time it... it apparently departed from the practice of predecessor statutes that... that seems to be a problem for your argument.

Ms Millett: --But... but again, I don't think this Court has ever characterized as silence Congress' twice deletion of language from a statute in 1968 and again in 1986.

It had it.

It looked at it.

It took it out.

And in 1986 in the Senate report that you were referring to, Justice Ginsburg, earlier, Congress said they... the conference report said we are rejecting the Senate's definition of felony.

The other thing to keep in mind is when Congress enacted this statute in 1968, it also enacted an administrative mechanism for relief that would deal with exactly the uncomfortable situations that have been identified.

925(c) allows an administrative waiver in cases where an individual comes and says I don't want to--

Justice Stevens: You know, this is a very interesting case because there are three ways to answer the question of what is a court.

You can leave it up to us to do it, and that would be judicial legislation to fill in a hole in the statute.

You can have the executive do it, decide what case... what cases to prosecute, or if we should knock out this... interpret the statute in the... in a different way than you urge, Congress would then do it.

Now, which of the three is the better lawmaker on deciding which is the... what should the meaning of the word court be?

The executive, the legislature, or the judiciary?

Ms Millett: --I think... it's, of course, the legislature and the President's signature.

I'd like to put a plug in for the executive in... in that reference, but--

Justice Kennedy: That would save us a lot of work.

We--

[Laughter]

--we could just invalidate all statutes that we don't understand.

[Laughter]

Ms Millett: --But, Justice Kennedy and Justice Stevens, the important thing to keep in mind here is we don't just have a statute that appeared out of nowhere.

It's been on the books for a long time and there was a legislative--

Justice Stevens: No, but it is pretty clear that Congress didn't really think about this problem.

Ms Millett: --No, but it thought... it--

Justice Stevens: And it was also clear on your side that they would like to prevent this guy from having a gun.

Ms Millett: --Exactly, and--

Justice Stevens: So there are two competing considerations, both of which are very powerful.

Ms Millett: --Well, if nothing else... and this guy is squarely within what Congress wanted to capture.

If nothing else, you don't have to decide anything more in this case than that it covers persons like this whose convictions are fundamentally fair and it's not contested and could leave for another day... but let's--

Justice Breyer: --Can I... I want to get you.

Now, I have a new question.

Justice Scalia: Would... would you finish... would you finish please--

Justice Breyer: Well, I have a new--

Justice Scalia: --telling us about the administrative waiver proceeding?

You were in the middle of it and I never heard the--

Justice Breyer: --That's exactly what I wanted to know.

Ms Millett: --Right.

Justice Breyer: And I... can I... that's exactly what I wanted to know.

When a person comes in to get a gun... because I hadn't focused on this, and it actually to me it's relevant.

Suppose one of these people has been convicted in a foreign court and he doesn't have a clue, you know, that this means he can't buy a gun over here.

So he comes over here.

He goes into a... a gun store.

Now, does he get notice that that... this conviction over in Japan or Lithuania or wherever it was means that he can't buy the gun?

Ms Millett: Well, he got... in this case, he got... and this is--

Justice Breyer: No.

I'm asking... I'm asking in general.

Ms Millett: --You... you go and you fill out a form that says, as this case did... and it's on page 4 of our brief--

Justice Breyer: Yes.

Ms Millett: --asked him, have you been convicted in any court of--

Justice Breyer: So it just says any court.

Ms Millett: --In any court.

And I think when someone--

Justice Breyer: Well--

Ms Millett: --No.

But when someone has a conviction, when you have a felony conviction, you're on some notice of inquiry.

Justice Breyer: --It'll work for... yes.

It'll... it'll work for this one, but... but what I'm worried about... and really what led the Sentencing Commission to exclude all this stuff even though clearly recidivists should get a higher sentence, but we still excluded it because it's just a nightmare.

There are notice problems.

There are fairness problems.

There are procedural problems.

There are problems of crimes that aren't crimes here.

Ms Millett: Justice--

Justice Breyer: And... and all those come up, and that's what I'm worried about.

So I see this as a possible out.

Ms Millett: --Well--

Justice Breyer: The one... the procedure you just talked about might help.

Ms Millett: --And it's in 925(c), which is on--

Justice Breyer: That he knows about it.

Ms Millett: --page 65a of our brief.

But let me... let me be--

Justice Scalia: --And it provides judicial review of the Attorney General's failure to give the waiver.

Ms Millett: --It does, and... but let me be candid up front.

Congress stopped funding this administrative mechanism in 1992, and that... this Court addressed that in the Bean case.

It... it doesn't exist now, but that was 25 years after Congress wrote this language and put it in the statute, and the fact that they stopped funding it 25 years later doesn't mean the statute doesn't mean what it said.

Justice Ginsburg: Do you know why?

Ms Millett: And Congress--

Justice Ginsburg: Do you know why they stopped funding it?

Why did... because I think that's been reenacted every year.

No money for this.

Why... why did Congress stop funding it?

Ms Millett: --Because some of... some of the people who were getting waivers were going out and committing crimes again.

Congress here is very concerned about public safety.

And this is not... there was, you know, the question, is there ever an element where you treat this like an element of foreign crime.

There aren't... there aren't crimes normally where you treat indictments or someone being under a restraining order this way.

This is not punishing you for your foreign crime.

This is a global categorical, class-wide judgment that as a class persons who have committed crimes overseas are more dangerous and may pose exactly the public safety risk we wanted to grab and stop.

As a class, they do that.

In a particular case, it may not.

In a particular case, an indictment might not.

Congress was speaking globally.

It did so.

It threw a broad net.

It did so at the time it had an administrative check to deal with these problems.

Yes, that's gone.

That doesn't retroactively change what the statutory language meant.

This Court has said time and time again that this statutory language in 922 was written, in Beecham and Huddleston, with such care that Congress was focused on the difference between the present perfect and the past tense, this Court said in Barrett.

This is not sloppy writing.

When Congress put any court in and did not carry forward a limitation to the courts of the United States and took that out in another part of the statute in 1986, we have to assume that Congress knew what it was doing.

If there were problems here, there is a political process to deal with it.

The political process has taken away the administrative waiver.

But there has not been... this hypothesis of bad applications has not arisen.

It's hypothesized.

And what this statute has... has been used to do is capture exactly the people Congress wanted to capture.

It got exactly the ones who should be disarmed.

Justice Kennedy: Do you know anybody in the Justice Department you might talk to to amend this form so that the form says this includes convictions in foreign countries?

Ms Millett: I... I am confident that the ATF would be happy to do that.

As of now, the ATF has a regulation on the books for someone to look at and see that includes foreign convictions in this definition.

And I think when someone has been convicted, they're on notice.

Thank you, Justice Stevens.

Justice Stevens: Thank you.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Castillo v. United States - Oral Argument

Fri, 09 Jan 2009 14:50:19 +0000

Case:

Castillo v. United States

Media File:

99-658_20000424-argument.mp3

Related Transcript:

1999_99_658_argument.xml

Transcript:

Argument of Stephen P. Halbrook

Chief Justice Rehnquist: We'll hear argument now in Number 99-658, Jaime Castillo v. The United States.

Mr. Halbrook.

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

From the time of the enactment of the amendment to section 924(c) in 1986, which added various firearm types to the section, it was the common practice in the Federal courts to allege in the indictment and to submit to the jury for determination beyond a reasonable doubt the firearm type.

This reflected a long tradition in both Federal and State law under which firearm type was an element of the offense, of the various offenses.

Firearm type is frequently contested at trial, and is the kind of issue that juries normally resolve.

Based on its reading of legislative history, the lower court in this case found for the first time that, in essence, the jury is a lower level gatekeeper in the sense that it finds facts justifying a 5-year period of incarceration, but opening the door to factual findings by the sentencing court according to the preponderance-of-evidence standard that justify a 30-year sentence, as in this case, or, in the case of a second conviction, life imprisonment.

The section in question, the first part of the section, sets forth elements for the lower level offense in some 83 words.

If you looked at from whoever to 5 years you'll find the various elements, you'll find the Federal jurisdictional nexus, and we submit that Congress, in a very concise manner, instead of repeating all of that wording, simply set forth the concise way of speaking that if the firearm is, and then to give a list of firearm types, then the punishment is of another...

Chief Justice Rehnquist: Well, what are the basic elements of the offense, the 5-year thing, Mr. Halbrook?

Mr. Halbrook: The elements of the offense is that a person carried or used a firearm therein and in relation to a Federal crime of violence... in this case there's also drug-trafficking, and other cases.

It has to be something that is prosecutable in a Federal court, and...

Chief Justice Rehnquist: The crime of violence?

Mr. Halbrook: A crime of violence, yes, Your Honor.

So those are basically the elements, and when Congress amended the law in 1986 to include other firearm types, it simply sets forth the wording that if the firearm is, and in this case in '86 the amendment was a machinegun or a firearm that's equipped with a firearm silencer or firearm muffler, and those were treated as elements of the offense up until basically this case.

That was the practice in the Federal courts.

There were at least three circuits that adopted the rule that those are offense elements.

Justice O'Connor: Well, do you take the position that if a person is charged with a crime of violence or drug-trafficking and with using or carrying a firearm, that that is an indictable offense, and sets out elements of a crime?

Mr. Halbrook: Yes, Your Honor, we do think that, and I... this Court first held...

Justice O'Connor: Because I would think your position might lead to the conclusion that that doesn't even set out the elements of a complete offense.

Mr. Halbrook: Oh, because it doesn't start by saying it shall be unlawful.

The way this was adopted originally back in the 1968 Gun Control Act was, it was a floor amendment and section 924(c) had penalties but also elements were put in.

Justice O'Connor: But you do agree that that states out the elements of an offense?

Mr. Halbrook: Yes, Your Honor, we do agree with that.

It says, whoever shall do this, and it doesn't say it's unlawful, but then when you get to the penalty clause it's obviously by inference.

I think this Court indicated in the Jones case about the Federal carjacking law that it characterized the initial part of the statute as describing some pretty obnoxious behavior without saying that it's unlawful, but then you get to the penalty clause and then it's obvious that that's an offense.

And this Court first held in the Simpson case back in the post '68 period that 924(c) is an offense and it's not just a sentencing factor for some other crime, because...

Justice Ginsburg: Mr. Halbrook, are you making both a statutory argument and a constitutional argument with the...

Mr. Halbrook: Well, we're not arguing the statute's unconstitutional.

We're arguing that the statute should be interpreted such that the different firearm types are offense elements.

Justice Ginsburg: But you have an alternative argument that if the statute is interpreted as the Government urges, then it would be unconstitutional?

Mr. Halbrook: We don't make that argument, and the reason we don't make that argument... we do appeal to the doctrine of constitutional doubt, but when the decision was first made that these are sentencing factors, it was the universal practice in the Federal courts that they were elements, and then we had several circuit opinions saying that these are offense elements, and we didn't think, and don't think to this day that it would be a service to this Court in a loose way to say that something's unconstitutional when it can so easily be interpreted in the narrow way to avoid the unconstitutional result or according to the rule of lenity...

Justice Scalia: And if we don't agree with you on that, you're prepared to lose the case.

Mr. Halbrook: Well, we might not be prepared to lose the case, Your Honor...

Justice Scalia: Well, but you don't make a constitutional argument.

If we disagree with you that, as set forth in this statute, these matters were meant to be elements of the offense, if we think that they were meant to be sentencing factors, you're content to lose.

Mr. Halbrook: That's...

Justice Scalia: And you will not make the argument that the statute would be unconstitutional.

Mr. Halbrook: We haven't made that argument.

It was not in our statement of issues, and the reason we didn't make it, once again, is that so many times it seems that, like defense lawyers very quickly at the drop of a hat say some law's unconstitutional when there's no need to make that argument.

Justice Ginsburg: But you know there is a case pending before this Court, Apprendi...

Mr. Halbrook: Yes, Your Honor.

Justice Ginsburg: that does make the argument that anything that enhances a sentence beyond the maximum, that that must be given to the jury.

That argument would be equally available in your case, but you say you're not making it.

Chief Justice Rehnquist: He said it three times, I think.

Unidentified Justice: [Laughter]

Mr. Halbrook: We're making it in the sense of the rule of constitutional doubt.

I mean, in the Apprendi case the statute explicitly declares that it's not an element, that the judge makes the determination at sentencing, and it's based on the preponderance-of-evidence standard, and this statute doesn't say that.

Justice Scalia: I find it a strange argument you're making, that you say there's... it's constitutionally doubtful, and therefore we should interpret it this way, but if we don't interpret it that way, well, you don't have any constitutional argument.

Mr. Halbrook: Well...

Justice Scalia: If you don't have any constitutional argument, I guess it's not constitutionally doubtful.

I mean, I find it extraordinary that you...

Mr. Halbrook: Oh, no... no, Your Honor...

Justice Scalia: can make the statutory argument you're making without reaching the conclusion that if it's rejected there's at least a constitutional issue that we ought to consider, but you don't want it consider it, that's okay.

You're right, you've said it three times.

Mr. Halbrook: Well, we appealed to the doctrine of constitutional doubt in the sense of the statutory interpretation.

There may be...

Justice Stevens: What is your basis for saying there's any constitutional doubt about the validity of the statute?

Mr. Halbrook: Well, because the jury finds facts that result in a 5-year period, and the maximum is increased sixfold, up to 30 years, or even to life imprisonment, and it's not determined by the jury, and it's not in the indictment.

Footnote 6 in the Jones case is why we think that the rule of constitutional doubt applies here.

Any fact other than recidivism that is to be determined by the jury and put in the indictment is in accord with the Fifth and Sixth Amendment guarantees in that respect.

So it's our position that when you look at the statute it would be very difficult to say that reasonable minds could conclude only that it would be interpreted in the more stringent way, because that was not the way it was ever interpreted up until this case, and the general rule is that when there's two interpretations, and when the one interpretation raises the constitutional doubt, and is also the more stringent interpretation, then the rule of lenity also applies.

So when Congress enacted this, there's nothing in the legislative record, although we think that legislative history is a... not something that overcomes the doctrine of constitutional doubt or the rule of lenity, but when you actually look at the legislative history, it does not state that these are sentencing factors and not offense elements.

You simply have references to the fact that these are mandatory sentences.

The provision as adopted in 1968 had mandatory... a mandatory sentence for carrying and use of a firearm, and with the 1986 amendment you have a mandatory sentence for machineguns and firearms equipped with silencers, and then over the years you have other amendments which put in short-barrel shotguns and rifles, and destructive devices, and there simply was no legislative history... you'll see two paragraphs of legislative history in the Fifth Circuit opinion, and it in no way makes clear that these are offense elements.

The statute is written in a way such that there are 83 words in the first clause which gives the offense elements, and in a very concise way it doesn't repeat all of the Federal jurisdictional nexus.

It does not... it's not redundant in other words, and it was set forth in a way that there was never any question in the... either in the legislative history or in the way that this law was administered in the Federal courts up until this case was decided that indicated in any way that the firearm types are not offense elements.

We think that by making the jury in essence a lower level gatekeeper which finds facts resulting in a 5-year period of incarceration, and then giving it to the sentencing judge to find by a mere preponderance, that those do implicate the Fifth and Sixth Amendments, the Indictment Clause of the Fifth Amendment as well as the Due Process Clause and the right to jury trial and the right to be informed of the nature of the accusation in the Sixth Amendment, and by interpreting the law to mean that these are offense elements, there is no constitutional doubt.

That resolves the constitutional doubt against an interpretation that raises that issue.

If you want to go back in history, this long tradition of both Federal and State law under which these are offense elements, as far as Federal law goes we go back to the National Firearms Act of 1934, and for the first time Congress made it unlawful to possess or to receive unregistered machineguns and the short-barreled shotguns and some other types of firearms, and it was an offense element then.

In the 1968 act, there are various offenses under title I of the act related to machineguns, short-barreled shotguns and other... and destructive devices, and those are invariably elements of the offense, and so if we were to take respondent's position we would assume that Congress simply did not make these elements without any indication that these were nonelements and without any structural provision.

In other words, it was not written in a way that these are not elements.

In the carjacking case resolved by this Court in Jones, you'll see the same identical structure in this statute as exists with section 924(c), namely that whoever engages in certain action, in that case takes a car by use of a firearm, using intimidation or force or violence, shall be sentenced to a certain amount and, in the case of this statute, whoever uses or carries a firearm in a crime of violence prosecutable in a Federal court will receive a certain sentence.

And in Jones, as in this case, it says, and if, the and-if clause exists.

In other words, with Jones, and if there's bodily injury then the sentence is of a different type, and in this case, and if the firearm is a machinegun or destructive device, then there's another sentence.

So...

Justice O'Connor: Now, if you're correct, I guess it would require setting aside the conviction and sentence, and sending it back, or what?

Mr. Halbrook: Not the conviction, Your Honor.

Only the sentence.

The mandatory penalty in this case is 5 years imprisonment, and so we're asking that the Court reverse only the portion of the lower court's opinion that relates to the sentence.

Justice Ginsburg: Is there any data that tells us how many defendants currently serving in prison as a result of an offense under this section would be affected by going along with your view?

Mr. Halbrook: There's no statistics, but I think the number is not very high yet, and in fact...

Justice Ginsburg: Why is that?

Mr. Halbrook: Well, because the statute was uniformly administered from 1986 when it was amended with these other provisions, up until the Branch decision in this case, and during that time it was invariable that the type of firearm was alleged in the indictment, so none of those cases would reopen.

It would not be like the Bailey situation, where the term use was subjected to an overbroad interpretation by many of the appellate courts.

Chief Justice Rehnquist: What would happen here, Mr. Halbrook... if we rule for you, you say the conviction wouldn't have to be set aside, but suppose the Government wants to show again that this was one of the kind of firearms that would justify a sentence greater than 5 years, does the Government have to prove just that?

It would have to prove it to a jury, I suppose.

Mr. Halbrook: It would, Your Honor, yes, so we don't see that the Government would have any opportunity to do that, but... that would be double jeopardy.

Chief Justice Rehnquist: It would be double jeopardy?

Mr. Halbrook: To... well, these petitioners were indicted for and convicted of use of a firearm, a 5-year offense, and since the machinegun, or whatever the other types, were not in the indictment or found by the jury, they could not be tried again on these charges.

The...

Justice Kennedy: Well, if the elements of the crime were not adequately set forth in the indictment, why wouldn't the Government be entitled to a new trial?

The conviction is set aside, and there's a second trial.

That's not double jeopardy.

Mr. Halbrook: Well, I think they've had their bite at the apple, Justice Kennedy.

In other words, once a person is tried for a certain crime arising out of certain facts, and the jury makes a determination, and the Government's not satisfied with that, they're not entitled to go back and re-indict the crime again.

Justice Kennedy: You mean that if they don't, in a murder case, indict for deliberation and premeditation and he's found guilty of first degree they can't retry him for first degree?

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

You couldn't... let's say you convicted someone of manslaughter, you couldn't go back and charge him again with murder and allege...

Justice Kennedy: No, no...

Mr. Halbrook: malice aforethought.

Justice Scalia: No, my hypothetical's the other way.

Justice Kennedy: They find him guilty.

They find him guilty of murder.

Mr. Halbrook: Well...

Justice Kennedy: But there's been an element omitted.

Mr. Halbrook: Oh, you mean if the element was not alleged in the indictment?

Justice Kennedy: Yes, or... and there was no instruction on it, let's say.

Mr. Halbrook: In...

Justice Kennedy: I see your point is, is that they found him guilty only of the lesser offense.

Mr. Halbrook: Yes, Your Honor, and yours... your hypothetical is, you've got the higher offense being alleged in the indictment without a certain element of it.

Justice Souter: You're saying that if we find it's an element, the crime charge is a product of the elements charged, and if an element necessary to make it a graver as opposed to a lesser included offense was omitted, then it's only the lesser included offense...

Mr. Halbrook: Yes, Your Honor.

Justice Souter: that was charged and the subject of the conviction.

Mr. Halbrook: Justice Souter, it would be as if manslaughter was charged, and the person was tried on that indictment, the jury makes that determination...

Chief Justice Rehnquist: Well, happily if we reverse the judgment here the court of appeals can address that question.

Unidentified Justice: [Laughter]

Justice Breyer: Is this the only court of...

Mr. Halbrook: Well...

Justice Breyer: Sorry.

I didn't... were you about to say something in response?

Go ahead.

Mr. Halbrook: We think that what should be done in this case is, it should be remanded for resentencing, as was done in the Jones case.

We think this is an identical situation where, in that case bodily injury was not alleged in the indictment.

Chief Justice Rehnquist: With the only permissible sentence being 5 years?

Mr. Halbrook: Your Honor, the statute imposes a mandatory sentence of 5 years, that's correct.

It says, shall be sentenced to 5 years.

It's not within the sentencing guidelines.

Justice Breyer, sorry.

Justice Breyer: Is this the only court of appeals that has held that it is not an element of the offense?

Mr. Halbrook: Your Honor, there are two other courts of appeals who followed the Branch decision, and if I could answer that maybe and respond more completely to Justice O'Connor's earlier question, because it's only been in the last couple of years or so that the First Circuit and the Eleventh Circuit have indicated they agreed with the Branch decision.

The First Circuit prior to that time in the Melvin case had held the other way, and so in that circuit the law would have been administered in a way consistent with that opinion, so we don't think there's that many who... circuits where this will be a problem, and in those circuits we don't think that there would be a large number of cases to reopen, and I have a suspicion... I cannot verify it, but probably in the Fifth Circuit and these other circuits where now that's the rule, I would be willing to guess that many times the type of firearm is alleged in the indictment.

Traditionally, an indictment, if you use this as an example, would say something like, the defendant did use or carry a firearm, to wit a machinegun, and you would have a description of the model number and the serial number and all of that.

Justice Kennedy: If you're right, wouldn't the jury specifically have to be instructed that this is an element, or does it...

Mr. Halbrook: Yes, Your Honor.

Justice Kennedy: Would...

Mr. Halbrook: Yes, Your Honor.

Justice Kennedy: So merely... it's... merely the fact that it's in the indictment would not suffice, unless the jury...

Mr. Halbrook: That's correct.

Justice Kennedy: were instructed that it had to find everything alleged in the indictment.

Mr. Halbrook: That's correct, and it...

Justice Kennedy: Is there some general instruction that the jury cannot convict unless it finds all of the facts set forth in the indictment to be true?

Mr. Halbrook: That's not the case if you have surplusage, or things that are not necessary for the...

Justice Kennedy: That's what I would have thought.

Mr. Halbrook: those elements.

Justice Kennedy: So it seems to me that you... if you prevail, and this becomes precedent in other cases, the jury would have to have been specifically instructed in each case that this is an element that they must find.

Mr. Halbrook: That's correct.

Justice Kennedy: The mere fact that it's in the indictment would be insufficient.

Mr. Halbrook: That's correct, and you would have to have the specific definition of the specific firearm that you're talking about, because when you start looking at the definitions under machinegun or destructive device, you'll find many different kinds of definitions, and there has to be some kind of allegation that the firearm type is of the type described in whatever the specific definition is.

When you look at the court decisions as to whether elements were properly charged in regard to machineguns, destructive devices and what-not, and also cases involving sufficiency of evidence, the courts look at each and every one of the definitional elements, so that if a short-barreled rifle is charged, part of the definition of rifle is that it has a barrel with a bore that's rifled, and if there's no evidence in the case about it being rifled, that's not enough to sustain a conviction.

So by the same token, here, in 924(c) a properly charged indictment would allege a firearm, to wit, for example, destructive device or machinegun, and it would have some kind of definition that they're hanging their hat on as to which definition of destructive device, for example, is being alleged in the indictment, because the definitions run the course from a rifle over 50 caliber to a grenade or a bomb, or I mean, many diverse kinds of things are called destructive devices, so a properly worded indictment would have this information.

We think this case implicates the constitutional values that go back to the Winship case, for example, the idea that each and every element of the offense has to be in the indictment, and it has to be proven to the jury beyond a reasonable doubt.

The idea of what can the legislature make a crime and what can it declare a sentencing factor, we think that that is further doctrine that supports our position here in terms of interpreting the statute to avoid constitutional doubt, that the Court has been grappling with that in other decisions, and in the Apprendi case, and it's our position that to avoid these issues, that the statute ought to be interpreted in a way to avoid any constitutional doubt, and that means that it has to be construed narrowly.

The case of Mullaney v. Wilbur, which had to do with the shifting of burdens, I think is relevant here in terms of avoiding constitutional doubt, and I'd like to say that in those kinds of cases where the burden would shift, it was still the jury that determined whether the defendant proved by a preponderance... a lack of malice, for example.

And here you have the... it's taken completely from the jury and given to the sentencing court in terms of... I mean, the defendant cannot even put on a case before the jury that...

Justice Stevens: Mr. Halbrook, at what stage of the proceeding... you said it wasn't alleged in the indictment.

What stage of the proceedings was your client first notified that the Government contended he used a machinegun?

Mr. Halbrook: It was at sentencing, Your Honor.

It was right before sentencing.

The Government filed a brief arguing that the judge would be entitled to impose the 30-year sentences.

It was never part of the case.

These petitioners were charged with far more serious crimes than 924(c), and the Government put its case into trying to prove those crimes, and the jury acquitted them under count 1, conspiracy to murder Federal officers.

Count 2 was aiding and abetting murder of Federal agents, and they were acquitted of those crimes.

They were convicted of aiding and abetting voluntary manslaughter.

So it was really never part of the case until it came around to sentencing, and then the Government filed a brief saying that we think that this is a sentencing factor and not an offense element, also raising for the first time the Pinkerton case and trying to apply it to sentencing issues as opposed to the type of Pinkerton instruction that you give to the jury.

Justice Ginsburg: Was there any evidence submitted about the kind of firearms in the jury trial?

They must have submitted some elements of whether machineguns were used.

Mr. Halbrook: Yes, Your Honor.

There was some testimony that some people said they heard machinegun fire, and of course this... the events took place that gave rise to the indictment on February 28 of 1993, but after the tragic end on April 19, in which there was a fire and everything was destroyed, there were alleged machineguns found on the premises.

But aside from that there was... I mean, the evidence in regard to most of these petitioners is that they did have conventional firearms, and that... but they did not fire any... there was evidence that one of the petitioners did, but there's no evidence that ties a machinegun to any of these petitioners.

Justice Scalia: Well, I mean, the... even if it didn't go to the jury, somebody thought that it was more likely than not that they had machineguns.

What was that based on?

Mr. Halbrook: Well, at sentencing the judge said that there... some people there had machineguns, and I'm going to hold these people responsible... these defendants responsible for that.

Justice Kennedy: But the jury had to find... under the indictment, the jury had to find that they had a firearm.

Mr. Halbrook: Yes, Your Honor.

Justice Kennedy: I'm... and I'm still puzzled as to why that, under your theory of the case, isn't just an insufficient indictment that requires a new trial, because it didn't say anything about what kind of firearm.

You just assume that any time an element of an indictment is insufficient, the jury convicts of the lowest offense.

I'm just not... I don't understand that.

Mr. Halbrook: Well, I don't see the difference between indicting them for manslaughter and then trying to go back and indict them again, after a jury convicts them of manslaughter, convict them of murder.

I don't think that's permissible.

Justice Stevens: Did the judge take additional evidence to... on the machinegun issue, or did he rely on the transcript?

Mr. Halbrook: He just relied on the transcripts, Your Honor.

Justice Souter: And the machinegun was attributed to your client under Pinkerton?

Mr. Halbrook: That's correct, in the sentencing aspect, not in terms of jury instructions where that was found.

Chief Justice Rehnquist: What did the transcript show with respect to... I mean, ordinarily someone doesn't get up on the stand and say, I saw him with a firearm.

They say, I saw him with a machinegun, or...

Mr. Halbrook: Right.

Chief Justice Rehnquist: I saw him with a shotgun or something like that.

Mr. Halbrook: Yes, Your Honor.

The petitioners by and large were seen with... or some of them actually made statements to Texas Rangers after this ended and they said, I had a rifle or I had a pistol.

There was no evidence tying specific people to machineguns and... petitioners, rather, and of course we think it's not what's in the record, but what was in the indictment and what was in the jury instructions that count here.

If there are no further questions, I'll reserve the balance of my time.

Argument of James K. Robinson

Chief Justice Rehnquist: Very well, Mr. Halbrook.

Mr. Robinson, we'll hear from you.

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

For purposes of sorting offense elements from sentencing factors in this case, we believe the Court should view section 924(c)(1) as much more like the reentry after deportation statute reviewed in Almendarez-Torres than the carjacking statute reviewed in Jones, and we believe this for three major reasons.

First, the sentencing-enhancing factors in section 924(c) are very different from the carjacking statute, particularly in their importance compared to the core elements of the offense.

Second, the sentence-increasing factor of serious bodily injury in the carjacking statute was found by the Court in Jones to have been traditionally treated as an offense element of aggravated robbery.

There is no comparable history or tradition for treating firearm type in connection with a crime of violence.

And third, the legislative history of section 924(c) is far more indicative than was the carjacking statute of an attempt by Congress to treat the sentencing-enhancing factor of firearm type...

Chief Justice Rehnquist: Mr. Robinson...

Mr. Robinson: Yes.

Chief Justice Rehnquist: one of the cases relied on by the majority in Almendarez-Torres was McMillan v. Pennsylvania, which sustains some sentencing factors like this, but it also said in that case that one of the limitations was that the tail couldn't wag the dog.

Here you have a jury finding that would justify 5 years imprisonment, but you have judicial sentencing factor findings that can go up to 30 years.

Mr. Robinson: That's quite true, Your Honor, and I think it's important to keep in mind the way in which that evolved as a matter of legislative history, and when the machinegun clause provision was initially inserted into the statute in 1986, the original jump was from 5 to 10, admittedly a substantial one, and then it was later that this graduated scheme was put in place.

But I think what's important here to keep in mind is that the predicate offenses, the predicate offense, a crime of violence, is one of the elements of this crime, and a jury must find beyond a reasonable doubt that in fact the defendants used a firearm, used or carried a firearm in connection with that predicate offense and it seems to us that, while there is a substantial increase here, that it is an... it's appropriate under these circumstances that the judge determine the gradation of the firearm type that has been found by the jury beyond a reasonable doubt.

Justice O'Connor: Mr. Robinson, what has the practice been in the various circuits under this statute?

Have they been, as petitioner's counsel tell us, in most circuits treating the type of weapon as something alleged specifically in the indictment and proven at trial?

Mr. Robinson: It has varied, Justice O'Connor.

In some circuits they have included it, in others they have not and, as counsel indicated, there is a split in the circuits as to whether or not the type of firearm must be included in the indictments of the...

Justice O'Connor: Do you have data showing how many sentences will be affected by a conclusion by this Court that the petitioner is correct in his reading?

Mr. Robinson: We... I don't have the exact number.

I think that counsel's probably right that there's not a lot of those at the moment and, of course, the current vision... version of 924(c) increases the maximum penalty to life, and therefore it's a different statute in that respect from the one that is before the Court.

Justice Scalia: You think that may be the dog rather than the tail?

Mr. Robinson: No.

Justice Scalia: I don't think it still... is even the dog.

From 5 years to life.

Mr. Robinson: I think that...

Justice Scalia: It's a long tail.

Unidentified Justice: [Laughter]

Mr. Robinson: It's a long tail, and Congress is entitled to set out the elements, in our view, of the offense and to... and within limits that have not yet, to our understanding, been reached.

Justice Breyer: It's not the problem with the dog and the tail that's worrying me so much as a different problem, which is that this is a statute that you might have said that the whole statute is simply a sentencing factor.

Mr. Robinson: It's...

Justice Breyer: You might have.

Mr. Robinson: You might have.

Justice Breyer: But looking at it as a whole, it seems it isn't, and so if it is creating a crime out of carrying a gun somewhere in relation to a different crime, it's pretty hard to see, given the numbers, and given the qualitative difference between handling a machinegun or a bomb and a pistol, why this suddenly becomes a sentencing factor.

It's not really written that way.

It's... I mean, you have three separate things.

The numbers are different, and in relation to the underlying crime here, which is the carrying of the weapon, not the other crime, why wouldn't you say just what your opponent said?

That's what's bothering me, that what they have here is, they have three separate things.

If you have a drug crime and you have a pistol, it's 5 years.

If you have a drug crime and have a rifle, it's 10.

If you have a bomb or a machinegun, it's 30.

I mean, they all look like, as they're lined up... I don't know how to argue it exactly.

It's just, when you read this statute, how does it look?

Mr. Robinson: Well, it seems...

Justice Breyer: And that's the...

Mr. Robinson: It seems to me when you...

Justice Breyer: thing that's bothering me.

Mr. Robinson: When you go back to the traditional means of statutory interpretation used by this Court in Jones and Almendarez-Torres, even in Jones the Court, certainly the minority felt that the structure of the statute was such...

Justice Breyer: I was one of those, and I did, but there I thought that carjacking is the basic crime, and that the... whether you hurt somebody or not in the course is rather a typical sentencing factor that has to do with the manner.

But here, the underlying thing is a... is new, and unique, and special, created by the statute.

Mr. Robinson: Well...

Justice Breyer: And therefore it becomes somewhat harder for me to see this as a traditional, or... a traditional way of punishing somebody for the way in which he carried out the crime.

Mr. Robinson: Well, it's much more than the way, Justice Breyer.

The jury in this case was required to find that the defendants conspired to murder Federal agents.

That had to be found.

Justice Breyer: Exactly.

Now, if you...

Mr. Robinson: And that they did so carrying or using a firearm, and it's clear from the architecture of the statute that those are the two key elements which makes up initially a 5-year sentence, and then we're talking about determining the means by which that has been accomplished, and the means here, according to the way Congress has set out the statute, is to differentiate the punishment based upon the dangerousness of the instrumentality.

Justice O'Connor: Well, it's vastly different in terms of results if the firearm is a machinegun, and according to petitioner's counsel the evidence isn't all that clear linking this particular individual with a machinegun, and we don't know if the jury would have been able to make that determination, do we?

Mr. Robinson: Well, we...

Justice O'Connor: Beyond a reasonable doubt, anyway.

Mr. Robinson: I think... I think based upon the findings of the court, the district court in sentencing, I would say that for one thing the evidence that these petitioners used machineguns and destructive devices was found very substantially by the district judge in the findings, based upon the record that was presented to the jury.

Justice Stevens: Yes, but may I ask you this question about the procedure: supposing all of the evidence presented to the jury dramatically showed they used rifles and then, after the trial was over, in the presentence study, the parole officer or whoever made the presentence report said, well, we've now found evidence they were actually using machineguns, and they came in and brought that evidence to the judge

I assume under the statute there would be nothing to prevent the judge from saying, I think that's right, they should get the 30 years.

Mr. Robinson: I think that could happen under the statute, Your Honor.

That's...

Justice Stevens: Right.

Right.

Mr. Robinson: In this case, the court specifically found the... that several of the petitioners actually... had actual possession of a machinegun, that one had possession of a destructive device, that all of them had new, and it was foreseeable that machineguns were extensively used, as well as destructive devices, so that the findings of the district judge with regard to the sentencing phase, the Fifth Circuit found overwhelming evidence to support the notion that these petitioners used and carried sentence-enhancing weapons during the course of the conspiracy...

Justice Scalia: But it didn't go to the jury, and you don't find it strange that what goes to the jury is a finding that they have to make beyond a reasonable doubt, which accounts for only 5 years of the individual sentence, and then what is decided by a judge, without the protection of a jury, and just on the basis of a preponderance... it's more likely than not that they had machineguns... not on the basis of beyond a reasonable doubt, is going to account for 25 more years?

Mr. Robinson: Well, I...

Justice Scalia: That doesn't seem strange to you?

Mr. Robinson: I think it goes again to a question of what's before the Court in this case, and that is the construction of 924(c).

Obviously, there is a backdrop of the Apprendi matter that's pending before this Court, but I think in the first instance our obligation is to look at the language of the section and ask, what did Congress intend and it seems to us that, looking at the language and the structure of the statute, Congress intended there to be two essential elements of this offense.

Justice Ginsburg: Mr. Robinson, may I ask you, what was the position of the Department of Justice on this, or was it up to each U.S. Attorney to decide whether they were going to treat this as something that should be alleged in the indictment and put to the jury?

Mr. Robinson: There was no mandate from Main Justice to the U.S. Attorneys to charge this in a particular way prior to the Jones decision.

Justice Ginsburg: And was there a variety of approaches among U.S. Attorneys?

Mr. Robinson: Yes, leading to the split that's been mentioned in the circuits for how this has been handled.

Justice Scalia: Isn't there any coordinating mechanism in the Justice Department for deciding what... you know, we have a single Federal statute which presumably means the same thing in all the districts of the United States, and...

Mr. Robinson: Right.

Well, having been...

Justice Scalia: Main Justice doesn't try to figure out what it means?

Mr. Robinson: Oh, we certainly try to figure out what these mean and provide advice, but having been both a United States Attorney and now at Main Justice, United States Attorneys' Offices have a fair amount of ability to frame these things, and there was no mandate that they be charged in a particular way.

Some guidance obviously is available through the Department, and particularly in connection with the Jones case, obviously this issue has been focused on by Main Justice, and communication with the United States Attorney's Office.

Justice Breyer: Not the... can you think of... I'm... we're all obviously struggling with the way to approach these cases, but I... and thinking of looking at the underlying crime and asking, faced with ambiguous statutory structure and language, is there a tradition, a tradition of using this kind of factor as a sentencing factor in respect to the underlying crime, or is there legislative history, or does it put the defense in some kind of impossible situation, i.e., to have to prove, for example, I didn't do it, but nonetheless it was just a... you see... you have my point.

Mr. Robinson: Yes.

Justice Breyer: Are any of those things in your favor?

Mr. Robinson: I think so.

I mean, it seems to me that, much like the Court identified in McMillan, it seems to me where visible possession of a firearm in connection with a violent crime, a violent felony was considered to be an appropriate sentencing factor, it seems to me the gradation, the dangerousness of the means, the instrumentality, is often considered by the courts.

Justice Breyer: The underlying crime here is not the crime of violence or drugs.

Mr. Robinson: Well, the...

Justice Breyer: The underlying crime here is this new statutory invention, called possessing a gun in relation to, or during the crime of violence.

Mr. Robinson: Well, but remember, Justice Breyer, one of the elements of this crime is proving beyond a reasonable doubt the commission of a violent crime, and all of its elements.

That's part... if you don't... if the Government does not prove, in this case conspiracy to murder Federal agents, it as not made out the elements of the crime.

On top...

Chief Justice Rehnquist: Is that a separate trial, or are all of these taken up in the same indictment, same trial?

Mr. Robinson: Taken up in one trial, in which the Government must prove first that the defendants conspired to murder Federal agents, as charged in count 3, and in addition, the other element, requiring that the Government prove that the defendants, in doing so, in relation to that crime of violence carried or used a firearm.

Those are the two essential elements, and if that happens, it's our view that the structure, language, and architecture of the statute makes out a completed offense, and now we're talking about sentencing, and the instrumentality...

Justice O'Connor: Well, counsel for petitioner says yes, that's a completed offense.

It's the 5-year offense.

Mr. Robinson: That's the completed offense that subjects the petitioner to 5 years and, if the judge finds a machinegun, first to 10, and then moved up for purposes in 1988 to 30 years, and in the meantime...

Justice Stevens: It doesn't say if the judge finds.

It doesn't say that.

Mr. Robinson: No, it... no, we're... it's our position, shall be sentenced to imprisonment.

It uses the word, sentenced, and it seems to us that if you look at the language of the statute, its structure, and ask what are the elements necessary to make up...

Justice Stevens: But the language of the statute doesn't even require preponderance of the evidence.

What if he had... just had probable cause?

Couldn't he still say, I think this is right, and...

Mr. Robinson: I think that that would problematic.

Judges I think have to find...

Justice Stevens: Why would it be problematic?

In most sentencing factors the judge just... he can act on less than a preponderance of the evidence if he's persuaded by the parole officer or the presentence report.

Isn't that enough, normally?

Mr. Robinson: I would think that often it... oftentimes it can be.

I think the Court has indicated, and we're certainly not arguing that there should be a lesser standard than a preponderance standard for the judge, the same standard that's used in the sentencing guidelines to make sentencing determinations, very similar in many respects to the kind of sentencing consideration we're talking about here.

Justice Scalia: But you know, you're putting stress on the fact that the statute says, and if it is a machinegun, shall be sentenced to, and if it is a rifle, shall be sentenced to.

That doesn't carry any water, because it says that with regard to the basic, what you say is the basic underlying crime as well.

It nowhere says, it is criminal to use, to carry a firearm in the commission of these offenses.

It says that if you do it, you will be sentenced to 5 years.

Mr. Robinson: Right.

Justice Scalia: And then the same language is applied to the 10-year acceleration and to the 30-year.

Why aren't they all parallel?

Mr. Robinson: Well...

Justice Scalia: It's the same as in Jones.

It's really the same...

Mr. Robinson: Well, when you say it's the same as in Jones, Your Honor, in Jones, even the Jones majority looked at the carjacking statute, which admittedly has a similar structure and said, it has the look of sorting these things to sentencing factors, and then the Court I think, and the reason why I think the distinction between the carjacking statute and the reentry statute is critical in deciding how to come out in this case, is taking a look at the means or instrumentality... type of firearm here... and saying, in our view it's very different to the kinds of things that were involved in Jones, which included serious bodily injury or death, on the one hand.

And also it seems to us there was a much stronger tradition of treating those kinds of things as necessarily elements of aggravated robbery, which is not the case... there's no long tradition of treating means or instrumentalities, firearm type, as an element of the crime.

And then finally the legislative history, it seems to us, is also very supportive.

The way in which this evolved, as well as the language used during the course of the debates, indicates that when these amendments were added, the amendments that were added in '86 and '88 and '94, those were added adding increases to the sentence in addition to putting in an additional type of dangerous firearm, namely a short-barreled shotgun or rifle, indicating congressional intent to treat the type of firearm, namely the means or instrumentalities of committing the underlying offense, as, in fact, sentencing considerations rather than elements.

Justice Breyer: Is there a difference between the legislative history in respect to these add-on... the machinegun from what the legislative history was when they created the basic crime?

That is, it seemed to me that in both places what they say in effect is, we're going to be sure that people who have these guns when they commit crimes will be in prison for a long time, and if the first creates a separate crime, why doesn't the second, third, and fourth?

Is there a qualitative difference in the legislative history in respect to those things?

Mr. Robinson: Well, certainly there's references to this as increasing prison terms, increasing punishment.

There's no indication in the legislative history that there was any intent to create multiple, separate offenses under these statutes.

And I think the other thing that's important is that, unlike the Jones case, where I think you cannot easily say that serious bodily injury or death was subsumed within any elements found by the jury, here we have jury findings of the use and carrying of a firearm, any firearm, including these, in the commission of a violent crime.

And so what the judge is doing, and here on the same record in which there was strong evidence of the use of machineguns and destructive devices, making a finding of the type of sort of firearms being used...

Chief Justice Rehnquist: But you can say the same thing about, say, a case where there's been a homicide, and there was evidence that a jury could have found manslaughter or could have found second degree murder, or could have found first degree murder.

You wouldn't say, well, we'll just let the judge pick and choose people, and one gets 10 years and the other gets executed.

Mr. Robinson: Well, as a... the fact of the matter is, though, that in the context... as the Court said in McMillan, that as the... the type or means of instrumentality of the commission of the crime is a traditional sentencing consideration for determining how much punishment should be imposed after the jury has found guilt beyond a reasonable doubt on the basis of core elements that are clearly... stand on their own bottom as an offense, namely, the predicate crime of violence and the using and carrying of firearm.

It isn't as if Congress said we're going to leave the whole question of the firearm to the judge.

The jury had to find the use and carrying of firearms to commit the predicate offense.

Justice Souter: No, but isn't it also...

Justice Ginsburg: Mr. Robinson, you recognized in your brief that if Apprendi is interpreted... if the Court there should hold that the... increasing the maximum is a matter that can't be determined by the judge but must be determined by the jury and beyond a reasonable doubt, you recognize that that would impact on this case even though Mr. Halbrook clarified three times that he didn't make that constitutional argument, but I was confused by what you said should happen.

You said something about, in the event that Apprendi should determine that an increase in the maximum must go... must be a question to the jury, then what follows in this case?

Mr. Robinson: Well, I think that if that were to be the case, then... and if the Court were to limit the exception, if it should, to recidivism in Almendarez-Torres, it would make... the Court would have... be confronted with a situation in which this sentence enhancement would be constitutionally problematic.

If footnote 6 in the Jones opinion is adopted as a new principle of constitutional law, this would seem to me to be problematic with respect to it.

Justice Scalia: And the consequence of that would be to invalidate the entire conviction?

Mr. Robinson: No, I think not.

I certainly agree with Mr. Halbrook that it wouldn't invalidate the conviction.

It would have a... an impact on the sentence, and obviously we think that then the question would be, if this was an element... if the Court were to determine this was an element, read 924(c) as requiring this to be an element, then it seems to me what would have to happen is that there would be a remand for a determination of whether the failure to charge this element in this case was harmless error.

Justice Scalia: Well, could the Court make it an element if Congress has, as you said, written a statute in which it is not an element but a sentencing factor?

I mean, do we have the power, by finding that a sentencing factor would be unconstitutional, to convert it from a sentencing factor to an element?

Mr. Robinson: I would say in the first instance my answer would be no, you don't have that power, except you do have the power to interpret a statute to avoid an unconstitutional result, and if it was clear...

Justice Souter: That is... I think that assumes a different premise from Justice Scalia's question.

I... we can do that if we think there is some leeway...

Mr. Robinson: Yes.

Justice Souter: if we think there is some question about it, but if we conclude without any doubt that it was intended to be an element, then I think we're simply stuck and the statute to that extent is unconstitutional, don't you?

Mr. Robinson: Well, I think that if the Court were to decide on Apprendi broadly, the Court could take a look at 924(c) and address this issue, but...

Justice Scalia: You would change your argument in that...

Mr. Robinson: Probably.

The...

Justice Breyer: As a rule of statutory interpretation, what would you think of saying that where the statute leaves it open to real doubt, and where you can't find much help in tradition or history, and where a significant amount of years turns on it, you should assume that it's meant to be an element at least where it's not going to cause serious problems for trying a case for the defense.

Mr. Robinson: Well, we think that it is the Court's obligation to determine the intent of Congress.

Justice Breyer: I know, and so I'm hypothesizing that it's pretty tough, because the statute itself doesn't tell you, the history turns out to be somewhat ambiguous, you can't appeal to tradition, and there's no particular problem created for the defense in... you know, as there might be in the drug statutes, for example.

Why not follow that approach?

Mr. Robinson: Well, I mean, we think that the... that the doctrine of... that the doctrine of constitutional doubt, if that's what we're talking about here...

Justice Breyer: No.

Mr. Robinson: No.

Justice Breyer: I'm just saying straight, and I'd say straight, other things being equal, Congress probably intends juries to consider these factual matters where a significant number of years turns on it, other things being equal.

The statute doesn't tell you, the language doesn't, history doesn't, and there's no particular problem with trying the case.

Mr. Robinson: Well, obviously, we don't think that's the case here.

We think that the statute does make this a sentencing element, and as a... if the Court were to make that determination, it would have to make that finding, and the principle that you're suggesting, Your Honor, it seems to me does dive pretty heavily into guessing, perhaps, what was intended, and... but if the... if your... if the question is, in the case I just can't figure it out one way or the other which way it ought to go, I ought to put it on the offense side, I understand that that's one approach that could be taken.

In our view, fairly interpreted, Congress did intend the type of firearm used to commit the predicate offense here, the conspiracy to murder Federal agents under section 924(c), to be a sentencing factor for the court and not an offense element to be decided by the jury.

We believe that the decision of the Fifth Circuit upholding the petitioner's sentences in this case should be affirmed.

Rebuttal of Stephen P. Halbrook

Chief Justice Rehnquist: Thank you, Mr. Robinson.

Mr. Halbrook, you have 2 minutes remaining.

Mr. Halbrook: If the Court may please, I'd like to return to an earlier question by Justice Breyer about why, if firearm is an offense element, that the other types of firearms are not, or why wouldn't you argue that all of these are sentencing enhancements.

I'd like to direct the Court's attention to the second sentence in the statute which refers to a second or subsequent conviction under this subsection.

That was, of course, dealt with in the Deal case, so the second sentence calls the first sentence, refers to being convicted under the first sentence, and that's a statutory provision, and if you want to talk about legislative history, when in 1986 Congressman Volkmer introduced this statute he said that this imposes mandatory sentences for firearms including machineguns, so you get that term, mandatory sentencing, used a lot.

In fact, you even have that in '68, when Congressman Poff first introduced that amendment on the House floor for the 1968 legislation, so the fact that it's a mandatory sentence doesn't tell you anything about whether it's simply that the facts that gave rise to that sentence constitutes an element versus a mere sentencing enhancement.

And if we look very briefly at the Almendarez-Torres situation, here we have something that is going to be in evidence.

It's not like it's prejudicial.

The gun has to be in evidence, or there has to be evidence about the gun.

It's something that one would not say you want to avoid prejudice when possible.

It's got to be part of the evidence.

It's something that's contested frequently, where the recidivism is not, and once again it's a traditional element of various offenses.

Whether it be use of a firearm in a crime, or unregistered firearm, or carrying a concealed weapon, this goes back to common law and early State practice that types of firearms are offense elements.

So for all of these reasons we ask the Court to remand the case for resentencing in...

Chief Justice Rehnquist: Thank you, Mr. Halbrook.

Mr. Halbrook: Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

Caron v. United States - Oral Argument

Fri, 09 Jan 2009 14:50:03 +0000

Case:

Caron v. United States

Media File:

97-6270_19980421-argument.mp3

Related Transcript:

1997_97_6270_argument.xml

Transcript:

Argument of Owen S. Walker

Chief Justice Rehnquist: We'll hear argument next in Number 97-6270, Gerald Caron v. The United States.

Spectators are admonished do not talk until you get out of the courtroom.

The Court remains in session.

We will wait just a minute, Mr. Walker.

Mr. Walker: Thank you.

Chief Justice Rehnquist: Mr. Walker.

Mr. Walker: Mr. Chief Justice and may it please the Court:

If a person is pardoned or has civil rights restored, the statute at issue says his conviction is considered a predicate conviction under Federal firearms law only if the pardon or restoration of rights expressly provides that he may not ship, transport, possess, or receive firearms.

My client's... when my client's rights were restored, Massachusetts law told him that he could possess rifles and shotguns and, indeed, possess a handgun in his home.

He's now serving an additional 12 years on his sentence for possessing the very firearms that Massachusetts law told him that he could possess.

We say it's self-evident that the statute... that it cannot be said that Massachusetts expressly provides that he could not ship, transport, possess, or receive firearms.

Unknown Speaker: Of course, if we accept your interpretation of the law it wouldn't matter that the firearms he had were the kind that Massachusetts allows him to have.

Even if he had the kind that Massachusetts didn't allow him to have he would not be subject to this provision of the statute.

Mr. Walker: That is the... what the statute literally says, and it is the... we contend the only literal reading of the statute.

If the Court chooses to follow that literal reading, that is fine as far as my client is concerned.

Unknown Speaker: What is the literal reading?

Would you go through that again?

Mr. Walker: The literal reading is that if the... a conviction... if a pardon says... only if a pardon says you can have no firearms, only if a pardon says no firearms can the conviction be considered a conviction.

This is... he was not told no firearms.

He was told a lot of firearms, indeed, most firearms, and--

Unknown Speaker: He wasn't pardoned, was he?

Mr. Walker: --I beg your pardon?

Unknown Speaker: Was he pardoned?

Mr. Walker: No.

His situation is a restoration of civil rights, Your Honor, but the analysis is the same.

The so-called--

Unknown Speaker: That's where I'm having trouble, because I read this statute... I'd always thought that a felon in possession of a gun was committing a Federal crime.

Then when I read this statute, the words civil rights restored, I discovered that 24 States restore civil rights virtually automatically, so in half the country it isn't a crime, unless, of course, in those States, and they are a random set thereof, that have some other gun law of their own for their own felons.

And so we have about... I found about, like 11 or 12 of them anyway that seem to say, your rights are restored automatically, they're never taken away, as soon as you get out of prison, and by the way, you can have guns, so there, I guess, there is no such law.

And then another set, about 11 say you can have some guns and not other guns, and I guess that's what we have here, right?

Mr. Walker: --That's correct.

Unknown Speaker: So how do we deal with this?

I honestly do not know.

I'm very interested in your--

Mr. Walker: Well, I would suggest that the Court should follow the words of the statute.

The statute does not say that a conviction remains a Federal predicate if there are firearms that the pardon, or restoration of civil rights, expressly provides the person can't have.

It doesn't say that the conviction remains a predicate if the pardon or restoration of rights restricts firearms privileges, and it would have been very easy for Congress to say those things.

Unknown Speaker: --I don't think it has to be read that way.

I mean, you're taking the literal meaning.

Suppose it just prohibits his not possessing handguns.

Aren't handguns firearms?

Mr. Walker: Well, that's--

Unknown Speaker: So in prohibiting handguns it's prohibiting his possession of firearms.

Mr. Walker: --There is a false syllogism in the circuit court's reading of the statute, and it goes like this.

Let's say you like lawyers.

You like almost all lawyers, but A, B, and C are particular lawyers that you don't like, so the syllogism that is false goes like this.

I do not like A, B, and C. A, B, and C are lawyers.

Therefore, I do not like lawyers.

It comes out completely the opposite of the truth, almost completely the opposite.

The fact is, you like lawyers, but if you follow that logic, you end up with almost a contrary meaning.

The statute says no firearms.

It says the State law--

Unknown Speaker: It does not say that.

I... unless I have the wrong statute.

Mr. Walker: --Well... you're correct, Your Honor.

Unknown Speaker: It does not say no firearms.

That's the whole point.

It says, shall not be considered a conviction for purposes of this chapter unless such pardon or restoration expressly provides that the person may not ship, possess, or receive firearms, and it doesn't say any firearms, it says firearms.

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

For example--

Unknown Speaker: So you have to be very, very careful.

So you misstated the statute.

Mr. Walker: --Well, I beg to differ, Your Honor.

If the Governor told her staffer, draw up the pardon for Smith, and I want it to expressly provide that Smith cannot ship, transport, possess or receive firearms.

The staffer goes and writes those words and also adds... staffer, let's say, likes hunting and says, but the person can have rifles and shotguns to go hunting.

So the Governor is looking the next day through her papers, is about to sign the pardon, and she looks down and says, what's this about rifles and shotguns.

I told you to draw up a pardon that expressly provided that Smith couldn't ship, transport, possess or receive firearms.

It's perfectly clear what that means.

Unknown Speaker: Let me take your lawyers example.

It isn't perfectly clear.

It could mean all or it could mean some, in all of these examples.

Suppose, with lawyers, someone says, I have been cheated by lawyers.

Does that mean I have been cheated by all lawyers?

Mr. Walker: That... that--

Unknown Speaker: I have been cheated by A, B, and C, and wouldn't I make the statement, I've been cheated by lawyers?

Mr. Walker: --Well, that is a different... there's no prohibition in that.

There are no words of prohibition.

For example, if you tell your children, you can't have candy, and later in the day you find out that they have had some candy, and they said, their answer is, well, you didn't say that we couldn't have some candy.

You just said we can't have candy, and that's true.

M&M's, we didn't eat them, but they are candy, and the parent says, I said you can't have candy, and the statute says--

Unknown Speaker: It doesn't work.

It doesn't work even for a prohibition.

Suppose you prohibited your child from eating gumdrops, and someone asks you, have you ever prohibited your children from eating candy?

Wouldn't you reply, yeah, on one occasion I prohibited them from eating gumdrops.

Gumdrops are candy.

I have prohibited them from eating candy.

Mr. Walker: --You would say there's certain candy that I prohibited my child from eating, but if the question is, have you ever expressly told your children not to eat candy, the answer would be no, if you've only limited it to M&M's.

Unknown Speaker: I wouldn't say no.

I'd say, on one occasion I told them they couldn't eat gumdrops.

Mr. Walker: Right, I couldn't eat... but you wouldn't say, on one occasion I told them they couldn't eat candy.

The other person may be asking about their teeth, for example.

Unknown Speaker: Mr. Walker, can we get away from grammar for a moment and say, why isn't... since you can read this at least three ways, say why isn't the question, is this person, this ex-felon, now like everybody else with respect to guns, so if he can have guns like someone who never committed a crime, fine.

Then we know that he doesn't fit in this category, but if he's not like everyone else, then he does.

Why isn't that the most sensible reading of it?

Mr. Walker: I think that is the most sensible reading.

Unknown Speaker: But your client is not like everyone else because he can't have handguns on the street.

Mr. Walker: Other people can't have handguns on the street unless they get a special license.

Unknown Speaker: Yes, but as I understand it, under Massachusetts law ex-felons can never be equated to people who never committed a crime because there's always a prohibition.

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

That's correct.

But the... well, there's certainly... I have to address the question of congressional intent, which clearly weighs heavily on our side, deference to State lawmakers, and Justice Breyer has pointed out that 12 or so States make this distinction, the some but not all guns distinction.

The statute is this... the changes were based... in the statute were based on deference to the States.

The name of the statute, Firearms Owners Protection Act, and there's all kinds of history about how the ATF was bothering innocent-minded people--

Unknown Speaker: Yes, but deference I don't think really... assuming that was the intent, I don't think that gets you where you want to go, because they could defer in either of two ways.

They could say, if the State legalizes it, it's okay with us, or they could say, this is a very dangerous situation, and unless the State wants to legalize it across the board and equate the convicted felon with the person who has never been convicted, we're not taking any chances and we're going to treat the felon as a felon.

In either case, the Congress would be deferring ultimately to a State determination, but in one case you win, in one case you lose, so deference isn't going to win the case for you.

Mr. Walker: --I disagree, Your Honor.

I think first of all they aren't... certainly aren't deferring to the 12 or... 11 or 12 States that make the distinction.

What they're saying is, we'll defer to you... if you want to ban all guns, Federal law... for ex-felons, Federal law will coincide.

If you want them to have all firearms, Federal law will coincide.

But if you try to split the difference, if you try to make reasonable compromises about what kinds of guns ex-felons can have, that's out.

Unknown Speaker: There's no room for the Rule of Lenity here, then.

Mr. Walker: Well, there's... I do not think--

Unknown Speaker: Rule of Lenity, I assume, is a compromise rule.

It says, if there is ambiguity, then, in fact, we will apply the Rule of Lenity.

You're saying you shouldn't read this as... I think you're saying that you shouldn't read this as raising the possibility of ambiguity.

It's got to be read 100 percent in my favor.

Mr. Walker: --I am just saying... I am saying, Your Honor, that there was only one reading that is grammatically correct that the ordinary person who had a pardon that says on it, pardon, you can have all the hunting guns you--

Unknown Speaker: I thought we're not talking about a pardon.

We're talking about a statutory--

Mr. Walker: --Well, there... if Your Honor please, the issue of some but not all is exactly the same for the pardon as it is for restoration of civil rights.

Indeed, I suggest that the reason the lower courts, or some lower courts read this wrong is, they got into this whole question of restoration of civil rights, which has confounded all kinds of courts on all kinds of issues.

The simplest example is the some but not all pardon, the person that holds the pardon that says that he can have rifles and shotguns but not handguns.

He looks at it, says I can have rifles and shotguns, he looks at the statute and he says, does this statute expressly provide that I can't have firearms?

No.

It says I can have most firearms.

Unknown Speaker: --That's why I couldn't understand why you were running away from the Rule of Lenity that Justice Souter brought up.

The Rule of Lenity cuts in your favor, doesn't it?

Mr. Walker: Well, I think it does ultimately.

It's certainly in my brief, and I--

Unknown Speaker: It says only if you're totally prohibited will this criminal law apply to you.

If you're only partially prohibited it won't.

That's the more lenient interpretation.

Mr. Walker: --I agree, Your Honor, completely, but I do think the Government's attempt to come up with a different interpretation of the literal interpretation is very strange, this question about there's four verbs in the statute rather than only one; that suddenly changes the whole meaning of the statute; that's why the First Circuit was right; they didn't realize it, but it was because there were four verbs there.

I don't think that cuts the mustard, and therefore I don't think the Rule of Lenity is necessary, but reasonable people may disagree.

Unknown Speaker: May I interrupt just a minute, because the question is, is it not... the question is whether Massachusetts law, which has restored the civil rights, expressly provides that a felon may not ship, transport, possess, or receive firearms, and does... is it not clear the Massachusetts law does provide that a felon may not possess, transport or ship certain firearms that other people can--

Mr. Walker: There are firearms which Massachusetts law--

Unknown Speaker: --Well then, why isn't the plain language against you?

That's what I don't quite understand.

Mr. Walker: --There is a difference between, there are certain items that are--

Unknown Speaker: The question is whether what he cannot ship, transport, or possess is a firearm, and there are certain firearms that he may not ship, transport, possess or receive.

Mr. Walker: --Exactly, Your Honor, and if Congress had--

Unknown Speaker: And other citizens may.

Mr. Walker: --If Congress had said that--

Unknown Speaker: But that's what it did say.

Mr. Walker: --No, it said... it doesn't say, if there are firearms--

Unknown Speaker: No, it says, unless such pardon, restoration... expressly provides that the person may not ship, transport, possess or receive firearms.

Mr. Walker: --Right.

Unknown Speaker: And it does.

Mr. Walker: No.

Unknown Speaker: His restoration of civil rights is not total.

It is limited by the fact that he may not possess, transport or receive certain firearms.

Mr. Walker: I dis... I completely agree that there are firearms that Massachusetts prohibits the ex-felon from having, but I disagree that Massachusetts expressly provides that a felon may not have firearms.

An express provision--

Unknown Speaker: Well, he may not have those firearms, the ones that he's prohibited from having.

Mr. Walker: --That's correct, but when you say candy is prohibited to a child... I expressly provide you can't have candy, you're saying to the child, no candy, no M&M's or whatever.

Unknown Speaker: Mr. Walker, I think I agree with your analysis generally that when a prohibition is expressed without qualification... no candy, no firearms... that means absolutely none, and that's not what we have here in Massachusetts.

I'll grant you that.

The trouble with that analysis, and the trouble with saying therefore plain meaning governs in your favor, is that it leads to a crazy result which I find it very difficult to believe Congress could have intended, because it... I mean, it leads to the result of saying that the fact that Massachusetts draws a line, and we are referring to Massachusetts law at least for some purpose here, the line is nonetheless irrelevant.

And it seems to me that it is the strangeness of that result which it is very difficult for me to believe that Congress could possibly have intended.

E.g., Massachusetts says, rifles are okay but no machine guns, the fellow possesses a machine gun and Congress would have meant to say, machine guns are therefore fine.

That's hard to accept.

Isn't that the problem with your case, and isn't that why we should not look at this as a plain meaning case?

Mr. Walker: If Your Honor please, the only literal... my position is, the only literal reading produces that result, but as the Court recently said, a literal reading that dramatically separates a statute from its purpose should not be followed that far, and that's in the Lewis case on any enactment in the Assimilated Crimes Act.

And I would suggest the ordinary person that is holding the pardon that says, you can have rifles, if somebody says, the statute doesn't expressly provide I can't have firearms, some clever person comes along and says, this is great, you don't have a conviction now, therefore you can go out and get concealed weapons and you can go up to the ATF and thumb your nose at them, that's really great, and the ordinary person isn't going to say, oh, great.

The ordinary person is going to say, that's not what my pardon... my pardon doesn't extend that far.

That's a nice technical reading.

That's a nice sort of philosophical cuteness, but it obviously isn't what Congress probably meant to say.

It's what Congress said, but it does go beyond the purpose of the statute.

Unknown Speaker: Take the... take that case, because I'd like to go back to Justice Ginsburg's question, which I'm not certain I see the answer to.

Say, does Virginia's law prohibit felons from having firearms?

I don't know.

And if it has some firearms and not others, I'm not sure how to answer the question, so I think it's ambiguous.

But if it is ambiguous, then what she said applied to pardons or to expungements or to restoration of civil rights, that the basic objective of the statute is to ask whether or not the State is treating this felon as if he's now like everybody else or whether he isn't, so if you pardon him, you assume he's back in the group of people that are like everybody else.

We wiped it out, and the same, en masse, with the civil rights restoration.

But it isn't wiped out... it isn't wiped out, and he's not like everybody else, if that wiping out had a condition attached, which condition was, we're not treating you like everybody else in respect to firearms.

And now, if that's the purpose, what's the point, either in the pardon case, the expungement case or the civil rights case, of insisting that the States say, oh, we're really not treating you like everybody else in that you can't even have cannons, atomic bombs, all this stuff.

We have to put it all in there, and why isn't it enough to say that, well, most of the firearms are in there so they're not like somebody else, or even a significant amount?

Mr. Walker: Because in fact--

Unknown Speaker: That's the policy question.

Mr. Walker: --Because in fact, Your Honor, restoration of civil rights does not treat... result in treating somebody as if they'd basically never been convicted.

It's very narrow.

It's right to jury, hold public office, et cetera... serve on a jury, hold public office.

And the... in fact, you can be on parole in several States... and Massachusetts is one.

You can be on parole for a long, long time, 20 years.

After 7 years your civil rights are restored, you're allowed to have some firearms and not other firearms, but the State hasn't declared you like all other citizens.

Unknown Speaker: The Federal statute is saying when these three happen in respect to firearms, any of these three things, the felon is, in effect, put back in the big pool of everybody, but he's not put back in the big pool of everybody if that event, which to a degree at least made him like everybody, is conditioned in a firearmsrelated way.

Now, if that's what we're doing, why wouldn't the common sense of it be, is there a significant firearms condition, not is there a perfect complete firearms condition, but just is there a significant firearms condition?

Mr. Walker: Well, if Your Honor please, I'm not making myself clear.

A person can have his rights, civil rights restored and every week have to report to a parole officer, every week, or he has to register as a sex offender, let's say.

He can't testify in a trial without being impeached.

He's not trust... he's considered rather untrustworthy by the State, yet his civil rights have been restored and he's like everybody else with respect to firearms.

This trustworthiness rationale that the Sixth Circuit came up with and the First Circuit followed does not work.

The person is not treated as being free of stigma, having a clean record.

That is not necessary to be reinstated to one's firearms rights under Massachusetts law and several other States, so there's no policy here that... the reason that you... that you can't have rifles if you can't have handguns is that basically that means that we don't really trust you.

In fact, you can have rifles even though we think you should report to a parole officer, should register, or whatever, so there is no policy rationale that supports the Government's position.

But the question of deference and the Federal deference to State authorities is a very significant one, and it's... the words of the congressional history about honoring the intent of the States, giving the States flexibility, all cut our way, and it is very odd... it would be, I would say, very odd for Congress to say look, if you want to be able to let your civil-rights-restored felon go hunting, then you've got to give him Saturday night specials, concealed weapons, and everything else.

It doesn't make any sense to suggest--

Unknown Speaker: Well, I think you can make sense out of the policy that this statute has to be enforced Nationwide.

I mean, this man might well have been arrested in California, and we would have had to look back at the Massachusetts law, and the Federal Government might say if there are any... they didn't put it in precisely these terms, but their policy might be, if your civil rights have been restored but there is a condition, and you do not have full restoration as to any firearms at all, that's enough for us.

You cannot carry... you will be deemed a felon in possession for the Federal statute.

That's a perfectly sensible policy so far as I'm concerned.

Mr. Walker: --Well, there... if Congress had said that, if the Congress had said, if there are firearms you can't possess, and we're just not going to make these interstate distinctions in that kind of thing, that would be a sensible policy.

But I would... I have to say to the Court that Congress rejected this simplicity rationale in the previous sentence on what defines a conviction, and basically... I don't know how to say this tactfully, but it basically said that this Court in the Dickerson case, that said you have to interpret the word conviction federally one way, it said... it overruled this Court.

It says, you've got to look each time a felon possession case comes up to determine whether the person--

Unknown Speaker: It didn't overrule us.

It just changed one of its statutes, which was broken.

Mr. Walker: --Well, thank you, Your Honor.

[Laughter]

But at any rate, it paid... the parade of... or the problems that this Court pointed out with the other interpretation Congress ignored.

It said, you've got to do a lot of work, judges, here, to figure out what the law is, even though you're an Idaho case with a Massachusetts prior conviction.

If the Court has no other questions I would ask to reserve.

Unknown Speaker: Very well, Mr. Walker.

Mr. Nuechterlein, we'll hear from you.

Argument of Jonathan Nuechterlein

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

In our view the unless clause of section 921(a)(20) means that a past felony conviction counts for purposes of Federal firearms law if the convicting jurisdiction gives continuing effect to the conviction in a manner that relates to firearms.

That is the majority view among the courts of appeals that have addressed this issue.

Under the minority view, which is what the petitioner has supported here, a past State conviction counts for Federal purposes only if the convicting State prohibits its felons from possessing the kind of gun that the felon is caught with in the present--

Unknown Speaker: Well, the fact that there are these differences of opinion may point in the direction of suggesting that the language is ambiguous, and therefore we have to apply the Rule of Lenity.

Mr. Nuechterlein: --Well, in our brief we've noted that there are two possible grammatical ways to read this language, but one of them is not what petitioner proposes here.

A conviction either counts as a conviction for purposes of Federal law or it doesn't.

The inquiry under section 921(a)(20) turns on whether a State has restored a felon's civil rights and, if so, whether it has continued to impose restrictions on his firearms possession.

If that is the case, then the conviction remains a conviction with respect to any firearms that the felon may possess in the present.

It triggers the prohibition under the felon-in-possession statute, section 922(g), that a felon may not possess any firearms.

Unknown Speaker: Well, there's a certain incongruity in saying that you're following State law and yet... this person was apparently allowed to possess long guns under State law, and yet he's being prosecuted as a felon in possession.

Mr. Nuechterlein: Well, Federal law requires a court to look to the law of the convicting jurisdiction for its purpose, and everyone acknowledges that, but the purpose is to determine whether or not that convicting jurisdiction has continued to give the conviction effect with respect to firearms, and that is the only respect in which Federal law defers to State law in this context.

Unknown Speaker: So you say it's not deference across the board.

It's just deference in one particular.

Mr. Nuechterlein: That is correct, and it's important to remember that even under petitioner's position there are a variety of contexts in which Federal law would criminalize the possession of a firearm by a felon where a State law would not.

For example, in this case petitioner has prior convictions in California and also under Federal law, so no matter what Massachusetts does to restore his civil rights for his Massachusetts convictions, and no matter what Massachusetts says with respect to his firearms privileges, he still remains a felon in possession for purposes of Federal law.

Unknown Speaker: Yes, but not for sentencing under the three-strikes-you're-out proposal, because if the Massachusetts convictions don't qualify then he'd be sentenced differently.

Mr. Nuechterlein: Well, I think that the fact that this case arises as a 924(e) case dealing with the recidivism sentencing provision, merely serves to emphasize why this reading has to be correct.

It's implausible to believe that Congress would want the recidivism inquiry, which is... looks to how dangerous this particular person is based on his past convictions--

Unknown Speaker: Well, I think the reading you espoused may be the one that most closely tracks what Congress must have intended, but I'm not certain that the language requires it, and in that posture I ask you again whether we don't have to be concerned about the Rule of Lenity.

Mr. Nuechterlein: --Well, I think again the Rule of Lenity can only be used to advocate a position that is consistent with the statutory text, and this statutory text cannot be read to turn on what kind of firearm a felon happens to possess in the present.

Returning back to the fact that this is a section 924(e) proceeding, it's very unlikely, we believe, that Congress would want the recidivism inquiry to turn on whether petitioner brought a rifle or a handgun to the scene of his July 1993 assault.

What matters is that with respect to none of these violent felony convictions had the State wiped his slate clean.

Unknown Speaker: Well, Mr. Nuechterlein--

--Your example assumes not just application of the Rule of Lenity, but also rewriting of the statute pursuant to the Rule of Lenity, because even if you applied the Rule of Lenity, that doesn't... that gets you to the point where it wouldn't matter whether he brought a shotgun or a short gun, it would... he would simply be able to have all firearms or be able to have no firearms.

That is to say, even if he had a firearm that was forbidden by the State, if you take the reading given by petitioner, even if he brought a handgun, which the State prohibits, he wouldn't be sentenced as a recidivist under this provision.

Mr. Nuechterlein: That is correct, and as this Court has repeatedly stated the Rule of Lenity cannot be used to support a reading of a statute that gives rise to implausible results and that would be one of them.

Unknown Speaker: But I think the--

--That's what the--

--I was going to yield to Justice Souter the remainder of my time.

[Laughter]

There are three possible readings, and I think that the petitioner will take two out of those three, so it doesn't have to be all or nothing, or--

--Only if you don't want to make up language that the statute doesn't contain.

Mr. Nuechterlein: The Rule of Lenity would not... could not be used to support a reading of the statute that is either implausible or is grammatically incompatible with the language of the statute.

The reading that the First Circuit shows here is the only reading that is both grammatical and plausible.

Unknown Speaker: Well, I question the plaus... here's the problem that I have with the plausibility.

The plausibility problem on the other side I think is clear.

You know, you allow the person under State law to buy a single-shot.22 and he says, that means I can buy a machine gun.

Congress couldn't have meant that.

The implausibility on your side, though, it seems to me, is this, that on your reading State law becomes a trap.

I find it implausible to believe that Congress wrote that statute having State law in mind as relevant for some purpose, nonetheless assuming that even though State law says you can have the single-shot.22, you follow State law, you do what is lawful under State law, and you still get caught under the Federal statute.

That turns State law into a trap, and that seems to me the source of the implausibility for your all-or-nothing reading.

Mr. Nuechterlein: I disagree for two reasons.

One is that there are many circumstances in which both State and Federal law address the same subject matter under criminal law, and a person is assumed to both know about and to comply with both, but more importantly, under any interpretation of the statute, and that includes petitioner's, there will be a broad range of circumstances in which Federal law would criminalize what State law expressly permits, and this is an example of such a case.

If you disregard the three previous Massachusetts convictions it would still remain the case that in 1970 petitioner was convicted of attempted murder in California.

No matter what Massachusetts, the jurisdiction of his long-time residence, says to him about his right to possess firearms, he would still be barred under Federal law from possessing them.

Unknown Speaker: Okay, but he would not be barred, in effect, through the use of the Massachusetts scheme as a pitfall, or as a trap for him.

Federal law would straightforwardly say, no.

But this is not a case where State... I mean, the argument here is not a case where Federal law is straightforwardly saying no.

Federal law is making a reference to State law.

State law says it's okay, and then Federal law in effect says, well, on one all-or-nothing grammatical reading, that isn't good enough.

That's a strange scheme when you're dealing with convicted felons.

Mr. Nuechterlein: Well, Federal law in our view does, in fact, expressly prohibit possession of a firearm by a felon if the convicting jurisdiction has not... or has continued to give effect to his conviction in a manner that relates to firearms.

Unknown Speaker: In any way.

Mr. Nuechterlein: But even in Massachusetts, even if you look only at Massachusetts, then there are two additional circumstances under which the Federal law prohibition will be broader than the State law prohibition under anybody's construction of the statute.

For example, he committed a Federal felony in Massachusetts.

Notwithstanding anything that Massachusetts tells him about his firearms privileges, he is still a felon in possession under the Federal criminal prohibition, and there's also--

Unknown Speaker: But he has to commit a felony, and he would say, well, you know... and in the circumstances of this case I don't feel too sorry for him, because it's just a question of how much of a penalty he gets for a later felony that he committed, but the statute also covers a case where he hasn't committed any later felony, and he's just following the State law which says, you may now possess long guns, and suddenly he's guilty, nonetheless, of a Federal firearms offense.

Mr. Nuechterlein: --Justice Scalia, if Congress had wanted simply to track in every respect the State law prohibition it would have been very easy for it to have done that, and it didn't.

But the more important point is that even if he only had one felony conviction and that felony conviction was in Massachusetts, there is a 2-year window after which Massachusetts restores some of its firearms privileges but does not restore his civil rights.

There are jurisdictions that restore firearms privileges before civil rights, and even with respect to those jurisdictions the Federal prohibition still obtains.

There's still... because we have a two-step inquiry it's inconceivable that Congress meant to defer to State law in every respect.

Unknown Speaker: Why wouldn't... I mean, I don't understand what Congress was driving at.

That's what I... and the reason is, as Justice Souter was saying, is it's plausible Congress could have meant, once the State decides to let these previously convicted felons carry some guns, Federal law jumps out of the business and we leave it up to State law, and he'll be punished if he's carrying the kinds of guns he shouldn't and he won't be punished if he's carrying the kinds of guns he should.

I mean, that's a possible reading of the statute, in which case the anomaly of him being able to carry anything, even if the State lets him carry some things, is no longer anomalous.

Mr. Nuechterlein: Right.

It's important, though--

Unknown Speaker: So that's a possible reading.

What I can't get at is, what was Congress up to?

I mean, as I said before, it seems to me that with this word civil rights they've sort of taken this statute away from half the country, and then when you start looking to how these 24 States get back into it there's a whole nightmare of different rules and regulations as to when some guns can be carried and you can't carry others, et cetera.

So what was Congress doing, in other words, if it didn't mean to take the Federal Government out of the business entirely in respect to prior felons if the State was willing to let those prior felons carry some guns?

What other purpose could Congress have had?

Mr. Nuechterlein: --It's important to remember the historical backdrop against which Congress legislated.

Up till 1986 it was always a felony for a felon to possess firearms if he had a State conviction for a felony, notwithstanding anything the State had done to restore his rights, either monolithically or partially.

Congress then began in this legislation with the presumption that felons are too dangerous to have firearms, but it made an exception in cases where a State has decided not to give continuing effect to the conviction for purposes of civil rights for firearms privileges, and that is the bright-line rule that Congress imposed here, and it is a rule of national application.

Unknown Speaker: Am I right in understanding that there was a lot of labor lost, if your interpretation is correct, with all the time that the First Circuit spent figuring out if civil rights had been restored?

That was academic.

They should have gone right to the gun prohibition.

They should have seen that X felon for life is barred from carrying at least some guns, and that's the end of it.

Mr. Nuechterlein: Well, the district court had never reached the firearms restriction question, because under binding First Circuit precedent--

Unknown Speaker: But shouldn't the district court have gone right to that question?

Mr. Nuechterlein: --It was--

Unknown Speaker: Why get into this whole hassle about whether civil rights had been restored if the Federal legislation means so long as the State bars you from carrying any gun you don't come out from this category?

Mr. Nuechterlein: --It was because at the time the district court ruled, the First Circuit law was crystal clear.

If you hadn't received an individualized pardon or restoration of civil rights, then that was the end of the inquiry, so that was the simplest basis on which the district court could have resolved the case, and it was on that basis that the First Circuit then revisited its earlier precedent.

Unknown Speaker: What do... if my... the question I just asked you... you remember that one?

Mr. Nuechterlein: Yes.

Unknown Speaker: All right.

That wasn't necessarily my view, but suppose the view that underlay that question was right, then I guess when you went back to the history of this statute, they would have not just... they would have been gutting the prior law, so you would have thought that there would have been huge arguments about it, whether this basic statute, you know, that forbids felons to possess guns was really going to be... half of it chopped away.

There would have been an enormous argument.

On the other hand, on your reading of it, it makes a kind of odd, bizarre, but narrow exception that has weird, jagged edges.

Very well, maybe there wasn't a lot of debate about that.

Maybe it went unnoticed.

Well, when you look into this, what was it?

What was the debate like?

I mean, what was the discussion like when they passed this statute?

Mr. Nuechterlein: There wasn't--

Unknown Speaker: Was this meant to be a major change in the statute that really would have eradicated half the statute, or was it meant to be some minor thing?

Mr. Nuechterlein: --No.

In fact, the statute does not reflect a belief by Congress that it was overhauling the Federal felon-in-possession prohibition.

Congress was responding to this Court's decision in Dickerson that held that whether something should be counted as a conviction to begin with under... for purposes of the statute, this Court had held that that question should be held purely as a matter of Federal law.

What was at issue there was a State procedure of deferred adjudication, and this Court held that even though the State didn't characterize deferred adjudication as a conviction, that it would be deemed a conviction for purposes of Federal law, so that was... that, along with situations where someone is given a blanket pardon and his conviction is treated as a nullity, were the two situations that Congress was focused on.

Unknown Speaker: How many States are there that allow ex-felons free access to guns just like everyone else?

Mr. Nuechterlein: States have 50 different approaches to this problem, and I've... I couldn't give you an exact figure, but I do know that most States do not restore firearms privileges immediately upon release from confinement.

That occurs gradually over time.

About half the States--

Unknown Speaker: You mean, even for embezzlers and bigamists?

Mr. Nuechterlein: --I think most State statutes are phrased in terms of whether or not you've committed a felony.

Unknown Speaker: No matter what felony, whether it's a violent crime or not.

Mr. Nuechterlein: Some States I think also have fine-tuned this to focus--

Unknown Speaker: Maybe embezzlers have their check-writing privileges restored gradually.

[Laughter]

I'm trying to find out whether this statute... whether there's any ex-felon that benefits from this provision.

I've had all my civil rights restored, but... so if there are States that say, ex-felon, after a certain amount of time you can buy guns, and you're subject to the prohibitions that everyone else is, but no more.

If there aren't States that do that, then I would resist interpreting a statute to do nothing.

Mr. Nuechterlein: --Justice Ginsburg, there are States that do that.

The question is how long it takes for firearms privileges to be restored.

About half of the States in the Federal system are all-or-nothing States, such that they either prohibit possession of all firearms, or they permit possession of all firearms after a certain point.

Some States, like Vermont, restore firearms privileges immediately upon release from prison.

Others take 10 years, 15 years, but there are a substantial number of cases... there are a substantial number of States in which firearms privileges are either completely withheld or completely restored.

Unknown Speaker: And in Massachusetts your view is that no ex-felon... the Massachusetts conviction will always stick because there's always a bar on at least some gun possession.

Mr. Nuechterlein: Unless the felon were to have that removed under State law processes.

If there are no further questions--

Unknown Speaker: Thank you, Mr. Nuechterlein.

Mr. Walker, you have 6 minutes remaining.

Rebuttal of Owen S. Walker

Mr. Walker: May it please the Court, unless the Court has further questions, I have no further argument.

Unknown Speaker: Just the difference... the difference... the consequence of this, am I right that it was 120 months versus 262 months?

Is that what we're--

Mr. Walker: The maximum would have been 10 years, that's correct, Your Honor, so the add-on because of the fact that he did what... well, because of the court's... circuit's interpretation of this statute was 12 additional years.

Well, 11 years and 10 months additionally.

Chief Justice Rehnquist: Thank you, Mr. Walker.

The case is submitted.

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

Attribution:

The OYEZ Project

Featured:

Bryan v. United States - Oral Argument

Fri, 09 Jan 2009 14:50:02 +0000

Case:

Bryan v. United States

Media File:

96-8422_19980331-argument.mp3

Related Transcript:

1997_96_8422_argument.xml

Transcript:

Argument of Roger B. Adler

Chief Justice Rehnquist: We'll hear argument next in Number 96-8422, Sillasse Bryan v. United States.

Do not talk until you get out of the courtroom.

The Court remains in session.

Mr. Adler.

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

This case is about whether Congress' use of a wilful mens rea standard in title 18 U.S.C. 924(a)(1)(D) requires proof of knowledge of Federal licensure.

Unknown Speaker: Mr. Adler, our acoustics are very good here.

You don't have to speak quite that loudly to get through to us.

Mr. Adler: Yes, Your Honor.

Petitioner urges the Court and petitioner adopts the reasoning of the Circuit Courts of Appeal of the Third, Fifth, Seventh, Ninth, and Eleventh in following this Court's holding in Ratzlaf v. the United States that wilfully, as used in this statute, requires proof of actual knowledge of licensure.

Here, this Court should know that the--

Unknown Speaker: Mr. Adler, do you take the position that, in order to act wilfully within the meaning of this particular statute, that the defendant has to have knowledge of the specific statutory provision?

Mr. Adler: --No, Your Honor.

We part company with the Government by indicating that it is knowledge that there is a Federal licensing requirement.

Chapter and verse are not required in order to convict the defendant, beyond a--

Unknown Speaker: Well, you urge, then, that the defendant has to know there is a Federal licensing requirement for gun dealers?

Mr. Adler: --Yes, Your Honor, knowledge or suspicion of the existence of a State licensing requirement, municipal ordinance or the like, will not suffice under respect for federalism this statute penalizes, as only it can, a violation of a Federal licensing requirement, and--

Unknown Speaker: It isn't enough for him to know he can't sell firearms with out a license, generally?

He has to know that he can't sell it without a Federal license?

Mr. Adler: --That is what Congress wrote.

That was the intent of the drafters of the Firearm Owners Protection Act, and let me put this into a context, if I may.

The Government in this case has knowingly chosen to pick the most difficult subdivision under section 924 by proceeding to prosecute under subdivision (a)(1)(D).

It chose not to prosecute on a lesser standard of knowingly for making a false statement in the context of the application to acquire the weapon under 924(a)(1)(A).

It chose not to prosecute under 18 U.S.C. 922(k), trafficking in defaced firearms.

It chose not to proceed under a violation of the Travel Act.

Unknown Speaker: Well, why would the Congress want to exonerate or not to punish under this statute a man who was quite sure that a license was required but he thought it was a State license.

Mr. Adler: Congress--

Unknown Speaker: You say respect for federalism means that we have to accept your view that he has to know that it's a Federal statute.

It seems to me that Congress wanted to punish people who had a guilty mind and who were dealing in drugs knowing... or dealing in weapons knowing that it was illegal to transfer without a license, and the fact that State, municipal, Federal license, it seems to me certainly the state of mind is the same.

Mr. Adler: --Well, quite to the contrary, and I think it has to be viewed in the following context, Justice Kennedy.

A majority of the States do not have statutory controls with respect to firearms, and in this case--

Unknown Speaker: No, but in the hypothetical case he thinks that... he knows that there... what he's doing is illegal, and he knows that it's illegal because he doesn't have a license.

He's not sure if the license is State or Federal.

And your answer to Justice O'Connor and I think also to Justice Scalia was, he has to know that it's a Federal requirement.

Mr. Adler: --That's correct.

Unknown Speaker: And I'm asking, why would Congress want to exonerate him in the first instance where he thinks it's a State license.

What possible function is served by that?

Mr. Adler: Part of the background to the enactment of the so called FOPA statute in 1986 reflected, as the legislative history indicates, a concern by the Congress.

A 7-year effort was mounted in order to react to complaints from those who were gun enthusiasts who believed that, since the 1968 statute went into effect, the Federal Bureau of Alcohol, Tobacco, and Firearms had been too overzealous, had targeted unfairly, and basically come down upon those who enjoyed utilizing firearms, going to gun shows and the like.

The basis of--

Unknown Speaker: What was that statute you said, the FOPA statute?

Is that what you said?

Mr. Adler: --Firearm Owners Protection Act.

[Laughter]

And, indeed... and, indeed, the very statute, I respectfully submit, Justice Scalia, sends the message to the court of the intent of the drafters of the Congress.

It was intended to provide protection to firearm owners, dealers, and the like.

It was intended to make it more difficult for the Government to convict individuals of violating the statute, and this particular subdivision, and the only subdivision which is before this Court in this case, deals with the section of the statute which, following a textual analysis, chose the mens rea standard of wilfully, a--

Unknown Speaker: Mr. Adler, supposing you were to accept, hypothetically, the idea that all that was required under (D) was to know that there was a licensing requirement, be it State or Federal, the district court, as I understand this case, charged that the Government is not required to prove that petitioner knew that a license was required.

I would think even if you accepted hypothetically the idea that it could be knowledge of a State requirement, that instruction would be contrary to that view.

Mr. Adler: --That is correct, Mr. Chief Justice.

As a matter of fact, Justice Trager, in denying the request to charge, I think wrote the ticket that brings me before your... this panel today.

On page 18 of the appendix Justice Trager directs me, go to the Supreme Court and see if they agree, I will not put the end to this statute, and so at that request I have brought myself to Washington to urge this Court to give meaning to subdivision (1)(D), which indicates that a wilful standard, which as Justice White, writing in Cheek v. the United States, indicated was a voluntary, intentional violation of a known legal duty, and in this case the known legal duty is the duty to have a Federal firearm dealers license.

Unknown Speaker: Mr. Adler, why do you need to put Federal in there.

If I read from the charge, in this case the Government is not required to prove that petitioner knew that a license was required, nor is the Government required to prove that he had knowledge he was breaking the law.

Why can't you just say, whatever the wilfulness means, it can't mean that he doesn't have to know he was breaking the law, he doesn't have to know the license was required, and why are you making this yes, you must know that it was a Federal law?

Our federalism may be a big thing here, but not all the public appreciates that distinction.

Mr. Adler: I appreciate that, Justice Ginsburg and petitioner respectfully submits that, under the charge as given to this jury, and presuming that the jury followed the law, you're absolutely correct that petitioner should prevail.

The Government's view could not be found based on the trial court's charge.

Unknown Speaker: Well, but you didn't raise that issue.

That's not one of the questions presented.

Your questions turn entirely on the need to prove a Federal--

Mr. Adler: Yes.

Unknown Speaker: --firearm dealers license--

Mr. Adler: Because we do not--

Unknown Speaker: --That's all you brought here.

Mr. Adler: --Right.

Unknown Speaker: Now, the instructions may have been totally bad, but we don't reach that, presumably.

We address--

Mr. Adler: Well, it's the second question.

Unknown Speaker: --Well, I don't think it is.

Your second question, was the jury's... was the jury charge deficient because it failed to require a finding of petitioner's knowledge that a Federal firearm dealer's license was required.

Mr. Adler: Yes, and petitioner's position is that the Congress lacks the power to create a Federal crime for failing to follow a municipal county or State statute that may relate to dealership and, indeed, the legislative intent in the statute was clear.

The villain perceived by the drafters of the amendment... and there was a unique legislative history, 7-year effort, a discharge petition getting this legislation out of the Judiciary Committee.

This was clearly a regional effort of those who were close to gun users and possessors who wanted to trim the tail of the Bureau of Alcohol, Tobacco, and Firearms.

The legislative debates, with the greatest respect, Justice O'Connor, are devoid of an indication of a concern that the firearm enthusiasts had a problem with State or local individuals, so the statute was clearly aimed at the Federal Bureau of Alcohol, Tobacco and Firearms.

We have a troika of three reasons which basically support our... petitioner's view that knowledge of licensure is required.

The statutory title telegraphs the intent of statute... Firearm Owners Protection Act... in the same way that the Clean Water Act telegraphs a congressional intent to take a strong line to protect the environment and to hold corporations to a higher standard of proof.

The plain wording of the statute, the use of the word wilfully as opposed to the use of the term knowingly in other sections, of section 924 also sends the very same message of congressional intent.

And lastly, the congressional report which, as the Chief Justice has noted on prior occasions such as in Garcia v. The United States, is marked as the defining document to which the Court, if it reaches legislative intent, should look indicates that the Congress was on notice... Representative Hughes in the floor debates indicated if you adopt wilfully you're going to require knowledge of the licensing requirement... that Congress was aware of it, and they voted it, and they inserted that language into the statute which was passed and signed into law and became the law of the land.

In addition--

Unknown Speaker: Did the President know about it, too?

Mr. Adler: --In addition to the knowledge of the--

Unknown Speaker: Do we know if the President knew about it?

Mr. Adler: --We must presume that all officials, including the President, had knowledge of the law and followed their duties.

Unknown Speaker: Why don't we do that for Congress?

Mr. Adler: In addition to the contextual analysis that we have spoken to, the statute itself, 924, uses knowingly as noted on three other occasions.

Interestingly, the statute itself, when it speaks to sales by gun dealers to out of State individuals, inserts a presumption that the seller of the firearms to an out of State buyer is presumed to have knowledge of the law... Section 922(b)(3)... once again supporting the notion that the Congress understood that it was actual knowledge that was necessary.

And, to the extent that there might be a class of individuals who would not necessarily know the law of the sister State from which the buyer had come, Congress inserted a presumption in order to deal with that situation.

No presumption is found in subdivision (D), once again indicating clear support that whether the Solicitor General's Office is comfortable with that view, the Congress knew what it wanted and it intentionally made prosecutions more difficult.

Unknown Speaker: How much weight do you put on the distinction between knowingly, the word knowingly, the adverb in sections (A), (B), (C), and the word wilfully in section (D)?

Mr. Adler: Oh, I think the use of wilfully in subdivision (D) connotes the highest mens rea standard that our law, our criminal law recognizes, whereas knowingly speaks to only an awareness of one's acts, or conduct.

When we speak of wilfully violates, and the section says a provision of this chapter, it is much similar to Justice Ginsburg's opinion for the Court in Ratzlaf v. the United States.

Wilfully modifies not conduct but this section of this chapter, so when we see wilfully married to a chapter, a clause, a section, then we know that the Congress has telegraphed the intent that wilfully modifies in this case the chapter, and it is knowledge of the chapter which the statute requires.

Unknown Speaker: Well, now, you say that we know that Congress has married wilfully to the chapter.

I must say I don't quite follow that.

Mr. Adler: Well, a reading of section 924(a)(1)(D) indicates, most respectfully, that it punishes those who wilfully violate any provision of this chapter, and so the use of the term, wilfully violates any section of this chapter, connotes it is wilfully violates the chapter, not wilfully engages, or knowingly engages in certain conduct.

The prior three subdivisions, most respectfully, we concede speak to merely engaging in knowing behavior and not wilful behavior.

Unknown Speaker: And you say knowingly simply means you're aware of the act that you're performing.

Mr. Adler: And don't act by reason of mistake or misapprehension of the law, but so it's clear, we concede that one could wilfully violate this chapter by engaging in what is frequently called conscious avoidance behavior of a kind such as if there were a sign posted in a gunshop and a particular defendant operated through what is sometimes called straw purchases, sending in an accomplice to purchase the weapon.

That would provide no defense in a prosecution for wilfully, because the individual acted in a way to consciously avoid gaining knowledge that was readily apparent.

Unknown Speaker: I thought they were straw persons used here, and there was misrepresentation of the purchaser's criminal record and, unlike Ratzlaf and the Cheek case, where the conduct looked okay, except that there was a statute that said no structuring on the one case, but here the whole thing looks bad, doesn't it?

Mr. Adler: Well, there are individuals who can engage in conduct that may violate a provision of law, or simply is inappropriate behavior.

The question is, does it violate this section, which requires proof of knowledge of licensure.

Certainly, the Government could have proceeded on a proper charge to prosecute the defendant for crossing State lines with defaced firearms, for making false statements and aiding and abetting in the false statements.

They chose not to proceed under those subdivisions.

They chose the highest burden, that he knew that he required a dealer's license.

Unknown Speaker: But Mr. Adler, is it not correct that one could still draw a distinction between knowingly and wilfully?

Knowingly would mean you just knew what you were doing... you didn't know whether it was illegal or not, but you knew you were doing these various act... and wilfully, requiring a proof that you knew you were violating the law, without adding a still additional requirement that you had to know exactly what law you were violating.

Mr. Adler: Well, it's not our contention, Justice Stevens, that you have to know exactly what--

Unknown Speaker: Well, you can know that there's a Federal licensing requirement.

Mr. Adler: --You have to know it's a Federal licensing--

Unknown Speaker: Why?

Mr. Adler: --and... because the wilfully in this case is followed not by a description of specific factual behavior, it is coupled with the use of the term, wilfully violates this chapter, and this chapter is speaking to in this case the Federal firearm dealers license.

Not every transaction is a per se violation of this section.

One is only a... covered as a, quote, dealer within the meaning of this statute if one engages in purposeful activity and so on, so the Congress was clearly concerned about--

Unknown Speaker: So you're not merely relying on the difference between knowingly and wilfully, and (A), (B) and (C) versus (D), you're also putting heavy reliance on violates any other provision of this chapter.

Mr. Adler: --Exactly.

Unknown Speaker: You'd read into that he must know he's violating--

Mr. Adler: As--

Unknown Speaker: --That's not a necessary reading, but certainly I understand your position.

Mr. Adler: --Yes, and the--

Unknown Speaker: You'd say if it meant the other it would have been written, or should have been written, wilfully... wilfully sells a gun without a license.

That would arguably be different.

All you would have to know is that selling the gun without a license was unlawful under some law.

Mr. Adler: --Yes.

Anything less than actual knowledge will not suffice.

The Congress could have used the word--

Unknown Speaker: Well, wilfully selling a gun without a license wouldn't necessarily mean that you knew you had to have a license.

You wilfully... you're still wilfully selling the gun.

Mr. Adler: --With the knowledge that you're intentionally violating a known legal duty.

In this case the known legal duty is the acting without a Federal firearms dealer's license.

Unknown Speaker: But known legal duty also can mean knowing that you have a legal duty, so you are violating... you don't have to necessarily know which one.

Suppose I... suppose that's my view of it, that wilfully means you have to know that what you're doing is a violation of the criminal law.

Suppose I think that.

Then you lose this case?

Mr. Adler: No.

It... you have to have the... what the statute penalizes is knowledge of the dealer's license.

The fact that there may be other sections that you suspect--

Unknown Speaker: No, you're not following what I'm saying.

I'm back to where Justice Ginsburg and Justice O'Connor were.

I believe... in fact, I probably do believe this, that wilfully means you must know that your conduct is in violation of a criminal law, not which criminal law.

Most criminals are not familiar with the U.S. Code in depth.

What they think... but it is possible to say that they have to know that what they're doing is a violation of Federal criminal law.

I also think, as Justice Ginsburg might have suggested, that this instruction is ambiguous in that respect, that it certainly could be read as saying, you can convict this person even though he did not know that what he did violated the criminal law.

But then I'm with Justice O'Connor.

I don't see your objection to that, and so that's what I would like you to respond to, and that was my question.

If taking the view I just take, do you win, or do you lose?

Mr. Adler: --We take the position that 1) under the judge's charge the Government cannot prevail because even the standard that the court would suggest, generalized knowledge that there's some section of Federal law prohibits the behavior--

Unknown Speaker: All right.

Now would you go to the point that I think Justice O'Connor raised, which is instruction request number 8 does not seem to request... it seems to request an instruction that he has to know the U.S. code, and then I didn't see here anywhere an objection to the instruction the judge actually gave, and that's why I started this out thinking you must win because the instruction's ambiguous, but I'm not certain that's right.

Now I think maybe you must lose.

So since I've thought you must win, then I think you must lose, I think that I'd like your response.

[Laughter]

Mr. Adler: --The charge is deficient and was objected to.

The request to charge focused the court... we cited to Ratzlaf indicating that it is knowledge of the licensing requirement that had to be charged.

That charge was not given.

The judge went further.

He told the jury that the defendant did not have to know of the licensing requirement and did not have to know he was breaking the law, so under this charge he took the issue out of the case that you suggested, and we objected to that.

Unknown Speaker: You objected to, he did not have to know he was breaking the law?

Mr. Adler: Yes, and indeed our request to charge asked the Court to make it clear that this defendant, who was learning disabled and acting in a State which has no licensing requirement in Ohio to begin with, certainly had no basis to know that there was a Federal--

Unknown Speaker: I've read... I've read number--

--You objected in some manner other than filing the requested charge, which insisted upon knowledge of the Federal--

Mr. Adler: --Yes, and we had a charge conference, and we objected to it.

Unknown Speaker: --Fine.

Is that in the record?

Mr. Adler: Yes.

Unknown Speaker: Where?

What I've read here is page 17, which has your request number 8, which has the details in depth about you have to know the U.S. Code.

Then I believe that you said the word objection, but where is it that you... you know, district judges are busy, they don't catch every mistake, and so someone has to say to the judge, judge, you've made a mistake.

The particular mistake that you've made is... and then you spell it out so he understands it.

Where is it?

Mr. Adler: I don't have that charge reference with me here today, Your Honor.

I can supply it to the Court in a post argument submission.

But I do recall the charge conference did have specific discussions, and I did take exception, and it was at that point that it prompted Justice... Judge Trager to indicate, take it to the Supreme Court, so it was in that exchange--

Unknown Speaker: In other words, you're saying that even assuming that you'd lost the battle over Ratzlaf you made the further objection that this instruction is wrong--

Mr. Adler: --Yes.

Unknown Speaker: --even under the Government's theory?

Mr. Adler: Yes, we do, and we respectfully submit that where the Government is coming from on this case is attempting to hold that guns are inherently dangerous substances, and relying on cases like Balint, that deal with narcotics, hand grenades, such as United States v. Freed, and silencers, such as in the cases, the circuit court cases cited in our brief.

And it's a position, we respectfully submit, which is wholly unsupported by the history of decisions by this Court.

The area itself is constitutionally protected, the Second Amendment, and in the context of decisions that Congress has made in other areas it has used wilfully in a very sparing way.

They know how heavy this burden is.

They've used it, for instance, in areas such as this.

They've used it in the OSHA area.

There's a recent Seventh Circuit case, United States v. Ladish Moulting, a Judge Easterbrook opinion that came down the end of January, that once again indicates how sparing the wilfully standard is.

Once again, the Government's position would have been better had they prosecuted under a different section, or a subdivision of section 924 that had a knowing requirement and not a wilfully requirement.

In terms of the Government's view they have created the veritable straw man.

They ask the Court in effect to feel sorry for the heavy burden that they have because they selected a particularly difficult section with the highest known burden of proof.

The standard that they urge this Court to adopt is a general knowledge of unlawfulness.

This invites the greatest conjecture and speculation on the part of lay jurors.

It is a standard that was never submitted to this jury.

It is a standard that will not be found, we respectfully submit, in the House debates, in the committee report--

Unknown Speaker: But you say it was never submitted to this jury, but the instruction... one of the sentences says, a person acts intentionally if he acts deliberately and with the specific intent to do something the law forbids.

That submitted that to the jury.

Mr. Adler: --But then unfortunately the court at the same time then instructed the jury that in the context of deciding mens rea knowledge and intent the jury should know that the defendant was not... need not be shown to have known the licensing requirement or, most importantly, Justice Stevens, the knowledge that he was breaking the law.

This is a... the type of a charge I would respectfully--

Unknown Speaker: Well, the instructions are internally inconsistent, and the Government... the Government argues, in effect, that the message was the one that I described, and the question, though, is whether you really focused on that narrower objection, because the portion of your objection that's quoted on page 18, right before the judge says take it to the Supreme Court, relied entirely on the absence of an instruction about the licensee.

That's what you... you call attention to Ratzlaf right there.

Mr. Adler: --Yes, in the context--

Unknown Speaker: I haven't found in the papers that we have the narrower objection to the--

Mr. Adler: --Yes, sir.

Unknown Speaker: --You know what I'm talking about.

Mr. Adler: Yes, sir, I do.

I simply want to point out that the Government urges the difficulty of convictions, cases such as United States v. Rodrigues from the Fifth Circuit, cited in our brief United States v. Allah out of the Second Circuit, provide the kind of fact patterns which we respectfully submit under a fair and correct charge can result in verdicts that are sustainable by the courts of appeal and sustainable by this Court.

We respectfully submit that this is nothing more than a red herring in order to encourage the court to give the Government a lesser burden of proof.

In essence, what the Government has done here in its brief today is to argue the reverse of Bates v. the United States.

In Bates, it was the defense that argued that this Court should somehow read something more into a statute dealing with the fraudulent use of student loan moneys.

Now, the statute indicates wilfully violates this chapter and the Government says, well, you should read something out of it.

Our textual argument on behalf of petitioner recognized that the bar is set for all.

It does not vary.

If it helps the defendant, so be it, if it hurts the defendant, so be it, that's what the Congress wrote, and accordingly we respectfully submit that the Government's approach ought not be followed.

Before I sit down, reserving the balance of my time, I simply want to indicate in response to Justice Stevens' question that we rely on Francis v. Franklin as an example of the case of internally conflicting jury instructions as a basis for this Court granting relief under the charge.

The Government does not argue harmless error.

Indeed, under Sullivan v. Louisiana we respectfully submit they could not, and we respectfully urge this Court to reverse the conviction, and remand it to the United States Court of Appeals for further proceedings.

Thank you very much.

Unknown Speaker: Thank you, Mr. Adler.

Mr. Jones, we'll hear from you.

Argument of Kent L. Jones

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

In 1992 petitioner began making repeated trips from New York to Ohio, where, with the aid of several accomplices, he submitted false information on Federal forms.

He surreptitiously purchased numerous semiautomatic pistols.

He undertook to conceal these acts by filing the identification numbers off the guns, and then he transferred the guns to New York, where he sold them for a profit at weed spots on street corner locations in Brooklyn.

Now, these facts lie at the very heart--

Unknown Speaker: He's only 19 and he had a hard childhood, though.

Would that solve something like this?

Mr. Jones: --I'm not... I can't endorse that conclusion.

I'm not... I do know that he was... I think that he may have been 19 at the time that he committed this offense.

This... these set of facts lie at the heart of the statutory--

Unknown Speaker: Well, wilfully means something more than knowingly, so we have to figure out--

Mr. Jones: --Yes.

Unknown Speaker: --what it does mean, and in any event the instructions seem to be totally confused.

Mr. Jones: Well, let's start--

Unknown Speaker: They could be said not even to require knowingly, so I don't know where we are on this case.

Mr. Jones: --Let's start with what wilfully means.

Since this Court's decisions in Murdock, Screws, and Thurston the Court has described what a wilful behavior is.

Wilful behavior is an act taken with the bad purpose to disobey or disregard the law.

It is act taken with what the Court described in Murdock as an unjustified indifference to the requirements of the law.

Unknown Speaker: Well now, Mr. Jones, do you think the word wilfully just has a uniform meaning no matter what the other context in which Congress has used it?

Mr. Jones: No.

It clearly has a meaning that can depend upon context.

Unknown Speaker: And here you have it juxtaposed with three previous sections, all of which used the word knowingly.

Mr. Jones: Yes, and the word knowingly, as this Court has said in cases like Staples, is simply knowledge of the facts.

Unknown Speaker: Knowledge that... conscious of your actions.

Mr. Jones: That's right.

Knowledge of the facts that constitute the violation.

The ordinary definition of wilfulness is something in addition.

It is knowledge of those facts plus action taken with the bad purpose to disobey or disregard the law.

I mean--

Unknown Speaker: Wilful--

Mr. Jones: --wilful behavior is.

Unknown Speaker: --Just a minute, Mr. Jones.

Mr. Jones: Yes, sir.

Unknown Speaker: Actions taken with a bad purpose to disregard the law.

Does that mean knowing that the law prohibits something?

Mr. Jones: It could include that, certainly, but it could also include the situation where someone is, as the Court said again in Murdock, unjustifiably indifferent to the requirements of the law.

It is... if you think about where the word wilful comes from, wilful behavior, what does that mean?

It means doing what you want to do because you want to do it without sufficient concern for the interests and rights of others.

Unknown Speaker: Well now, how does a judge charge the jury?

Without sufficient concern for the law, what on earth does that mean?

Mr. Jones: Well, the basic charge that this Court has approved in cases like Pomponio is exactly the charge that the Court gave, which is--

Unknown Speaker: This confused--

Mr. Jones: --Not all of it, but the portion of the charge the Court gave that says that the act must be with the... the Government has the burden of showing that the act was with the bad purpose to disobey or disregard the law.

I mean, that's the fundamental elementary concept.

Unknown Speaker: --Well, okay.

Now, you... let's think that through.

The bad purpose to disobey or disregard the law.

Does that mean knowledge that the law prohibits it?

Mr. Jones: Certainly that would satis--

Unknown Speaker: Well, I mean, answer my question.

Mr. Jones: --It includes that, Justice... Chief Justice.

It includes that.

If you have knowledge of what the law is then you are disobeying it.

If you--

Unknown Speaker: But what else does it include?

Mr. Jones: --Well, it can include an appreciation or an understanding that's short of knowledge that there are legal requirements that apply here.

That is what the Court talked about in Murdock as indifference to the law.

Unknown Speaker: How would one prove in a trial that a person was indifferent to the law although not knowing that it was violative of the law?

Mr. Jones: The--

Unknown Speaker: He failed to look up the U.S. Code?

Mr. Jones: --Well, no.

The Court has approved something quite different from that.

What the Court has approved in cases like Spies is... would be exactly applicable here, and that is that evidence of concealment or of covering up of illicit activity is the type of evidence that shows a bad purpose to disobey or disregard the law.

Unknown Speaker: So if you act furtively, that would--

Mr. Jones: Furtively, or as Spies said, to cover it up or to hide it.

Now, in only two cases has this Court imposed a higher standard for wilfulness, the standard for which the petitioner argues, which is a knowing violation of a known legal duty, and in those two precise contexts the Court made clear that it was adopting a special rule for the special facts of the statutes that were then before it.

Unknown Speaker: --That's the tax case--

Mr. Jones: The tax cases--

Unknown Speaker: --and the welfare... the food stamps?

Mr. Jones: --No.

The tax case in Cheek, and the structuring case in Ratzlaf, and the special reasons that the Court said justified this higher standard in those particular contexts just don't apply here.

In Cheek the Court was concerned about an Internal Revenue Code that applies with intricate complexity to almost every facet of the economic life of every citizen.

Unknown Speaker: I... let me think that wilful sometimes means two totally opposite things, sort of like unpeeled.

I mean, let's forget the instance where it means intentional and knowing, you know, words meant to be very broad.

Let's focus only on the instance where it's supposed to mean something more than knowing, all right.

Now, focusing on that instance, which I think we have here, I go back to the Chief Justice.

We could say, in order to clarify earlier cases, that the defendant, the jury must be charged the defendant must know that he is violating the law, though not which law, criminal law, and add, of course, reckless disregard for the law in this instance, i.e., reckless disregard for whether or not there exists a criminal law that forbids it is equivalent to knowledge.

Mr. Jones: Or is a sufficient substitute for it.

Unknown Speaker: Or... now, we could say that.

Mr. Jones: And you have said that.

Unknown Speaker: If you... if we said that, is there anything in your opinion that would wrongly be left out?

Mr. Jones: I think that that sort of description can be found in decisions like--

Unknown Speaker: I'm not asking whether it could be found.

Mr. Jones: --Well--

Unknown Speaker: I'm asking, if we clarified it in that way--

Mr. Jones: --You're--

Unknown Speaker: --is there anything that would be wrongly, in your opinion, left out?

Mr. Jones: --I... the only... the only... the hesitation that I have is that the Court has adopted a variety of formulations that address this ordinary meaning of wilfulness, and I'm a little bit uncomfortable in saying that you can pick out a single one of them and be certain that it accomplishes everything that the Court has done with the other formulations.

For example--

Unknown Speaker: Another thing we could say... could we say this, because you can't think of an example.

Mr. Jones: --That's true.

Unknown Speaker: Could you say, it includes... normally it means--

Mr. Jones: Yes.

Unknown Speaker: --Normally it means you must know the legal duty, as in this case, know that there is a legal duty.

We leave up in the air whether there could be instances where they are equivalent to knowledge, though not actual knowledge.

Is that, in your opinion, what the Court should say?

Mr. Jones: No.

I think that it's... that you can act with indifference to a legal requirement that you do not know, as you may have been intending when you used the word, and so I think that's precisely why the Court has adopted broader formulations.

I want to... I think one thing that's a little bit confusing here is the fact that the statute talks about what is criminal as a wilful violation and petitioner says, oh well, how can you wilfully violate a law if you don't know what the law means?

The answer to that is in the Court's opinion in the International Minerals case, where the Court had a similar statute, and what the Court explained was that that is a shorthand.

When Congress says wilfully violate A, B, C, D, E, F, G, which is essentially what it did here, that that's a shorthand for saying wilfully engaged in the conduct that is proscribed under A, B, C, D, E, F, G, and so what we're focusing on here is, what is the wilful behavior, and--

Unknown Speaker: Well, except that that conflates it, it seems to me, with knowing, and we weren't trying to distinguish knowing and wilful, were we?

Mr. Jones: --You have distinguished knowing from wilful, and we want to make... I want to be clear on that, especially since this the statute distinguishes it.

Unknown Speaker: No, but did we do it... and I just don't know the answer to this.

Were we distinguishing those two terms in the case that you cited?

Mr. Jones: In Murdock... Murdock would have been a statute that contained separate offenses for knowing and wilful, but that's not the issue there.

Unknown Speaker: I guess my only point is, sure, I can understand circumstances, textual circumstances in which it would make perfect sense for us to explain wilfully just as you have done.

The tough thing for me here is, that sounds like a shorthand for knowingly in a statute that uses knowingly, and if we've got to make the distinction, it does not seem to me that that is a legitimate distinction, is a legitimate definition for wilfully when we've got the two of them together in the same statute.

Mr. Jones: Well, what this Court's cases have explained to me in reading them is that the Court has distinguished between a knowing violation in cases like Staples and Freed, which is simply proceeding with knowledge of the facts that constitute the violation, and a wilful violation in cases like Murdock and Screws and Thurston, which is knowledge of the facts plus action with taking those acts with the bad purpose to disobey or disregard the law.

There is an additional requirement to wilfulness that's beyond knowing, but it's not, except in two exceptional circumstances, this higher level of specific proof of--

Unknown Speaker: Mr. Jones, I'm not sure Ratzlaf is an exception, because there the violation was structuring the transaction in a way that--

Mr. Jones: --That's--

Unknown Speaker: --evaded the reporting requirement, but the... my understanding of the facts was that the defendant in that case didn't even know that it was unlawful to structure the transaction.

He knew about the reporting requirement, but he didn't know that evading the reporting requirement was prohibited by a criminal statute, so even that case, it seems to me, fits your general category.

Mr. Jones: --Yes.

The peculiarity of the statute in Ratzlaf was that the statute contained as part of its substantive element this additional bad purpose to disobey or disregard the law that was the... that is the component of wilfulness, and since the statute contained both wilful, and then this language about, for the purpose of evading the law, what the Court said in Ratzlaf was, we have to give wilfully in that statute a special meaning, or it will be surplusage.

Unknown Speaker: Well, I'm not sure it even needed a special meaning, other than the meaning you have here, because the assumption was that a person would not necessarily know that breaking up a $100,000 transaction into $10,000 components was itself prohibited, and that had to be found in order to satisfy the ordinary definition of wilfully.

I mean, I don't--

Mr. Jones: Especially since the statute only applied if it was with the purpose of evading the other requirement.

Unknown Speaker: --Right.

Are you going to talk about the ambiguity of the instructions under any test?

Mr. Jones: Yes.

Yes.

The... first of all I want to point out that we certainly agree with Justice O'Connor that this aspect of the contention that this portion of the instruction was invalid wasn't raised or preserved below.

Unknown Speaker: Do we have that?

I mean, are we supposed to get the record on that?

I mean, I imagine we'd get it and look at it, and when I go and look at the charging conference, they say when we look at the charging conference we'll discover that they did object.

Mr. Jones: Petition... the charging conference is not in the record to the... whatever--

Unknown Speaker: Well, we can get the record, can't we?

We can get it.

Mr. Jones: --But our point is beyond that, and frankly I don't mean to stand here telling you that I am certain whether he's wrong about what he says he may have said at the charging--

Unknown Speaker: All right.

If he said that, then why doesn't he win?

Mr. Jones: --Because he didn't raise it in the court of appeals and he didn't raise it in this Court in the question presented.

The question presented... I mean, his point throughout this case has been, he was entitled to an additional instruction that the Government had to prove that he had a knowing violation of a known legal duty.

He wanted to use the Ratzlaf, the Cheek special rule which doesn't apply in this case.

Now he's saying, well, but accepting the Government's understanding of what a wilful violation, this instruction doesn't do it.

That's not a contention raised in the court of appeals nor in the question presented in this Court.

Now, is the instruction adequate to do what we think it's supposed to do?

Unknown Speaker: Just before you get there, when the defendant proffers an instruction, which he did, and it's rejected, and the judge then gives his instructions, does he have the duty to make the further objection?

Mr. Jones: He has a duty to preserve the objection for sure, and I think he should... yes, he should object to each instruction given that's inconsistent with his theory of the case, but beyond that he has to raise it in the court of appeals.

He has to present it as a question for this Court to properly preserve it.

Unknown Speaker: I was talking just about at the trial, at the trial court level.

Mr. Jones: At the trial court he should object to any instruction that he thinks is improper.

Now, what he did was, certainly what the record in this Court and the court of appeals reflects is that he asked for an additional instruction, which was denied, and it was denial... the denial of that instruction that has been the focus of this case.

Unknown Speaker: No, he--

--It's a little hard for him to object when he's already in disagreement with the whole theory of the instruction and say, well now judge, even if you're right you're still wrong.

That's a little hard--

Mr. Jones: Litigants bear the burden--

Unknown Speaker: --to do in the trial context.

Mr. Jones: --Well, that's precisely for the reason the court mentioned.

Litigants bear the burden of focusing the court on any defects that they believe--

Unknown Speaker: Mr. Jones, he did object on page 18 of the joint appendix... he objected, but he gave as the reason for it the failure to require specific knowledge of the license.

Now, the question whether that preserves this objection is a little different than--

Mr. Jones: --If it hypothetically preserved the objection at that point, it has been waived by not raising it in the court of appeals or in this Court.

Now, is the instruction adequate to accomplish what the Government thinks that it should have done, and the answer to that is, as the Court knows, you have to look to the context of the entire instruction.

And that rule is especially applicable here, because the language that now defendant objects to is both preceded and followed by language that directs the jury to determine that this particular defendant acted with the bad purpose to disobey or disregard the law.

And it's also accompanied by an instruction that says, which we think is clearly correct, that the Government doesn't have to prove he had specific knowledge of the Federal licensing requirement, and to us the two sentences that follow that he didn't... that we don't have... that the defendant doesn't have to be shown to have known about the licensing requirement or to have intended to violate the law refer to that specific law, the Federal licensing requirement.

Unknown Speaker: --What about this one?

It says, nor is the Government required to prove that he had knowledge that he was breaking the law.

Mr. Jones: I believe that's the sentence that follows the instruction.

Unknown Speaker: Yes.

Mr. Jones: That he doesn't have to... the Government doesn't have to show that he had--

Unknown Speaker: That's right.

He's applying what he's just said to this case.

Mr. Jones: --Yes.

Unknown Speaker: And he says in this case the Government is not required to prove that the defendant knew that a license is required.

Mr. Jones: That's correct.

Unknown Speaker: Nor is the Government required to prove that he had knowledge that he was breaking the law.

It's pretty hard to take the words following the nor and say they meant the same thing as the words preceding the nor.

Mr. Jones: Well, in the context of this instruction which, as I said, was preceded by the clarity that you don't have to... the Government doesn't have to prove he had specific knowledge of this requirement, it's our understanding that this adequately informed the jury that the witness... that the defendant does not have to have been shown to have known that by not having a Federal license his conduct was unlawful.

And that's followed again by the instruction, but the Government does have to show that he did something... that he acted with the intent to do something that was unlawful.

That is, that he acted with the bad purpose to disobey or disregard the law.

Unknown Speaker: Are you prejudiced in any way if we were to say, take your interpretation of wilfully and then say that on... even on that interpretation the judge didn't apply it because of the language I quoted?

If we thought that--

Mr. Jones: It would just be the expense and delay.

It would not be a fundamental prejudice, because the fundamental--

Unknown Speaker: --I mean, you've argued it, I mean.

I notice the last point in your brief argues that the thing was correct.

Mr. Jones: --Yes.

I mean, we believe that--

Unknown Speaker: Yes.

Yes.

Mr. Jones: --I mean, instructions are reviewed with a certain amount of latitude for the realities of the concrete problems that the court has addressed, and especially when we don't have this objection preserved throughout the case.

It seems inappropriate for the court to try to parse the instruction at this point to come up with a better one, because it's almost always possible to come up with a better one--

Unknown Speaker: This was not urged in the court of appeals.

Mr. Jones: --No, sir.

Nor is it within the scope of the question presented in this Court.

I would like to address a couple of arguments that weren't... that I didn't hear made--

Unknown Speaker: Mr. Jones, do I understand that to the extent that the defendant made requests to charge and they were denied it's not necessary to say exception after that.

If the request is denied, then it may be that it wasn't raised on appeal, but there's no further need to--

Mr. Jones: --We're not contending that he can't continue to raise the objection that he wanted the instruction that was denied.

We're just saying he didn't preserve any objection to the instructions that were given.

In the brief, petitioner relies on some pre-1986 cases involving the use of the word wilfully under other provisions of the act and says that those cases reflect that courts had understood this term to talk about knowing violation of a known legal duty before Congress added the word wilfully in 1986 to section 924.

All I want to say about that argument is that the cases that they cite don't support it.

In fact, the principal appellate authority that they cite, the Stein's, Inc. case, applies the longstanding rule that a wilful violation, a wilful behavior is action taken with the bad purpose to disobey or disregard the law, and cites appellate authority of its own circuit, which in turn cites this Court's opinion in Murdock.

So actually, to the extent that preexisting precedent is relevant, it supports the understanding that Congress used the term in its ordinary meaning.

Unknown Speaker: --Mr. Jones, you focus exclusively on the word wilfully, but it seems to me that in lining up all these cases you have to look at what follows wilfully, wilfully what, and it's particularly hard in this case to argue your point.

If it had said, wilfully sells a firearm without a Federal license, then I think it's much easier to say he did it with a bad purpose, with a bad intent, what not, but it says wilfully violates... wilfully violates a provision of this chapter--

Mr. Jones: But actually--

Unknown Speaker: --and that just brings to mind, you know, knowledge that he is violating the provision of this chapter.

Mr. Jones: --Justice Scalia, that's the point I was addressing earlier about the Court's opinion in the International Minerals case, that the right way to read this statute is that it... that what has... what Congress has proscribed is a wilful, in this case dealing in firearms without a license, because what the statute says is, wilfully violate any other provision of this chapter.

And what Congress... I mean, what this Court said in International Minerals that phrasing means is that it's a shorthand, that it's a simplified way of essentially adding wilfully to each of those other subsections and making it a crime, and so the statute--

Unknown Speaker: With the same... the same... the very same text?

Mr. Jones: --Yes.

It said... the text that was involved in the International Minerals was wilfully violate any regulation, and in the Court's... and the Court said, well, that doesn't mean that they knew that it was a regulation they were violating.

It means that they knew that their conduct was wilful, and so you... I'm sorry.

That case--

Unknown Speaker: Was that a statute that also had a... had knowingly--

Mr. Jones: --Actually, that was what I was about to correct myself.

What that statute said was knowingly violate a regulation, but what the Court explained was that knowingly violate is just a shorthand way of saying, knowingly doing the acts that are elsewhere in the statute described as violations of the acts, and so... and that it was simply a shorthand.

Congress doesn't have to write for each of these criminalizations of various violations of the subchapter a separate subchapter that says, and knowingly... and knowingly dealing in firearms without a license, and knowingly doing this and knowingly doing that, or wilfully doing this.

That's the point of the International Minerals case, and Congress surely can rely on that decision in its choice of draftsmanship.

The legislative history of this statute, if it--

Unknown Speaker: --You flatter Congress to think that they had that case in mind in--

Mr. Jones: --Well, I certainly think--

Unknown Speaker: --this careful drafting that they do.

Mr. Jones: --They're entitled... I would think that they would have that case in mind, because it's not uncommon for Congress to have this sort of provision that... about a--

Unknown Speaker: But that's a case that doesn't have knowing, for some section, wilful for others, and so would you just clarify once more what the difference would be if this statute had read knowing instead of, as it does, wilful?

You agree that wilful adds something, and I don't understand quite what that something is.

Mr. Jones: --A knowing violation, this Court has said in numerous cases, is acting with knowledge of the facts that constitute the violation.

For example, in Staples it was acting with knowledge that this thing that the guy had was a machine gun.

It doesn't mean that he had to know that it was improper for him to have such a machine gun.

He just had to know that it was one.

Whereas a wilful violation would be knowing that it was a machine gun plus holding it with the bad purpose to disobey or disregard the law.

That's the ordinary meaning of wilful.

Unknown Speaker: In other words, knowing that there was some law that prohibited this.

Mr. Jones: That would certainly be evidence of the bad purpose--

Unknown Speaker: No, but what else would suffice?

What else would suffice?

Sure, it would be evidence.

What else would--

Mr. Jones: --This Court has never really tried to answer that question except--

Unknown Speaker: --Well, we're trying now.

[Laughter]

Mr. Jones: --No... well, maybe you are, but you've answered it only indirectly by saying, as in Spies, well clearly evidence of concealment, covering up would be sufficient.

Unknown Speaker: Because that is circumstantial evidence that he knew what he was doing was prohibited by some law, so ultimately that gets us I think to a standard that says there's got to be knowledge with some degree of specificity that he is violating the law in doing these acts which he understands he's doing.

Mr. Jones: I don't think that there has to be evidence of that.

I mean, that may be where--

Unknown Speaker: Well, that is the conclusion--

Mr. Jones: --I'm having trouble--

Unknown Speaker: --that has to be drawn.

That is what the jury ultimately has to find, isn't it?

Mr. Jones: --Yes.

The jury ultimately has to find, as they were instructed in this case, that the action was taken for the purpose of disobeying the law or disregarding it.

Unknown Speaker: The purpose--

--That presupposes that you know there's a law that you are disobeying or disregarding.

Mr. Jones: I think that the general knowledge instruc... the general knowledge articulation given by the court of appeals in this case is directed at that.

What they're trying to describe is a sufficient knowledge.

It may be of the law.

It may be of some fact.

It is a sufficient knowledge that it is appropriate to find that this particular defendant acted with the bad purpose of disregarding the law--

Unknown Speaker: Why do you keep saying--

Mr. Jones: --acted, as the Court said in Murdock, with unjustified indifference to it.

Unknown Speaker: --Why do you keep saying purpose, because again, if we're supposed to clarify, it seems that purpose isn't right.

I mean, the defendant here didn't want to violate the law.

He would have been perfectly happy if the law had made what he did legal, I guess, or many would, so why do you... normally people wouldn't have the purpose to violate the law.

They would have the knowledge that what they are doing is a violation of law, so why do we want to say purpose?

Mr. Jones: One of the formulations the Court has given is, with the bad purpose or evil intent of violating the law.

Unknown Speaker: Well, is there any reason to use--

Mr. Jones: It's a blameworthiness standard.

We're talking about something that's sort of like fundamental to the criminal law, that the party has done something blameworthy, and that the court has used numerous formulations to accomplish that essential goal.

And our own... and what this case is really about is whether there's any requirement that we have some extraordinary standard that applies in this particular case, and for the reasons our brief said, and that I've tried to summarize, no, the extraordinary standard isn't applicable.

The ordinary standard is.

And if I can't tell you exactly what that ordinary standard is, it's because this Court has given us several different descriptions of it, and so if I were to say that only one applied, I think it would be an incomplete description, because criminal blameworthiness is maybe not something that is capable of crystalline definition.

Unknown Speaker: --Yet criminal statutes are supposed to be clear, are they not?

Mr. Jones: Well, it's... I think jurors in their common experience understand what wilful behavior is, and certainly this Court has long upheld statutes that impose that as an element of the offense.

Unknown Speaker: Are you suggesting the judge just read them wilful and not define it for them?

Mr. Jones: The purpose of instructions is to assist the jury.

I think that the instructions that the Court approved in Murdock and in Pomponio about bad purpose to disobey and disregard the law, it appears in form instruction manuals.

I think it assists the jury.

Unknown Speaker: No, but the question was, does he have to instruct them at all?

Do you simply--

Mr. Jones: Pardon me?

Unknown Speaker: --I think Justice Ginsburg's question was, is wilful sufficiently clear so that there is, in fact, no need to instruct at all?

Just say, got to act willfully, period.

Mr. Jones: I think some assistance is appropriate.

The Court has always approved the instructions for wilfulness.

I mean--

Unknown Speaker: It's sort of like, beyond a reasonable doubt.

Mr. Jones: --Perhaps.

I mean, I frankly... I don't know the criteria that the court applies in deciding whether to give an instruction.

I've never seen that discussed.

But certainly I can tell you that the court has customarily given instructions on terms like wilful.

Unknown Speaker: But the reason you've said purpose... I'm thinking of the clarification, my impression of what you just said.

Tell me, is... and I... is it if we were to abandon the word purpose, there's an... there are a large number of books there that have that word purpose in it, and that would make you... that's your reason.

Is that right, basically?

I mean, is that what--

Mr. Jones: I don't--

Unknown Speaker: --I'm trying to pin down what's making you nervous about it.

Mr. Jones: --You've asked me what my reason was.

I didn't have that particular reason in mind, but now that you've mentioned it I certainly think that that would be a problem.

Unknown Speaker: Yes.

Mr. Jones: It would be... the Court's treading here over decades of statutes, and it's important that we don't reinvent the wheel in a way that maybe leaves a spoke out that we need somewhere and that, frankly, I'm not in a position to describe at this point.

Unknown Speaker: Thank you.

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

Unknown Speaker: Thank you, Mr. Jones.

Mr. Adler, you have 3 minutes remaining.

Rebuttal of Roger B. Adler

Mr. Adler: Petitioner waives rebuttal time.

Thank you for your time.

Chief Justice Rehnquist: Very well.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Muscarello v. United States - Oral Argument

Fri, 09 Jan 2009 14:50:01 +0000

Case:

Muscarello v. United States

Media File:

96-1654_19980323-argument.mp3

Related Transcript:

1997_96_1654_argument.xml

Transcript:

Argument of Robert H. Klonoff

Chief Justice Rehnquist: We'll hear argument first this morning in Number 96-1654, Frank Muscarello v. United States, and Number 96-8837, Donald E. Cleveland and Enrique GraySantana v. United States.

Mr. Klonoff.

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

This case raises the issue left open in Bailey v. United States, what it means to carry a firearm under 18 U.S.C. 924(c)(1).

Petitioner submits that for four principal reasons carries a firearm means, bears a firearm on one's person.

First, the plain meaning of the phrase, carries a firearm, directly supports petitioner's position.

Dictionaries repeatedly and consistently equate carries a firearm with having a firearm on the person.

Second, the Government has not cited a single dictionary that defines the phrase, carries a firearm, to mean transporting or possessing a firearm in a vehicle.

Instead, the Government improperly isolates the word carry, rather than looking at the specific context, carries a firearm, but although the term carry has multiple definitions, this Court has made clear in Deal v. United States and elsewhere that when a dictionary offers multiple definitions, all but one of those meanings is ordinarily eliminated by context.

Here, the context is carries a firearm.

Third, the Government's view would make carries a firearm the same as transporting a firearm, but section 924(b) and numerous other gun provisions use the word transport, showing that Congress knew how to get across the concept of transport when it wanted to.

Unknown Speaker: Do any of those other provisions speak of transport in relation to a crime of violence, or a drug crime, or is it just transport in the abstract?

Mr. Klonoff: Well, there are a whole variety of provisions, Justice Souter.

I guess one that comes to mind is 18 U.S.C. 926 (a), which talks about transporting, shipping or receiving a firearm or transporting a firearm for any lawful purpose from any place where he may lawfully possess and carry such a firearm.

That is the closest analogy.

Unknown Speaker: For an unlawful purpose, you say?

Mr. Klonoff: No, it does not use that--

Unknown Speaker: For a lawful purpose.

For a lawful purpose?

It's a crime to transport it for a lawful purpose?

Mr. Klonoff: --Not... transporting, shipping or receiving for any lawful purpose from where he may legally possess.

Unknown Speaker: But it--

--That's a crime?

Mr. Klonoff: Yes, Your Honor.

Unknown Speaker: I didn't realize we'd gone that far yet.

[Laughter]

In any case, I take it the other references to transport as a prohibition did not make the limitation that this prohibition has on carries.

Mr. Klonoff: Not in that precise terminology, that's correct.

Unknown Speaker: So that to read it as the Government would read it I think probably would not, therefore, just duplicate, in effect, all of the other prohibitions on transportation, correct?

Mr. Klonoff: Well, we think that it would.

In fact, the Government itself in its--

Unknown Speaker: Maybe I'm not getting my point across.

I thought the reason that it wouldn't was that there's a limitation.

There's a restriction here, in relation to a drug crime or crime of violence, and that restriction does not occur in the instances in which transportation is specifically prohibited in other parts of the statute.

That's the only point that I'm trying to--

Mr. Klonoff: --No, I understand, but the during and in relation to is a separate component, but in terms of the meaning of the word carry we think that it is instructive to look at the other statutes.

Unknown Speaker: --I still don't think you're understanding Justice Souter's point.

He's saying that just as you say the word firearm must be taken into account in determining the meaning of the word carry because that's part of its context, so also the phrase, in relation to a crime of violence or a drug offense must be taken into account in gathering the meaning of carry, because that is part of its context.

Mr. Klonoff: Oh, I agree with that point, Your Honor.

Unknown Speaker: Okay.

Now, the second question is, are there any other statutes that have similar language?

Mr. Klonoff: No, there are not.

Unknown Speaker: I can't imagine that there's none that says it's a crime to transport a firearm for an unlawful purpose--

Mr. Klonoff: There's no--

Unknown Speaker: --from a statute that makes it a crime to carry it for a lawful purpose.

Mr. Klonoff: --There's no statute precisely like that, Your Honor.

That is the answer.

Unknown Speaker: With reference to carry, the definition of firearm includes a missile, a rocket launcher--

Mr. Klonoff: Yes.

There is a broad--

Unknown Speaker: --Do you have to carry the rocket launcher in your vest pocket?

Mr. Klonoff: --No, and that is correct, Your Honor.

There are some types of firearms as defined in 921 that you couldn't physically have on your person, of course.

Unknown Speaker: Or a land mine.

Mr. Klonoff: That's correct.

Of course, the definition of firearm in 921 is for the entire Chapter 44, and it's not surprising that there may be situations that don't fit every circumstance, and that would--

Unknown Speaker: So then if you had a land mine in your... in the trunk of your car or in the back of the utility vehicle, that would be carrying it?

Mr. Klonoff: --It would not be.

Our definition of carrying is limited to on the person.

There are some kinds of firearms--

Unknown Speaker: So there are some kinds of firearms that cannot be carried and therefore there's no violation of the statute, in your view?

Mr. Klonoff: --Well, there could be a violation for using in those circumstances, or--

Unknown Speaker: Transporting.

Mr. Klonoff: --Exactly, under other provisions, so there are a number of ways you could get at the same conduct.

If Congress wanted to--

Unknown Speaker: But are there any statutes in which Congress has defined something like firearm, punishing its carrying, but then the firearm is so defined that it cannot be carried?

I don't understand how that works.

Mr. Klonoff: --Well, it only... as I said, it only applies to a small number of the firearms contained with the definition of 921(a)(3), and again we don't think it at all surprising that when you have a statute that's applied to the entire firearms chapter, that there may be one or two types of firearms as defined that you could not physically carry on your person.

That is a problem for Congress to fix under the proposed legislation, which would expand to include possession.

That would be encompassed, and I would submit that's a problem that Congress has to fix.

There are some oddities of the statute under any possible interpretation, but we don't think that the mere fact that some conceivable type of firearm could not be carried on the person should inform this Court's interpretation of the words, carries a firearm.

Unknown Speaker: What about Judge Trott's view that whatever line is drawn here it would make no sense to say to the savvy criminal, hide the gun and you're home free.

Just don't keep it on your person.

Keep it where you can get at it when you need it.

Would that be a sensible line to attribute to Congress?

Mr. Klonoff: Judge Trott's analysis is entirely flawed.

If the Court looks at his opinion, he talks about the absurdity of a situation where somebody has a gun on his person and then puts it on the car seat and all of a sudden he's scott free.

That's not at all the position we're arguing.

We're not focusing entirely on the point of arrest, and if the Government can prove to the jury that the individual had the firearm on his person at some point during and in relation to the crime at issue, he would be prosecuted.

So in Judge Trott's example, there is adequate evidence under petitioner's definition of carries a firearm to convict that person.

Now, let me just respond, though, to Your Honor's question.

I submit that Judge Kozinski has it right in terms of what the everyday criminal thinks, and he thinks of carrying a firearm as packing heat, and I would give the Court an example that illustrates the point.

Two individuals are in a car.

They're on the way to engage in a bank robbery and they're very close to the scene.

The gun is under the back seat, or in the trunk, or wherever.

One individual says to the other as they're getting ready to pull up, hey, are you carrying the gun?

Where the gun is in the trunk or in some other place, no one would say, yes, I'm carrying the gun.

He'd say, no, it's in the trunk.

Unknown Speaker: Well, let me ask you this.

Suppose the person with the gun physically had it in his hands and put it in the car in order to go and have a drug transaction and in order to have a weapon available to facilitate carrying out the drug transaction.

You say the person would have carried the gun when he was putting it in the car.

Mr. Klonoff: Depending on the crime.

For a crime of possession with intent to distribute, that's correct.

He had the gun on his person.

He would be carrying it.

He could have--

Unknown Speaker: Well, I mean, carried it for use at the time the drug sale is made, for example.

Mr. Klonoff: --Yes, during and in relation to.

Unknown Speaker: So can he be charged with carrying the gun because he carried it to the car, where he then put it where it was not immediately available?

Mr. Klonoff: Under our view yes if... as long as the Government can also show the during and in relation to, and for example, a possession with intent to distribute situation, where you're putting drugs in the car, you're putting your gun in the car, seems to me there's more than sufficient evidence there, and again, that's why I think Judge Trott's analysis is faulty, because in many of those situations you will have sufficient evidence of carries a firearm on the person.

Unknown Speaker: In every case, Mr. Klonoff, where you have a drug in the trunk... a gun in the trunk, a gun in the glove... someone carried it and put it there, so under your analysis, much would depend on how we define in relation to.

I mean, how far back can you go.

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

That is true.

In our case, though, there was a gun in the locked glove compartment.

There's no evidence of when it was put there, and the Government couldn't conceivably make the argument that that gun was carried to the--

Unknown Speaker: So it follows from your analysis that the informed drug dealer will have a drug... will have a gun in his car at all times, when he goes shopping, when he goes to church, and when he distributes the drugs.

Mr. Klonoff: --If he's reading up on the statute that might be correct, but again, that's a problem--

[Laughter]

And that goes back to what Judge Trott said.

But the point is, is that those oddities, we submit, are for Congress to fix.

Unknown Speaker: What are the oddities?

That's... I mean, I carry plants in the back of my car in the trunk, I think, haven't I, when I go to the nursery, pick up the plants, put them in the trunk, carry them to my house.

I always thought I was carrying the plants.

Mr. Klonoff: Again, that's contextual--

Unknown Speaker: All right.

Mr. Klonoff: --and I our point is, is when you're talking about the phrase--

Unknown Speaker: But what I really want to know is, I'm pointing out I don't find that odd.

I do find it odd, as you do, that if there really are things like you see in the movies, you know, big gangsters with huge guns guarding the place, that that wouldn't fall within the statute.

We both find that odd.

What are the oddities on the Government's interpretation?

You said that was odd, and I'm not certain... I want to know--

Mr. Klonoff: --Well, there are--

Unknown Speaker: --I want you to focus on what those are.

Mr. Klonoff: --There are several.

First of all, under the Government's own theory, since movement is required, if an individual was sitting on a couch and the gun's next to him, he's not carrying it, so there's immediate access but the Government says it's not carried.

Secondly, it's not clear whether the Government's position--

Unknown Speaker: Or, indeed, even if it's on his person, so long as he hasn't moved it, I suppose.

Mr. Klonoff: --Exactly, that's right.

Unknown Speaker: If he gets one of his confederates to come and hand him the gun and he puts it--

--So there are oddities of omission, but is there any oddity of... is there any oddity that is produced... if we accept the Government's interpretation, does that produce anything odd?

Mr. Klonoff: I think it does.

For example--

Unknown Speaker: What is that?

Mr. Klonoff: --I don't think the Government's position applies to a passenger.

I think it only applies to the person in control, so you'd have an odd situation of the gun sitting next to the passenger who's orchestrating the entire drug transaction.

He's not carrying it, but the driver would be.

If I could save the balance of my time for rebuttal.

Unknown Speaker: Very well, Mr. Klonoff.

Mr. Zalkind, we'll hear from you.

Argument of Norman S. Zalkind

Mr. Zalkind: Mr. Chief Justice, may it please the Court--

In deciding Bailey, you have given those of us who labor in the fields of criminal law a clear line definition, and we're asking for the same with the word carry.

We're asking for really the ordinary and plain meaning of the word carry in context of firearms, and of all the cases that I've read I haven't heard about rocket launchers used in drug transactions in any of the circuit cases.

We're really talking about firearms, portable firearms, and that's bearing on the person.

Unknown Speaker: Well, in days gone by if some rider had a gun in the scabbard on his saddle, as used to be the day when I lived on a ranch, is that person carrying a weapon?

Mr. Zalkind: If it's right on his--

Unknown Speaker: Right there on the saddle.

You know where they put the scabbard on a saddle.

Mr. Zalkind: --I understand that, Justice O'Connor.

I would say, under our definition, that that would not be carried, because it's not on--

Unknown Speaker: Nor would it be if you had it in a wheelbarrow and were moving it from place to place.

Mr. Zalkind: --No, that would not be carried.

If you had... and if you had a locked briefcase, and in the locked briefcase there was cocaine and there was a Mack 20, one of these fierce firearms that was mentioned in Smith, that would be carried.

Unknown Speaker: Why do... why when I put the... I mean, this is what... because I so often use the words, I put a flower plant or something for my wife in the trunk, and I feel I'm carrying that to my house, and why, in the plain meaning of the words, if instead of a... I hope I wouldn't do it... instead of a flower plant, it happens to be a case of rifles that we're using to... for the big drug transaction.

[Laughter]

Why am I not carrying that?

I mean, if I'm carrying the plant, why wouldn't I be carrying the case of rifles?

Mr. Zalkind: Because we're talking about statutory interpretation and we're--

Unknown Speaker: That's true, so that's--

Mr. Zalkind: --talking about a narrow meaning of the word carry, which is bear on the person, and we're--

Unknown Speaker: --I guess you can carry a grudge, you can carry a tune, you can carry a whole lot of things and it has different meanings, depending on--

[Laughter]

--what you're carrying, right?

That's your point.

Mr. Zalkind: --Justice Scalia, I totally agree with you.

Unknown Speaker: But I'm... my problem, to be specific, and I'm trying to get an answer to this, is whenever I would think of an anomaly, and I've been trying to think of them, is it seems to me the anomalies tend to be taken care of on the Government's interpretation by the words, in relation to a drug transaction, so I really haven't, once I play with those words, found anything odd about the Government's interpretation, and that's why I'm asking you to tell me if I... if I adopt the Government's interpretation and work with those words, in relation to, does it produce any odd result?

Mr. Zalkind: Yes, because the Government's... Justice Breyer, the Government's interpretation is basically a transportation interpretation, and you're talking about the trunk of a vehicle.

What about the ocean liner?

What about the double truck, where you have the double caboose?

What about the caboose at the end of the railroad line?

What about the power boat that is 20 feet, and then it's 40 feet, and then it's 75 feet?

What about the... I sail on racing boats.

What about the 50-foot racing boat, and it's a trimaran, and you're out on the furthest end of the trimaran, and that's where you could carry firearms.

Unknown Speaker: But under your view you say that putting it in a wheelbarrow and pushing it isn't carrying.

How about one of these luggage containers that's on a little strap and wheels?

Not carrying, I guess, huh?

Mr. Zalkind: That's becoming closer, Your Honor, because we're talking about on the person, and once you have that luggage that you're carrying right with you, that's not really a separate... that's right on the... that's very on the person.

Unknown Speaker: A purse would clearly qualify, wouldn't it?

If a woman carried a gun in her purse, that would qualify?

Mr. Zalkind: Justice Scalia, that would qualify.

Unknown Speaker: You make the purse a little bigger and it's a suitcase, and would that qualify?

Mr. Zalkind: If the person is carrying that suitcase?

Unknown Speaker: Yes.

Mr. Zalkind: Justice Scalia, that would qualify, but if the wheelbarrow... we would say there's a line draw... that's a--

Unknown Speaker: The line is between the suitcase and the wheelbarrow?

Mr. Zalkind: --No, between the body.

[Laughter]

Between the body.

We would include, for instance, if you had 10 layers of clothes, and there would be a firearm that you... that was in... under the 10 layers, that would be carried, even though you would not have immediate access.

Unknown Speaker: There are going to be fine lines we have to draw no matter whose version of the statute we interpret.

Mr. Zalkind: Chief Justice, that's correct, but the version that we're suggesting is the easiest and it has the easiest line to draw.

Congress, if they want to make possession a crime, then they... and they're trying to right now.

They can add the word possession if they want to, or they can add the word transport, but the line that we're drawing is the easiest, and you did it for us in Bailey.

We know--

Unknown Speaker: But what about the Government's argument that your client loses in any case, because your client went to a shop, purchased a gun for the specific purpose of having it with him in this drug deal, carried the gun in his hand to the car, so your client, whatever it might be in another case where the gun was just in the car, your client carried the gun to the car.

Mr. Zalkind: --Justice Ginsburg, I most respectfully disagree with you, because he did carry some firearms to the car, but it wasn't in relation to a drug crime at that time.

It hadn't... he... that issue was never raised.

Unknown Speaker: So you say that doesn't present a carry problem.

It is carried, but not in relation to.

Mr. Zalkind: Not in my case.

I... if a drug connection was really evolving, it... let's say the drug transaction started down in Symphony Hall, and he had some guns hidden in a building near Symphony Hall, and once he made the conversation with the drug dealers they really knew they were going to a motel, and he went over to a building, grabbed his guns, and brought them and threw them in the trunk at that... while the drug transaction was moving, that would be different.

But in my case, sometime earl... much earlier in the afternoon, when he didn't know that where there was going to be a meeting, what the quantity was of... what the negotiations were, was he going to get the drugs fronted or was he going to rip the drugs off, there was no specific plan, he was charged with an attempt to commit possession with intent to distribute cocaine.

He wasn't... the other charges were dismissed.

That's the charge that he made a conditional plea to, so in our case he would be not guilty.

There are cases that if it's all within an immediate activity, during the drug transaction, yes, I would agree with you, Justice Ginsburg.

Unknown Speaker: You seem to be taking the view that the inrelationto has to be specific to the transaction as it finally turned out.

Why should that be?

Why can't in relation to simply refer to the general subject matter?

If he put the guns in the trunk for whatever use they would turn out to be to him in whatever drug transaction he succeeded in engaging in, why isn't that enough for in relation to?

Mr. Zalkind: It isn't because there's no... he could have been arrested at the... when he carried the guns to the car and charged with the specific crime of attempting to possess with intent to distribute cocaine at that time.

He could have been arrested by the State of Massachusetts for possession of firearms, but he couldn't have been arrested for during a drug crime, because the drug crime wasn't--

Unknown Speaker: I didn't say anything about during.

I said... I was asking you why it is not sufficient for the inrelationto prong to prove that he put them in the car for whatever use they might turn out to be in whatever drug transaction he succeeded in engaging in.

He didn't know, on my hypothesis, what that transaction would be exactly, but he did know that he intended to engage in a drug transaction.

Why, under those circumstances, is not the inrelationto prong satisfied?

Mr. Zalkind: --Well, every single drug transaction where there are firearms at some point, and I think it was mentioned by one of the justices before, somebody would be bringing the guns to the car, and they're just not committing a crime at that time.

Just because--

Unknown Speaker: Well, what's--

--Well, that's... that's--

--the language of the statute?

At 924(c) it says whoever during and--

--And.

Mr. Zalkind: --In relation--

Unknown Speaker: --in relation to any crime of violence or drugtrafficking crime uses or carries a firearm.

They have to go together, do they, during and in relation to?

It has to be both.

Mr. Zalkind: --Justice O'Connor, I agree with that.

Unknown Speaker: Yes, but isn't--

Mr. Zalkind: During and in relation--

Unknown Speaker: --the point that he is committing and that he has taken the substantial step so that he has committed the crime of attempt when he starts loading the guns in the car?

Mr. Zalkind: --Justice Souter, not if he doesn't place them at or near the scene of the crime.

When he placed the firearms in the car, that was not... that would not be considered--

Unknown Speaker: Well, I don't have to be near the scene of the consummated crime to engage in an attempt, if I take a substantial step somewhere else.

Mr. Zalkind: --Most respectfully, we would disagree with you, Justice Souter.

You would have to take a... the substantial step would be if the instruments of the crime were placed there at or near the scene of the crime that he's attempting.

If you get burglarious instruments and you don't go to the place, you just have, you know, hammers and tongs, you're not going to be committing that crime.

If you decide in your mind you're going to murder someone and you get the firearm and you put it in your car and you're going to go looking for this person, at that point you're not committing an attempted murder.

It's only when--

Unknown Speaker: You haven't taken the substantial step at that point?

Mr. Zalkind: --You have not.

Even though you... but you are guilty of the possession of the firearm, but that's a separate... that's a State statute, or it could be a Federal statute, but it's not this case, 924(c), or I gave... given hypotheticals relating to other kinds of crimes.

Unknown Speaker: If we had just the word, in relation to, I should think that the modifying phrase has something more than a temporal aspect to it, that it's pragmatic as well if it... it's accessible if it facilitates the drug offense.

During does seem to be mostly a temporal term.

Mr. Zalkind: Justice Kennedy, I would... if I understand the word temporal, because I don't want to say something that I don't totally understand, but as I understand what you're saying I would agree with you that it's an active... it's an active word, and it does... we would prevail under that definition, as we would prevail under immediate accessibility, but we think immediate accessibility is another transport excuse.

To carry, you don't have to move the firearm.

You can carry a firearm by just having it inside your pocket.

As the examples were made both in... both in Bailey and Smith as to what carry would be, and although that's not totally instructive to us, it is saying something.

Unknown Speaker: You say, are you carrying any money to somebody, and even though they're standing still they would say, yes, I am carrying money.

Mr. Zalkind: Chief Justice Rehnquist, I agree.

If you have the money in your pocket you are carrying money.

If you have even an unloaded firearm in your pocket, you are carrying a firearm, and the... what the transport theory does is, it might convict someone that has an unloaded derringer in the trunk, but it won't convict the big drug dealer that has an automatic machine gun in the next room that's sitting there, so... I mean, not that that has... we have to draw a line somewhere, but I just want to point out our thinking about this.

Again, there's no linguistic reason to define carry as an auto... as transporting, and pure transport has enormous problems, as I think we've pointed out to you.

Unknown Speaker: Suppose you define carry as transport but omit the meaning of transport that means ship.

In other words, transport some... it's transport, but not arrange for transport.

Mr. Zalkind: Well, Justice Breyer, then you... you're adding to the interpretive problems even further.

You're getting into ambiguity with that, and if you're getting into ambiguity we start to think about the Rule of Lenity, because we're talking about very serious crimes.

In the Cleveland and Gray case, they got 10 years to begin with.

Forget about the firearm.

They start off with 10 years of their lives, and now we have this enormous minimum mandatory 5 years that's going to be added, and if they're not convicted of that the judge could have... in that case he could have used the guidelines, bump it up two more levels anyway.

So it isn't that the trial judges don't have power to penalize bad behavior, but we're talking about carrying firearms, a sort of narrow class of separate minimum mandatory crimes for people that are being severely punished, so--

Unknown Speaker: Do you accept the Kozinski line that it's not... doesn't have to be on the defendant's body, but if it's right next to him where it's within handsreach--

Mr. Zalkind: --Justice Ginsburg, no, we don't accept that line, although if you accept that line, then we would prevail.

But again, that's another transport exception, because there is that movement that Justice Kozinski eloquently states in his en banc decision, and we're saying that no, that that would not be carry.

That would be the line that's drawn, would be at that point.

Even though it was within immediate access, that would not be carry, and I think that's consistent with the Bailey decision.

And again, once those lines are drawn--

Unknown Speaker: --So if a defendant starts out with the gun in his pocket, and in the course of the ride to the scene of the deal puts it on the seat, then the statute doesn't apply?

Mr. Zalkind: --Justice Ginsburg, if there was, for instance, somebody in the back seat, and that person ended up cooperating with the Government and said, look, we're driving along in the car and he sees the police and he flips the gun beside him, he's be... he'd be guilty of carrying, because his is during, in relation to a drug crime.

But if it just so happens he puts the gun on the seat, he might be guilty of use, because if somebody comes over and they see that gun and says, now--

Unknown Speaker: I think you've answered the question, Mr. Zalkind.

Thank you.

Mr. Zalkind: --Thank you.

Unknown Speaker: Mr. Feldman, we'll hear from you.

Mr. Feldman, do you know if criminals still talk about packing heat, or has Judge Kozinski been watching too many Bogey movies?

I--

[Laughter]

Argument of James A. Feldman

Mr. Feldman: I haven't... I'm not aware of the continued use of that phrase, no.

The Government's position is that Congress used the term, carries a firearm in section 924(c) in its ordinary sense, to refer to all of the means by which a firearm would ordinarily be said to be carried.

Now, it is--

Unknown Speaker: I think the Government has some problem just in the colloquial sense of the word.

You ask a person, are you carrying a gun, you know, and the person I think ordinarily thinks that means on your person.

Mr. Feldman: --I... Mr. Chief Justice, I think a lot depends on when it's asked.

If you imagine a case where a policeman stops a motorist and says... walks up to the motorist and says, are you carrying a firearm, I don't think the motorist would have to stop to think if he wanted to answer honestly, is it on my person, did I put it on the seat, is it in the trunk or in the glove compartment, did I lock the glove compartment.

Unknown Speaker: I'm not sure I agree with you.

Mr. Feldman: You don't think... I... well--

Unknown Speaker: Maybe my eight colleagues do, but I'm not sure that I do.

Mr. Feldman: --At least our feeling, and it's consistent with standard dictionary definitions, that if you ask someone if they're carrying a gun in their car they would say either yes, or no, depending on whether the gun was in the car.

Unknown Speaker: If you ask them if they're carrying your gun in the car, yes.

But what if you ask them just, are you carrying a gun?

Mr. Feldman: No, I think the same answer would... I think the same answer would be true even if you said if you're carrying a gun, in a circumstance where you're talking about where that seems the reasonable reference.

If you're talking... going up to someone walking on the street, they'll likely interpret that to mean on the person.

Unknown Speaker: Most dictionaries seem to... which I'm sure we've all been looking at since this case arose, they seem to say two different things.

They say carry means to convey or transport as in a cart or a car, and also they say, to have or bear about one's person, as a watch or a weapon, locomotion not being essential.

I mean, they seem to have both concepts in there, so which one do we look to, and do you think movement is required?

Mr. Feldman: Our position is that Congress intended it to refer to both, and that movement is--

Unknown Speaker: So someone with a gun in a pocket who's sitting in a chair and not moving is covered under your definition?

Mr. Feldman: --Yes, and I'll tell you why.

Ordinarily the word carry, with its etymological roots and its many common usages, refers to locomotion, but because common experience tells us that people move a lot, unlike vehicles, which sit parked in garages or at the curb for long periods of time, I think the concept that you have to have movement at a particular moment with a person has kind of dropped out or become vestigial.

And as a result when it's talking about carrying it on a person, although in point of fact if movement were required it wouldn't make any difference, because people do move, and the inference that someone has moved, if they have one on their person, would be very, very strong, but--

Unknown Speaker: Well, if the weapon is in the car, in the Government's view is movement required?

Mr. Feldman: --Yes, and my only qualification I would give for that, if the defendant is just storing a gun in the car in his garage, for example, I don't think that he's carrying it.

If the car is in the process of moving from one place to another and stops at a red light for a minute, or is in the... a process of movement--

Unknown Speaker: Well, the car stops, so the drug transaction can be carried out.

There's no movement at the time, during the drug transaction.

The car is parked.

Mr. Feldman: --Right.

At that time I would say he's still carrying it.

If there's a course of movement that's going on and this is part of it I think the defendant is still carrying it at that time.

Unknown Speaker: And what about--

--But if he--

--the overlap between carry and transport?

Mr. Feldman: I... carry and transport, as the dictionaries, as every dictionary I think recognizes, there is a lot of overlap between the terms, but there's a couple of features that clearly... I think three things that clearly distinguish them.

First, carry requires that the person who's carrying it accompany the item that's carried.

I don't think transport requires that.

Second, carrying is more commonly used, and this may be just a question of connotations, but where the person who's doing the carrying also intends to use it, it's much more common to say that it's carried than used, and an example I'd give simply would be, if you're talking about a flashlight that maybe in the glove compartment of a car, it would be unusual for somebody to say, I transport a flashlight in the glove compartment of my car.

I don't think it would be unusual to say, I carry a glove... a flashlight in the glove compartment.

Unknown Speaker: Well, what do you do about two people in a vehicle in the Government's definition?

There's a driver and there's a passenger and there's a gun in the glove compartment.

Who's carrying the weapon?

Mr. Feldman: I think it's usually... those cases are resolved in terms of who has dominion and control over the gun.

It may be one or the other, or both.

Unknown Speaker: Well, who has it, in the Government's view, driver, passenger, weapon in glove compartment?

Mr. Feldman: I... you know, I don't... ordinarily it would be the driver, but it could easily be the passenger too, or instead of.

It depends on whose gun it was, whether the passenger knew the gun was in the glove compartment, a number of factors.

In other words, in order--

Unknown Speaker: It could be both?

Mr. Feldman: --It could be both, also.

Generally speaking possession, I think, is necessary for either use or carrying, and that would be... you have to look and see who's exercising dominion and control, but they're both responsible for the movement of the car and the movement of the gun.

Unknown Speaker: What about the examples of being in a catamaran, or being in the caboose of a long train?

Is it still being carried?

Mr. Feldman: Our position is that it's still being carried.

It's still being carried because if the gun... it may or may not be in relation to a drugtrafficking offense, but if the gun is being moved from one place to another so that it can be of use and available in a drugtrafficking crime, then it is being carried.

Unknown Speaker: It's very strange for Congress to convey those two quite different meanings.

Number 1, I'm worried about somebody carrying a gun on his person, so that even if he's sitting there stock still, I want this statute to cover him, but I'm also worried about that gun in the caboose, and--

Mr. Feldman: I don't--

Unknown Speaker: --to use the same word to cover both of those things, I find that extraordinary.

Mr. Feldman: --I think... let me approach that in two ways.

One is, the case with the caboose, I do think that would be a carry, but the term, the fact that the term carry, when you get a vehicle that's sufficiently large, the Queen Elizabeth, or something like that, whether... the defendant is in one place, the gun is in another, whether the term carry has some fuzziness in that kind of a case I don't think should affect the fact that in a case like these, which is where you have it in a vehicle and where I think it would ordinarily be said that the gun is carried--

Unknown Speaker: Those cases just make the point more vivid, and the point is, it seems strange... sure, the word can bear each of those meanings, but it seems strange for Congress to pick that word without using an additional word to cover both of them.

Mr. Feldman: --I... yes.

Your Honor, I don't think it is strange, for two reasons.

One is, I do think what Congress was getting at was the act of taking that gun to the scene of a drug transaction, just as the defendants were doing here, and it was not material to Congress whether defendants did that in a suitcase, on their... in a pocket, in the car, in the trunk, or on the seat.

They--

Unknown Speaker: Well, your definition is really... adds very little to the word... makes carry very little different from possess.

Mr. Feldman: --No, I don't think that's true, Your Honor.

Unknown Speaker: The movement is the only thing that makes it different, isn't it?

Mr. Feldman: Right, and I think that that's crucial, because what Congress... as this Court I think recognized in Bailey, what Congress was concerned about was not just criminalizing their possession of someone who keeps a gun in their house and who then... they were worried that that, the fact that someone keeps a gun in their house should not be a predicate liability here if it has no other relationship to the crime or if it's just a matter of intent.

But where someone takes the intentional act of taking the gun and taking it with that person, as these defendants did, so it would be at the scene of the crime... in fact, in the case of Cleveland and Gray, it would be essential to commit that crime because they were intending to rob drugs from another, a dealer, then I think that is the crime that Congress was trying to get at.

It was trying to get at the conduct that's preparatory to the use--

Unknown Speaker: Under your view, can you give me an example of where you are not carrying a firearm but you are using it, so that we can give each of the terms in the statute an independent force?

Mr. Feldman: --Yes.

I would point out... I can.

An example would be where you refer to it, where you display it, perhaps in some circumstances where you trade somebody for it--

Unknown Speaker: Well, how can you do that if it's not in your car or on your person?

Mr. Feldman: --No, well, for example, if it's sitting on a table in your house and sitting out there on the table while you're doing the drug transaction, or not in your house, or some other location, I think that you might be referring to it or displaying it, but I don't think you would be carrying it.

But I would also point out that I think that the same view would hold true if you adopt petitioner's view of the statute.

Unknown Speaker: Excuse me.

You're saying that when we say using a firearm included displaying it, it means displaying it up on the wall?

I thought it meant, you know, hands up.

Mr. Feldman: No, Your--

Unknown Speaker: You know, you're not shooting at anybody, but you're brandishing the firearm.

You think if you have it displayed on the wall, that... you're displaying a firearm, you're using a firearm.

Mr. Feldman: --Your Honor, I was... I answered... I meant to refer to, if it's sitting on a table, for example, and the drugs--

Unknown Speaker: You think that's displaying it.

I don't think that's displaying it.

Mr. Feldman: --Well, we would take the position that it is if the... if you imagine a case where the drugs are being dealt right there, the gun is sitting on the table, it's a very powerful message to whoever's on the other side of the table--

Unknown Speaker: Well, you wouldn't have it on the table so... when either person can grab it.

[Laughter]

Mr. Feldman: --Well, grab... again... you're right, the circumstances could vary, but perhaps somewhere where it's available.

It's quite clear out there in the open where the dealer can deal with it and not the adversary.

Unknown Speaker: The two things I don't see about your definition.

The first thing I don't see... these may or may not be relevant, but I don't see why you say the train, why he's carrying it in the train, unless he happens to be Sidney... who was the person, Averell Harriman or someone, who owned the train and was also the engineer at the time.

Then I guess he's carrying it, but otherwise I would think he's arranging to have it carried.

I don't understand that part, and I also don't understand this last part where you say having it on the person is carry within this, because I would have thought on your theory that's what Kozinski was talking about, packing a gun.

That is, I thought that the second definition in there, in the dictionary, was referring to the instance where there is no physical movement but you say, are you carrying a gun, and the answer to that question is yes, even if the person has never moved an inch, because sometimes carry means packing, and I don't see why you bring either of those two things within your definition.

Mr. Feldman: I think the train, perhaps you're right, it may be it would only be an extraordinary circumstance where a train had a case like that where it would be said to be carried.

I'm really not sure.

As far as on the person, I do think that Congress intended to use the term in all of--

Unknown Speaker: Well, they put use.

That's why use is there.

I mean, certainly it's an odd... I mean, it's in the dictionary.

You go ahead, because I want your answer.

Mr. Feldman: --I was going to say, I think Congress... our basic submission is that Congress intended to use the term in all of the ways in which the term would ordinarily be used to talk about carrying and when it's on the person, if the Court were to hold that there had to be movement, it really wouldn't make very much difference.

I guess... I think that because of common... under common experience people do move very frequently, the word no longer requires much in the way of movement at a particular moment when it's on the person, but if the Court were to hold otherwise that would be satisfactory with us.

Unknown Speaker: You know, words are not normally used in those... in every sense that they can have.

They're usually used in a... you know, there's some line by... I think it's an Ogden Nash line.

He... she made out his purpose up his mind, up her mind and a dash for the door.

I mean, you know, made has all of those meanings.

She made out his purpose up her mind and a dash for the door.

But you don't use words with all three meanings, and I find it strange to think that Congress is going to use the word carry with those two quite different meanings.

Mr. Feldman: I think... I guess I think Congress did, and I'd like to point out that in the numerous authorization statutes that we cite Congress plainly intended to use the word carry to refer to all of those things.

There are numerous statutes that authorize Federal officers to carry firearms.

But equally important, State law consistently recognizes that carry can be used to mean all of those things in a wide range of different contexts and statutes, and--

Unknown Speaker: But this is carry during and in relation to, and--

Mr. Feldman: --That's right, and that is... that is certainly a separate qualification, and things like immediate... not immediate accessibility, maybe, but a degree of accessibility may be relevant for whether it's in relation to a drugtrafficking crime.

Unknown Speaker: --That was the one part of your brief that stymied me was the, and you said, well, as far as Cleveland is concerned, he's out because he carried the gun from the shop to the car, and I thought, trying to fathom what line a sensible Congress would draw, it wouldn't make a distinction based on whether it's the shop clerk that carries the gun and puts it on the seat, or the defendant purchased the gun and carried it out himself.

Mr. Feldman: In our view, both cases... I mean, our primary submission here is that both cases would plainly be carrying, because when he drives off in that vehicle he's carrying the car, the gun in his car.

But I'd like to make one other point about--

Unknown Speaker: Before you get off the example you gave about these other statutes, I think it seems to me that the petitioners have an adequate response to that, and that is that when you talk about permissive statutes authorizing Federal agents to carry guns you can apply the principle that the authorization of the greater is implicitly an authorization of the lesser.

Mr. Feldman: --I agree with--

Unknown Speaker: So that if you author them to carry a gun in the sense of bear it on their person, you obviously authorize them to take it from place to place whether it's in the trunk of the car or on the seat, but you cannot use the greater includes the lesser for criminal punishments.

Mr. Feldman: --But Your Honor, I don't believe that we are trying to use the greater to include the lesser here.

I think you could construe those statutes that way, but you also could look at those dozens of statutes and say that Congress used the natural word there, carry, to refer to a whole variety of things that they were referring--

Unknown Speaker: If there is this amount of different possibilities in the meaning of ambiguities, then surely the Rule of Lenity comes into play somewhere.

Mr. Feldman: --Your Honor, I would think it would, but not in this case, because I don't think there is any ambiguity, any substantial ambiguity in the question of whether you can be said to carry something in a vehicle.

I think that that's clarified by all of the ordinary canons of statutory interpretation.

I'd like to make one point related to the State laws, which is petitioners argue that Congress was unaware of all these numerous State laws and therefore we shouldn't pay any attention to them in construing section 924(c).

Well, when Congress enacted section 924(c) in 1968 it said the statute provided for prohibition of carrying unlawfully during a predicate offense.

When they said carry unlawfully, they were exactly intending to pick up, and they knew that they were intending to pick up State law on carrying.

An unlawful carry was a carry that was primarily in violation of State law.

There were very few Federal laws that governed carrying at the time.

Now, there's no denying that in 1968 there were numerous State statutes that prohibited carrying in a vehicle, and when Congress removed that--

Unknown Speaker: But there were also State statutes that were limited to carrying on the person.

Mr. Feldman: --That's right, and it was only the ones they were... they were referring to State law which plainly recognizes that carrying can... some States it could refer to a vehicle, some States it couldn't, but the term... the ones that we've heard of person say, carry on a person, and the ones that require immediate accessibility say, carry about a person.

Unknown Speaker: Oh, I don't know, it seems to me if I'm a person reading... isn't that the test?

If I'm a person reading a statute, would I be given adequate notice that that's what it's about?

It's a statute making it unlawful to carry a firearm, and you think I'm put on adequate notice that it's if I have it in the trunk of my car I'm carrying--

Mr. Feldman: I think there would be ample notice.

As I said, I think--

Unknown Speaker: --I don't care about State statutes or anything else.

You could have dozens of them, but if the language doesn't give fair notice to whoever's going to be... going to get this mandatory minimum--

Mr. Feldman: --I think if someone were to read this statute and take... and say to his confederate in crime, say, well, you know, let's make sure that we have the gun on the seat of the car and not in your pocket, because if it's in your pocket you're going to be carrying it when we're driving to the drug deal, I think that would be a pretty improbable event, that most likely someone would read the statute and say, there's a severe penalty that Congress has imposed for this, and we should make sure that we're not carrying it, and we can't carry it in the car, we can't carry it on our persons, we can't carry it in any way.

I just want to add, though, about State law that when Congress removed the requirement of unlawfully in 1984 they were plainly intending to broaden the reach of the statute, and so it's really just a little question that from the time the statute was enacted in 1968 until the present, it's referred to carrying in a vehicle as well as carrying on a person.

Unknown Speaker: --May I just... I just want to clear up one very small point that I was unclear about your answer to Justice Kennedy.

You don't take the position, do you, that the two... the term use and the term carry are mutually exclusive?

Mr. Feldman: No.

Unknown Speaker: So you could do one thing that would violate both.

Mr. Feldman: You certainly could.

Unknown Speaker: Yes.

Mr. Feldman: Petitioners have argued that we should... that the Court should construe the term carry narrowly because the Court adopted a narrow construction of the term use in Bailey, but I think that would be turning the reasoning of Bailey on its head.

One of the reasons why the Court in Bailey construed the term use a little bit narrowly was to still leave some room for carrying.

That principle shouldn't be applied here to construe the term carrying narrowly and therefore leave a complete gap in the statute for things that people--

Unknown Speaker: Well, there are separate offenses for transporting firearms.

Mr. Feldman: --That's correct, but the... but nonetheless, when you're... it's true that there are, and those offenses cover somewhat different conduct.

They cover people who give somebody... who consign something to be transported, and also people don't... people don't accompany the item, and also that--

Unknown Speaker: Well, they cover this, too, don't they?

Mr. Feldman: --They'd cover... I think they'd probably cover most of this, that's correct, but--

Unknown Speaker: The transport statutes would cover what happened here, do you think?

I mean, could the Government have charged either of these petitioners with one of the transportation offenses?

Mr. Feldman: --The transportation statute, 924(b), which is the one that's been referred to earlier today, requires that the crime be committed therewith.

You're transporting it with intent that the crime be committed therewith, and I'm not sure whether it would cover these cases or not.

It would depend on whether the crime was actually being committed with the gun, or whether the gun was... it was... whether the gun was being carried in relation to the crime.

Unknown Speaker: Well, you don't need a gun to commit the basic offense--

Mr. Feldman: Right.

Unknown Speaker: --do you?

Mr. Feldman: That's correct, and that's why I'm not sure as... it may depend on the facts of the case.

I'm not sure whether the... whether those... what occurs here and what occurs in the majority of 924(c) cases would be covered by the other... by 924(b).

Unknown Speaker: Well, it also says, or with knowledge or reasonable cause to believe that an offense is to be committed therewith.

Mr. Feldman: Right.

Right, but it's the point... the offense has to be committed with the gun, and that is not the formulation that Congress used in 924(c), where it said during and in relation to.

The gun has to be carried during and in relation to.

But I think most significantly 924(b) is a broader statute because transport is a broader statute and as I said, where... what Congress had in mind was that the defendant him or herself is going to be the one who not only has the gun in the car, but then... with the idea that it will be used at some later date, I think it's much more natural to use the word carry than transport, which refers just to the bare movement from one place to another for some purpose or for somebody else to use it or for all... for all kinds of other possible reasons.

Unknown Speaker: May I go back to the provision, for transportation with intent that the crime be committed therewith.

Would that intent element be satisfied if they transported knowing that they might need to use the gun, but hoping that they might in fact be able to commit, their crime without it?

Would the intent element be satisfied with that state of mind?

Mr. Feldman: You know, I'm not really aware of exactly how that's been interpreted in a case like... I guess... if I can be permitted I'd guess at it, but I'm not sure it's going to be borne out by whatever cases have come up, which is in Muscarello's case it may be difficult to show that it was transported, that the crime would be committed with the gun, because the gun was there to provide him protection during the crime.

In Cleveland and Gray's case I think probably it would be, because they were going to use the gun in order to rob the dealer and... to steal drugs from another drug dealer, and I think--

Unknown Speaker: Well, that does argue, then, for a comparatively narrow reason, narrow reading of carry.

Mr. Feldman: --I don't believe--

Unknown Speaker: Because you don't need... you don't need the broad reading of carry to get the kind of instance which, as a matter of fact, most of our hypotheticals have been describing.

Mr. Feldman: --I don't know... I don't know... it may be that there's an overlap and there's other statutes in title 18 that would cover the conduct of these defendants, and there's a very broad range of different kinds of cases that come up under 924(c), but I think the important point is that the term carry is naturally used to carrying it in a vehicle.

It's been used that way since 1968.

There's... no court has ever said that it's not used that way, and I think that's a reflection of the way that term would ordinarily be used and ordinarily understood by Congress at that time and at each of the times that it's amended the statute since then.

And for that reason I don't... I think that Congress was very concerned with seeing to it that the conduct that leads up to the possible use of a gun, this was... the carrying offense is really meant to kind of take care of the preparation for use, and for Congress it was of no moment whether someone takes a gun, puts it in an attache case, locks it, and carries it--

Unknown Speaker: You say preparation, but the statute says during and in relation.

You say during any crime.

Surely the during has a different connotation than preparation.

Mr. Feldman: --That's correct, but for instance, if the offense is possession with intent to distribute, that's a crime that can be... that can--

Unknown Speaker: Oh, you're talking not just a carry--

Mr. Feldman: --I'm talking about in preparation for the use.

I'm really not talking about, here, in preparation for the crime, and I think what Congress was trying to get at was that if someone takes a gun in preparation to commit a drug offense and puts it in a suitcase... Cleveland and Gray, for example, in this case had taken... they took... they planned to rob the other dealers.

They put the gun in a bag.

They put it in the trunk of their car and waited for the call to determine the rendezvous point where they would meet them.

Now, if they had instead... and it happened it was far enough away they needed to take the car, so they got in the car and drove there.

Unknown Speaker: --But robbery is a separate offense.

Mr. Feldman: That's correct.

Unknown Speaker: That isn't the drug crime.

Mr. Feldman: That's correct, but their drug crime was attempted possession with intent to distribute.

It was going to be their attempt to get the drugs.

But if they had carried... the rendezvous point had been a couple of blocks from where they were and they had carried the bag in their hands rather than in the trunk of the car, it would have made no difference from what Congress was trying to get at in this statute.

What they were concerned was getting that... people taking that gun to the scene of the crime and especially as this Court has interpreted use, I think they didn't want to have to wait until someone actually pulls it out and starts using it in a very active sense in order to say that that... we want to keep that gun away from that drug offense, and whether they take it there in their car, or take it there in a bag I don't think was of great significance, nor should be in interpreting the statute.

Unknown Speaker: Is carrying... the half of carrying that doesn't consist of on the person, is that always transportation?

Mr. Feldman: Yes.

I think... is it always transportation?

Unknown Speaker: Let me tell you why you should say no.

[Laughter]

Mr. Feldman: No, it's not always--

Unknown Speaker: I don't want to lead you into the hole.

Mr. Feldman: --Yes.

Unknown Speaker: But I am sort of bemused by section 925, which says the provisions of this chapter, except for a few sections which are not the one we're talking about here, shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm or ammunition imported for, sold, or shipped to or issued for the use of the United States or any department or agency thereof, or any State.

Now, I suppose that that... you know, if transportation includes carry, I guess that would let the... or if carry is always transportation, the carry section wouldn't apply if you're using a... I don't know, a gun that's been taken from a Federal agent, which wouldn't make much sense.

Mr. Feldman: That may be true.

I'm--

Unknown Speaker: So your answer is no.

Mr. Feldman: --My answer is no.

My answer is no for another reason as well, which is, as I said, I think transportation doesn't require that the defendant accompany the gun, and I think carrying does require that the defendant accompany the gun.

And again, that points out why the... the seriousness of this offense and the reason why Congress wanted to get at carrying, which is, they were concerned with the defendant taking the gun along so that it would be there and available for use at the time when the defendant is prepared to commit a drug deal to possess the drugs, to rip off another dealer, to sell the drugs, whatever it is the defendant--

Unknown Speaker: Your answer isn't really no.

Mr. Feldman: --I beg your pardon?

Unknown Speaker: Your answer wasn't really no, was it?

Mr. Feldman: Yes, it was.

Unknown Speaker: Then I am confused.

You mean that carry is not... does not include trans--

Mr. Feldman: Because I don't think it requires that you accompany the item that's being transported, unless I'm misunderstanding your... in other words, I think--

Unknown Speaker: --I'm sorry--

Mr. Feldman: --carrying usually involves transporting it, but transporting it does not always involve carrying it.

I don't... does that help?

Unknown Speaker: --I thought carrying, at its heart, from Middle English on, was having somebody in a cart, or a car, and we often use the word transportation for that.

Mr. Feldman: That's correct, and I think... I didn't... there's certainly a great overlap between the two words, but there are some different uses.

For example, where you take a gun to have it... to transport it to somebody else in another State, but you're not going to accompany it, I don't think you'd say that you're carrying it in that case.

So there are differences between the two statutes, and there's reasons why Congress would have chosen to treat them differently.

I also think, though, that where it's ultimately intended that the person who's doing the carrying is going to be the one who's doing the using also, it's much more natural to refer to carry rather than use, as, for example, you carry... as I said before, you carry a pen in your pocket, you carry a flashlight in your glove compartment.

You could say you're transporting the flashlight, but I think it's much more natural to say that you're carrying it.

Thank you very much.

Unknown Speaker: Thank you, Mr. Feldman.

Mr. Klonoff, you have 3 minutes remaining.

Rebuttal of Robert H. Klonoff

Mr. Klonoff: Thank you.

The Government's argument in answer to Justice Breyer's question about where are the anomalies in the Government's position, the Government really couldn't answer what happens when a car is stopped, and if it does apply, then the whole theory of transportation makes no sense.

The Government couldn't answer the train hypothetical.

These are going to create enormous linedrawing problems for the, for future courts.

The Government really couldn't explain the passenger situation.

Where does this rule get them if the only person that can be charged under that theory is the driver, so we would submit that the Government--

Unknown Speaker: Well, it seems to me in the great runofthemind cases the gun is in the glove compartment, or in the... in a bag under a newspaper on the passenger seat within easy reach, or even in the trunk.

We don't have too many cases... just like we don't have too many cases with missiles, we don't have too many cases with guns in cabooses, and--

Mr. Klonoff: --There are cases of guns in ships and trains, and there are many, many cases of guns in the back seat between the passengers, and the Government's position is anomalous there.

Now, in response to Justice--

Unknown Speaker: --Guns in the suitcase on the train.

I mean, if you get on a train, you chuck your suitcase up on the rack or in the back of the car.

Mr. Klonoff: --Exactly.

In response to Justice O'Connor's question... this points up Justice Souter's point about the reason for construing carry narrowly... the Government does prosecute transport in precisely these circumstances.

We cite in our reply brief United States v. Albaron, the Fourth Circuit case, exactly the same situation, gun in a glove compartment on the way to a drug transaction, so there are statutes to get at precisely this situation.

In terms of the State statutes, we would disagree with the Government's position.

The Congress was not incorporating the whole sweep of State statutes.

It would be--

Unknown Speaker: No, but on the State statutes let me ask you this question.

There are several State statutes that say carry on the person.

Mr. Klonoff: --There are a few.

Most of the--

Unknown Speaker: Would you not agree that if you're correct the words, on the person in those statutes are redundant?

Mr. Klonoff: --Those few statutes.

There are many statutes that say--

Unknown Speaker: So at least some States thought carry was broader than on a person.

Mr. Klonoff: --Well, most of the States say on or about, and many of them, 22 of them, and they're cited in the Cleveland brief, say on or about, or including broadly, in the vehicle.

Now, those 22 States would be surplusage under the Government's position.

You wouldn't need to say in the vehicle.

So the overwhelming weight of the State statutes, we submit, supports our position and not the Government's, and at most, as was pointed out in the questioning I think by the Chief Justice, all you get from looking at the State statutes ultimately is an application of the Rule of Lenity.

There is no way that you come to the conclusion that the Government's position is unambiguous, so we submit that that whole exercise simply demonstrates why the petitioner should prevail.

Unknown Speaker: May I ask you to comment on one other thing that's kind of puzzled me?

In our opinion in Bailey we said that a person puts a gun next to him during the transaction, it just sits there, that's not use, and one reason why it's not use was, that would leave no room for carry to cover that situation.

Do you think that situation is covered either by carry or use?

Mr. Klonoff: Well, I don't believe that the Court was referring to the situation where the gun was just laying there in terms of carry.

The examples of carry--

Unknown Speaker: Well, he puts... the defendant puts a gun into a place to protect drugs or to embolden himself, were the Court's words, and we all signed on to that.

Mr. Klonoff: --Right, but the Court was not describing carry there.

Every time the Court used--

Unknown Speaker: It was saying the reason that we don't want to read it as use is, that would mean... it would leave no room for carry to cover that situation.

Mr. Klonoff: --Well, I... respectfully, Justice Stevens, I would submit that the Court was not in any way suggesting that carry cover that situation.

The Court's examples of carry in Bailey were always in reference to on the person.

Chief Justice Rehnquist: Thank you, Mr. Klonoff.

Mr. Klonoff: Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

Bailey v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:47 +0000

Case:

Bailey v. United States

Media File:

94-7448_19951030-argument.mp3

Related Transcript:

1995_94_7448_argument.xml

Transcript:

Argument of Alan Edward Untereiner

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.

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.

Unknown Speaker: 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.

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

Mr. Untereiner: That's correct, Justice O'Connor.

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: 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--

Unknown Speaker: --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.

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: --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--

Unknown Speaker: 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.

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: 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--

Unknown Speaker: 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--

Unknown Speaker: --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--

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: No.

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

Unknown Speaker: 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.

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

Mr. Untereiner: There might be aiding and abetting liability for use.

Unknown Speaker: --But you would not be using the firearm.

Mr. Untereiner: No, that's correct.

Unknown Speaker: 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--

Unknown Speaker: 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--

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: Referring to it in the trunk of a car?

Mr. Untereiner: Possibly.

If--

Unknown Speaker: 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.

Unknown Speaker: 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.

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

Mr. Untereiner: Well, use--

Unknown Speaker: It would include--

Mr. Untereiner: --Use will certainly cover things that carry--

Unknown Speaker: --That carry doesn't.

Mr. Untereiner: --doesn't cover.

In Smith, this Court--

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: 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--

Unknown Speaker: 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--

Unknown Speaker: --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--

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

Mr. Untereiner: --924(d) is in our opening brief, the appendix, page 3a.

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: Do you think we followed that in Smith?

Mr. Untereiner: The--

Unknown Speaker: 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]

That--

Unknown Speaker: 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--

Unknown Speaker: Would it be in your view?

Mr. Untereiner: --Yes, it would, Your Honor.

Unknown Speaker: 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.

Unknown Speaker: 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--

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: 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.

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

Mr. Untereiner: Yes.

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: It would.

Mr. Untereiner: A firearm traded as in Smith.

Unknown Speaker: Yes.

Mr. Untereiner: Yes, Your Honor.

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: Very well, Mr. Untereiner.

Mr. Dreeben, we'll hear from you.

Argument of Michael R. Dreeben

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.

Unknown Speaker: 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).

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: All right.

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

Unknown Speaker: His possession.

Mr. Dreeben: --of the drugs.

That's right.

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: 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--

Unknown Speaker: Okay, now--

Mr. Dreeben: --goes to the trunk.

Unknown Speaker: --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--

Unknown Speaker: 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--

Unknown Speaker: 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--

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

Mr. Dreeben: --That's right.

That's right.

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

Mr. Dreeben: That's right.

Unknown Speaker: --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--

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

Mr. Dreeben: --I think that that--

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: Well, that's broad--

Mr. Dreeben: That's right.

Unknown Speaker: --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.

Unknown Speaker: Well, let's concentrate on this crime.

This is possession with intent to distribute, correct?

Mr. Dreeben: That's correct, Justice Ginsburg.

Unknown Speaker: 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.

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

Mr. Dreeben: That's right.

Unknown Speaker: --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--

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

Mr. Dreeben: --That's right.

That's right.

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: --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.

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

Mr. Dreeben: Well, we have--

Unknown Speaker: 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.

Unknown Speaker: 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--

Unknown Speaker: 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--

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: --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.

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: --is this a real--

Mr. Dreeben: We don't think that it was necessary.

Unknown Speaker: --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--

Unknown Speaker: 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--

Unknown Speaker: Well--

Mr. Dreeben: --using the gun in relation to the drugs--

Unknown Speaker: --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--

Unknown Speaker: Because they often use firearms.

Mr. Dreeben: --That's because the firearms create--

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: No, but--

--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--

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: 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--

Unknown Speaker: 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--

Unknown Speaker: He would be carrying during the commission--

Mr. Dreeben: --That's right.

Unknown Speaker: --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.

Unknown Speaker: 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--

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

Mr. Dreeben: --Well, I think it bears a--

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: Well--

--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.

Unknown Speaker: 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.

Unknown Speaker: Yes.

Mr. Dreeben: It's been long understood--

Unknown Speaker: With the same breadth of coverage.

Mr. Dreeben: --That's right.

It's a separate offense, and all of the elements--

Unknown Speaker: Yes.

Mr. Dreeben: --have to be proved beyond a reasonable doubt.

Unknown Speaker: Yes.

Mr. Dreeben: You have to prove that he engaged in a drug trafficking offense--

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: Right?

Mr. Dreeben: That's right.

Unknown Speaker: 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--

Unknown Speaker: 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.

Unknown Speaker: 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--

Unknown Speaker: They say no difference.

Mr. Dreeben: --I don't think that--

Unknown Speaker: 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--

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

Mr. Dreeben: --This was in a Senate report, Senate Report 225--

Unknown Speaker: 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.

Unknown Speaker: 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.

Unknown Speaker: Thank you, Mr. Dreeben.

Mr. Dreeben: Thank you.

Unknown Speaker: Mr. Untereiner, you have 7 minutes remaining.

Rebuttal of Alan Edward Untereiner

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.

Unknown Speaker: 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.

Rebuttal of Michael R. Dreeben

Mr. Dreeben: There are statutes--

Unknown Speaker: 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.

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

Rebuttal of Alan Edward Untereiner

Mr. Untereiner: That's correct.

We say that active... that use means active employment to carry out the predicate offense.

Unknown Speaker: --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--

Unknown Speaker: 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--

Unknown Speaker: I see.

Mr. Untereiner: --the firearm.

Unknown Speaker: 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.

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Beecham v. United States - Oral Argument

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Beecham v. United States

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Transcript:

IN THE SUPREME COURT OF THE UNITED STATES

LENARD RAY BEECHAM, Petitioner v. UNITED STATES

No. 93-445

March 21, 1994

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:03 a.m.

APPEARANCES:

NATHAN LEWIN, ESQ., Washington, D.C.; on behalf of the Petitioner.

EDWARD C. DuMONT, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.

PROCEEDINGS

11:03 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in Number 93-445, Leonard Ray Beecham v. The United States.

Mr. Lewin.

ORAL ARGUMENT OF NATHAN LEWIN ON BEHALF OF THE PETITIONER

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

These two criminal cases, joined here on certiorari to the Fourth Circuit, present a single issue of statutory construction. Does the language used by Congress, in enacting the Firearm Owners' Protection Act of 1986, bar individuals who have been convicted of felonies in Federal courts from possessing firearms even though State law permits them once again to vote, to sit on a jury, or to hold public office?

The Government acknowledges that if a State conviction were involved -- indeed, in the Jones case there are two State convictions as well as a Federal conviction -- the restoration of the felon's rights entitles him to own a gun under Federal law.

The contested issue is only whether the restoration of rights can affect a Federal conviction, and of course, we begin, as the Court does in so many of these cases, including the entire sequence of Gun Control Act cases which ended with the Dickerson case that led to the Firearm Owners' Protection Act, with the language of the statute, and if the Court will permit me, I would like to address the Court's attention to the very specific words of this statute, and they appear at the bottom of page 2 and the top of page 3 of our brief.

Section 921(a)(20) of title 18 defines what is a crime punishable by imprisonment for a term exceeding 1 year, and the first point is that it's interesting that that statute, in subsection (A) and subsection (B), makes specific reference to Federal or State offenses in subsection (A), and to any State offense in subsection (B), and from that I believe it is clear that Congress, when it was trying to distinguish or state anything with regard to this area of the law that could in some way distinguish between Federal and State offenses, knew that those words could be inserted in the statute, and it did so.

But then the statute goes on with the language which Congress added in 1986 following this Court's decision in Dickerson, and quite frankly to overrule this Court's decision in Dickerson, and the first sentence states that the conviction of a crime is to be determined in accordance with the law of the jurisdiction in which the proceedings were held.

In other words, how one defines what is a conviction is to be determined not as a matter of Federal law, which this Court said was the rule in Dickerson -- and that was, by the way, the Court unanimously. Even the Chief Justice in his dissenting opinion agreed that it was a matter of Federal law -- and Congress said no, you're to look to State law to determine whether it is or is not a conviction.

But beyond that, Congress went on with very specific language. They said, any conviction -- again, not any State conviction, but any conviction -- which has been expunged or set aside, or for which a person has been pardoned or has had civil rights restored, and it's interesting, if one looks at that language, that what Congress has done, it has really divided these four classes of postconviction actions into really two groups.

One is a conviction which has been expunged or set aside. In other words, where the court itself, or the sovereign itself has expunged the conviction, or by appeal or some other manner the conviction has been set aside, and then Congress went on to say, for which a person has been pardoned or has had civil rights restored. Congress did not say, any conviction that has been nullified by pardon or by a restoration of rights.

The second half of this provision, it spoke to the person, and it said, one looks to see whether the person has been pardoned, and whether he has had his civil rights restored, and that, to us, is plain language that demonstrates that if you look at the defendants, like Messrs. Jones and Beecham in this case, and you're to consider whether they, as they stand at the time that they are found with a weapon in their possession have had their civil rights restored.

QUESTION: It is true, Mr. Lewin, that all of the other three means of making the conviction not count are means that can only be employed by the same jurisdiction that entered the conviction, only that jurisdiction can expunge, only that jurisdiction can set aside, and only that jurisdiction can pardon. Some other State could not, or some other jurisdiction.

Doesn't that lead you to think that when it says, or has had civil rights restored, it again is referring to the same jurisdiction?

MR. LEWIN: I think not, Justice Scalia, and the reason why not is because the matters that the first three relate to are all things which are done by the sovereign which causes the conviction in the first place. The conviction expunged, the conviction set aside, or essentially the pardon by that sovereign.

Taking away civil rights -- and I think this is the Government's basic error, when they speak about the status of a conviction. Taking away one's civil rights is not done by the sovereign or the statute which a felony offender has violated. It is following his conviction that another law, a State law.

QUESTION: Mr. Lewin, which one? Suppose the defendant is a resident of State X, but the convictions are in State Y, and State Y would not provide for restoration of civil rights, but State X, where the defendant has always lived, and lives after imprisonment, would. Which one?

MR. LEWIN: We think that a literal reading of the statute means that State X can be applied, the law of State X, and if he then has his rights restored, then he qualifies under this statute.

Now, the Government points out, and it's true --

QUESTION: If he is in State X. That's --

MR. LEWIN: If he lives in State X. Yes, I'm sorry. That's what I understood.

QUESTION: Do you have --

QUESTION: The statute doesn't say he has to live in State X.

MR. LEWIN: Pardon?

QUESTION: The statute doesn't say he has to live in State X.

MR. LEWIN: No.

QUESTION: I don't know why Nevada couldn't pass a law that says, we think all convicted criminals who have served their debt to society should be treated like any other free citizen, and that's the law of Nevada. It applies to everybody. Wouldn't anybody just go to Nevada and get the benefit of this statute?

MR. LEWIN: Yes, Justice Stevens, if he lived in Nevada. But he doesn't get his rights restored --

QUESTION: Why does he have to live in Nevada?

MR. LEWIN: Well, because the only way you get practically your rights restored is if you go to vote, and you're permitted to vote, you go to be a juror, and you're permitted to be on a jury --

QUESTION: Apply for a driver's license.

MR. LEWIN: Well, driver's licenses -- felons are not deprived of driver's licenses.

But the point is, Justice Stevens, that restoration means -- is the kind of thing which your local law, where you live, takes it away from you, and then it restores it to you. It doesn't take it away from you if you --

QUESTION: If the statute says you're deprived of these rights while you're in prison, but after you serve the sentence, they're automatically restored and you're treated like a free citizen --

MR. LEWIN: Well -- yes.

QUESTION: -- that would do it, under your reading.

MR. LEWIN: Well, to that extent, Justice Stevens, our position really is that if, to the extent that the State of conviction would restore his rights, and he's been in prison during that period of time, there would also be a restoration of rights.

In answer to Justice Ginsburg's question --

QUESTION: Oh, but our -- both Justice Ginsburg and I are concerned about the case in which the conviction is in New York and the gentleman is now in Nevada.

MR. LEWIN: Yes.

QUESTION: And Nevada has a very generous policy about former convicts. Why can't Nevada give carte blanche to anybody in the country under your reading?

MR. LEWIN: To those who live in Nevada, yes, Justice Stevens.

QUESTION: Why do they have to live -- oh, they have to live in Nevada because otherwise they would have no rights there.

MR. LEWIN: Otherwise they haven't had -- I haven't had my rights restored in the State of Wyoming because I've never been in the State of Wyoming.

QUESTION: If you had -- you were living in Wyoming, say, after you got out of prison, then you could move to any other State and it wouldn't matter what those laws were. Can you give me any other example, Mr. Lewin, where the effect of a judgment, either of a Federal judgment or a judgment of State B, is determined by the law of State X?

That is, you're taking a Federal judgment -- the Federal conviction in Beecham, Federal judgment in Jones -- and you're saying, the effect of that judgment is determined by the law of another State.

Full faith and credit is usually -- the accoutrements of a judgment are determined by the place in which the judgment is rendered, right?

MR. LEWIN: Yes.

QUESTION: That's the ordinary rule. So this would be an extraordinary rule, and I was trying to think of an analogy, and I couldn't.

MR. LEWIN: Well, Justice Ginsburg, first of all it's not the effect of the judgment. What has to be understood, it's the effect of State law on somebody who has had a Federal judgment.

Your rights are not deprived by the Federal conviction. There's nothing in the Federal statute, whether it's a fraud statute or a tax statute, that says you may not vote after you've been convicted of that offense. It's only because you live in the State of Nevada, if the State of Nevada says, now you may not vote because you've been convicted of a tax offense. So it's not the Federal offense itself that takes anything away from you.

But in answer to your direct question, I think we found -- we hadn't cited it in the brief because we found it over the weekend, really, but there is a provision in Federal 28 U.S.C. which provides that Federal jurors are eligible -- it certainly lists as to when they're ineligible, if they can't read or write English and so on, but then it says, if they have a charge pending against them for the commission in a State or Federal court of record of a crime punishable by imprisonment for more than 1 year, and his civil rights have not been restored.

QUESTION: What section is that?

MR. LEWIN: That's section 1865 of 28 U.S.C. -- and I submit, Justice Ginsburg, that if you were to consider somebody being called for Federal jury service in the State of Nevada who 20 years ago had a felony conviction in the State of New York, and then he lives in the State of Nevada, and the question is, does he qualify for Federal jury service, and I submit that under this statute, if the State of Nevada said, your rights have been restored for Federal felonies no matter where they've been committed, that person will be permitted to serve on a Federal jury in the State of Nevada, and if that's true --

QUESTION: Well, you're submitting that, but no court has held that.

MR. LEWIN: No, I agree, there's been no decision along that line, Justice Stevens.

QUESTION: It's really the same issue we have in this case.

MR. LEWIN: I should have prefaced my response to Justice Ginsburg by saying that I don't think that question has to be reached in this case, by the way, because this is not a case involving somebody who has moved from State A to State B.

Even if it were true -- even if it were true that one has to look to the State of conviction -- and let me say, the Government cites cases where courts have sort of in passing -- the question has not really been decided, has not been litigated in the courts of appeals, but we acknowledge that in passing and just looking at the statute, many courts of appeals have said well, we look to the State of conviction to see whether they restore rights.

There's something maybe instinctive, maybe along the lines of what you said, Justice Ginsburg, on the part of courts to say well, let's look at the State of conviction.

QUESTION: Or look at the Federal system, because in Beecham's case you have only the Federal conviction, isn't that right?

MR. LEWIN: Well, Mr. Beecham had earlier State convictions, Your Honor. They're not in the record.

QUESTION: Then take a case where there is only --

MR. LEWIN: Yes.

QUESTION: Only a Federal conviction. You would still say, if that person lives in a State that restores civil rights immediately on release from prison, that the effect of that Federal judgment will be determined by the State, by the State's law on restoration, so the Federal judgment is in some respect diminished. It doesn't have as dire a consequence for the defendant as it would if you didn't have the State law.

MR. LEWIN: Except in theory, Justice Ginsburg, there could be a State -- we know of no State, but there could be a State that says, we don't care whether you've had a felony conviction, we will impose no disability on anybody who's had a Federal conviction. If there's true, there's no disability that is ever imposed by the Federal statute.

The only reason any disability is imposed that ends up being subsequently restored is because there is a State law, so it's not -- it doesn't make sense to speak of the disability imposed by the Federal conviction. The civil rights --

QUESTION: But your answer is that it's the same -- I'm trying to get away from the State of conviction. If we had simply a Federal conviction --

MR. LEWIN: Yes.

QUESTION: Your theory works just the same way.

MR. LEWIN: Yes, and indeed, in the Beecham case, the interesting thing is that in this case, in the Beecham case, in fact, the Court looked to the State of conviction to see what Tennessee law was. That's what the Court thought was significant.

At the same time, the Fourth Circuit in the Jones case, interestingly enough, did not look to this law of the State where the Federal court sat. Mr. Jones had been convicted in the district court in Ohio, and yet the Federal court in passing said, well, he's gotten a very nice certificate from the State of West Virginia which restores all his rights, therefore we're assuming that his rights have been restored, but it's still a Federal conviction, but they did not look to the law of Ohio, so it's clear to us this is an open question.

We think really it's an issue that this Court doesn't have to decide in this case as to whether the law of residence -- the law of the State of residence or the law of the State of conviction controls.

QUESTION: Mr. Lewin, you assume that there has to be some way in which this provision "or has had civil rights restored" applies to a Federal conviction, but why do I have to assume that that particular one applies to a Federal conviction?

Surely I can envision a State that does not accord its Governor any pardon power, and I would say, well, in that State, any conviction would not have the benefit of this provision or set-aside, or for which a person has been pardoned, right, and I'd say, well, some States don't have that. That's okay.

Why can't I say, with respect to the Federal Government, that provision applies to many States, maybe most States, it just doesn't apply to the Federal Government? Isn't that a conceivable disposition of it?

MR. LEWIN: I think if so, if Congress had intended that in any way, I think Congress would have said in the language of that statute that it refers only to State convictions, or in the case of State convictions has had civil rights restored, but otherwise, if Congress is saying, a person has had civil rights restored, these are two individuals who have had their civil rights restored.

QUESTION: But it was -- Justice Scalia's reading would make the second sentence compatible with the first sentence, which the thrust of that seems to me that the conviction, the judgment of conviction, is determined by the law of the jurisdiction in which it was held.

MR. LEWIN: I think the problem, Justice Ginsburg, is that that reading and the Government's reading makes the second sentence entirely superfluous.

If we are looking only to whether the conviction still has the status of a conviction, it would have been sufficient for Congress simply to have said the first sentence: what constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Therefore, if a conviction no longer has the status of a conviction, whether it's by expungement or anything else, it would be --

QUESTION: -- Mr. Lewin, because the prohibition is on a person who's been convicted, so if he ever had a conviction, he would be disentitled. You need the second sentence to -- the very beginning in (g), "It shall be unlawful for any person who's been convicted."

QUESTION: You haven't heard some of the Federal prosecutors argue that we have, Mr. Lewin. I assure you, they would argue -- but you say that they wouldn't argue.

MR. LEWIN: But it does appear to me that if the crime has been expunged, the conviction has been expunged or set aside, or pardoned, or by the jurisdiction in which it was entered is no long effective so its status is no affected, then the law of the jurisdiction in which the proceedings were held no longer considers it a conviction.

QUESTION: No, but it's still true that he had been convicted.

MR. LEWIN: Yes, Justice Stevens, it's true that he had been convicted, but --

QUESTION: That's what makes him ineligible, the fact that he had been convicted.

MR. LEWIN: But still, we submit that the second -- what the second --

QUESTION: And the other thing that I don't think you've quite responded to in our multi-State example, if there is an expungement in one State for purposes of this statute, that takes care of -- it removes the conviction in every state --

MR. LEWIN: Yes, sir.

QUESTION: Because it's no longer a conviction to be considered under the statute, so if you are pardoned in Nevada for a Federal offense, you've got a carte blanche for the whole country.

MR. LEWIN: That's exactly what Congress has said. Congress has said this entire -- this statute, Justice Stevens, by its very terms is one which creates a patchwork quilt, as it were, depending on the jurisdiction -- the different jurisdictions.

QUESTION: But surely the State of Nevada wouldn't pardon one for the committing of a Federal offense, would it?

MR. LEWIN: No, it couldn't. It wouldn't have the jurisdiction. I assume --

QUESTION: No, but it would say, we used to disqualify you for jury service or for --

MR. LEWIN: Right.

QUESTION: -- various rights. We now restore those rights in Nevada.

MR. LEWIN: Yes.

QUESTION: That would take care of -- give him a carte blanche for the whole country. It has to -- it is no longer a conviction within the meaning of the statute.

MR. LEWIN: Once he has had his rights restored, that's right, Justice Stevens. That's what the statute says. A person has --

QUESTION: Even if you only spent 10 minutes in Nevada, just enough time to have rights taken away and restored.

MR. LEWIN: Well, I think he'd have to spend enough time to qualify otherwise, to be a voter, or a juror, or to run for public office. You can't have your rights restored -- I mean, obviously, somebody goes in for a sham -- you know, just runs in to test out the casinos in Nevada for a day and then leaves, and says, well, I've now gotten my civil rights back.

QUESTION: Establish residence for long enough to file a divorce action, which used to require, I think, 30 days or something like that. Whatever that period is would be enough to (a) have your rights taken away from you and then later restored.

MR. LEWIN: Frankly, Justice Stevens, I don't see why that's so troublesome. If people don't -- I don't think it's realistic to expect people to change --

QUESTION: It's not troublesome at all. It's just a question of whether that's what Congress intended.

MR. LEWIN: And I think -- I submit that Congress intended it with regard to bona fide residences. If somebody resides some place where his civil rights have been restored, then Congress said, if he can be a juror, and he can decide on guilt or innocence of somebody else with regard to a felony, or he can run for Governor of the State, he can run to be an elected officer in that State, we're not going to deprive him of the right to carry a gun.

QUESTION: Except that there's a difference --

QUESTION: Whatever may be the evils of that particular interpretation, they're not going to be made any different by whether or not we construe the language to include a Federal statute, are they? I mean, there are still all sorts of possibilities, presumably, regardless of how we construe the language affecting a Federal conviction.

MR. LEWIN: Definitely, Mr. Chief Justice, and Mr. Stevens -- Justice Stevens, let me point that out, too, that regardless of this issue, as the Chief Justice has said, even by the Government's own admission, the very same concerns and the very same parade of horribles, if one views it as horribles, would be possible simply by the use of State law to affect State convictions.

Somebody's convicted in New York and decides he wants to possess a rifle, he travels to Nevada for enough time, he then lives there, he gets his rights restored, and the very same thing could happen, because the Federal-State --

QUESTION: It only happens in that State. It only happens in that State, which is master within its own house, but you're saying that Congress has somehow given it to that State to remove this individual's subjection to increase penalty Nationwide, or to this particular sanction Nationwide.

MR. LEWIN: Because the statute does not say, has been pardoned by the jurisdiction that convicted him, it simply says, it has been pardoned.

QUESTION: No, but that's not the implication of what Justice Scalia is saying. Justice Scalia is suggesting that you might have a regime in which in Nevada he can possess the gun, but he can't cross the line into California and possess the gun, but you're saying when he goes to California, his status remains the same. Isn't that your position?

MR. LEWIN: Well, Justice Souter, quite frankly that's even another question which the courts of appeals have not resolved.

QUESTION: Well, are you not taking a position on that?

MR. LEWIN: I'm saying I think reading it literally I think once his rights have been restored he could go to California. However, I'm saying that's another question --

QUESTION: I think your position is yes, he can go to California, and his -- the removal of the disability goes with him.

MR. LEWIN: On the other hand, my point is that in this case there are various questions that this court need not reach, the question of whether somebody who lives in Nevada and may therefore own a rifle in Nevada, and then moves to a State which does not provide for restoration of rights, and therefore his old New York conviction again might prevent him from voting or serving on a jury, could that person possess a rifle under Federal firearms law?

I'm saying, it's another question. I think read literally, I think the statute would apply, but I could see a court of appeals reaching that question and saying, oh, no, just as with the Federal jury qualification, a person might be qualified to be a juror in a Federal court in Nevada, and then when he moves to a State which doesn't restore the rights, suddenly that right is taken away from him.

QUESTION: But your argument on the jury question is at least different vis-a-vis whether the restoration is a function of Federal law or State law, isn't it, because -- I may be wrong in this, but I don't think there's any Federal statute that restores a convicted felon's rights to serve on a Federal jury, whereas there is a Federal statute by which a convicted felon can apply to be excused from the prohibition on gun ownership.

MR. LEWIN: Yes, Justice Souter, but we certainly do not think that that is a restoration of civil rights statute. That statute appears at page 3 of our brief. It sets up wholly different standards. It requires reputation testimony, it requires likelihood to act in a manner not dangerous to public safety, various other standards. It's not a restoration of civil rights.

The Government tries, looking around for something which they can say is a Federal statute.

QUESTION: Well, it's a restoration of a civil right.

MR. LEWIN: It's a restoration of a right. I guess it's a civil right.

QUESTION: Okay.

MR. LEWIN: But it is not -- I don't think it can be classified within the language that Congress has used in 1921 --

QUESTION: I guess my only point was, your -- the position vis-a-vis jury service I think is indisputably on your side, because I don't think there's a Federal statute that provides for any way to become eligible, whereas that is not true with respect to the firearms ownership.

QUESTION: May I ask if your theory would apply to -- say Canada had a law that deprived people of the right to vote if they had been convicted of a felony in another country. They went to Canada, then they restored the right to vote in Canada. That would remove the conviction for purposes in the United States, I suppose.

MR. LEWIN: Well --

QUESTION: Literally. Literally. Same --

MR. LEWIN: That is -- that is -- I think clearly what the courts could say and should say is that what Congress was contemplating was not under the law of some foreign jurisdiction, which might say any --

QUESTION: But you would acknowledge --

MR. LEWIN: They are talking about American jurisdictions.

QUESTION: But you would acknowledge the plain language would apply equally to that case?

MR. LEWIN: Well, I'd acknowledge that it would be possible to make that argument, but I think in the context of what legislates about, I just don't think that that's a realistic interpretation.

QUESTION: And except you're not really reading it literally. If you read it literally, you would say it doesn't matter where he resides, if any State has restored his civil rights, he can own guns. You're not reading it literally, so the dispute between you and the Government is whether the limitation that you import is going to be a limitation of residence, or rather, a limitation of the State of conviction. It's one or the other. Nobody reads it literally.

MR. LEWIN: Well, I'm sorry, Justice Scalia, I think first of all our disagreement with the Government, as I say, in this case really doesn't have to do with State of residence.

I think the Court can decide it without deciding the State of residence question, but beyond that, our reading is that nobody gets his rights restored unless he's within the jurisdiction. He lives within the jurisdiction so that his rights are restored.

The mere fact that there is some State that says hypothetically, if you lived here you would get your rights restored, that's not a literal reading of the statute. We don't think so. It doesn't say he would hypothetically could have had his rights restored. He did have his rights restored. You have to be in the jurisdiction to have your rights restored in that jurisdiction. We think that that's what a literal reading of the statute means.

We'd like to reserve the rest of our time for rebuttal.

QUESTION: Very well, Mr. Lewin.

Mr. DuMont.

ORAL ARGUMENT OF EDWARD C. DuMONT ON BEHALF OF THE RESPONDENT

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

The Government's construction of the language at issue here is succinctly stated. The status of any prior conviction for purposes of the Federal Gun Control Act is determined by reference to the law of the jurisdiction that rendered the jurisdiction.

There are two basic propositions that I'd like to focus on that we think make the case straightforward. First, ours is the natural reading of the statute, particularly in light of its background and purpose, and second, our reading provides clear, textually bounded and easily administered rule.

QUESTION: What would you say was the purpose, Mr. DuMont? One could certainly infer that the purpose was to make sure that people in prisons didn't get guns, but as soon as they got out, they could. I mean, this was really quite a bath that Congress gave after our Dickerson decision.

MR. DuMONT: Well, I think it would be an extraordinary reading to think that Congress intended that anyone, once you got out of prison, could have had a gun, because if they had intended that, they could have said that much more simply. What they did intend to do was to take the state of pre-1986 law, pre-Dickerson law, which was that Federal law determined the status of a State criminal disposition no matter what it was, so that for instance, in one of the famous cases, a State pardon, which explicitly restored State firearms rights, was not given effect for Federal law.

Now, Congress was reacting to that kind of situation, and what they said about that was, look, if we're relying on a State's conviction for purposes of Federal law, we ought to defer to the State's characterization of whether something was a conviction in the first place -- that was Dickerson -- and also, any subsequent action that a State might take, that a rendering jurisdiction might take to attenuate the ongoing effects of the conviction.

QUESTION: When you see in the back of the petitioner's brief the State laws collected, almost all States seem to restore civil rights, so that I don't think it's an unfair inference to say that perhaps the only time you can't own a gun under this statute is when you're in prison.

MR. DuMONT: Well, I -- with respect, I don't think that's right. The States have many laws covering the subject of restoration of rights. Some of them do restore firearms rights, many of them do not restore firearms rights, although they do restore other rights. Some of them don't restore all rights at all. Texas, for instance, never restores the right to serve on a jury.

QUESTION: Tennessee certainly restored the rights of one of these petitioners, didn't it?

MR. DuMONT: Well, that's not at all clear, Your Honor. Tennessee -- Mr. Beecham had three prior convictions, two State and one Federal. They are in the record in the argument over -- or, in the testimony and in the argument over this issue in the district court.

The Tennessee procedure changed in 198 --

QUESTION: 6.

MR. DuMONT: -- 5, I believe, or 6. Prior to that, if you had a conviction from prior to 1986, you were required to go to a court and get an affirmative order, and there's no evidence that Mr. Beecham ever did that, or that he didn't do it. There's no evidence in the record about that, and as to the Federal conviction, there's no evidence that Tennessee law -- that he ever requested that the Tennessee statute be applied to his Federal conviction.

QUESTION: Will you clear up one thing for me, am I correct in assuming that in most, if not all States that have a procedure for the restoration of civil rights, it's not automatic. There has to be some specific action taken by some State official.

MR. DuMONT: Well, it really varies all over the lot. In Minnesota, for instance, it's quite automatic. In Tennessee, before 1986 --

QUESTION: As soon as he serves the sentence it's restored, is that it?

MR. DuMONT: Then all of his general civil rights are restored, although, interestingly, not all of his firearms rights.

QUESTION: Well, but -- does that mean that in a State in which it does automatically restore civil rights, that under your opponent's reading of the statute that would mean that that conviction -- well, that would -- obviously, it would mean that that would never count, under your reading as well. If you are convicted in Minnesota, you automatically get your rights back after you serve. Then he can own a gun, anywhere in the country.

MR. DuMONT: Well, Minnesota is complicated, because Minnesota imposes certain firearms restrictions on felons even though their other civil rights have been restored, so in fact under a different part of the statute the Government does not interpret that as a --

QUESTION: Well, he may not be able to own a gun in Minnesota, but the Federal statute would not be an impediment to his ownership of a gun.

MR. DuMONT: The Federal statute gives effect to Minnesota's continuing firearm restriction under the last proviso.

QUESTION: Well, how about in Tennessee, which is involved here? Post 1986, it's automatic, is it not?

MR. DuMONT: Post 1986, it appears to be automatic, at least for State convictions, that's correct.

QUESTION: Mr. DuMont, you mentioned the jury situation. Under the jury statute, which refers to the restoration of civil rights, there is no Federal statute providing for that restoration, I believe, is that correct?

MR. DuMONT: There is no Federal -- general Federal scheme for restoration of Federal rights.

QUESTION: Is the phrase, restore -- well, I shouldn't say restoring civil rights. The phrase in the statute is, civil rights have not been restored. As that phrase is used in the jury statute, it's got to reference back to State law, doesn't it?

MR. DuMONT: We don't think so, Your Honor. The language is very similar, although not identical here, but there has been no litigation on this point, first of all.

QUESTION: No, but if there's no Federal statute on the restoration of the rights, then how would one's right to serve on a jury -- or, how would one's civil rights be restored for purposes of serving on a jury if not by reference to State law?

MR. DuMONT: Well, there are two things I would say in response to that. First of all, the indications in the legislative history of the jury rights statute are that Federal rights used to always depend on State law, and in the 1940's when that statute was originally passed, the explicit intention was to federalize the rules for qualification to sit on a Federal jury.

Now, when the statute was later amended in the mid-seventies to change some of the language that relates to this, again, the indications in the legislative history are that what Congress had in mind, they refer specifically to two Federal statutes which they had in mind, both of which are not restoration statutes but in fact expungement statutes, and I think there is also an indication that pardons may have been in consideration.

So our position on this would be there's no reason to read these two statutes differently, but the correct reading, in the absence of anything else in the statute to guide us, is that the restoration of rights for both statutes must be accorded by the jurisdiction that rendered the conviction.

QUESTION: But I think you're telling me that they would be read differently, because I think you're suggesting that restoration of civil rights under the jury statute might be a restoration by pardon or expungement, whereas it is clear from the text of the firearms statute that restoration cannot be by pardon or expungement because they're separately listed in the statute.

MR. DuMONT: But that's why I say the language is not identical, and I think some of the differences may be relevant in the sense that I think the words, civil rights restored, used in the jury qualification statute, may be broader, because they're intended to sweep in a Federal pardon, for instance, or the one instance that I'm aware of where there's a possibility for expungement of the Federal conviction, which --

QUESTION: Well, the Federal Government does not take away any civil rights to begin with, does it?

MR. DuMONT: Well, it depends largely on what you classify as a civil right. It takes away the jury right, the right to sit on a Federal jury.

QUESTION: Under this statue, 1865?

MR. DuMONT: Under 1865. There are a variety of occupational disabilities for certain kinds of convictions that have to do with serving on trust funds for pension funds, serving in labor unions, this kind of thing.

There are some crimes which -- part of which the penalty is, or may be, that you can't hold Federal office. There are instances where civil rights are --

QUESTION: Well, do States eliminate that disability -- those disabilities?

MR. DuMONT: I'm aware of no instance under which a State can eliminate one of those disabilities, although the issue may be somewhat unclear under the labor statutes.

QUESTION: Well then, the State -- even the State can't restore the civil rights, then.

MR. DuMONT: Depending on whether you consider those civil rights for purposes of this statute.

Now, it's true that in the case of State convictions, which is -- I ought to emphasize, the vast majority of the felony convictions we're talking about that are covered here are State convictions, which is what Congress had in mind. For purposes of a State conviction, the civil rights restoration language is fairly clear.

QUESTION: Mr. DuMont, when Congress -- we know what it meant to do with that first sentence. It meant to overturn Dickerson, right, and the conviction is -- the dimensions of the conviction are determined by the jurisdiction in which the proceedings were held.

MR. DuMONT: It meant to overturn Dickerson for convictions that were State convictions, that's correct.

QUESTION: Then we get to the second sentence, and everything except for restoration of rights is tied into a particular jurisdiction, expunged, set aside, as Justice Scalia pointed out before.

MR. DuMONT: That's correct.

QUESTION: When a draft like this appears, is there anybody minding the shop who would look at such a sentence when this legislation is just on the drawingboards, civil rights restored, and say, wait a minute, that one doesn't fit, and maybe the Department of Justice should call the attention of the congressional committee to that misfit?

MR. DuMONT: In general we do try to look at pending legislation and point out whatever problems we can identify with it. I wasn't here when that particular statute was --

(Laughter.)

QUESTION: Not on my watch -- yes, right.

MR. DuMONT: -- when that particular statute was vetted by the Department of Justice.

QUESTION: Maybe we should adopt a contra preferentem mode of interpretation, and just at least when it's in title 18, simply construe it against the Department.

(Laughter.)

QUESTION: It might induce more care in these matters.

MR. DuMONT: Well, I must say I don't think that even if we focused purely on the language of the statute that there's anything particularly unclear about it, because if you look at the language of the statute and at the legislative history, such as it is, which does not address this particular point, but which does make clear that what Congress was thinking about in response to Dickerson was the Federal treatment of State convictions --

QUESTION: Well, how about Mr. Lewin's point that sections (A) and (B) expressly modified the term, offenses, by saying State, or Federal, or both, and then this language after that just doesn't say anything?

MR. DuMONT: Well, I think there's a good reason why subsections (A) and (B) distinguish Federal and State, and that is that in (B) when we're talking about distinguishing misdemeanors, really that's just getting at the fact that Federal law had decided to get away from defining these things as felonies.

This is traditionally referred to as a felon with a firearm statute, but it doesn't really define it that way, it defines it in terms of crimes punishable by imprisonment for more than a year.

This -- (B) is really just intended to take care of State cases, where States still use felony and misdemeanor classifications, and therefore it's something that only applies to a State.

Now, in the second two sentences, we would submit that there's nothing narrowing about them that prevents them from applying to both Federal and State convictions, so there's nothing that was necessary to do to distinguish that, but the fact is that that doesn't mean that every part of the laundry list in the second sentence that was added in 1986 -- pardons, expungements, set-asides, or restorations.

As Justice Scalia pointed out earlier, not every one of those has to apply to both Federal and State convictions. It's perfectly possible -- well, it is true that there are some States that never restore rights, and yet no one thinks that the restoration of rights language doesn't apply to States because of that, and it may be that the Federal Government simply does not provide a restoration mechanism, but that doesn't mean that the pardon, expungement, and set-aside terms don't apply equally to Federal convictions.

QUESTION: As a matter of policy, I can't understand why the Federal -- I mean, if you're trying to conceive of what the plausible intention of whoever wrote this thing was, I find it hard to think why Congress would say, well, so long as the State where he was convicted says he can carry a gun, he can carry a gun anywhere, even in those States that don't allow ex-felons to carry guns, ever. That's a strange disposition.

Whereas I -- it would make a lot of sense to say, if the -- I'm not sure it should be the State of residence, but if the State where he's acting, if the State where he possesses the gun, or ships the gun, or receives the gun, if they've said, you know, your civil rights are restored, we don't care, we don't mind felons -- ex-felons owning guns. We believe in redemption. So be it. I can understand that. Why shouldn't we interpret it that way --

MR. DuMONT: Well, I think --

QUESTION: -- on a State-by-State basis? Where are the -- and that would make more sense from the standpoint of the citizen knowing what the law is. I mean, you know, I'm acting in New York. I read the New York statutes. They say, ex-felons -- you know. Why shouldn't that be the way we interpret it, which isn't residence. It's not quite what the petitioner is saying.

MR. DuMONT: I think the reason not to interpret it that way, or as residents, or as the State where -- in the case of a Federal conviction where the prior conviction was rendered, the reason to avoid all those readings is not that they might not make sense under some statutory scheme, it's just that they're not what Congress said when it wrote this statute.

Again, we would have two sentences here that were added in 1986. They are two sides of the same coin, and they really address two halves of the same thought. The thought was to give a rendering jurisdiction the power to control what effect its convictions would be given for purposes of the Federal firearms statute.

Now, the -- if you look at -- first of all the first sentence explicitly ties in the disabilities here, or the term conviction, to a State where -- or to the jurisdiction where the conviction was rendered, and we see no reason to read those two sentences separately. We think that logical connection ought to carry on through interpretation of the second sentence.

Even if you look, as I take it my colleague would have you look, at the second sentence simply by itself, then again, as you pointed out earlier, Justice Scalia, we have three things listed which can only be done by the jurisdiction that has originally rendered the conviction, and then we have a fourth thing. Well, you know, noscitur a sociis, and the logical reading of that fourth --

QUESTION: I don't know if it's correct to say that only the jurisdiction which rendered the conviction can set it aside. It can be set aside on Federal habeas.

MR. DuMONT: Well, as we acknowledge, that's a possible colloquial exception. Now, it's not technically correct, because technically a Federal habeas judgment doesn't operate on the conviction, the State conviction, it operates on the body of the accused, but one can see that that might have been encompassed there.

We think it would -- to read a lot into that would be to let a very small tail wag a very large dog, because the vast majority of set-asides are done as a matter of State law, and by the way, you can see that even more clearly if you think about the fact that if the second sentence weren't there at all and there were no explicit statutory reference to setting aside convictions, we don't think anyone would suggest, and certainly we would not suggest, that the Federal law could make use of a State conviction for purposes of this statute that had been invalidated on a Federal habeas.

I think the third thing to observe about the language of the statute is that those two sentences are tied in not only by their simultaneous enactment, and by their adjacency in the text, but by the fact that they both express two halves of one congressional purpose, which, as we've said, is to give the States the power to determine the existence, in the first instance, and the continuing effects for purposes of this law of their own criminal adjudication.

As the legislative history says, in the typical case, the Federal conviction rests on a State predicate, and therefore in those cases it makes sense to defer to the State definition of whether that predicate exists or not.

Now, the same logic -- the same logic extends to Federal convictions simply by saying that if you have a Federal conviction, then its existence and its continuing effect for purposes of this law are a matter of Federal law, and that, I will point out also, is the part of Dickerson that was not overturned.

When Congress addressed Dickerson, it addressed it in the sense of the broad number of cases which rely on State law, but there was no indication that it meant to disturb Dickerson's application to a Federal conviction and the status of a Federal conviction under Federal law.

QUESTION: Mr. DuMont, I noticed in your briefing you don't rely to any extent as a background norm on the full faith and credit principle, both article IV and 1738, that says a judgment shall have the same full faith and credit as it has in the jurisdiction of the State from which it is taken.

If we're saying that these words -- the meaning is not clear, then that is one general rule set by the Constitution and implemented by statute that judgment is to have the same full faith and credit every place as it has in the jurisdiction where it's rendered.

MR. DuMONT: Well, that's correct. It's not entirely clear to me what relevance the full faith and credit rule has to Federal convictions, which are the specific convictions we're dealing with here.

QUESTION: Well, don't you think the Supremacy Clause would require the same respect for a Federal judgment that is required by the Full Faith and Credit Clause for a State judgment?

MR. DuMONT: One would hope so, although here, I suppose the question is, Congress has spoken to defer a State law in certain instances, and the question would be whether this is one of those instances, but as a background law, that is certainly correct that we think the basic supposition ought to be that Congress would not intend States to be determining the effect of a Federal conviction for purposes of Federal law.

QUESTION: What do you think the Congress' reason was for saying that as to State convictions, if they had been set aside, or there had been a pardon, rights were restored, they would not count in deciding eligibility to have a firearm, but the Federal conviction shouldn't be treated that way?

MR. DuMONT: Well, I think Congress was concerned that -- as far as I can tell, that in the case of a State conviction where the State had taken some -- either did not regard the conviction as sufficiently serious enough to see it as a conviction for purposes of its own collateral consequence rules, or did regard it so -- that way in the initial case, but then had made a determination of some sort that the person's time had been served or that for other reasons the collateral consequences ought to be wiped off, that the Federal Government ought to respect that determination in the realm of firearms disabilities.

So that if you had a Tennessee felon who the State of Tennessee had made a judgment was now competent to carry guns, whether he had not been before, the Federal Government ought to defer to that judgment, and I think that's all they were trying to do.

QUESTION: So -- but Federal convictions, since there isn't any recognized mechanism for restoring civil rights, that just would be with a person, and you could never get out from under that.

MR. DuMONT: Well, that's not entirely true. Congress provided a very specific provision in section 925(c) for going to the Secretary of the Treasury, in the case of a Federal conviction, and regaining Federal firearms rights in the face of a Federal conviction, based on the same sorts of judgments about rehabilitation and good character.

There's always also the possibility of a presidential pardon.

QUESTION: Is it your position that the restoration of any civil right is enough? I mean, what if they restore some but not all?

MR. DuMONT: The -- in the context largely of State convictions, the courts of appeals have held -- have focused on three rights: jury rights, the right to hold public office, and the right to vote, and --

QUESTION: You need all three of those.

MR. DuMONT: You need all three of those, and then there's a separate question about firearms rights.

QUESTION: Gotcha.

MR. DuMONT: Whether they're -- that's a civil right, or --

QUESTION: Well, that's in the statute, unless -- right.

MR. DuMONT: Right.

I'd just like to dwell briefly on the fact that our rule, as I said, gives us a fairly clear, simple, and administrable system, and one which is grounded in and limited by the statute, and petitioners -- I can, here, stand in admiration of their willingness to embrace the full breadth of their position, because what I understand them to be saying is that we read the statute literally, and that therefore, if any State restores the civil rights of a convicted felon, no matter where his original conviction was, then that restoration is good for purposes of Federal law.

QUESTION: No, I don't think they say --

QUESTION: Your ruling doesn't -- your interpretation doesn't rule out that interpretation for State vis-a-vis State, does it?

MR. DuMONT: Our interpretation does rule out that particular problem, because what we say is, no matter where you are, for purposes of the Federal law you will always look to the civil rights restoration rules of the jurisdiction where you were convicted, whether that be a Federal jurisdiction or a State jurisdiction.

Now, it is true that under FOPA as written by Congress there will always be some problems about a court in California having to determine what Idaho law was or what Florida law was because criminals move, people move, and that prior conviction may be from another State.

QUESTION: Well, doesn't that also perhaps detract some from the purpose of the statute? If someone has lived in California for 20 years, and California says people who have been convicted of this sort of an offense have civil rights restored, but back in the State where he was convicted they say, no, we don't agree with that, wouldn't it make much more sense to go by the California rule where the person has lived for 20 years than where he was convicted 25 years ago?

MR. DuMONT: It might or might not make more sense. Again, we think that that's not what Congress did here. What Congress did was to refer to the jurisdiction -- to the defining ability of the jurisdiction where a conviction was rendered, and then in a second sentence talk about the restoration of civil rights, and we think it's clear from the context and the language that that refers back to the place of the original jurisdiction, which I might point out one could take as being the jurisdiction that has, first the greatest familiarity with the seriousness and the actual details of the original crime, and second, the greatest interest in making sure that its convictions carry whatever kind of weight it chooses to make them carry.

QUESTION: Well, Mr. DuMont, can't another State, however, still criminalize this behavior, if it wants to?

MR. DuMONT: It certainly --

QUESTION: We're dealing with defenses to a criminal -- Federal criminal statute, I suppose, in the Chief Justice's example, but couldn't, on your view California say, we don't care whether you've been pardoned, had civil rights restored, et cetera, by anybody, if you've ever had a conviction for a felony, you can't carry a gun in California?

MR. DuMONT: That's absolutely correct, and it merely points out that there may be a disjuncture between State law and Federal law as to your rights to carry firearms no matter where it is that you happen to be when you possess them, and we think that our reading of the statute minimizes those and channels them in the directions that Congress intended.

QUESTION: What about an argument that, looking at the name of the statute, the Firearm Owners' Protection Act, and the fact that it no doubt was sponsored by the NRA, which wants to broaden the market for the sale of firearms, that in the case of an ambiguity we should construe it in the light of its general overall purpose to expand the market?

MR. DuMONT: Well, I think that --

QUESTION: Were you here for the prior argument? Was that a different team?

(Laughter.)

MR. DuMONT: Without wishing to step outside the record -- I think that one could look at the title of the act. The act was intended to address a Dickerson problem, and the Dickerson problem was that Congress felt insufficient --

QUESTION: Well, it clearly also was intended to make more people eligible to buy firearms.

MR. DuMONT: If they had been validated for that purpose by the State which had originally handed down their conviction, and I believe the premise on which the NRA and the Congress and everybody else would have been proceeding was that somebody had made a determination that this person, although he had previously been convicted, was now eligible to carry firearms, and Congress took the route of allowing that determination to be made by the jurisdiction that had rendered the conviction.

Now, I might point out that actually, incidentally, under the jury selection statute, that the only case interpreting the civil rights restoration language in the jury statute, which you asked about earlier, has held that restoration there can only be accomplished by affirmative act.

In other words, somebody actually has to think about it, think about your case, and hand you a piece of paper saying you can carry -- your civil rights are restored, and that's an interpretation that has not been adopted in the main by the courts of appeals for this statute, and would not be helpful to the petitioners in this case.

If the Court has no further questions --

QUESTION: Thank you, Mr. DuMont.

Mr. Lewin, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF NATHAN LEWIN ON BEHALF OF THE PETITIONER

MR. LEWIN: Thank you, Mr. Chief Justice.

First, with regard to the Chief Justice's question about somebody living in California and having an old conviction, Congress could have said, has had civil rights restored by the jurisdiction of conviction.

It did not have those words, and that's why we went through several pages in our brief, the most recent decision of this court is the NOW and Scheidler opinion, where this court said that when Congress omits certain words that would limit the breadth of the statute, the statute should be read literally as if those words are not there.

I can accept Justice Scalia's suggestion that instead of the State of residence, look at the State where the man is found with the gun, but in that case as well, the Government is wrong, and a special rule for Federal convictions is wrong, and that's the only issue in this case.

The issue in this case is, is there a special rule for Federal convictions, and we submit that neither the language nor sensible policy justifies a special rule, and indeed, Justice Scalia said that maybe there should be a provision that title 18 -- a statute should be construed against the Government. That's exactly the Rule of Lenity.

Here is Mr. Jones having a document that says, all his civil rules heretofore forfeited are restored. Why should he not think legitimately, if he has that, that he has met the provision of this Federal statute? If the Rule of Lenity is ever to apply, it ought to apply to this kind of a case where if he looked at the statute and looked at his certificate, he thought he was entitled to carry a gun.

And the final answer is Congress determined to overrule this Court's opinion in Dickerson. It used language. If the language it used was unfortunate, that's Congress' job to correct. If Congress thinks it's wrong to allow people who are convicted in a Federal court to carry guns, they can go out tomorrow and amend the statute, but this Court ought not to rescue Congress from what it has done with its statute.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Lewin.

The case is submitted.

(Whereupon, at 11:58 a.m., the case in the above-entitled matter was submitted.)

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Featured:

Staples v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:49 +0000

Case:

Staples v. United States

Media File:

92-1441_19931130-argument.mp3

Related Transcript:

1993_92_1441_argument.xml

Transcript:

Argument of Jennifer L. De Angelis

Chief Justice Rehnquist: We'll hear argument next in No. 92-1441, Harold E. Staples v. the United States.

Ms. De Angelis.

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

My client, Harold E. Staples, was convicted of knowing possession of a machinegun not registered to him, in violation of 26 U.S.C. section 5861(d).

My client is asking this Court to reverse this conviction and remand this case for a new trial, a fair trial.

The defendant respectfully contends that the first trial was not fair.

It was not fair because the jury was prohibited by the jury instructions presented to consider whether or not Mr. Staples knew the sport rifle he possessed was, in fact, a machinegun.

As stated by Justice Ebel in his concurring opinion, printed at page 24A of the Petition for Cert in this case, whether the appellant in this case is an innocent victim is an open question because the jury was precluded from considering his knowledge of the gun's capabilities.

Principles of justice and fair play suggest that we let the jury decide whether the defendant possessed an automatic weapon.

Prior to this criminal prosecution, the citizen before this Court had no prior criminal record, was engaged in no unlawful activity, certainly engaged in no unlawful activity in connection with this gun.

And by all accounts--

Unknown Speaker: You say certainly he did not?

Mr. De Angelis: --Certainly, he did not.

Unknown Speaker: Well, the jury thought otherwise.

Mr. De Angelis: Prior to this criminal prosecution.

Unknown Speaker: Oh, I'm sorry.

I misunder... I misunderstood you.

Mr. De Angelis: Mr. Staples believed what he possessed... possessed what he believed to be... and the undisputed evidence, testimony of three other witnesses at trial, was that this legal semiautomatic weapon, operated only in semiautomatic mode prior to government seizure and test fire in January of 1990--

Unknown Speaker: Well, now, counsel, I am somewhat concerned about--

Mr. De Angelis: --Excuse me.

Unknown Speaker: --the argument in your brief, and apparently one you're going to make here, that we have before us this issue of whether the defendant actually knew it was automatic.

I thought the jury found that it was a machinegun, and the court of appeals did not overturn that finding.

Mr. De Angelis: Justice O'Connor, I would disagree to the extent that the jury was precluded from considering whether or not the weapon was a machinegun.

Because of the nature of the instruction, all the jury had to find was that the defendant possessed a device that was dangerous, and that dangerous device was likely to be subject to regulation.

That's not the same as--

Unknown Speaker: Well, I thought the jury had to find that it was a machinegun.

They didn't have to find that your client knew of its capability.

Mr. De Angelis: --They had to find it was a firearm, and technically--

Unknown Speaker: And the firearm was defined in this instance, under this statute, as something that fires automatically with a single pull of the trigger.

Mr. De Angelis: --That's correct, Justice O'Connor.

There are--

Unknown Speaker: And that was the finding and the court of appeals did not upset that.

So we... we take that as a given, don't we?

Mr. De Angelis: --When the trigger was pulled on this gun, the weapon fired multiple shots with a single trigger pull.

If what you're saying, Justice O'Connor, is that constitutes a machinegun, then I would have to agree with your analysis of the Tenth Circuit opinion.

However, how--

Unknown Speaker: And if it were shown that this defendant knew of... of that capability, of that operational feature, then there wouldn't be really a case here.

Mr. De Angelis: --That's correct.

Unknown Speaker: All right.

Mr. De Angelis: There are approximately 70 million law abiding gun owners in this country who Congress has consistently sought to protect.

The protection of hunters and sportsmen is codified in section 101 of the Gun Control Act, cited in our brief at page 39.

Of the 70 million law abiding gun owners, a large percentage of them own semiautomatic guns purchased lawfully, just like Mr. Staples, at a public gun show authorized by 18 U.S.C. 923, subsection (j).

In the record, and throughout the case law, there are cited numerous instances where truly innocent possessors of semiautomatic rifles may be convicted of knowing possession of a machinegun.

For example, at trial of this case, Judge Cook expressly, repeatedly showed concern about people who may be out duck hunting and their sport rifle may double by accident, without any prior indication that it had such capability, and that doubling would result in conviction under the strict liability interpretation of 26 U.S.C. section 5861 (d).

Under these circumstances, Judge Cook said, it violates our system of fair play, but he assumed that people wouldn't be prosecuted.

Perhaps the best example is cited by Judge Ebel in the concurring opinion printed at page 24A... excuse me, 23A of the Petition for Cert. Consider, for example, a situation in which a person who knows nothing about guns inherits a rifle from a relative.

Unbeknownst to the recipient, the gun is defective, occasionally discharges two rounds of ammunition, and after a single pull of the trigger, or perhaps it's been converted by a prior owner to an automatic weapon.

Because he has no use for the rifle, the recipient stores it with other unnecessary possessions in the basement or attic, without ever having used it or examined it.

Under the strict liability theory, he would be prosecuted and sentenced.

The penalties which accompany conviction for violation of 6 U.S.C. 2561(d) are harsh: 10 years imprisonment, $10,000 fine, or both.

For--

Unknown Speaker: When you talk about fair play, counsel, you're not suggesting that if this statute, in fact, said all you have to know is that you have a gun and the gun, in fact, has to be of a certain type... that that's what this statute said, that's fair play?

Mr. De Angelis: --Justice Ginsburg, I'm not sure I'm understanding your question.

Unknown Speaker: I was thinking what you said... you're interpreting a statute and you say... said that the statute requires that the defendant know he possessed a machinegun.

Suppose... so... and you're... as you read the statute, that's what it says.

Mr. De Angelis: That's correct.

Unknown Speaker: If the statute, in fact, said defendant must know he has a gun, the gun must be a machinegun, period, that that would be fair play, that you wouldn't... you're not raising a constitutional point.

Mr. De Angelis: No.

And also I would direct... Justice Ginsburg, as you well know, in the U.S. v. Harris decision decided by the D.C. Circuit which you authored, there is no constitutional requirement--

Unknown Speaker: I don't believe I authored that decision.

Mr. De Angelis: --Oh, I'm sorry.

Unknown Speaker: I think it was Judge Silberman, was it not?

Mr. De Angelis: Right, you're correct.

I stand corrected.

Unknown Speaker: And I believe that Justice Thomas concurred in that.

Mr. De Angelis: That's correct.

As well, that there is no constitutional requirement to apply a scienter element into the criminal offenses.

However, what the courts have done in recent history is they have used tools of statutory construction, and the rule of lenity, to find that--

Unknown Speaker: If there's an ambiguity.

Mr. De Angelis: --If there... that's correct.

If there is an ambiguous statute, then principles of fundamental criminal law mandate that the Government prove mens rea.

Support for the application of rule of lenity stated that... in this case particularly, and the Harris decision, that if Congress, against the background of widespread lawful gun ownership, wished to criminalize the mere possession of an unregistered possess... machine... excuse me, firearm, often indistinguishable from other nonprohibitive types, it would have clearly stated to that effect.

Unknown Speaker: Well, do they say that in our drug laws?

I mean, you know, possession of heroin and so forth?

Do they say knowing that it... knowing that it is heroin?

Do those statutes say that?

Mr. De Angelis: No.

Those are, for the most part... and I must tell you I'm not familiar with every single one of the controlled substances statutes, but they would... most of them do require strict liability.

However, the difference between a controlled narcotic or sulfuric acid or other substances of that nature, is it doesn't have the support of the Constitution.

There is a Second... Second Amendment right to bear arms, and for that reason Congress has chosen time and time again to protect that right and distinguish what firearms need to be registered intact and what firearms may be legally owned and possessed.

Unknown Speaker: But doesn't Congress say what drugs are unlawful?

Mr. De Angelis: Yes, certainly they do.

They... they're regulated.

Unknown Speaker: So why isn't this case more like the drug case, particularly the Balint case, than it is like the Food Stamps case.

Because a gun is a dangerous instrument.

Nothing dangerous about a Food Stamp.

Mr. De Angelis: I would agree with you, Justice Ginsburg.

There's nothing dangerous, necessarily about a gin... about a Food Stamp.

However, what you have before you is a... is a weapon that is legal, that has legal uses and legal possession.

Food Stamps also have legal uses and legal possession, and you stand the risk of criminalizing innocent behavior, innocent possessors, by not implying knowledge requirements--

Unknown Speaker: And don't... don't some drugs have lawful uses too?

Mr. De Angelis: --Certainly, prescription drugs, or... if that's what the Justice is referring to.

However--

Unknown Speaker: Well, one could even lawfully possess marijuana in connection with treatment of certain forms of cancer, is that not so?

Mr. De Angelis: --That is... that is correct.

However, the distinction here... again, those exceptions have been noted.

For example, we know that this Court's rendered decisions... I haven't reviewed them recently... dealing with spiritual uses for marijuana, or other narcotics, to allow that freedom to exist, just as there is a freedom here to bear arms, and a right to bear arms, and legal uses for a sport rifle.

Unknown Speaker: I don't quite understand what the Second Amendment has to do with the case.

Would you explain that again?

Mr. De Angelis: Only in that it allowed Congress... it supports a constitutional basis to allow Congress... which Congress has relied on, let me rephrase that.

It provides a constitutional basis which Congress has relied on to protect legitimate, law abiding uses for sport rifles and target practice, or hunting or duck hunting, or whatever the use may be.

There is a right to bear arms.

It's not something that's--

Unknown Speaker: The militia is.

Mr. De Angelis: --Exactly, that's correct.

Unknown Speaker: It is.

But is this part of somebody's militia, this machinegun?

Mr. De Angelis: No.

What we have before this Court is just a citizen.

Unknown Speaker: Well, we mentioned earlier about the lawful uses of articles of this kind.

What is the primary lawful use of a machinegun?

Mr. De Angelis: There are approximately, my understanding would be, about 140,000 registered machineguns.

I understand they are used in competitions--

Unknown Speaker: I know.

But I'm just asking you.

I just don't happen to know.

What is the primary lawful use?

Why would one not think, getting a machinegun, that there might be a reason to check as to whether there's any reason to have it registered and so forth?

Why is it... is it so commonly used, like an automobile or something like that?

Isn't that the kind of article that would put you on notice that if you want to use it in... that you ought to check and be sure the use is lawful?

Mr. De Angelis: --Well, Your Honor, I don't stand before this Court to be a firearms expert, but I do believe that there are competitions involving machineguns, and there are other... are other uses for them.

Those of which were lawfully registered prior to the ban of 1986, I don't know what--

Unknown Speaker: Is your point machineguns or is your point semiautomatic rifles?

Mr. De Angelis: --This case--

Unknown Speaker: Which, due to some defect, may turn into machineguns, which is what you... what you say is the situation here.

Mr. De Angelis: --That's correct, Justice Scalia.

Unknown Speaker: And there are many more than 140,000 semiautomatic rifles.

Mr. De Angelis: That's right, there--

Unknown Speaker: Many hunters use semiautomatics all the time.

It just means you don't have to reload each time you fire one round.

Mr. De Angelis: --That's right.

And that is exactly what this case is about.

The semiautomatic weapon in this case is a sport rifle.

There are--

Unknown Speaker: I suppose that a pistol... would a pistol that had that defect become... would an automatic pistol that had that defect become a machinegun?

Mr. De Angelis: --You mean a semiautomatic pistol?

Unknown Speaker: A semiautomatic pistol?

Mr. De Angelis: It's my understanding that any semiautomatic pistol, sport rifle, shotgun, has the capability--

Unknown Speaker: If it fires more than one round with a pull, it doesn't matter how long the barrel is, it becomes a machinegun.

Mr. De Angelis: --If it fires more than one shot with a single pull of the trigger, it becomes a machinegun under the strict liability theory.

That was the... that's the concern in most of the courts that have implied a knowledge requirement in the 26 5861(d).

And this case is... involves a semiautomatic sport rifle, as any semiautomatic gun can be converted into an automatic or can, by malfunction, as did this gun, perform with... produce multiple shots with a single pull.

Unknown Speaker: Well, that's not quite accurate.

This didn't... this wasn't really a semiautomatic weapon.

It was an automatic weapon that had been rendered semiautomatic, and that because of a defect became automatic again.

Mr. De Angelis: I--

Unknown Speaker: Wasn't this weapon an automatic weapon as originally designed, and it had been modified to prevent the automatic feature of it from operating?

Mr. De Angelis: --If you're referring to the stop on the switch--

Unknown Speaker: Exactly.

Mr. De Angelis: --The... when this... the testimony at trial has been consistently, from the seller all the way through, of this AR-15 sport rifle, as of when my client purchased it at the gun show, it was manufactured with M-16 internal parts.

The selector switch on the outside had a three position lever that allows it to go from safe to semi to auto, and there was a stop on that to prevent it from semi to auto.

The Court should know... and it is printed in the transcript and in the briefs... that there are AR-15 sport rifles out there, and other semiautomatic guns out there, that have no stop at all, nothing to prevent the user from turning the lever from the semi to the auto.

However, the turning of that lever--

Unknown Speaker: In which case you wouldn't be making this argument, if your client had bought one of those.

Mr. De Angelis: --Well, with one exception.

And that is even if you turn the lever, that in and of itself, in this gun, will not allow the gun to produce multiple shots.

You have to have the malfunction--

Unknown Speaker: No I realize that.

But if your client had bought one of the guns in which there was a third position and all the client had to do was to put the device in the third position, you wouldn't be making the same argument that you're making here.

Mr. De Angelis: --You are correct, primarily because at trial--

Unknown Speaker: Well, I suppose I didn't understand your answer to Justice Scalia's question.

In the form that this came from the manufacturer, and if it was operating properly, without any defect, would... it would be semiautomatic only, is that correct?

Mr. De Angelis: --That's correct.

Unknown Speaker: So it was not manufactured as a machinegun within the meaning of the act.

Mr. De Angelis: That's correct.

It was not designed--

Unknown Speaker: Only if there's a defect does it become... does it acquire that characteristic.

Mr. De Angelis: --That's correct.

It's not designed to shoot multiple shots with a single pull of the trigger.

And interestingly enough, the testimony at trial from the expert, Mr. Fagg, in this case, was that this is not a weapon, for example, that you would want to sell to the military and represent was an M-16.

It's not a weapon, by the Government's expert's own concession, that would reliably fire multiple shots with a single pull of the trigger.

Interestingly enough, on page 16 of the Government's brief they make the following statement:

"In cases in which the offense involves regulation of an item that would not ordinarily be considered a hazard to the community, a rigorously knowledge element may be implied. "

The rationale that all parties agree for the implication of a knowledge requirement is that any other result would risk criminalizing a broad range of innocent conduct, just as we were discussing earlier in the Liparota decision.

Certainly, I would not represent to this Court that guns are always safe.

But Congress has repeatedly and deliberately chosen only to register and tax those guns which are considered to be highly dangerous and offensive firearms.

The Government says that Congress wants to prevent the conversion of semiautomatic weapons to automatic weapons.

The petitioner does not disagree necessarily with that statement.

However, that assumes some knowledge or purposeful act on the part of a person, just as in the Mittleider decision rendered by the Tenth Circuit.

Defendant Mittleider sold his semiautomatic with a conversion kit to a undercover officer.

The conversion kit for this AR-15 is called an auto-sear.

It's a very small part whose only function is to allow the gun to fire automatically more than one shot with a single pull of the trigger.

Conversion of the gun cannot be accomplished reliably or purposefully without the auto-sear.

Because the criminal offenses requiring no mens rea have a generally disfavored status, petitioner respectfully requests this Court to apply the rule of lenity in this case.

Throughout their brief, the Government alludes to gangsters and criminals in connection with gun possession.

The petitioner is not a criminal, other than this conviction, and has no prior criminal record, nor does he advocate widespread use of machineguns.

Petitioner does advocate fairness, however, in prosecution, and strongly believes that this honorable Court and the Congress and the Constitution promote justice and fair play by providing citizens with notice of what conduct is unlawful and to prove that the defendant had knowledge of his unlawful conduct.

To allow 26 section 5861(d) to be a strict liability crime invites random prosecution.

The only support for this prosecution is an ambiguous statute that omits a critical element of fundamental and criminal jurisprudence, and that is the defendant's mens rea.

I would like to reserve the rest of my time for rebuttal.

Thank you very much.

Unknown Speaker: You may proceed, Mr. Feldman.

Argument of James A. Feldman

Mr. Feldman: Mr. Chief Justice and may it please the Court:

It's our position that the jury was properly instructed in this case, and that petitioner's conviction, accordingly, should be affirmed.

The jury was instructed that in order to convict petitioner, it had to find that he possessed a machinegun and that he knew he possessed a dangerous device of a type as would alert one to the likelihood of regulation.

It's our position that that is sufficient for a conviction under section 5861(d) and that the court properly rejected petitioner's proposed instruction that would have required the jury to find that he knew that the weapon he possessed had all of the characteristics, including the ability to fire automatically, that subject it to regulation under the National Firearms Act.

Unknown Speaker: Mr. Feldman, now, just to clarify for us, you agree that this weapon was manufactured as a semiautomatic?

Mr. Feldman: Yes.

There's a military--

Unknown Speaker: And as manufactured, it would not fall within the definition of a machinegun?

Mr. Feldman: --At least... yes, yes.

There's a military weapon which is an M-16.

It's a selective fire weapon that has a switch that you can turn to automatic, semiautomatic, or, I think, safety.

This--

Unknown Speaker: Now, if... if the modifications of a weapon were... were strictly internal so there was nothing on the exterior that would alert a possessor about the change, and if you had a defendant who simply didn't know that the weapon had been modified internally when it was purchased, that person would be liable under your theory, I guess.

Mr. Feldman: --That's correct.

That's correct.

Of course, that... that... there have been courts which have distinguished between cases where the modification was entirely external... was entirely internal, and where there was some external modification.

Unknown Speaker: Yes, I just want to--

Mr. Feldman: But in our view--

Unknown Speaker: --I want to understand how far your theory goes, and it would go so far as to hold someone who was absolutely unaware of the modification liable.

Mr. Feldman: --Yes, that's correct.

Just as... that's correct.

The Congress' intent when it enacted the National Firearms Act... well, when Congress enacted the National Firearms Act in 1934, it made it a crime to possess a machinegun that's not registered in the national registration records.

It modeled the statute... it specifically stated that it modeled the statute on the Harrison Narcotics Act of 1914.

This Court had... which imposed a similar registration/recordkeeping requirement on opiates and cocaine.

In the United States against Bailant in 1922, this Court held that that statute does not require the Government to prove that the defendant has the kind of knowledge that petitioner argues must be proven in this case.

That in... that under... under Bailant, under the national... under the Harrison Narcotics Act, it's not necessary to show that the defendant knows that the drugs he possessed had the characteristics of opium or opiates or cocaine.

Unknown Speaker: Mr. Feldman, I don't understand your argument.

This statute says that it's to be interpreted like the Narcotic Act?

Mr. Feldman: No, it doesn't say that.

If you look at the provision... if you set it... if you set the original 1934 statute alongside the Narcotics Act, the similarities are striking.

The penalty provision is identical.

A lot of the language is the same.

But I think equally important, the Attorney General Cummings who drafted... who had a role in drafting the statute, stated that he modeled it on the Harrison Narcotics Act, and the committee reports stated we have modeled this on the Harrison Narcotics Act.

Unknown Speaker: But narcotics are different from... from a semiautomatic rifle, which are very common.

Mr. Feldman: That's true.

Narcotics are different, but--

Unknown Speaker: Narcotics may not be different from a machinegun that looks like a machinegun.

Mr. Feldman: --Well--

Unknown Speaker: It's something when, you know, you're presented with it, you say, gee, this is a machinegun, what's this doing around here.

Or if you're presented with narcotics, the same thing, you ought to notice right away.

But when you... when you're... when you say a semiautomatic rifle, hunters use them throughout the country.

It's no big deal.

Mr. Feldman: --That's true, and... but I think the same thing would have been true of drugs at the time they enacted the Harrison Narcotics Act.

In other words, the Court didn't say that what... the burden of the Court's decision in Bailant was that if you possess drugs and you didn't know that those drugs were opium or... opiates or cocaine, you could still be prosecuted under the act.

And the reason that the Court reached that conclusion, and the reason that Congress intended that, and the reason that they didn't put a mens rea provision in the statute here, is that those... that drugs, as a general category of items, like firearms, can pose a very severe threat to the community.

That was the premise on which the Firearms Act and the Narcotics Act were enacted--

And if you are in possession of those... that sort of item that can pose such a threat to the community, it's up... Congress wanted it to be up to you to investigate what the nature of the item is that you had, and what the legal requirements that you had to comply with in order to possess it.

That conclusion is particularly apt because this was a registration and recordkeeping provision.

Unknown Speaker: Well, it was, except that in the narcotics example, I suppose it's true to say that Congress did not draw a line between... sort of down the middle in the class of dangerous narcotics and say, well, we'll... we'll prohibit or regulate some and leave others free.

But that, in effect, is what has happened in the gun situation.

I mean, after all, the Brady bill didn't pass until last week.

I mean, there's just been a long history of refusal to regulate the major class of guns in this country, so that when you are faced with something that, so far as externals are concerned, looks perfectly well like a gun which is unregulated and which has been the subject of repeated decisions not to regulate, you're not in the same situation that you're in with the narcotics.

Mr. Feldman: I guess I'd respectfully disagree with that.

In 1934 when Congress... what Congress did want to regulate was machineguns.

It wanted to know how many machineguns there were, who had them, who had control of them, where they were located, in order to enforce that.

Just as with the Narcotics Act where there were many other drugs that were not regulated aside from opiates and cocaine, by the act, in both cases I think the situation was exactly parallel.

There were many things which Congress didn't want to directly regulate, but these are items that are dangerous, that pose... can pose threats, serious threats to the general welfare, and they didn't want, in the case of machineguns, machineguns to be kicking around in somebody's attic where they can surface at some later date and wreak havoc on the community.

Unknown Speaker: Well, I'm still... I guess maybe I'm going to move aside a little bit from the... from attacking the historical analogy, and just go to the merits of applying the interpretive rule here.

Given the fact that the... that the overwhelming number of guns in this country, all of which are dangerous to some degree, are not regulated, I have difficulty in seeing the ease of applying this rule that one simply is on notice that there may be regulation by virtue of the fact that one has a weapon which, by definition, is dangerous.

Mr. Feldman: Well--

Unknown Speaker: So just on the analytical point, I think you've got a hurdle to jump here.

Mr. Feldman: --I think... well, I guess I do think the historical point is important.

But I think, analytically, the vast majority of those guns that are unregulated are not machineguns, couldn't fire automatically, and wouldn't be supposed to be machineguns by anybody.

It's not a serious burden that's put on people.

But I think that if you do... the Court's decisions in Bailant, in Dotterweich, in the more recent Freed, and in International Minerals, I think that they do set a line that when you're dealing... although... that when you're dealing with extraordinarily hazardous items and especially where there's a registration/recordkeeping scheme where Congress wanted to know the locations of those items and who had them, that the people who have those extraordinarily dangerous items, it's up to them to find out what it is precisely that they own.

It's--

Unknown Speaker: Well, does the... does the argument, then, in this case, come down to the fact that if you're dealing with a machinegun, that's fair to say, something which is manufactured as a machinegun, sold as a machinegun, anyone sort of buying it could reasonably be assumed... or possessing it, could reasonably be assumed to know that it was a machinegun, but that the argument doesn't wash in the case of a gun which, at least to external appearances, is not a machinegun.

Mr. Feldman: --Well, there have... as I said, there have been courts that have taken that view.

And that view, I suppose, would be an intermediate view, where there had no external indicia that could alert one to the fact that it was a machinegun.

But frankly I don't--

Unknown Speaker: To this act, that it falls within this very dangerous category of regulated weapons.

Mr. Feldman: --I--

Unknown Speaker: In other words, we've got a category of dangerous weapons which are not regulated.

Presumably, there's nothing about the possession of a singleshot 22 that ought to put the owner on... to an obligation of calling the Government to see whether they regulate singleshot 22's.

When the person possesses or buys a machinegun pure and simple, yes, you get a pretty strong argument that it's fair to put that obligation on him.

Then we have the middle category of guns which maybe can be converted, and which in most cases are not.

And is it... is it appropriate to put the obligation on the possessor or the buyer of those weapons to see whether something, in fact, has... has been modified about them that puts them into the especially dangerous regulable category?

And that's the issue we've got.

Mr. Feldman: --Right.

And I think it is appropriate.

I think it's appropriate both because Congress... I think, primarily, for the reasons I've already said, but because when Congress enacted the statute, they didn't include a mens rea component here.

They did model it on the Harrison Narcotics Act.

And in other areas where you're dealing with--

Unknown Speaker: Well, they may have... they may have done that on the assumption that we were going to apply this rule, which we're having difficulty applying, or at least I'm having difficulty applying.

Congress many have said, well... you know, in fact Congress frequently does this... you know, the courts will work it out, they'll figure out what to do here.

So I'm not sure that you can infer much from Congress' failure to act positively here.

Mr. Feldman: --I guess, well... I think, actually, the way I would put it would be that the burden is on... would... the burden would be on petitioners to show that even though Congress didn't include... it's not their failure to act positively.

They did act positively.

They enacted a criminal statute that provides that it is unlawful to possess a machinegun that's not registered in the national firearms registration records.

Unknown Speaker: Well, while keeping... while keeping their silence on mens rea.

Mr. Feldman: Right.

Well... well, without... without indicating a mens rea.

And in doing that... as I said, it followed exactly the Harrison Narcotics Act.

And in the line... it's... the decisions that have applied the principle that we're talking about aren't limited to the Bailant case.

In the Dotterweich case you were talking about misbranded or adulterated drugs.

Now, there's a wide variety of unmisbranded or nonadulterated drugs that are around.

Unknown Speaker: But I... I think... I guess what's... I guess what's bothering me is that I don't see in the drug situation an analogy to this fact about the gun situation: In the gun situation, there has been a continuing political contest for further back than I can tell, about the appropriateness of regulating guns.

And Congress, by and large, has taken a very narrow view of what should be regulated.

And it seems to me that that is a fact which makes it difficult to apply, sort of, your tough version of the rule.

And I don't see any analogy there in the drug situation.

Mr. Feldman: Well, I mean, I guess I'd make two points in response to that.

First, Congress has, though, decided it wanted to regulate machineguns.

And I'm not suggesting that Congress wanted to regulate other types of guns.

All it wanted was to know that if you had a machinegun and if you knew... that if people who had machineguns had to have them registered and it wanted to know where they were, that doesn't suggest that it's trying to regulate other types of guns, it's just suggesting that they wanted to make the regulation of machineguns an effective regulation that would ensure that they got registered.

The second point I'd make is that throughout the years since the Gun Control Act of 1968, when Congress has extensively... in 1968 they recodified the National Firearms Act.

In 1986 they amended it, as well as the Gun Control Act, which are the title 18 provisions.

Throughout those years, and up until very recently, the courts were unanimous or almost unanimous that our position in this case was right, and that all you had to know was to know that it was a weapon in the general sense, in the general sense.

There was no need for Congress for act--

Unknown Speaker: Is there any circuit other than... any circuit other than the D.C. Circuit that has gone for the defendant in?

Mr. Feldman: --The D.... as we read the cases, the only... the D.C. Circuit is the only... is the one that created the conflict in the circuits on the issue in this case.

There are three circuits, the Ninth Circuit, the Sixth Circuit, and the Fifth... I think the Fifth Circuit, that have held... have appeared to us, at least, to distinguish between guns that... where the modification is entirely internal and entire... and guns where there's some external modification, as there was in this case.

Unknown Speaker: Couldn't one rank this gun, based on the defendant's expert testimony, that this was a defect, and so bracket the defective gun with the internal modification, rather than the external modification?

Mr. Feldman: Well, I suppose... one could accept that.

I think the jury squarely rejected petitioner's evidence that the gun was defective.

There was nothing defective about the gun.

Perhaps if it had an additional part, it could have operated more reliably.

But there was extensive evidence that the gun had been taken out... evidence... ammunition of various... several different types had been put in the gun, and it had fired automatically with a single pull of the trigger.

Unknown Speaker: Well, of course--

--Mr. Feldman--

--Under your position, even if it's defective, there's liability?

Mr. Feldman: I don't... no, I don't think so.

I think if the gun, in fact... if the gun was... I suppose it might... might matter what you mean by defective.

If the gun occasion... once or twice fired multiple rounds and... but was... I think a jury reasonably could find and a defendant reasonably could argue to a jury that this just wasn't a machinegun, it was an occasional defect.

Unknown Speaker: Well, isn't it a question of law as to what is a machinegun and what isn't?

Mr. Feldman: Right.

And it's--

Unknown Speaker: Well, is it your position that a defective firearm that fires multiple rounds is or is not a machinegun?

Mr. Feldman: --If it... if it fire... if it fires multiple rounds.

I mean, I... let me refer to the language of the definition.

A machinegun is defined as any weapon--

Unknown Speaker: Can you tell me where you're reading from, please?

Mr. Feldman: --Actually, it's excerpted on page 4 of our brief.

Unknown Speaker: Thank you.

Mr. Feldman: Any weapon which shoots, is designed to shoot, or can be readily restored to shoot automatically more than one shot without manual reloading.

I think when it says would shoot... which shoots, or is designed to shoot, or can be readily restored to shoot, I think you could take the term "shoot" there not to mean that it did it once by virtue of some defect--

Unknown Speaker: So the Government's position is that unless--

Mr. Feldman: --That type of... this is a capability that this weapon has.

Unknown Speaker: --So the Government's position is that there's a machinegun involved if it shoots most of the time or some of the time as fully automatic?

Mr. Feldman: I hesitate to depart too far, because I think it has to have the general capability of shooting more than once with a single pull of the trigger.

I suppose that--

Unknown Speaker: If the statute is ambiguous, isn't that an argument for requiring specific knowledge of its characteristics, as opposed to strict liability?

Mr. Feldman: --I don't... in the... in the... I guess I don't see the ambiguity.

I mean, I think there are going to be... there are going to be close cases--

Unknown Speaker: Well, it seems to me we've just stumbled onto one.

Mr. Feldman: --I don't... actually, I don't think it's an ambiguity.

I think it's a question of the application of a lot of fact.

The question is does this gun have the capability of shooting automatically.

That question could arise even if you took petitioner's view of the case.

Under any view of the case, you could have a question of whether the gun itself was or was not an automatic weapon.

The question is whether it has the general capability of shooting automatically.

That's a question that can be argued to the jury, but that's a question--

Unknown Speaker: And the Government has the burden of proof on that, I take it.

Mr. Feldman: --That's right.

Unknown Speaker: And the jury must be instructed as to that.

Mr. Feldman: That's right.

And that's a question on which there was conflicting evidence in this case, but there was extensive evidence that this gun would fire, as a matter of course, if you put in... if you held the trigger down and put in ordinarily commercially available ammunition, it would fire automatically.

And the jury credited that evidence and it didn't credit the defendant's evidence.

Unknown Speaker: Well, was the jury instructed on the... on a defensive defect here?

I didn't think it was.

Mr. Feldman: I don't recall... I actually don't recall the specific--

Unknown Speaker: Well, you said a moment ago that the jury rejected the theory that, in fact, this was a merely defective gun, and I didn't... I didn't understand that that issue was put to the jury.

Mr. Feldman: --The--

Unknown Speaker: In fact, I don't... as I understood the instructions, the jury wouldn't have had any occasion even to take that issue up.

Mr. Feldman: --The jury was instructed that... was instructed, I think, in terms of the definition of machinegun that I read to you, as I recall.

Unknown Speaker: Yes.

Mr. Feldman: So it was instructed on what a machinegun is.

Unknown Speaker: And under that definition, as I understand the instructions, if the jury found that on one occasion one pull of the trigger shot more than one round, that that... that would qualify as a machinegun.

Mr. Feldman: Well, I don't think--

Unknown Speaker: And the jury was not instructed, as I understand it, that in... in the generality of cases this particular gun had to function in that way.

And as I understand it, it was not instructed that if it did so as a result of a defect, that it was not a machinegun.

Am I wrong about the instructions?

Mr. Feldman: --Again, I don't recall.

I don't... it wasn't... the latter instruction I don't think was given.

I don't recall specifically.

Unknown Speaker: Well, then we can't... we can't say that the jury rejected the theory of defect in this case.

Mr. Feldman: I think what you can say is that the jury concluded that the gun was an automatic gun, as defined by... an automatic gun as defined by the statute.

And also I really have to say--

Unknown Speaker: Well, I agree with you, but that's not... that's not the point.

The point is did it reject a theory of defective weapon such that if it had found it was merely defective, that would have been defensive.

And the jury didn't reject that theory.

Mr. Feldman: --Well, I have to say the court of appeals didn't rule, as I recall, on any theory... on the theory of defective weapon.

And the Petition for Cert doesn't--

Unknown Speaker: No, I'm not addressing the court of appeals, I'm just addressing your argument, and you were making the argument a moment ago that the jury had rejected the theory of defect, and I don't see how it did... you can make that argument based on the instructions.

Mr. Feldman: --Well, let me go... as far as the theory of defect goes, I don't understand exactly what the theory of defect is.

If the theory of defect is that it was able... it shot once, because something was wrong with it, multiple times with a pull of the trigger, but couldn't... that couldn't be repeated.

Unknown Speaker: Well, regardless--

Mr. Feldman: And that... that--

Unknown Speaker: --Regardless of what the theory of defect is, the jury did not reject a theory of defect.

Isn't that fair to say, under the jury instructions as given?

Mr. Feldman: --I guess... I don't mean to fight the premises here, but I think--

Unknown Speaker: You're doing... you're doing a good job.

[Laughter]

Mr. Feldman: --Perhaps.

The jury was instructed that it had to find that this was a machinegun.

The jury in... if petitioner's defense was, well, this only fired automatically because it was a defect, and I didn't mean it to fire automatically, no the jury wasn't asked to rule on any question like that.

The fact was that this gun was fitted with automatic parts.

It had a piece... a pin which ordinarily sits on the receiver and would keep... even if all the automatic parts, all the semiautomatic parts had been replaced by automatic parts, that pin would keep the lever from shifting over to the automatic position.

That pin had been visibly ground down.

Now, if... petitioner's view of defect, as far as I understand it, was simply that the gun could have had another part which would have made it fire... which would have made it fire automatically more reliably, and that since it didn't have that part, it only fired automatically as a result of a defect.

In our view, I don't think that was any real distinction, and there was no reason to instruct the jury.

But in any sense in which it's relevant, I think the jury did reject the theory of defect.

Unknown Speaker: Mr. Feldman, can I ask what the Government's theory of mens rea requirement is?

You're certainly not asserting that we should read every Federal statute which does not explicitly have a knowledge requirement as dispensing with it.

Mr. Feldman: That's correct.

Unknown Speaker: Ordinarily, we will read in a requirement that you have to know you're violating the law.

Mr. Feldman: That's correct.

Unknown Speaker: Now, what... what makes this different?

Mr. Feldman: I would say there's about three factors.

There's... one is the correlation between... the Congress' attempt to model this act on the Harrison Narcotics Act.

There's two, that this involves highly dangerous items that are a serious threat to the community.

And three, that it's a registration and recordkeeping requirement.

It's a... it's in... the criminal prohibition here is in aid of seeing to it that these weapons get registered and that the Government know where they are and who has them.

Unknown Speaker: All registration and recordkeeping requirements do not have a scienter.

Mr. Feldman: I think where Congress... we would be comfortable with the rule that where Congress doesn't specify otherwise, and where it's dealing with highly hazardous threats to the community and imposes a registration and recordkeeping requirement, that in those circumstances a very weak scienter requirement of the sort that was given to the jury here is appropriate.

Unknown Speaker: Well, Mr. Feldman, does the Government want to concede that you ordinarily read in a requirement that you must know you're violating the law in every criminal statute where Congress is silent?

Isn't the presumption ordinarily that ignorance of the law is no defense?

Mr. Feldman: Yes, that's correct.

Unknown Speaker: Well, then--

Mr. Feldman: And I didn't mean to concede that.

Unknown Speaker: --Well, but it's... then, it seems to me, you're giving a different answer to me than you gave to Justice Scalia a moment ago.

Mr. Feldman: I'm sorry.

What I was really... what I mean to say was where there's no specific... there's no specification of a knowledge requirement, I think it ordinarily is appropriate to require that the defendant at least know the facts, or the primary facts, or the crucial facts that make his conduct illegal.

I do think it's a question of reading each particular--

Unknown Speaker: Well, but that's a different... it's one thing to say the defendant must know the facts that make his conduct illegal.

It's another thing to say that he must know the law that makes them illegal.

Mr. Feldman: --Right.

I don't think that there is... there's all... there's virtually never a requirement, unless it's otherwise specified, of knowledge of the law.

Unknown Speaker: I meant... I meant the former.

The Chief Justice is quite correct to make that modification.

But in this case, that would lead to the normal requirement that he had to know the fact that it was a machinegun.

Mr. Feldman: That's right.

And if... if we were--

Unknown Speaker: But you say that's not the case here because--

Mr. Feldman: --Because--

Unknown Speaker: --Machineguns are dangerous and this act looks like another act that we've held doesn't have a recordkeeping requirement, and this is a... doesn't have such a requirement.

And lastly, this... this act is a recordkeeping act.

Mr. Feldman: --I mean I guess... I guess what I would add to that is that the primary determinant should be what Congress' intent was.

And the point about this looking like another act is... I think that's a very strong index of what Congress' intent was--

Unknown Speaker: Do most recordkeeping acts have prison sanctions for up to 10 years, which is what this is?

Mr. Feldman: --That is a stiff sentence, I'll agree.

But this act, when it was enacted, for instance... and there's no reason to think that the intent requirement would be any different today... had a prison requirement of 5 years and $2,000, which, word for word, was the same as the penalty provision in the Harrison Narcotics Act that the Court... that the Court interpreted--

Unknown Speaker: Well, it seems to me that implicit in the argument that it's a registration, a regulatory act, is also the assumption that the penalty is... is not too severe.

This is a very severe penalty.

Mr. Feldman: --It's true that it is a severe penalty.

But as I said, that... that penalty was not... it's not that different from the penalty that was in effect when the act was first passed.

And there's certainly no reason to think that over the years... I think Congress upped the penalty from 5 years to 10 years in 1968, but that either then or in 1986 when additional amendments, some amendments were made here and some to the Gun Control Act... that at any of those times Congress wanted to change the Act.

In fact, to the contrary, at all relevant times both the line of decisions that I've cited, Dotterweich and Bailant, the decisions of this Court, it's recognized in Morissette as well and International Minerals... at all relevant times those decisions uniformly supported our position, as did the decisions of the lower courts.

Unknown Speaker: Mr. Feldman, remind me of your answer to Justice Souter's question about the difference between drugs, where one would say drugs are dangerous, and guns where, for the most part, Congress hasn't regulated, so it's only a special category that's registered?

You don't have the same kind of congressional determination of dangerousness.

Mr. Feldman: I think there's... there's really distinctions on both sides of that.

First, when in 19... when Congress enacted the Harrison Narcotics Act... and generally in the early part of the century drugs were much less regulated than they are today.

And the Harrison Narcotics Act only purported to regulate cocaine and opiates, not any other drugs.

But secondly, from the other point of view, I think guns are extensively regulated in our society.

They are items that are very dangerous and are known to be dangerous by people, and Congress legislated under that background assumption.

And guns are sufficiently highly... are sufficiently regulated and sufficiently dangerous that if you have one, it's up to you to determine whether... whether it fires automatically.

Another example, for instance, would be a short-barreled rifle.

The short-barreled rifles or short... or sawed-off shotguns are also firearms under the National Firearms Act.

It's... I don't think someone could reasonably... could reasonably... under petitioner's view, the Government has to prove, I suppose, that somebody took out a ruler and measured the length of a barrel on one of those weapons and saw that it was less than the specified 16 or 18 inches in the statute.

I don't think that that's what Congress intended.

Congress intended that if you own a shotgun or a rifle, it's up to you to determine how long the barrel is.

And so long as you know you own the rifle or the shotgun, if the barrel is shorter than the 16 or 18 inches, it's a firearm under the act.

Unknown Speaker: Mr.--

--What if... what if you don't even know that it's a shotgun, you don't even know you have a shotgun?

You buy a house, wight, and sealed up in an abandoned room in the basement there is a sawed-off shotgun; would you be liable?

You don't have to know anything at all?

You don't even have to know you possess it?

Mr. Feldman: No, that's not our position.

Our position is you have to know--

Unknown Speaker: Oh.

Mr. Feldman: --is you do have to know it's a gun.

The possession... the--

Unknown Speaker: Why is that?

Mr. Feldman: --The position we have--

Unknown Speaker: Why is that?

Mr. Feldman: --Because I think in draws the line that the Court has drawn between items xx apparent xx re entirely innocent, such as... such as Food Stamps xx type of conduct at issue in United States Gypsum--

Unknown Speaker: Is that the way the drug law is interpreted too, that you appeal to?

If I sell something that I think is face powder and it turns out to heroin, that what they said in the Supreme Court?

Mr. Feldman: --In Bailant, that's not what they said.

Unknown Speaker: I didn't think it was.

Mr. Feldman: In Bailant they didn't address what you... what the... what the Court held in Bailant was that you... it rejected petitioner's position in this case, which is you don't have to know that what you possessed was opiates or cocaine.

Unknown Speaker: Right.

Mr. Feldman: They... The Court didn't go into what you do have to know.

Unknown Speaker: No, but if--

Mr. Feldman: And to some extent--

Unknown Speaker: --I think if you're going to appeal to Bailant and the drug cases, you have to say it really doesn't even matter whether he knows it's... it's a... he owns a gun.

Mr. Feldman: --I think that it's reasonable that... I think the question of what you do have to know is... well, it's one that they didn't address in Bailant.

And generally... I mean, generally, you could interpret this to be a strict liability offense.

However, in light of the Court's distinctions in... between, for instance, cases such as Liparota and United States Gypsum, and cases like Bailant or Dotterweich or Freed, I think it's reasonable to draw the line and infer a very mild scienter requirement.

Unknown Speaker: Well, isn't it true that all the courts of appeals have done that.

At least... at least they have to know that he possessed the item.

Mr. Feldman: Yes, as far as I'm aware.

Unknown Speaker: Do you happen to know, as a matter of history, what precipitated the enactment of the '34 act?

Mr. Feldman: I... it was--

Unknown Speaker: You didn't live in--

Mr. Feldman: --There was testimony about Dillinger I believe.

Unknown Speaker: --You didn't live in Chicago then, I guess.

Mr. Feldman: Yes.

[Laughter]

Yes.

Unknown Speaker: Is it fair to say... we could argue about the facts of application, but is it fair to say that your interpret... the Government's interpretative rule for finding what Congress probably intended, or imputing an intent to Congress, does require, for your position to prevail, that we conclude that the... that the... that the defendant understand that what he was possessing was... was an object within a class of highly dangerous objects which it is reasonable to suppose the Government would regulate?

Mr. Feldman: I--

Unknown Speaker: Is that the general premise?

Mr. Feldman: --That would be one formulation, yes.

Unknown Speaker: Okay.

Mr. Feldman: If there's no further questions, I've completed.

Unknown Speaker: Thank you, Mr. Feldman.

Ms. De Angelis, you have 10 minutes remaining.

Rebuttal of Jennifer L. De Angelis

Mr. De Angelis: Thank you, Mr. Chief Justice.

It's important for this Court to remember that not all guns are taxed and regulated.

And as with regard to the congressional intent, I'd like to leave the Court with this thought from the Anderson decision in the Fifth Circuit:

"It is unthinkable to us that the Congress intended to subject such law-abiding, well-intentioned citizens to a possible 10-year term of imprisonment if, unknown to them, without reasonable cause on their part to think otherwise, what they genuinely and reasonably believed was a conventional semiautomatic pistol turns out to have been worn down or secretly modified to be fully automatic. "

Unknown Speaker: That's a court that makes the distinction between internal and external.

Mr. De Angelis: That's right.

Unknown Speaker: And which we don't have here, because whatever you call it, it was external.

Mr. De Angelis: In part, Justice Ginsburg.

I think that the Government has stated, even in pretrial proceedings, that the modifications in this case were twofold.

One, it contained M-16 parts.

The Government says the parts were substituted.

That was not the evidence at trial.

The evidence was it was purchased by Mr. Staples with M-16 parts; it was manufactured in that fashion.

And one of those parts was the selector stop on the lever... and the switch, the stop being modified or filed or worn down in some fashion by someone at some time.

Unknown Speaker: But you're not saying that this case fits within the,

"You can't see it; it's all on the inside. "

Mr. De Angelis: That's correct.

If there are no further questions.

Chief Justice Rehnquist: Thank you, Ms. De Angelis.

The case is submitted.

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

Attribution:

The OYEZ Project

Featured:

Smith v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:28 +0000

Case:

Smith v. United States

Media File:

91-8674_19930323-argument.mp3

Related Transcript:

1992_91_8674_argument.xml

Transcript:

Argument of Gary Kollin

Chief Justice Rehnquist: We'll hear argument next in No. 91-8674, John Angus Smith v. the United States.

Mr. Kollin, you may proceed whenever you're ready.

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

John Angus Smith was convicted of a violation of title 18, United States Code, 924(c), when he possessed a firearm and offered it as an item in trade for barter for a small quantity of drugs.

As a result of his conviction, he received 30 years minimum sentence, consecutive to the terms he received on his other counts.

The issue today is whether the offering of a firearm solely as an item of barter violates 18 United States Code 924(c) for the use of a firearm during and in relation to a Federal drug trafficking crime.

At the outset, it is important to realize that this statute provides two different methods by which it could be violated: first, by the use of a firearm during and in relation to the Federal drug trafficking crime; and the second way is by carrying the firearm during and in relation to the Federal drug trafficking crime.

John Angus Smith was only charged with the use prong of the statute.

We submit that--

Unknown Speaker: I guess he could have been charged with carrying it.

Mr. Kollin: --That is correct, Justice.

However, the Government elected, for whatever reasons they chose, to only charge him with the use prong.

In fact, this was the third superseding indictment in regard to this matter, and in each one he was only charged with the use prong.

So, they had three times to change that election.

Unknown Speaker: If you had been charged with carrying, I don't suppose... and you had been... your client had been convicted, I don't suppose you would be here.

Mr. Kollin: That is probably correct, Justice.

Unknown Speaker: You wouldn't have much of a case about coverage, would you?

Mr. Kollin: That is probably true, but the Government did choose to and elected to charge him with use, and that is the reason why we're here today and what he is charged with.

Unknown Speaker: You wouldn't argue that use or carry means carry for the purpose of using?

Mr. Kollin: Well--

Unknown Speaker: Really?

I'm surprised.

Mr. Kollin: --Justice Scalia--

Unknown Speaker: Well, that's all right.

Mr. Kollin: --I'm prepared to argue that, and--

Unknown Speaker: Yes, I think you would.

Mr. Kollin: --Because what I want to say here is that if we accept the Government's suggestion of the definition of use, this all-encompassing definition, or the lower courts', then the word use would always swallow up and encompass the word carry.

There could never be a situation where someone could use a firearm under their definition or under the definition of the majority of the lower courts where one would not be also carrying.

I mean, if you would carry it, you always would use it.

And the principles... I cannot think of a situation under their definition where it could not occur.

Unknown Speaker: Anything you're carrying, you're using?

I don't know.

Mr. Kollin: Under their definition, it's to possess with the intent to facilitate the crime, to possess and the presumption of intention.

So, under their definition, any time that one is carrying the firearm, one is always using it in regard to the statute.

And the basic axiomatic rules of construction of this Court is that we should never render a term in a statute to be superfluous and that each word should be given effect.

And if we don't narrow the definition of the word use to the definition that we have suggested here, that is, to define that use means the actual use in the active connotation... according to the active connotation of the word use, then the word carry would have no definition.

Unknown Speaker: I mean, we really haven't accomplished a whole lot if carry means what you say it means.

Really, I mean, it may be important to this case, but use and carry covers everything in the world then.

The dispute between you and the Government is that the Government says use carries everything in the world, and you say, no, it's only use or carry that covers everything in the world.

So, for later cases, this dispute is really not very important I suppose.

With due respect, Justice, I disagree.

And the reason I would disagree is because the decisions that are cited by the Government in its brief and some of the decisions that I cite in our brief is that there are situations that... where somebody has a firearm that is located proximally to where drugs are being held, and those people have been convicted of use, people who have been convicted of use who have firearms that are totally inoperable, that do not have firing pins, do not have ammunition, that are located in remote locations.

Those people have also been convicted of use under their definition and the majority of the lower courts'.

In fact, in Justice White's... in Justice Thomas' dissent in Mewks v. United States, that was their concern that this definition of the word use is... becomes an all-encompassing definition and it means possession and presumes the intent to use.

So, not only is this important to the case of John Angus Smith, but it is important to countless others who may possess firearms and not have a use.

Moreover, with this definition that the Government encourages here, both in the lower courts and from this Court, it also encourages the lower courts to engage in psycho journeys into the defendants' minds to try and determine their intent, and it requires situation-by-situation, case-by-case analyses--

--What do you say use means in the statute?

Mr. Kollin: It means actual use.

Unknown Speaker: Okay, but to say use means actual use doesn't help at all.

Mr. Kollin: Okay.

Well, it means to use it, to brandish it, to fire it as an offensive weapon.

Unknown Speaker: Well, then you're saying that... you're really putting quite a narrow construction on the phrase.

One doesn't ordinarily think of the kind of drug transactions that the statute is... don't you think of them as being more consensual than involving somebody sticking somebody up and getting drugs from them?

Mr. Kollin: Well, also but it's an offensive weapon to protect themselves or... as a weapon in the normal connotation of the way the item is used.

As an example, Mr. Chief Justice, let's say a carpenter is carrying a hammer on his side, on his belt.

And an individual would go up to the carpenter and say may I borrow the hammer.

Am I... are you using it?

The carpenter, while he would be carrying the hammer, would say no, I'm not using it now.

You may borrow it.

Secondly, if the carpenter goes ahead and trades that hammer for a board, similar to John Angus Smith trading the gun for drugs, we would not say the carpenter used the hammer under a normal way of speaking or normal connotation.

We would say the carpenter traded the hammer.

And so, in regard to this statute, I believe that--

Unknown Speaker: You could say the carpenter used the hammer to obtain what he traded it for.

Mr. Kollin: --Yes, but I don't think that's the normal connotation of the word use.

I think similarly to this situation is the problem this Court faced in Public Citizen v. Department of Justice.

In that case, the Court said that the word utilized... it's a very similar word I think to the word uses... is a wooly verb, its contours left undefined by the statute itself, and went through its analysis.

And I think similarly the word use here has a certain manner of uncertainty to it, and when it has this manner of uncertainty and ambiguity to it, then we must resort... well, then we have the... we look to the legislative history and also we can look to the rule of lenity.

And in looking to the legislative history in regard to this statute, I think that the legislative history supports the position of the petitioner in regard to this matter.

The original statute... well, the... as this Court has noted in the cases of Simpson and Busic, the legislative history in regard to the statute was rather sparse.

And in this particular case, as presented in our brief, the original bill in regard to adding this... these provisions of 924(c) was added on the floor by Representative Casey, and in his words, he said that without the words... word carry in it, that it would apply to the actual use of the firearm.

And then Representative Poff later proposed an amendment, also on the floor... and I noted in both situations there was a quorum present... that Representative Poff said that his amendment to the Casey proposal was not in derogation of that.

And so, therefore, in conjunction with the fact that the Senate proposal of Senator Dominick was not accepted, which was instead of using... instead of having the words use or carry, they had the word armed, that we must distinguish between use or carry, and in that situation looking at this legislative history, we see that the meaning of the word would not encompass the word... would go to its actual use in its normal capacity.

In our brief, we also present what I presented as the pawn ticket hypothetical... and that's at page 15... in which we have an individual who takes a gun and several weeks before he decides to engage in any type of drug activity, takes the gun and pawns it at a pawn shop.

Later on, he decides to become involved in... excuse me... a drug trafficking event, and then trades the pawn ticket for the drugs.

The Government acknowledges at footnote 20 that perhaps this does not fall within the normal understanding of the word use, and I could submit to you that there could be countless other situations like that, for instance, a bill of lading for gun parts that could be assembled into guns that could be traded, or for instance, other situations where an individual brings... is bringing home a quantity of drugs in a large box, and for some reason, the door keeps swinging shut, and there is a gun lying there that had no part in the transaction.

There was no intent of being used in regard to the case, and takes that gun and places it as a door stop.

And technically under the wording of this statute, that is being used during and in relation to the Federal drug trafficking crime.

So, the statute itself presents an ambiguity and uncertainty as to the meaning of the word use.

And accordingly, we have the right to look at the legislative history, which I presented, and also to the rule of lenity.

Unknown Speaker: Section 924(g) prohibits the transfer of a firearm that's going to be used in drug transfer... in drug trafficking.

I take it that under your view if someone transfers a firearm to a person, knowing that the transferee is going to use it to trade drugs... to trade for drugs, there's no liability under (g).

Mr. Kollin: To be quite truthful, Justice, I have not explored the... those aspects of section (g).

Unknown Speaker: Well, your word... definition of the word use is such that it has to be somehow used in order to protect the person and not for a trade.

So, I take it under your interpretation, the word use has to be given the same definition so that if people trade firearms, knowing that the firearms will be used by the transferees to be traded for drugs, there's no violation of under (g).

It has to be.

Mr. Kollin: I don't know the exact wording of section (g)--

Unknown Speaker: It says whoever knowingly transfers a firearm, knowing that such firearm will be used to commit a crime of drug trafficking.

Mr. Kollin: --Well, I think that the issue there is transfer, and the later aspect is used--

Unknown Speaker: No.

Let's assume that the transfer element of my hypothetical is satisfied.

Under your definition, there is no use of the firearm even though he is... the transferor knows that it's going to be used to trade for drugs.

It's not being used under your theory.

Mr. Kollin: --That is correct, but it could be the person could possibly charge with carrying the firearm under the other prong of the statute.

Unknown Speaker: Well, doesn't the word carrying carry... strike that.

[Laughter]

Doesn't the word carrying suggest even more strongly than the word use in this context an offensive or protective purpose?

I mean, carrying is not a broader term than use, which is what your answer to Justice Kennedy seemed to assume.

Mr. Kollin: Well, I think that one of the courts have held that carrying is a very narrow... the lower courts have held that carry is a very narrow definition and use has a very... has lost its active connotation.

But I think carry means to possess in transit or possess and transport.

Unknown Speaker: But doesn't it also, for purposes of this statute in your judgment at least, require a... an offensive or protective purpose when it is carried--

Mr. Kollin: Not under the definition that I've suggested.

Unknown Speaker: --Well, how about the definition that you would like us to assume in deciding this case?

Do you think carrying has no protective or offensive purpose?

Mr. Kollin: I think generally yes, Justice.

I think generally carry does have that offensive type purpose.

Unknown Speaker: Should we construe the statute to import that requirement of an offensive or protective purpose when we use... when the statute uses the word carry?

Mr. Kollin: I don't think that is necessary in regard to reaching the decision in regards... in this case.

Unknown Speaker: Well, if we don't do that, didn't your client carry the weapon in relation to the barter that he later engaged in?

If we don't adopt that particular construction in this case, don't you lose under the word carry?

Mr. Kollin: No, Justice, because--

Unknown Speaker: Oh, he was discharged.

I see.

Mr. Kollin: --He was discharged under the use prong.

Unknown Speaker: But you would lose if he had been charged with carry if you adopt the broad definition that you're considering.

Mr. Kollin: I think that was the same question Justice White asked earlier which I agreed with, but for whatever reasons, in three superseding indictments the Government chose to only charge John Angus Smith with the use of the firearm during and in relation to the Federal drug trafficking crime.

Unknown Speaker: Mr. Kollin, surely a court that's going to use language reasonably enough so that it interprets using a gun to mean what you say it means, using it in a crime, would also not be so unreasonable as to interpret the phrase carry a gun to mean a longshoreman who's... who has on his shoulder a crate full of weapons that he's taking off the ship.

I mean, if we're reasonable for the one, don't you think we should be reasonable for the other too?

Mr. Kollin: I agree, Justice, that that requires that reasonableness.

In fact, that was suggested in the footnote in the 1984 passage of the bill in which they talked about a firearm merely carried during a pugilistic barroom fight.

Unknown Speaker: You can say in some sense, of course, that the longshoreman carrying this crate is carrying a gun, but that's not what you mean when you say are you carrying a gun.

Or when the policeman in... you know, arrests the person and searches and says are you carrying, I mean, he's not saying are you lifting.

He's talking about whether you have a gun on your person with the intent of using it.

Of course, I suppose the longshoreman also has to be also be carrying some drugs, or the statute doesn't apply.

[Laughter]

Mr. Kollin: That's true, Justice.

Unknown Speaker: I was just curious about your legislative history point.

The ambiguity in using is does the use by means for barter purposes constitute use, and the... you turn us to the legislative history, and Congressman Casey said I mean actually use a gun.

Well, actually use really isn't any different from use.

I'm not sure why that clears up the ambiguity that gets you to look at that.

Mr. Kollin: Well, if there is an ambiguity--

Unknown Speaker: Yes, and then I look at it and I see actually used.

That's got the same ambiguity.

I'm actually using it when I hand it to you in exchange for some prohibited substances, am I not?

Mr. Kollin: --Well, that goes to my... to the next point is the rule of lenity.

Unknown Speaker: Well, I know, but that... I'm just confining on the legislative... my question really is I don't see why your legislative history argument advances us at all.

It seems to me it just gets us to where we started, namely, what do you mean by use.

Mr. Kollin: Well, I think it goes to... well,... perhaps my interpretation of actual use means use an offensive weapon.

Unknown Speaker: Yes, I know, but the Congressman didn't say that.

He didn't say anything about offensive weapons or protective purpose.

He just says actual use, and it seems to me if a barter is a use, it's also an actual use.

I mean, you know, I'm just saying I'm not sure your argument gets us anywhere.

Well, if your argument is it's ambiguous... if use is ambiguous, the two words actual use is even more ambiguous.

[Laughter]

Don't you think?

Mr. Kollin: I agree that that is an argument to be made in regards--

Unknown Speaker: Mr. Kollin, doesn't the language in the statute, use in relation to a drug trafficking crime, clarify it?

It's use in relation to the drug crime.

Mr. Kollin: --Well, I think that was--

Unknown Speaker: It's not just use per se.

It's in relation to the crime, and I suppose bartering it for drugs could be said to be in relation to the drug crime.

Mr. Kollin: --That was the argument that was made in the Phelps case that was... the decision the Ninth Circuit turned on, which... but they said that a firearm that is traded in barter is not used in relation to the Federal drug trafficking crime, and that's the decision they ruled upon.

We are not abandoning that position, but we feel that with regard to the definition of the word use, it presents the ambiguity.

Moreover, if we turn to the next point, which is the rule of lenity, then we have... where's there's ambiguity exists, then you... the decisions are that we adopt a construction most favorable to the accused.

And if we adopt that construction most favorable to the accused, then in this situation the... we would find that there is no violation on the part of John Angus Smith for bartering the firearm for the drugs.

Unknown Speaker: Well, in our Moskal opinion, Mr. Kollin, we said that a statute isn't ambiguous for purposes of the rule of lenity just because it's possible to articulate a more narrow construction.

Mr. Kollin: I understand that, but I think that in this particular case it is ambiguous, and I think that--

Unknown Speaker: But aren't you saying it's ambiguous simply because it's possible to articulate a more narrow construction?

Mr. Kollin: --No.

I'm saying it's ambiguous because without narrowing the construction, we nullify the word carry, and that the decisions of this Court have held that we should never make a word superfluous in a statute, and we should give each word effect.

There is a minority opinion in regard to the Moskal situation.

Judge Scalia's position is once there is an ambiguity, you don't--

Unknown Speaker: Yes.

That didn't prevail.

Mr. Kollin: --I understand that.

[Laughter]

Unknown Speaker: You could just... you can say that... you can accept the fact that carrying doesn't mean use, but that doesn't mean that bartering it for drugs is not using it.

Mr. Kollin: Well, it's our position--

Unknown Speaker: You're doing more than carrying a gun if you take it out of your pocket and trade it off for some drugs.

Mr. Kollin: --Well, in the situation of our hypothetical, Justice White, in which somebody trades the pawn ticket--

Unknown Speaker: Would they... would the Government really have been describing what happened if it said this fellow was carrying a gun in connection with a drug thing?

What happened was that he was... he bartered, he traded the gun off.

Mr. Kollin: --Yes.

Unknown Speaker: Well, that's more than carrying it, isn't it?

Mr. Kollin: But... well--

Unknown Speaker: That's actually using it.

[Laughter]

Mr. Kollin: --Well, I think it's different than... I think that's different than carrying.

I don't think it's actual use because I think we think of the word use in the normal connotation of that item's utilization.

Unknown Speaker: Well, it's different from shooting somebody.

That's right.

But he has certainly got his money's worth out of that gun.

[Laughter]

Mr. Kollin: Well, never ever traded it.

So, he didn't get to the situation.

Not only does this definition establish the ruling for John Angus Smith, but it established a bright line for the lower courts because as we... as I talked about, that the lower courts have been going through this case-by-case, situation-by-situation analysis to try and determine the intent of the person who possesses that firearm, has gone to situations with... endeavoring to presume an intent in the person's mind in regard to that possession.

And it avoids that case-by-case situation analysis, and it reduces the burdens to the lower court by not having to go through those things, but determines a bright line which somebody either uses it or not uses it and what carry means under these situations.

I also submit that it's consistent with the congressional history with regard to this matter.

Unknown Speaker: I'm not sure you're... let me just challenge you on your bright line argument.

It seems to me one... if we hold that bartering a gun for a... drugs is use, that's... there's nothing fuzzy about that holding.

There may be some fuzziness out in other cases about intent, but there's no doubt about intent in the facts of this case if barter constitutes use.

Mr. Kollin: If barter constitutes use--

Unknown Speaker: That's a very clear... that's at least one area of... that the statute covers that everybody would understand.

You can't trade a gun for drugs--

Mr. Kollin: --That's correct.

Unknown Speaker: --without getting an enhanced penalty.

Mr. Kollin: But it still... as you said, Justice Stevens, it still creates a fuzziness that was mentioned in the dissent... the denial of certiorari in Mewks and the volume of cases that keep on reaching this Court about... in petitions for certiorari in regard to what use is and whether--

Unknown Speaker: You think we can fashion a definition of use that won't have any borderline gray areas that will produce litigation?

Mr. Kollin: --I don't think that's true with regard to anything in the law.

Unknown Speaker: You would suggest that the fuzziness would be in the reasoning, not in the holding I take it.

Mr. Kollin: I'm sorry.

I didn't hear.

Unknown Speaker: I shouldn't have said that.

I said you would suggest that the fuzziness would have been in the reasoning, not in the holding.

That's the one bright line rule.

Strike the question.

[Laughter]

Mr. Kollin: Well, I think that the holding would establish the bright line, and I think... I do submit that I think that the congressional history is consistent with the point that we make that actual use refers to something more than just bartering or trading.

In the instant case, John Angus Smith did not actually use a firearm in the context intended by Congress as an offensive weapon.

This Court should determine that his conduct of trying to trade the firearm for drugs did not violate the use prong of the statute because he did not actually use the firearm in its normal capacity as an offensive weapon.

I'd like to reserve the remainder--

Unknown Speaker: Mr. Kollin, could I ask you just one question?

Let's assume that your client was successful and was not arrested, and a friend approached him the next day and asked him what happened to his Mack 10.

Could he reasonably respond I used it to obtain cocaine?

Mr. Kollin: --Not in the context that the statute prescribes.

I think that--

Unknown Speaker: But could he respond to his friend I used it to obtain cocaine, and would that be a reasonably understandable response?

Mr. Kollin: --I do not believe that's how someone would normally say it.

I think they would say I traded the firearm for the drugs.

Unknown Speaker: If he did say that, might not somebody... if he did say that to you, wouldn't you think that what he meant was he stuck it in somebody's face in order to compel the person to give him the cocaine?

He said I used the gun to get some cocaine.

Mr. Kollin: I think that would be a very reasonable interpretation.

Unknown Speaker: Thank you, Mr. Kollin.

With your carpenter, if he traded his hammer for the board, and he was asked what happened to his hammer, and he reasonably... he said I used it to obtain this board, would one reasonably think that he used it to hammer someone's head to obtain the board?

[Laughter]

Mr. Kollin: No.

I think he... somebody could reasonably interpret that he pulled the board off a wall by pulling out the nails.

Unknown Speaker: I pass on this round, Mr.--

[Laughter]

Mr. Hungar, we'll hear from you.

Argument of Thomas G. Hungar

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

On its face, the language of section 924(c) encompasses the use of a firearm as a medium of exchange to buy illegal drugs.

If I purchase illegal drugs with a $100 bill, I have used that $100 bill to buy drugs.

By the same token, if I--

Unknown Speaker: Yes, but there is this difference.

The purpose of manufacturing and printing $100 bills is to use them as a medium of exchange.

The purpose of manufacturing and selling guns is not to use them as a medium of exchange.

Couldn't one define use to be use for the purpose that the item was created for?

Mr. Hungar: --No, Your Honor.

The word use does not imply use for a... for the particular purpose the item was created for.

It implies any use.

Unknown Speaker: Well, that's the question in the case, of course.

Mr. Hungar: Well, the definition of the word use encompasses all uses.

If I use a gun to pound a nail into the wall, that's not the purpose for which guns are designed, but I would say in common parlance I used the gun to pound the nail into the wall.

Unknown Speaker: But, Mr. Hungar, maybe our problem is that we're focusing on the word use, and words are not used one at a time.

They're used in phrases.

Hence, there... you know, there is a maxim of construction, notiatur ex sociates.

You know the word from the company of words in which it's used.

And here we say it says use a gun.

If you had to answer a questionnaire as to whether you used drugs and you were a pharmacist... that was your profession... would you have to answer yes?

Of course, you wouldn't, would you?

Mr. Hungar: Well, it would depend on the purpose of the questionnaire.

Unknown Speaker: Well, because the phrase use drugs means something even though the word use by itself can mean a lot of things.

And when you say use a gun, did he use a gun, I don't think it means did he use it to scratch his head.

[Laughter]

Or did he use it to pry the door open?

It means he used a gun as a gun.

Gee, I--

Mr. Hungar: With respect, Your Honor--

Unknown Speaker: --At least if you're working with the doctrine of the rule of lenity, it seems to me you have to take that into consideration.

Mr. Hungar: --To the contrary, Your Honor.

The rule of lenity is particularly inappropriate I think to apply in this case because the conduct at issue here falls within the literal definition of the words use, within the literal meaning of the words use.

This isn't a case in which we're arguing for something other than the actual definition of the words use.

Petitioner had fair notice that if he used a gun in relation to a crime, he was running risks of being incarcerated for a very long time, and that's exactly what he did.

This isn't the case for the rule of lenity at all.

The definition of the word use is very broad.

It means to employ, to carry out a purpose or action by means of, to make instrumental to an end.

Congress chose not to use specific narrow words like fire, shoot, or brandish in order to limit the types of uses that would be covered by the statute.

Instead, Congress used sweeping language which suggests that it didn't intend the courts to draw fine distinctions among the various ways in which criminals can employ firearms in furtherance of their criminal conduct.

Unknown Speaker: Why didn't the Government avoid all this ambiguity and cause this split in the circuits?

Why didn't you just indict him for carrying the gun in connection with a drug crime?

Mr. Hungar: I don't know why he wasn't indicted for carrying in this case, Your Honor, but I would point out that that would not have alleviated the split in the circuits because what the Ninth Circuit held in the Phelps case is that... they conceded in the Phelps case that the defendant there had used the gun by trying to trade it for drugs, but what they said was that that use was not in relation to the drug trafficking crime.

So, they went off on the in relation to prong which, of course, applies to the carrying of the firearm.

Unknown Speaker: Well, but you wouldn't have had much problem indicting... convicting this person for carrying, would you?

Mr. Hungar: Well, again, Your Honor, in the Ninth Circuit--

Unknown Speaker: Well, would or not?

Mr. Hungar: --we would.

In the Ninth Circuit, under the rule of the Phelps case we could not convict him for carrying in relation to an offense because what the Ninth Circuit in Phelps said was that trading of a firearm--

Unknown Speaker: Well, I know, but--

Mr. Hungar: --for drugs is not in relation to.

Unknown Speaker: --I know, but it didn't help you any to use "use" either, did it?

Mr. Hungar: Well, it did until the Court granted cert, Your Honor.

[Laughter]

Unknown Speaker: Yes, but it shouldn't have.

But if you won in the Eleventh Circuit on the "use" theory, you certainly could have won it on the "carrying" theory.

Mr. Hungar: Yes, Your Honor.

Unknown Speaker: And we wouldn't... you wouldn't be here.

Mr. Hungar: Well, I think we might well be here because petitioner could have argued that by holding that the carrying of a firearm for the purpose of trading it for drugs is in relation to a drug offense, that would have created a direct, square conflict with what the Phelps case said in the Ninth Circuit, which is that the trading of a gun for drugs is not in relation to a drug offense.

We think that--

Unknown Speaker: But the issue would certainly be different here.

Mr. Hungar: --It would be different, yes, Your Honor.

Unknown Speaker: Yes.

Mr. Hungar, in subsection (d), the statute refers to any firearm or ammunition involved in or used in any knowing violation.

Under your definition in your interpretation of the statute, is there a difference in involved in and use?

Mr. Hungar: I'm not sure, Your Honor.

If that statute doesn't have an in relation to requirement, there might be... involved in might be broader than in relation to, although I wouldn't think it would be.

Unknown Speaker: I cannot offhand think of a difference of involved and use under your interpretation, and it seems to me that under your interpretation, at least it renders involved in in (d) superfluous.

Mr. Hungar: Well, use implies some active... I mean, some active use, not to be redundant, but something could be involved in an offense without having been used by the particular defendant.

Use implies, on the part of the defendant charged, some ability to guide the destiny of the gun, if you will, to control the gun, at least in the sense of constructive possession as Justice Thomas' opinion for the D.C. circuit in the Long case said.

"Involved in" would not necessarily imply that.

In any event, it may be that in that statute Congress was simply... again, similarly to what it was trying to do here, was using multiple words to ensure that the statute would given its full scope and construed broadly in order to get at the full range of conduct that Congress wanted to proscribe.

Petitioner argues that our interpretation of the word "uses" renders the word "carries" superfluous.

We disagree with that.

There are certainly cases in which a defendant could carry a gun without using it in relation to the crime.

For example, a member of a bank robbery conspiracy who goes to the store and buys a gun and brings it back and then turns it over to the member of the conspiracy who's actually going to rob the bank.

That individual has not used the gun in any way, but he has certainly carried it during and in relation to the bank robbery conspiracy.

Unknown Speaker: Well, why hasn't he used it to facilitate the bank robbery?

Mr. Hungar: Because he hasn't used it in any way.

Unknown Speaker: Sure, he has.

He handed it over to somebody and said, here, you can use this in the robbery.

He's using it to perform his act of facilitation.

Mr. Hungar: Well, I don't think that we would say that the mere carrying of a gun without more is the use of a gun.

The use implies--

Unknown Speaker: Because it would just be absurdly broad, wouldn't it?

Mr. Hungar: --Because I don't think that's how we would use the word use in common parlance.

If you were using--

Unknown Speaker: If you want to start referring to common parlance, it seems to me you're getting into... onto pretty thin ice because a minute ago you were saying, no, look, we're going to use use in the literal dictionary definition.

That's not common parlance.

Mr. Hungar: --Well, I think when we speak of common parlance, we speak of the way words are ordinarily used which is I think the way the dictionary defines them.

Unknown Speaker: And doesn't the dictionary frequently contain definitions which are at least possible uses of the word, but which do not reflect common, everyday usage?

Mr. Hungar: Yes, but the dictionary definition of the word use and the common parlance use of the word use means to employ something, to carry out some purpose.

It doesn't mean to employ something only in a manner for which it is designed.

Unknown Speaker: Yes, but as Justice Scalia suggested to you, when you say use a gun, in common parlance it doesn't mean trading a gun, does it?

Mr. Hungar: Not necessarily, Your Honor, but it can mean that.

It depends on the circumstances.

Unknown Speaker: Not necessarily or even commonly.

Mr. Hungar: Again, if I... if a burglar uses a gun to break open a window in order to gain access to a house, or if he uses the butt of his shotgun to smash open a closet door in order to ransack its contents, he is--

Unknown Speaker: But that isn't what... you say using a gun in common parlance means opening a door with it.

Mr. Hungar: --It can.

I can certainly say I... if I were the burglar who smashed open the closet door with the gun and someone asked me how I smashed open the closet door, I would say I used my gun.

That's common parlance.

That's the way the word is ordinarily used in that context, and there's nothing to suggest that Congress intended a narrower definition.

The literal--

Unknown Speaker: So that in this case, if you used the gun at home in order to grind the powder, you used the butt of the gun, and then left the gun at home, that would be the use of a gun in connection with a drug transaction?

Mr. Hungar: --Well, it depends on the crime being charged.

Unknown Speaker: This charge... this statute.

Mr. Hungar: The... it depends on the predicate offense that's being charged, whether it's a use in relation to the predicate offense.

Certainly there's no question--

Unknown Speaker: Under your interpretation of the statute and under my hypothetical, would there be a violation under this statute?

Mr. Hungar: --Well--

Unknown Speaker: Would he be using the gun in a drug... for drug trafficking?

Mr. Hungar: --Well, there has to be a use in relation to a specific drug trafficking crime.

Certainly the defendant has used the gun--

Unknown Speaker: Well, at 10 o'clock in the morning, he grinds the cocaine powder using the butt of the gun, and at 11 o'clock in the morning, he takes the powder that's so created and goes out and sells it.

A violation of this statute?

Mr. Hungar: --Well, again, Your Honor, it might not be a violation of the statute depending on how you construe the limitation of during.

Unknown Speaker: Well, how--

Mr. Hungar: It has to be during the commission of the crime, and it depends on what the crime charged is.

If the crime is distribution of cocaine, which occurs at 11 o'clock, I don't think he has violated the statute.

But even if he has... if the charge is possession of cocaine with intent to distribute it, the presence of the gun at the scene of the cocaine would permit a jury to infer that he is, indeed, using it in relation to the crime and is, therefore, guilty of the crime.

But it depends on the predicate drug crime being charged.

Unknown Speaker: --What if the barter arrangement was I will mail you the gun in exchange for the drugs?

Has he used the gun within the meaning of the statute here?

Mr. Hungar: Well, that's a more difficult question, Your Honor, because many courts of appeals have construed the use in relation to requirement to require some proximity, some availability of the gun, and it's unclear how that requirement would apply in this context, but--

Unknown Speaker: Well, what's your position on--

Mr. Hungar: --I think that you could certainly have--

Unknown Speaker: --the meaning of the word in relation to, and... the words, rather?

Mr. Hungar: --I think that that would be a use in relation to the crime, Your Honor.

And again, there's nothing surprising or absurd about that result.

Congress was concerned about the involvement of firearms in criminal activity.

And in particular, when it amended the statute in 1986 to extend the statute to drug trafficking crimes, the legislative history indicates that Congress did so because of the increasing proliferation of machine guns and other dangerous weapons among drug trafficking criminals and other criminals and the dangers that posed to law enforcement officials and other members of society.

And it's entirely in keeping with that purpose to construe the statute as we would.

Unknown Speaker: I suppose if there was a drug dealer who wasn't so much interested in money as collecting guns to defend himself and his colleagues, he let it be known that I am trading cocaine for guns.

That certainly would be using a gun?

Mr. Hungar: If he were trading cocaine for guns?

Unknown Speaker: Yes.

Mr. Hungar: And he were intending to... he were letting it be known to people--

Unknown Speaker: Could you indict him who is... who... the cocaine dealer.

Could you indict him under this statute?

Mr. Hungar: --It depends.

It's a more difficult question because we might not... depending on the circumstances of the case, we might not say that the drug seller--

Unknown Speaker: He wants the gun and the gun... and he never would have entered into this drug transaction unless he got the gun.

Mr. Hungar: --In that case, it probably would be a violation of the statute.

If the drug dealer had no actual interest in obtaining the gun and the person with the gun who was trying to buy the drugs volunteered this, the drug dealer might not be using the gun in any sense of the word, and therefore, the drug dealer might not be himself liable, although he would probably be liable as an aider and abetter even under that statute.

But again, that's not this case because in this case it's perfectly clear that, as you said, the defendant was actually using the gun in order to get drugs and, therefore, was actually violating the statute.

Unknown Speaker: Your answer to Justice O'Connor suggests, I believe, that you would answer their hypothetical about the pawn ticket by saying that's use of a gun too.

Mr. Hungar: I think that's right, Your Honor.

The pawn ticket is a particularly difficult one because a pawn ticket, at least normally, does not in itself entail the right to obtain a gun.

So, you have to go pay money for it.

In a sense it's sort of like saying if you give me the drugs, you can go to the store and buy a gun, and I'm not sure that's that the use of a gun.

Unknown Speaker: Maybe change the example to one where he gave him a bill of sale to the gun.

Mr. Hungar: Yes.

Unknown Speaker: That would clearly be--

Mr. Hungar: I think that would be.

Again, that's further from... that's quite a distance from this case because there's no question about constructive or actual possession, as some of the courts of appeals have acquired.

The gun here was actually in the possession.

Unknown Speaker: --But it really would be use in the same sense, consideration in an exchange for guns--

Mr. Hungar: I think that's right, Your Honor.

Unknown Speaker: --for drugs.

Mr. Hungar: And again, there's nothing absurd--

Unknown Speaker: That's not absurd.

I'm not suggesting that it's absurd, but that is the scope of your position.

Mr. Hungar: --That's correct.

Unknown Speaker: Yes.

Mr. Hungar: Given the literal language that Congress has used, we think that the statute should be construed in accordance with that literal language, as the original sponsor of the statute indicated, Congressman Poff.

The purpose of the statute was broader than what petitioner has suggested.

The purpose of the statute was to persuade the man who was tempted to commit a Federal felony to leave his gun at home.

Congress didn't want guns involved in the commission of felonies.

Unknown Speaker: You see, the point of my hypothetical was he could do that and leave his gun at home.

Mr. Hungar: That's true, Your Honor, and again, that might be a reason for a court concluding... we don't think it would be, but it might be a reason for a court concluding in that hypothetical that it's absurd to construe the statute that way.

But this case doesn't present that question.

This case falls squarely at the core of Congress' concern in adopting the statute.

Petitioner appears to concede that the use of a firearm... that the involvement of the firearm in this case was in relation to the predicate drug offense, and we agree that under any reasonable construction of the in relation to requirement, it has been satisfied in this case, despite the fact, as I said, that the Phelps court in the Ninth Circuit reached the opposite conclusion.

Unknown Speaker: So, did you think we're... be authorized in this case to say that it is in relation to?

That isn't the issue we took it on, is it?

Mr. Hungar: Well, I believe the Court granted certiorari to decide whether this constitutes a use in relation to a drug trafficking crime, and we submit that it is.

But in order to uphold the conviction, the use has... in order for the conviction to be valid, the use has to have been in relation to--

Unknown Speaker: Well, the question presented is whether the act of offering a firearm solely as an item of barter in trade for drugs violates 1924(c) for use of a firearm during and in relation to a drug trafficking felony.

So, you can say that certainly that question is subsumed.

But you would like us to... if you win the case, you would like us also to overrule the Ninth Circuit.

Mr. Hungar: --That would be nice, Your Honor, but... and I think, as the Chief Justice pointed out, in order to answer the question presented as we would, necessarily the Phelps decision has to be overruled.

In urging a narrower interpretation of section 924(c), petitioner in effect is asking this Court to rewrite the plain language of the statute to construe the term uses a firearm as if it read uses a firearm as a weapon.

In our view, the statutory text forecloses that approach.

Congress specified the limitations it wanted to impose on the scope of the statute.

The use or carrying of a firearm must be during the commission of the predicate offense, and it must be in relation to the predicate offense.

Those two limitations do not include the ones sought by petitioner.

So, the obvious inference is that Congress did not intend to adopt petitioner's version of the statute.

As I was discussing earlier, petitioner argues that our interpretation of the statute would render the word carries as superfluous, but in fact, that's not correct.

If anything, it's petitioner's interpretation of the statute that would render a word superfluous because if petitioner is correct that the statute applies only to actual physical uses of firearms as an offensive weapon, it's difficult to see how one can actually use a firearm as an offensive weapon without also carrying it.

And so, it's petitioner's interpretation of the statute that runs afoul of the rule that statutes should not be construed in order to render words superfluous.

If there are no further questions, I thank the Court.

Unknown Speaker: Thank you, Mr. Hungar.

Mr. Kollin, you have 2 minutes remaining.

Rebuttal of Gary Kollin

Mr. Kollin: As express words are placed in statutes and have to be read in their context, like use or carry, involved in, or used in, and not to make other words superfluous, in these cases with use or carry or involved in or used in, they are not mere iterations of spanning out of different methods of commission of the crimes, and we look at them in the normal parlance.

The bank robbery conspiracy.

Yes, I would agree that that is the facilitation of the commission of the crime and the person... other persons would be guilty under the concept of 18 United States Code, subsection... section 2 for aiding and abetting, just as the theory was tried to be made in the Busic case.

I do not believe that the Government has been able to establish any example where someone can carry without using under its definition or the definitions accepted by the majority of the lower courts.

The problem with regard to this definition is that it criminalizes the fact that somebody may have drugs that are proximate to a gun even where the guns are inoperable.

There are situations where guns were at remote locations where the drug transactions weren't being committed.

This also... this same definition of use in this statute also accomplishes the law enforcement goal because it still allows law enforcement to encourage the person to leave the gun at home because if he is carrying the gun on his way to committing the crime, he is still guilty under the statute, and therefore is the same goal and same purpose of the statute.

And the examples in the later 1984 statute... the versions talk about the methods of using it and they give examples by pointing it out in regard to the bank teller and individuals of that nature.

Chief Justice Rehnquist: Okay, Mr. Kollin.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Ball v. United States - Oral Argument

Fri, 31 Aug 2012 18:30:17 +0000

Case:

Ball v. United States

Media File:

84-5004_19850109-argument

Related Transcript:

84-5004_19850109-argument

Transcript:

ORAL ARGUMENT OF JO S. WIDENER, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We will hear arguments next in Ball against United States.

Ms. Widener, I think you may proceed whenever you are ready.

Jo S. Widener: May it please the Court, I am here this morning on behalf of Truman Lewis Ball to ask the Court to vacate one of his convictions and one of his sentences under the cases of United States against Batchelder and Blockburger against the United States.

This is a direct appeal from two convictions suffered by Mr. Ball, one for 922, receipt by a convicted felon of a firearm, and 1202, possession of a firearm by a convicted felon.

The government proved three incidences of possession in this case, all of which occurred at or about the same time.

The first was when Truman Ball reached into a bag of beer and came out with that gun.

The second was when he had the gun in Clarence Music's yard and waved it at him.

The third was when they arrested him, when the police officers arrested him at Gary Music's house and saw the gun in his back pocket.

There are a few other critical facts to this case as well.

Mr. Ball is now in prison, where he has been for the last 15 months.

He is serving a three-year sentence on the 922 receipt.

At the same time, he is on probation for the 1202 conviction.

He has two years' probation, and he is fully subject to the conditions of that probation at the time that he is in prison now serving those three years.

This is under the case of Burns against the United States, which is a case we have not cited in our brief.

The citation to it is 287 US 216.

Any time between now and the next nine months, if Mr. Ball should get into any sort of confrontation there in the prison or any trouble at all, if he should infringe upon any prison regulation at all, he is subject to having his probation revoked.

At whatever time he has that probation revoked, he is then subject to having an extra two years imposed upon him, two years that he will have to serve.

That, of course, will be concurrent with the sentence that he is now serving, but it will still mean to him that after he has served his three years on the 922 offense, he will yet have one more year or at least up to one more year, somewhere between three months and one year, of a sentence to serve because of the 1202 concurrent sentence that is now imposed upon him.

In other words, he is worse off today because he has a probation to serve than he would be if he simply had two years to serve on that sentence and it was running concurrently, because if he had two years to serve, it would be over in two years.

However, now we have no certainty that it will be over in two years, and we have no certainty for the next nine months.

We say that this is not an adverse collateral consequence of this concurrent sentence.

We say that this is a direct, immediate consequent to Mr. Ball that he is suffering under today, and therefore this case ought to be reviewed.

Unidentified Justice: Ms. Widener, the government says you didn't make these arguments in the Court of Appeals, and therefore we shouldn't consider them.

Jo S. Widener: Your Honor, we would argue that we did make these arguments.

We asked for both the conviction and sentence to be vacated.

That was the opening sentence in our brief, and we also asked in our notice of appeal that... our notice of appeal was taken from the judgment of the District Court, including the finding of guilty and also the sentence that was imposed upon each of these... on each of these two convictions.

Unidentified Justice: I don't think anyone doubts you appealed to the Court of Appeals for the Fourth Circuit.

The question is, what arguments did you make to that court?

Were they the same as you are making to us?

Jo S. Widener: Yes, Your Honor, they were exactly the same as we are making hare.

The only difference is, we left out the two words "and convictions", and the reason we did that was because under the Burton case we suffered some great danger that we would not be heard at all, as Burton had not been heard on his direct appeal.

Nevertheless our arguments here are exactly the same.

We are still arguing Blockburger and we are still arguing Batchelder, which we argued in the Court of Appeals.

The Batchelder case we did not argue specifically in the Court of Appeals, but this was because we were faced with the Burton construction of the Batchelder case.

Burton had already decided what Batchelder meant for the Fourth Circuit, so we were locked into that.

The facts here are indistinguishable from the case of Batchelder.

There a convincted felon bought a gun from an ATF agent while Mr. Batchelder was tending bar in Bellview, Illinois.

When he... and the Court said in Batchelder that when Mr. Batchelder reached across that bar and took that gun from the ATF agent, at that moment he was guilty of both.

He was guilty of 922, receipt, and he was guilty of 1202 just by that single act.

Here we have the exact same facts.

When Mr. Ball reached into that bag of beer, he was guilty of both receipt and possession by that act, and Batchelder said that Congress had intended in passing these two statutes to have two independent statutes each fully enforceable on their own terms, and Batchelder also confirmed that this very conduct violated both statutes.

When a single act violates two statutes, as we have in this case, we look to... the courts always look to the case of Blockburger against the United States to determine whether there is one offense or whether there are two offenses.

The first question to ask under the Blockburger analysis is, did Congress intend to cumulatively punish for this offense?

Unidentified Justice: Isn't that really the first and last question?

I mean, Blockburger was a case of statutory construction.

The ultimate question in a case like this is just the one you meant.

Did Congress intend to cumulatively punish in the circumstance?

If the answer is yes, the other Blockburger questions are just irrelevant.

If the answer is no, they are also irrelevant.

Jo S. Widener: Yes, Your Honor, I think that is true.

Blockburger is a statutory construction, but there are some... there is sort of a procedure to go through under Blockburger.

The first is to look at the statute, as I understand it, the statute and the legislative history, to see what can be gleaned there, and if there is no clear intent indicated either in the legislative history or in the statute itself, then one resorts to the test of Blockburger to determine what Congress's intent was in passing those two statutes.

So, yes, you are correct, as I understand it, that it is a statutory construction problem.

The Circuits... the Courts of Appeals that have considered this question, all except the Tenth Circuit say that there is... there was no cumulative punishment intended by Congress when they passed these two statutes.

When I say all of those Circuits that have considered it, that means the Third, the Fifth, the Seventh, the Ninth, the D.C. Circuit, and the Fourth Circuit.

These Circuits base their analysis, all except the Third, which is underneath a case which the government conceded, but the other Circuits all base their analysis on the Batchelder case, where the Court in Batchelder had said that the government could prosecute on either.

The Circuits then interpreted this to mean that the government could not prosecute all the way to judgment, to conviction, to sentence on both of those statutes at the same time.

These same Circuits say when the government has not chosen either one or the other but has chosen instead to proceed on both statutes, that the remedy there is to vacate one conviction and one sentence.

This is all except the Fourth Circuit, of course.

The Fourth Circuit says that the remedy is to make the sentences run concurrently.

But even if the Circuits' reasoning is wrong under Batchelder, still looking to the statutes themselves and to the Congressional history, there is no explicit clear statement in any of that indicating that Congress intended to cumulatively punish under these statutes, and the most recent case of Missouri against Hunter teaches us what kind of language should be there if, or we should look for to determine that intent, language such as "in addition to".

There is no such language in either of these statutes.

In the absence of--

Unidentified Justice: Ms. Widener, does conviction alone constitute punishment?

Jo S. Widener: --Yes, Your Honor, we say that conviction alone does constitute punishment.

In this case, Mr. Ball's two convictions can be used subsequently if he should get into any other trouble and have to ever be on the witness stand again, those two convictions can be used to impeach his credibility.

Those two convictions could possibly be used against him in a recidivist situation.

Unidentified Justice: Well, has this Court specifically held that a second conviction with a concurrent sentence is to be treated as punishment for purposes of the double jeopardy clause?

Jo S. Widener: Your Honor, I could find no specific holding as to that effect.

Nevertheless, when I looked back through the cases, it seemed to me that in all cases except for the line of cases under Prince, that the remedy when there is a double jeopardy question has been to reverse the judgment or to vacate the conviction.

Always the entire judgment was considered, and not just the vacating of the sentence, as the Fourth Circuit has done here.

Unidentified Justice: Well, I think in our Ohio against Johnson case, last spring, I thought we said there could be two convictions so long as there weren't two punishments.

Jo S. Widener: Your Honor, we would argue that a second conviction in this case is an additional punishment on Mr. Ball, and because of the effect of his concurrent sentence here, he is also suffering additional punishment, and very realistically may suffer an extra year on his punishment.

Unidentified Justice: If you are arguing sentencing, there is no doubt, at least in my mind, that you are correct, but to say that the conviction as well amounts to a punishment I think is more debatable.

Jo S. Widener: I think that under the cases of Sylburn against Ohio and Street and that line of cases in which the Court looked to whether or not there were adverse legal consequences of convictions, I believe the Court has said that these consequences do exist, and in this case, this man is a man who is not well educated.

He is not someone who can defend himself from these convictions and from the effect that they are going to have on his life.

They will affect him in his employment situation.

They will affect him every time he is put on the witness stand.

He in a further prosecution... it is unrealistic to suggest that he, pitted against a well educated and well trained prosecutor, could possibly convince a jury that these two... that he should not have two convictions here, that he should only have one conviction.

Nor could he convince a sentencing judge in the future that he should not have two convictions here, he should simply have one, because the very fact of those two convictions existing on that paper seem to indicate to a judge that he is guilty of both.

Unidentified Justice: Perhaps even if your Blockburger analysis is right, the answer is, he may not be sentenced on both convictions, but he can be convicted on both of them, and in that case your argument that he couldn't convince people that he shouldn't have had two convictions would be true because he ought not to be able to convince people that he shouldn't have two convictions.

Jo S. Widener: Well, Your Honor, I would, I guess, fall back on the argument that since Congress has not told us specifically what to do in this situation, it has not told us when this conduct violates those two statutes, whether we should convict or sentence under both.

We do know, however, that it has not authorized two convictions for either of these statutes.

The only punishment that it has authorized here is a conviction and punishment under either of those statutes.

I do not believe that without a clear statement that more than one statute is violated or what to do in the case when more than one statute is violated, that you could impose an extra punishment on him which in this case his conviction would be an extra punishment.

Unidentified Justice: As I read the government's brief, they are really arguing a sort of harmless error without calling it that.

At Page 5 of their brief they make a statement which is directly contrary to the one you have just told us, and I would like to see which is correct.

The government says here, the additional conviction will not increase the defendant's prison term, and will not impose any other adverse consequence upon him.

Now, in your earlier argument, I believe, you said that is not so.

Jo S. Widener: Yes, Your Honor.

That is not so.

He is subject to not only a sentence of three years that he is serving right now, but under what the Court of Appeals did when they made these sentences run concurrently, he is also subject to the terms of his probation right now.

So that in addition to his three-year sentence, should for any reason, and of course prison is not a place where you are not easily to bump into someone else and get into some sort of trouble, if in the next nine months he should get into any small infraction of prison regulations, he would then be subject not only to whatever penalty they would enforce upon him for doing that in the prison, but he would also be subject to having his... to being called back before Judge Williams in the District Court and having his two-year probation, which he is now serving, having that revoked, and--

Unidentified Justice: Well, we will wait to see what your friend has to say about that when his turn comes.

Suppose both violations are charged in the indictment, and the case is tried that way, and it goes to the jury on both charges, and he is convicted on both, but the judge then says, well, he has been convicted on both, but I know from reading the Supreme Court cases, at least the way I read them, I shouldn't sentence on both, so I am going to impose a single sentence for possession or for receipt, and that is all he imposes.

Would you have gone to the Court of Appeals?

Jo S. Widener: --Well, I certainly should have, Your Honor, because we do argue that these convictions themselves were a problem.

The reason that it could not be argued in the Court of Appeals--

Unidentified Justice: Well, you can't punish them.

The only rule that seems to come through is that he can't be punished for both.

Jo S. Widener: --But Your Honor, there is a real--

Unidentified Justice: The question the government may have to elect which to proceed on before trial.

Jo S. Widener: --I beg your pardon?

Unidentified Justice: Are you arguing that the government should have to elect which statute to proceed under before trial?

Jo S. Widener: No, we are not arguing that.

It does not affect our position one way or the other whether they--

Unidentified Justice: When does the limitation on the conviction come, when the judge instructs the jury and you tell the jury you can only convict on one of these?

Jo S. Widener: --Yes, Your Honor.

Unidentified Justice: Is that what you think should happen?

Jo S. Widener: Under Melanovich, or indeed, if he does not instruct the jury that way, he should not allow two convictions to be imposed on these two statutes.

Unidentified Justice: Because you think that is the intent of Congress?

Jo S. Widener: Yes, Your Honor, I do.

I don't think there is anything anywhere that would indicate that when the same conduct violates those two statutes, he should be convicted under both because of the adverse consequence of that extra conviction, that it is something that is going to follow him around forever.

Unidentified Justice: Well, assuming you are right, but there are still concurrent sentences, and you must at least convince us that the two convictions instead of one will have an adverse consequence on your client.

Jo S. Widener: Well, Your Honor, I believe that the convictions will have, because of the concept of recidivism statutes, where he now under this record has at least his third conviction because of this excessive conviction.

Therefore in many states he would be subject as of this moment to ten years.

In some states it is a life sentence for the third offense.

Unidentified Justice: On that basis, the whole concurrent... that approach would undermine the entire concurrent sentence doctrine, if there ever was one.

Jo S. Widener: Well, Your Honor--

Unidentified Justice: Because your argument would almost always be true.

Jo S. Widener: --Well, certainly under these facts it is true in this particular case.

Of course, if a man had a death sentence and a concurrent sentence, that would not be true.

Then it may not be a rule that should be implied.

The D.C. Circuit has an interesting way of applying the concurrent sentence rule.

They determine that if, in order to promote judicial economy and not to have to consider a sentence, they look at the two interests involved.

Since there is no interest that the government actually has to protect, and the government here has conceded that in their brief, that they really have no fundamental objection to this rule that we are talking about right now.

Since the government has no interest to protect, and since the possible adverse legal consequences to the defendant are very real to him, the D.C. Circuit, without review, vacates these sentences and convictions on the theory that they could be reimposed at some later time if it was shown, for example, that the first sentence was reversed on appeal.

Of course, if the first sentence was reversed on appeal, and they look at the second sentence here, there would be nothing to prevent the prosecutor from reprosecuting under that first sentence at that point.

Unidentified Justice: I can see how you could reimpose a sentence, but I don't see how you could reimpose a conviction if it were vacated.

I would think that would take a new trial.

Jo S. Widener: Yes, Your Honor, that's what I mean.

A new trial could be taken.

This is the D.C.--

Unidentified Justice: That is hardly much solace to the government, that they have a chance to try the person again for something which he has already been convicted of.

Jo S. Widener: --Of course, in most situations that is not going to arise, however, because the court under the concurrent sentence doctrine determines one sentence is valid before they determine not to look at the other sentence, so the chance of having the first sentence that has already been determined to be valid reversed is very minimal.

And that is why I would take issue with the D.C.'s policy there, because if there was ever any time to have to reimpose that second sentence that they vacated, of course, that could be done by retrial, but it is a very slim possibility.

Since I am beginning to eat into my rebuttal time, I think that I will try to reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Pincus.

ORAL ARGUMENT OF ANDREW J. PINCUS, ESQ., ON BEHALF OF THE RESPONDENT

Andrew J. Pincus: Mr. Chief Justice, and may it please the Court, I would like to first briefly discuss our waiver argument with reference to the colloquy that Justice Rehnquist had with my opponent.

Unidentified Justice: Would you raise your voice a little, Mr. Pincus?

Andrew J. Pincus: I am sorry.

I would like to first briefly discuss the waiver argument with reference to the colloquy that Justice Rehnquist had with my opponent.

In the Court of Appeals there was no request that one of the convictions be vacated.

The only reference to the convictions was that there was an appeal from the convictions, but this relief was not requested, and there was no discussion of the possibility of adverse consequences as a result of the additional conviction and the other issues that are before this Court.

Therefore, we believe that the waiver argument is valid, and that it provides grounds for the Court to dispose of the case without reaching the merits.

Unidentified Justice: May I ask you a question about that?

They did ask to have one of the sentences vacated, didn't they?

Andrew J. Pincus: Yes, Your Honor.

Unidentified Justice: And the Court of Appeals did not do that.

It made it run concurrently, but it didn't vacate.

Andrew J. Pincus: Yes, Your Honor.

Unidentified Justice: So then isn't the issue of whether the second sentence should be vacated something we rust decide?

That was argued.

Andrew J. Pincus: Well, Your Honor, the relief that is requested here and the thrust of petitioner's argument--

Unidentified Justice: They ask that you set aside the conviction, right.

Andrew J. Pincus: --is the conviction.

They don't seem... in the Court of Appeals they didn't make any distinction as to why vacating a sentence would provide some additional relief that making these sentences run concurrently, which was their alternate remedy, would not.

Here they seem to distinguish the remedy provided by vacating one of the convictions on the--

Unidentified Justice: I understand that she asked for that, but it is true that she also makes the argument that the second sentence on which he is on probation is a burden that would be set aside if we went farther... if we did what the Court of Appeals was asked to do.

I will put it that way.

Andrew J. Pincus: --Yes, Your Honor.

We take issue with the contention that the second sentence would be a burden.

We think that the import of the Court of Appeals mandate was that the petitioner not serve more than three years in prison, and we think that any decision by the District Judge--

Unidentified Justice: Well, do you think that putting him on probation on the second sentence complies with the mandate of the Court of Appeals or does not?

Andrew J. Pincus: --We think that the concept of being on probation while someone is in prison is a difficult one.

We think certainly the district... any deprivation of probation that results--

Unidentified Justice: But don't you think in kind of a real world sense, would he not be better off if he were not on probation on the second sentence, if it were just not there?

Is it not--

Andrew J. Pincus: --Of course, we think there would be no difference if the second sentence was a committed sentence rather than suspended in favor of probation, and we think that under the mandate, the petitioner could move under Rule 35 for an alteration of the sentence to make it--

Unidentified Justice: --What happens when probation is revoked?

Does he just serve the unexpired portion of his sentence, or doesn't he start his whole sentence from scratch?

Andrew J. Pincus: --Well, he could serve the whole sentence from scratch, but we--

Unidentified Justice: If that happened then the revocation of probation would cause him to serve a longer period of time in the penitentiary than the one sentence.

Andrew J. Pincus: --But we think that the District Court couldn't order that longer sentence under the Court of Appeals mandate, that the clear import of the Court of Appeals decision was that the petitioner not serve more than three years in prison, and that any result vis-a-vis the suspended sentence that had that effect would be improper.

And we would in fact support a Rule 35 motion to alter the second sentence to make it a committed sentence to avoid that slim possibility.

Unidentified Justice: Well, what possible interest does the government have in sustaining both convictions?

Andrew J. Pincus: Your Honor, as we say in our brief, the government's interest is not very great with respect to the convictions in this case.

The government's concern is that a decision by this Court, for example, that a conviction that carries no adverse consequences constitutes punishment could adversely... could conflict with the justification for the concurrent sentence doctrine.

Unidentified Justice: Well, I thought... you agree that Congress didn't intend to have... for a defendant to be punished under both statutes.

Andrew J. Pincus: Yes, well, we didn't intend cumulative punishment.

Yes, Your Honor.

Unidentified Justice: Well, would you say it would satisfy all the interests you had if the judge... would you object to an instruction by a judge to a jury that you can convict under one of these statutes but not under the other... but not under both?

Andrew J. Pincus: Well, Your Honor, I think we would object.

Unidentified Justice: Why would you object?

He certainly can't sentence consecutively under both.

Andrew J. Pincus: Well, there may be--

Unidentified Justice: What possible interest do you have in having a sentence imposed under both statutes if they must run concurrently?

Andrew J. Pincus: --Well, part of the problem is that our position depends upon the facts of the case.

There are... under these two statutes there are situations in which multiple punishment would be appropriate, for example, if multiple firearms were involved.

That isn't true in this case, but that might be true in another case.

Unidentified Justice: That is a different problem.

You could also get into a situation where perhaps one section of the statute is held unconstitutional at some later date, and if you got another conviction on another one stockpiled, you could pull it out at that time.

Andrew J. Pincus: Yes, Your Honor, and we feel that there is no harm to the defendant if there is an additional conviction where it carries no adverse consequences.

Unidentified Justice: Let's assume it did carry some adverse consequences.

Namely, let's just assume you agree that having two convictions on the record instead of one would affect parole decisions or later the possibility of being prosecuted as a recidivist.

Do you say that those consequences are just nonexistent, or just too remote, or what?

Andrew J. Pincus: In this case, we contend that they are nonexistent.

They might be existent in another case.

Here the parole board has--

Unidentified Justice: If we disagree with you, then you lose the case?

Is that it, on that, if it does have some adverse consequences?

Say we agree with your opponent.

Andrew J. Pincus: --Well, the adverse consequences also would have to rise to the level of multiple punishment.

For example, a consequence in another proceeding would not constitute multiple punishment in this proceeding.

In other words, the fact that the petitioner might be subject to punishment under a habitual offender statute for a different crime wouldn't constitute multiple punishment for this crime under the Court's decisions in Kryger.

Unidentified Justice: If you have two sentences, you have two sentences in this case.

I don't know why that isn't multiple punishment.

Andrew J. Pincus: Your Honor, because the defendant will be serving--

Unidentified Justice: You've imposed two sentences.

How do you... that is not one.

It is two.

Andrew J. Pincus: --But the defendant won't be serving any additional time in prison.

Unidentified Justice: That may be so, but he has still got two sentences, and two sentences have adverse consequences outside this proceeding.

Mr. Pincus, suppose there had been two indictment, one on each of these counts, instead of one indictment with two counts, or one information with two counts.

He is convicted on the first one.

Do you think there would be available to him a double jeopardy or some ether defense on the second indictment, the second one brought to trial?

Andrew J. Pincus: In a successive prosecution.

Unidentified Justice: Yes.

Andrew J. Pincus: Yes, Your Honor.

Unidentified Justice: Well, then, why doesn't that answer the question here that has been posed by several Justices?

Andrew J. Pincus: I am sorry, Your Honor, the multiple punishment question?

Unidentified Justice: No, the multiple prosecution for the same conduct.

Andrew J. Pincus: Well, because in your hypothetical--

Unidentified Justice: Do you concede the same conduct is the basis of each of the charges?

Andrew J. Pincus: --Yes, Your Honor, but in this case both of the counts were tried in one prosecution, so there is no successive prosecution problem.

That portion of the double jeopardy clause isn't implicated here.

Unidentified Justice: Mr. Pincus, your brief on Page 19, the fourth paragraph, gets me... do you still agree with that language, that you don't object to this, that you don't object to the plan that the petitioner has put forth?

Andrew J. Pincus: Well, Your Honor, our problem is, we wouldn't object if the district judge in this case had, after the jury returned its verdict, vacated one of the convictions subject to the condition that if the unvacated conviction was ever overturned, the first conviction would be reinstated.

Our problem is that a decision by this Court holding that the vacation of the conviction was required would conflict under the double jeopardy clause, for example, would conflict with the rationale of the concurrent sentence doctrine, because it would rest on the notion that the mere fact of a conviction without any adverse consequences was sufficient prejudice or sufficient punishment to require elimination.

Unidentified Justice: Well, you agree this is additional punishment?

Andrew J. Pincus: No we don't, Your Honor.

We don't believe that this is additional punishment.

Unidentified Justice: Does the government in this case distinguish between conviction and sentence?

Andrew J. Pincus: Our view of punishment, Justice Rehnquist, is additional time in prison or an additional fine, the facts that have been relied upon in this Court's cases discussing the cumulative punishment rule.

There is no additional time in prison, and no additional fine in this case, and we don't believe--

Unidentified Justice: I don't think you understood my question, at least gathering from the way you are answering.

I asked you if the government distinguishes between conviction on the one hand and sentence on the other, a conviction upon which no sentence is imposed.

Is that punishment?

A judgment of conviction returned, but there was no sentence imposed?

Andrew J. Pincus: --No.

we don't believe that that would be punishment.

Unidentified Justice: You don't ever get to the question of whether a second sentence might require no additional time in prison.

If there is no sentence at all imposed on the conviction, your position, I take it, is that that is not punishment.

Andrew J. Pincus: Yes, Your Honor.

Unidentified Justice: Mr. Pincus, what about the recidivist statutes?

Andrew J. Pincus: Well, Your Honor, the two recidivist--

Unidentified Justice: Under a recidivist statute, if you had two convictions, you go.

If you only have one, you don't go.

Andrew J. Pincus: --Your Honor--

Unidentified Justice: You wouldn't consider that punishment?

Andrew J. Pincus: --Well, most recidivist statutes adopt the rule that the two statutes cited by the petitioner adopt, which is that if the two convictions are imposed in a single proceeding, they count as only one conviction for the purposes of the habitual offender statute.

Therefore, the petitioner is not prejudiced under those statutes, because the two convictions only count as one.

Unidentified Justice: Does that cover all recidivist statutes?

I think I have seen them that don't have that in them.

Andrew J. Pincus: No, Your Honor, I don't believe it covers all of them, but I think it covers most of them.

Unidentified Justice: I didn't think so.

So on those it does not cover, he has a problem.

Yes or no?

Andrew J. Pincus: Well, Your Honor, I don't think that he would have a problem, because I don't think that that it is still any prejudice that he has incurred right now from the two sentences.

Unidentified Justice: I take it... excuse me.

You do concede there are two sentences here.

Andrew J. Pincus: Yes, Your Honor, two concurrent sentences.

Unidentified Justice: The government's interest, I take it, is in maintaining the conviction.

If the Court of Appeals had ordered the District Court to vacate either one of the sentences but leave the conviction standing, you would be quite satisfied.

Andrew J. Pincus: Yes, Your Honor.

Unidentified Justice: So you don't really mean that the concurrent sentence would have to stand.

Andrew J. Pincus: No, our concern is not with petitioner's concurrent sentence.

Unidentified Justice: So if the District Court, after a jury convicts on both sentences, says I will enter a sentence on one of the counts and suspends sentence on the other, you would be satisfied?

Andrew J. Pincus: Yes, Your Honor.

Unidentified Justice: Counsel, I take it you take the position then that the double jeopardy clause just doesn't speak to the question at all of double convictions as opposed to punishments--

Andrew J. Pincus: Yes.

Unidentified Justice: --when they are handled in the same prosecution.

Is that your position?

Andrew J. Pincus: Yes, Justice O'Connor.

That is our position.

Unidentified Justice: All right, so then is it simply a matter of legislative intent whether there should be two convictions?

Andrew J. Pincus: There could be a question on legislative intent, although--

Unidentified Justice: Is that what we would look to?

Andrew J. Pincus: --Yes, Your Honor, I think you would, although--

Unidentified Justice: And what does Batchelder tell us about that, in your view, with respect to these two statutes?

Andrew J. Pincus: --Batchelder teaches that there are two separate statutes that can be independently applied, and we think that if that was Congress's intent, that would indicate the two convictions would be appropriate.

Unidentified Justice: It did speak in terms of the prosecution making a choice, however.

What do you think that meant?

A choice for purpose of prosecution and conviction, or only for sentencing?

Andrew J. Pincus: Your Honor, that portion of Batchelder speaks to the argument that was raised is that case that the government could not choose to elect between the two statutes because of the different penalty provisions, and this Court rejected that argument and said the government was free to choose.

We don't think that Batchelder says that the government was required to choose.

Unidentified Justice: Mr. Pincus, in the light of your answer to an earlier question, it seems to me that the government has refined the position it has taken on Page 19 of its brief, where you say,

"For the reasons discussed above, a rule barring entry of two convictions for these offenses is not required. "

"We have no fundamental. "

--what you mean is the imposition of two sentences.

Andrew J. Pincus: Well, Justice Rehnquist, except that the petitioner's request is that there be a bar on the entry of two convictions.

Unidentified Justice: Are you saying you have no objection to that?

Andrew J. Pincus: We have no objection to the District Court... to Justice White's suggestion that the District Court enter sentence on only one of the convictions.

Unidentified Justice: I don't think you are getting the distinction between conviction and sentence.

My question was addressed to the difference between convictions and sentences.

Well, go on to something else.

I would like to follow up on that, if I may.

You seem to have agreed with Justice White that you had no objection to vacating one sentence, leaving the conviction standing, refining the position that Justice Rehnquist indicated.

But I don't understand how you square that with your saying what really is at issue here is preserving the concurrent sentence doctrine, which I gather hasn't been applied since 1965 by this Court anyway.

That is what we are fighting about.

If we vacate one sentence, you are not preserving your concurrent sentence doctrine, and you, I think, said that is perfectly satisfactory to the government.

Yes, but you would agree to that, I take it, on the assumption that you are carrying out the intent of Congress.

Andrew J. Pincus: Yes, Your Honor.

Unidentified Justice: I don't know how you ascertain that.

The intent of Congress was two convictions and one sentence.

That is what they clearly intended.

Rather ridiculous, I think.

Andrew J. Pincus: Your Honor, we think that does end up splitting hairs, but that is one of the reason why we think that the petitioner... the remedy requested by the petitioner just isn't appropriate.

There jus isn't any... there isn't any inquiry that can be made and it will just lead to litigation over this coast of weather Congress intended two convictions or on conviction, and it--

Unidentified Justice: Just in terms of the practical consequences of a conviction, we had a case argued a short while ago where a man on his employment application answered no to whether he had been convicted of a felony, and he was later discharged because he made a false answer.

If you had this person as your client, and he was asked to fill out an employment application, how many times he had been convicted of felonies, what would you tell him to do, put one or two?

Andrew J. Pincus: --I think he would have to put two.

Unidentified Justice: And that might not be... that would not be prejudicial at all to him, I don't suppose.

Andrew J. Pincus: Your Honor, it might be prejudicial.

We don't think that it is punishment that the double jeopardy clause reaches.

The petitioner her did violate two... was found beyond a reasonable doubt to have violated two offenses, and we don't think that it is unfair that he be subjected to the consequence that flow from that.

Unidentified Justice: Well, in any event, when you say the double jeopardy clause... when you talk about multiple punishments, you are just talking about legislative intent, aren't you?

You are not talking about the double jeopardy clause.

Andrew J. Pincus: The legislative intent is the inquiry, Justice Rehnquist, but in order for there to be... for the double jeopardy clause to supply a remedy, if you will, there has to be some kind of a double punishment that it would reach.

It may be that even though Congress... that even though the legislative intent isn't clear, the effect still doesn't rise to the level of punishment that the Constitution provides a remedy for, such as a conviction that doesn't have an adverse consequence.

Unidentified Justice: I thought in Alvernaz and Missouri against Hunter, we finally dispelled the notion that there was a double jeopardy inquiry under the Constitution, where you are talking about a decision on the part of the legislative body to impose multiple punishments for different offenses.

That is strictly a statutory question.

Andrew J. Pincus: Yes, Your Honor, we agree with that.

Unidentified Justice: Well, then, why do you refer to the double jeopardy clause?

Andrew J. Pincus: Because in order for that clause to provide a remedy, there has to be some... even if there is a deviation from what Congress intended, there still would have to be some kind of a multiple punishment in order for a petitioner, for the petitioner in this case to rely on a clause as supplying some kind of an affirmative remedy.

I just want to reiterate our argument based on the concurrent sentence doctrine, because we believe that really the principle underlying that doctrine supports our position in this case, because the doctrine really as it is now applied by the Courts of Appeals is based on the notion that a conviction with no adverse consequences will not prejudice a defendant, and therefore the conviction can be affirmed even though it is unreviewed.

If petitioner is punished in some way by the second conviction, then it conflicts with this notion that there is no prejudice, and therefore could undermine the concurrent sentence doctrine, which we believe is a useful tool used by the Courts of Appeals to avoid reaching issues that don't really have to be decided.

Unless the Court has any further questions, we urge that the judgment be affirmed.

Chief Justice Warren E. Burger: Very well.

Do you have anything further, Ms. Widener?

ORAL ARGUMENT OF JO S. WIDENER, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Jo S. Widener: Just a few things, Your Honor.

We believe that the concurrent sentence doctrine has no application here at all.

Blockburger says that for a single offense there should be a single sentence.

A concurrent sentence is an improper remedy to impose.

Therefore, this case really has no effect on the concurrent sentence doctrine at all, because this is an improper remedy under Blockburger.

The government has conceded that there is a single offense here.

They conceded in the case of United States against Taylor that there should only be single sentence imposed here.

In United States against Martin in the Seventh Circuit, they conceded that their should only be a single conviction.

We would ask the Court thus to vacate petitioner's sentence and conviction.

Chief Justice Warren E. Burger: Thank you, counsel.

The case is submitted.

Featured:

Dickerson v. New Banner Institute, Inc. - Oral Argument

Wed, 18 Feb 2009 07:11:12 +0000

Case:

Dickerson v. New Banner Institute, Inc.

Media File:

81-1180_19821129-argument.mp3

Related Transcript:

81-1180_19821129-argument_transcript.xml

Transcript:

ORAL ARGUMENT OF KENNETH S. GELLER, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in Dickerson against New Banner Institute.

I think you may proceed whenever you are ready, Mr. Geller.

Mr. Geller: Thank you, Mr. Chief Justice, and may it please the Court, the issue in this case is whether a person who has been convicted of a felony in state court and who therefore is disabled from dealing in firearms under the Gun Contol Act of 1968 is relieved of these federal disabilities when his conviction is subsequently expunged under state law.

Unidentified Justice: Mr. Geller, is the question of whether or not this particular respondent was convicted before us?

Mr. Geller: Well, the Fourth Circuit held that he was convicted, and therefore we have not raised that question.

Unidentified Justice: I suppose we will have to wait, then, to hear respondent's argument--

Mr. Geller: But respondent has--

Unidentified Justice: --to see if he urges that as an alternate ground for affirmance?

Mr. Geller: --Yes, I think that the respondent appears to.

Unidentified Justice: Was that mooted in the court of appeals?

Mr. Geller: The Fourth Circuit held that he was convicted.

Unidentified Justice: Well, I know, but was it an issue?

Mr. Geller: I am not sure whether the respondents raised it.

Since we had won on that issue in the Fourth Circuit, we did not consider presenting it here, and never inquired into whether it was briefed in the Fourth Circuit.

The Fourth Circuit seemed to assume without too much difficulty that Kennison, the fellow at issue here, had been convicted when he pleaded guilty in Iowa state court, as I hope to get to in a minute, as I briefly explain the statement of facts here.

David Kennison is the chairman of the board of directors and a substantial stockholder of the respondent, New Banner Institute.

In 1974, he was arrested and charged with kidnapping in Iowa, and pursuant to a plea bargain, the kidnapping charge was dismissed, but he pleaded guilty to the charge of carrying a concealed weapon, which is a felony punishable by five years' imprisonment in Iowa.

The trial judge in Iowa accepted the guilty plea, deferred the entry of judgment, and sentenced Kennison to probation.

Kennison was then allowed to leave Iowa and go home to South Carolina, where he served his period of probation.

At the end of the probationary period, which appears to have been one year, Kennison called up the Iowa authorities, announced that he had successfully completed the term of probation, and he had not been arrested during that period.

And then the Iowa court, under the Iowa expunction statute, automatically dismissed the... released Kennison and did not enter judgment, ordered his criminal record expunged.

Now, a few months later, New Banner Institute applies for three licenses from the Secretary of the Treasury in order to deal in firearms and manufacture ammunition.

New Banner did not list on the application that one of its chief stockholders and officers had been convicted of a felony, and these three licenses were issued.

Shortly thereafter, the Bureau of Alcohol, Tobacco, and Firearms learned of Kennison's Iowa conviction, and served notice of its intent to revoke the licenses.

After a hearing before an Administrative Law Judge, the director of the Bureau of Alcohol, Tobacco, and Firearms found that Kennison had been convicted of a disqualifying offense under state law, and that Kennison had the power to direct the management and policies of New Banner Institute.

Therefore, the Director ordered New Banner's licenses revoked.

The... New Banner sought judicial review, and the district court upheld the revocation order, but the Fourth Circuit reversed.

The court of appeals agreed, as I said a moment ago, that Kennison had been convicted when he pleaded guilty in Iowa court to the felony, and therefore the federal firearms disabilities had been triggered at that point, but the Fourth Circuit believed that since that offense had been expunged under state law, it could no longer serve as a predicate for the imposition of penalties or disabilities under the Gun Control Act.

Therefore, the Fourth Circuit ordered the director to issue the licenses, these three licenses, to New Banner Institute under the federal statute.

Now, the Bureau revoked New Banner's licenses in this case under the provisions of Section 923(d)(1)(B) of the statute, which prohibits the issuance of a license to anyone who is disabled from transporting, shipping, or receiving firearms or ammunition under Sections 922(g) or (h) of the Act.

Sections 922(g) or (h) in turn make it unlawful for an person, and I quote,

"who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to transport, ship, or receive a firearm or ammunition. "

Now, it's the government's position that Kennison, by virtue of the undisputed finding that he pleaded guilty to a felony in Iowa in 1974 is a person who "has been convicted" within the meaning of this section.

Unidentified Justice: Well, your statement there really subsumes the issue of conviction velno, doesn't it?

The statement you just made?

Mr. Geller: We believe that the Fourth Circuit was correct in finding that the acceptance of the guilty plea constitutes a conviction for purposes of Sections 922(g) or (h).

The question that we presented in the petition is whether the subsequent expungement of that conviction under state law for reasons having nothing to do with innocence or legal error serves to remove the federal disabilities.

Unidentified Justice: Do you prefer to discuss the issue of conviction velno now or in rebuttal?

Mr. Geller: I would be happy to discuss the issue now, if you would like, Justice Rehnquist.

We believe that the Fourth Circuit was correct, and that the question of what is a conviction is a federal question.

It doesn't depend on--

Unidentified Justice: Well, that strikes me as a rather strange proposition for the government to argue, unless you simply mean that it is a federal question and federal law refers to the laws of the several states.

Mr. Geller: --No, we think it is a federal question, that it is the intent of Congress that governs as to what the meaning of the word "conviction" was.

Unidentified Justice: No one would doubt that.

Mr. Geller: Yes.

Unidentified Justice: It is a statute that Congress passed.

Mr. Geller: Right.

Unidentified Justice: But the question is, how did Congress intend that the meaning of the word be sought?

Mr. Geller: Agreed, and what we think, the only thing that makes sense in line with the purposes that Congress intended to accomplish in the Gun Control Act was that a conviction means there has been a formal adjudication of guilt of a serious crime.

I don't think Congress meant to have that question depend on the nuances or the niceties or the peculiarities of state law, whether they call something a conviction or not.

Unidentified Justice: But how do you tell whether it is a formal adjudication?

Do you know, Mr. Geller, what the situation would... excuse me.

I'm sorry.

Do you know what the situation would be under Iowa law?

Mr. Geller: Under Iowa law?

Unidentified Justice: Iowa law.

Mr. Geller: Well, we have explained in our reply brief that Iowa law is somewhat ambiguous as to whether they would consider this a conviction.

The Iowa Supreme Court would consider this a conviction for certain purposes, but perhaps not for others.

Unidentified Justice: Do you know the case of Iowa against Walton?

It is not cited in your brief nor in your opposition's brief.

Let me read what the Iowa court said.

This is the Supreme Court of Iowa, not the court of appeals, and this is Iowa law.

"A deferred judgment order cannot serve as proof of a felony conviction in the prosecution of a Section 724.26 charge. "

That's the Iowa comparable provision.

"The record necessarily has to disclose the revocation of probation and the ultimate conviction. "

Mr. Geller: Well, as we pointed out in our--

Unidentified Justice: Just the opposite of your position here under state law.

Mr. Geller: --Well, it may well be that for purposes of imposing punishment or granting of forgiveness, that Iowa law would not consider this to be a conviction for certain purposes, although I should point out in our reply brief we pointed out that the Supreme Court of Iowa has for other purposes considered the procedure just like the one that Kennison underwent a conviction for other purposes, such as--

Unidentified Justice: Federal law certainly requires that we look to the state law to determine whether or not it is a felony, doesn't it?

Mr. Geller: --It's a felony.

That's correct.

Unidentified Justice: And it is arguable that under that Walton case it isn't a felony because there was no conviction.

Mr. Geller: No, I think not, because it is not a question of a felony.

Congress defined the term "conviction", and it has to be a conviction for an offense that carries a maximum punishment of more than one year.

It is not a question of what the defendant is actually sentenced to.

I think, Justice Blackmun, you might be right that Congress wanted to see how the state courts actually dealt with the defendant for purposes of punishment if they had defined the word "conviction" to mean what sentence did the state actually impose, but they didn't do that.

Congress defined the word "conviction" by reference to what was the maximum punishment that could have been imposed, and--

Unidentified Justice: Let me give you the citation of the Walton case, and if either of you have any comments, as far as I am concerned, you could submit them after the argument.

I am surprised that your opposition hasn't cited it.

It is 311 Northwestern 113, and the jump cite is... I'm sorry.

311 Northwestern 2nd 110, and the jump cite or page is 112.

And it doesn't appear in the headnotes, strangely enough.

Mr. Geller: --Well, we... we obviously didn't make an exhaustive study of Iowa law, because in our view Congress couldn't have wanted the disabilities of the Act to turn upon such formalities as, for example, whether a judgment was entered.

We think what Congress meant to do--

Unidentified Justice: Or whether one state has deviated greatly from another--

Mr. Geller: --Yes.

Unidentified Justice: --so that a man could get a federal license in one state--

Mr. Geller: Precisely.

Unidentified Justice: --and not in another, in the adjoining state.

Mr. Geller: Precisely, precisely, Mr. Chief Justice.

Unidentified Justice: But the felony definition certainly could embrace such deviations, and--

Mr. Geller: Well, it could, Justice Rehnquist, but we don't think it's likely to.

We think that there is some common understanding of what are serious crimes, and virtually every state deals with those crimes by labeling them felonies.

Unidentified Justice: --In Arizona, it is a felony to steal more than $50 worth of citrus.

Now, I dare say that probably isn't a felony in most other states.

Mr. Geller: But there are fail-safe mechanisms in the statute to deal with that situation, and I hope to get to them eventually.

If you have a situation such as that, Congress allowed the Secretary of the Treasury to grant relief from the federal statute.

But what we think Congress meant to do was to set a federal standard for what is a conviction for purposes of imposing these federal, these important federal disabilities.

What that standard is is, has there been an adjudication of guilt of a serious crime?

Have all the facts been found?

Is all that remains to do imposing some level of punishment?

Now, what level of punishment the state decides to impose for its own purposes is really irrelevant to the disabilities that Congress wanted to impose in this situation?

The fact that one state may decide to sentence the person to five years' imprisonment and another to expunge the conviction is relevant only to state law enforcement purposes, not federal law enforcement purposes.

The purpose of relying on the existence or, as this Court said in Lewis, the fact of a conviction, is that people who are convicted, who are found guilty of a serious crime, Congress believed to be a member of a class of presumptively risky people, people who should not be allowed to deal in firearms, unless they get a special dispensation from the Secretary of the Treasury.

Now, we think that that presumption of riskiness attaches when there has been a formal adjudication that the defendant committed a crime, and not... it doesn't depend on what happens thereafter--

Unidentified Justice: Mr. Geller, you have used the word "formal adjudication" I think three times.

What does it mean?

What is a formal adjudication?

What if he just says, I am willing to enter a guilty plea?

Mr. Geller: --I think that if the plea is accepted, as it was here--

Unidentified Justice: And the judge accepts and says, but I won't enter judgment until the two years runs by.

Is it still a formal--

--We don't think that Congress could possibly have meant to have that matter.

Let me, if I could, give you a hypothetical.

Well, but your... by adjudication, you have sort of a special meaning to adjudication.

You don't mean entry of judgment.

Mr. Geller: --That's exactly right.

We think a formal finding of guilt is what Congress meant by conviction.

All that remains is to enter some form of punishment.

Unidentified Justice: What if, instead of his accepting the plea, the judge just said, file the plea with the clerk, and come back in two years; in the meantime, you know, the condition is--

Mr. Geller: That is precisely the situation that I was going to address.

Unidentified Justice: --What would you... Is that a formal adjudication or not?

Mr. Geller: That is.

That is, if all that remains is to see how the defendant--

Unidentified Justice: What if the judge says, we will continue the case for two years?

Mr. Geller: --Well, I would have to know a little bit more.

Unidentified Justice: You have to draw a line somewhere, don't you?

Mr. Geller: You would have to find the point where the judge has actually found the defendant committed the elements of a crime, and that all he is going to do thereafter is to determine the appropriate punishment.

Now, you could have two states, for example, one in... and in both states the defendant commits the exact same crime, violating the exact same statutory provisions, and in State One, the defendant, as you say, enters a guilty plea.

The judge--

Unidentified Justice: His lawyer or he says, I am willing to plead guilty--

Mr. Geller: --Right, the judge--

Unidentified Justice: --if... because it was just my wife's gun--

Mr. Geller: --Yes.

Unidentified Justice: --and it is not a serious thing, and I am just willing to not do something for two years.

It depends on how he says that, doesn't it?

Mr. Geller: Well, no, it doesn't depend on how the defendant says that.

It depends upon what the... if the judge makes a formal finding of guilt, either by accepting the guilty plea or by accepting the jury's verdict or by, if it's a non-jury case, finding all of the facts.

At that point, we think there has been a conviction.

Now, as I was saying, you could have a situation where the judge accepts the guilty plea and defers the entry of the judgment and says, I am going to just watch your behavior over the next year before I sentence you.

You can have a second case, which is what I think probably happened here in Iowa, in which the judge accepts the guilty plea, enters a sentence... here it was a probationary sentence... and at the end of the year, based on the defendant's conduct, expunges the sentence.

It seems to me the only differences between those two situations is that in Case Number Two, the judge has entered a formal document labeled Judgment, but in either case there has been a factual finding that the defendant committed a serious crime.

Both defendants would seem to fall into the presumptively risky category that Congress had in mind in passing the Gun Control Act, and we can't imagine why Congress would have wanted to treat those two individuals differently for the purpose of imposing federal disabilities.

Unidentified Justice: But here is there a judgment or--

Mr. Geller: Here there... here... Yes.

Here the defendant was placed on probation.

There was a finding--

Unidentified Justice: --He couldn't place him on probation--

Mr. Geller: --That's exactly--

Unidentified Justice: --if he didn't enter a judgment, could he?

Mr. Geller: --Absolutely.

The judge could not have sentenced the defendant to even the probationary term unless he had found that he had committed a crime.

Unidentified Justice: Are you saying in response to the Chief Justice's question that there was a judgment?

Mr. Geller: There was an order entered.

It wasn't labeled Judgment.

Unidentified Justice: Well--

Mr. Geller: I am not sure that we should have what Congress intended to accomplish in this important federal statute turn--

Unidentified Justice: --Well, suppose the court had said, I accept your plea of guilty and sentence you to five years in the penitentiary?

Mr. Geller: --Yes.

Unidentified Justice: And he doesn't say, I find you guilty, and he doesn't issue a judgment.

Mr. Geller: Well, I assume the sentence in that situation would be the judgment.

Unidentified Justice: The sentence would be the... but he didn't say judgment.

Mr. Geller: I don't... that's exactly... I don't think that Congress's important purposes here turn on how--

Unidentified Justice: Well, the judge had to do something to justify keeping him... keeping the gentleman... under his control for a year.

Mr. Geller: --Exactly.

He had to find that he had committed an offense under Iowa law, and that offense under the Iowa statutes is punishable by five years.

We think that clearly constitutes a conviction for the purposes of 922(g) or (h).

Unidentified Justice: What would happen with a pardon?

The same thing?

Mr. Geller: A pardon?

Unidentified Justice: The same thing.

Mr. Geller: It is interesting that you mention a pardon, because Congress dealt with a pardon.

Unidentified Justice: Yes, that's what I mean.

Mr. Geller: Congress dealt with a pardon in Title VII, and it said that a pardon, if it specifically announces that the defendant is still... is to be allowed to engage in carrying of firearms, serves to relieve disabilities, but Congress did not say that in Title IV, which is the statute at issue here.

So presumably Congress did not want to allow gubernatorial parties to relieve defendants of the disabilities imposed by federal law, yet the Fourth Circuit has held that state expungements, which may be less of an indication that the defendant is a responsible person than a gubernatorial pardon, relieve the defendant of those... of those important federal disabilities.

Now, I had hoped to get into a discussion of some of the statutory provisions in order to show the Court that the Fourth Circuit's decision is clearly inconsistent with Congress's intent, and I am not going to have time to discuss several of them, but I do want to discuss what we believe perhaps is the most important indication that the Fourth Circuit has incorrectly construed the statute, and that is Section 925(c) of the Act, which I alluded to earlier.

Congress realized that not everyone who was convicted of a felony under state law is a risky person.

They also realized that it would be... people, even if they were initially risky, might rehabilitate themselves, and it would be unduly harsh to subject those people to lifetime or permanent disabilities.

But it is instructive to see what Congress did in that situation.

In Section 925(c), Congress delegated to the Secretary--

Unidentified Justice: What page is that on in your brief?

Mr. Geller: --It's in the very back of the brief, in the statutory appendix, Justice Rehnquist, on Page--

Unidentified Justice: Page 3-A, I think.

Mr. Geller: --Yes, Page 3-A.

Let's look at what Congress did to deal with that very serious problem.

Congress empowered the Secretary of the Treasury to grant relief from the disabilities of the Act in selected cases, but at the same time Congress restricted the Secretary's authority in a number of significant ways.

First, relief under Section 925(c) can't be granted to anyone convicted of a crime involving the use of a firearm.

Second, before relief can be granted under Section 925(c), it has to be established to the satisfaction of the Secretary that the circumstances regarding the applicant's conviction and his record and reputation are such that the applicant will not be likely to act in a manner dangerous to the public safety, and that the granting of relief, i.e., allowing him to deal with firearms, would not be contrary to the public interest.

Congress wrote that right into the statute, and the Secretary must make this precise finding after an individualized inquiry every time he grants relief from the disabilities of the Act, and under Section 925(c), whenever the Secretary grants relief, he has to promptly publish notice of that fact in the Federal Register.

Unidentified Justice: Is it correct to think that under 925(c) the Secretary may not grant relief if the crime in question is one... is one involving the use of a firearm or other weapon?

Mr. Geller: That's correct.

The Secretary is disabled from granting relief in that situation, but look at the anomalies that would arise if the Fourth Circuit were correct, because state officials would, even though Congress carefully circumscribed the power of the Secretary to grant relief from the firearms disabilities imposed by the Act, state officials would have unfettered discretion to accomplish even more than Congress authorized the Secretary of the Treasury to do.

State officials could grant, by granting expungements, they could grant relief from the federal Gun Control Act even for people who are convicted of a firearms offense.

Unidentified Justice: Well, but that might happen in any number of ways, Mr. Geller, and certainly some of which Congress couldn't prevent.

What if you knew of a particular metropolitan jurisdiction where the state prosecuting attorney didn't happen to like the federal firearms Act, and so every time he had somebody on a felony that involved firearms, he would take a plea to a misdemeanor in order to let the guy off?

Mr. Geller: Well, Congress obviously had to bow to the... to certain realities.

There is nothing Congress can do about that situation, but Congress can do something about the situation in which defendants were convicted of serious crimes.

That's the issue in this case.

Here, defendant was... pleaded guilty to a five-year felony--

Unidentified Justice: You used the word "convicted".

Mr. Geller: --Yes, I understand.

Well, that is our position, Justice Rehnquist, and it is the view also of the Fourth Circuit.

Unidentified Justice: Mr. Geller, assuming with you for a moment there was a conviction, so we don't get off onto that again, supposing that the man convicted appealed, and the conviction was set aside, or there is a collateral attack on the ground he didn't have counsel, or he didn't plead knowingly.

Is your view the same as it was in the last case, that then... you don't read the statute literally as applied to that?

Mr. Geller: Well, we don't think that would accomplish Congress's purpose.

We agree with the statement we made in the Lewis case.

Unidentified Justice: In other words, if you have exactly the same facts you have here--

Mr. Geller: Yes.

Unidentified Justice: --but instead of expunction, the man comes in with a lawyer and files a corum nobis writ or something like that and says, I want that conviction set aside because it was really my wife's gun and not mine, and I didn't realize that it had to be my gun, and therefore set it aside.

You have exactly the same facts all the way through, but they set it aside instead of expunging it.

You would say he is eligible to be a dealer.

Mr. Geller: Yes, but I think that... I mean, I think that is perfectly consistent with Congress's purpose in selecting out people who have had convictions entered against them.

Unidentified Justice: It turns on the reason for the state action--

Mr. Geller: Is relevant.

Unidentified Justice: --of vacating the judgment.

Mr. Geller: Yes.

It is extremely relevant.

I mean, the purpose in fixing disabilities on people who are convicted is that the fact of conviction, as the Court said repeatedly in Lewis, is a reliable indicator of whether that person is presumptively irresponsible or too risky.

Unidentified Justice: Yes, but it is equally reliable if you reverse on the ground that the evidence was improperly obtained with a search warrant, or something like that.

Mr. Geller: Well, there may also be constitutional problems in imposing disabilities on someone who has had his conviction reversed, but we don't have to reach that.

We think simply as a matter of Congressional intent, the fact of conviction is no longer a reliable indicator of riskiness if in fact the defendant has had his conviction reversed because of some legal error or because of innocence.

At that point, there is no reason to assume that he has committed a crime, but expunction is quite different.

Expunction assumes that the defendant has committed a serious crime, and the state for its own law enforcement purposes has decided to engage in an act of partial or complete forgiveness.

The question is, would Congress have wanted the states to forgive federal disabilities.

We think the answer to that on its face is probably wrong, but it is certainly wrong when Congress has put in a specific forgiveness provision in the federal statute, Section 925(c), which requires a cabinet level federal official to make an individualized inquiry before granting relief from the Gun Control Act, to see whether the defendant is in fact a responsible, reliable person who should be trusted with a firearm.

Unidentified Justice: In other words, a conviction for manslaughter by use of an automobile might be the kind that the Secretary would have discretion to waive.

Mr. Geller: Absolutely.

Absolutely.

In fact, the Secretary granted relief in 800 cases last year in which he was satisfied that the person in question was not risky or could be trusted to carry or deal in firearms, but as I said, every time he did that, he had to publish a notice of that fact in the Federal Register, so that people would be aware of what the legal status of this individual is.

Unidentified Justice: Well, the Secretary can grant relief, can't he, for a triple first degree murder punishable by death if it was committed with a knife.

Mr. Geller: Yes, he could.

He may not do it, but Congress was willing to entrust that decision to a cabinet level federal official applying uniform federal standards.

We don't think they were willing to entrust that--

Unidentified Justice: Do you think the Secretary of the Treasury spends a lot of his waking hours passing on these applications?

Mr. Geller: --I would be surprised if he spends very much time, but there are people in the Bureau of Alcohol, Tobacco, and Firearms who do spend a great deal of time studying these applications and making individualized inquiries.

Unidentified Justice: And if they got too casual about the exercise of that discretion, they would probably hear from Congress.

Mr. Geller: I think that's right.

This is an important federal statute.

The Court has remarked on that many times, and I needn't remind the Court of the history that gave rise to Title IV and Title VII of the Omnibus Crime Control Act.

Congress was not cavalier about allowing people who were convicted of felonies to carry firearms.

It imposed a disability on these people, and it allowed the Secretary of the Treasury, a cabinet level federal official, to remove that disability.

It didn't, we think, mean to allow state officials using unfettered discretion across the country and not making any inquiry into whether the person could be trusted to carry a firearm to relieve the disabilities of the Gun Control Act.

Now, I just want to make one more point before I reserve time for rebuttal, and that is that if the Court agrees with the Fourth Circuit, if it says that effect must be given to state expungements, then it is going to have to confront the much more difficult question of exactly what effect is to be given to these various expungement statutes.

Nearly half the states have expungement statutes.

They are a bewildering array.

They are... They vary in almost every single particular.

Now, when a state convicts someone of a crime, it imposes on that defendant a bundle of disabilities.

It would be quite bizarre if by expunging only a portion of those disabilities, federal courts were willing to remove the disabilities imposed by Congress under the Gun Control Act.

Therefore, it would seem that there would have to be an individualized inquiry by the federal courts in every single case to see whether what remains after the expungement is still considered a conviction for federal gun control purposes.

Now, this would be, we think, chaotic.

It would lead to massive confusion in enforcement of the Act.

No one would know what their legal status is if they had an expunged conviction.

The Fourth Circuit here masked those difficulties by calling the Iowa expungement statute absolute and unconditional, where we think that is plainly incorrect for reasons we have discussed in our reply brief, but even if it were true in the case of the Iowa statute, there were dozens and dozens of other expunction statutes out there, and if we had to give effect to those expunction statutes under federal law, the situation would be chaotic.

The Secretary of the Treasury would not know whether he could grant a license to someone who had an expunged conviction.

The gun dealers would not know whether they would be committing a crime by selling a firearm to someone with an expunged conviction.

Law enforcement officers would not know whether someone with an expunged conviction would be committing a crime by carrying a firearm.

And the defendant himself would not know what his legal status is.

We think that Congress could not have intended to allow such an ambiguous and confusing situation to occur in the enforcement of an extremely important federal statute.

What we think Congress meant was that when someone has been adjudicated guilty of a serious crime, he falls within the disabilities of the federal Act, and if he is to be relieved of those disabilities, it is to be done by application to the Secretary of the Treasury, followed by public notice of that fact, and not in the helter-skelter fashion that the Fourth Circuit seems to envision involving dozens and dozens of state expungements by officers, giving no thought at all to whether the person should continue to be disabled under federal law.

I would like to reserve the balance of my time.

Chief Justice Burger: Very well.

Mr. Lanier.

ORAL ARGUMENT OF LEWIS C. LANIER, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Lanier: Mr. Chief Justice, may it please the Court, beginning with Justice Rehnquist's questions concerning conviction, we have argued in the brief that whatever happened in Iowa was not a conviction.

Unidentified Justice: Did you present this to the court of appeals?

Mr. Lanier: No, Your Honor, we did not.

Unidentified Justice: The court of appeals had no way of passing on it then.

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

Unidentified Justice: And you think that... you are suggesting affirmance on this ground.

Mr. Lanier: Yes, Your Honor, on the basis that in the Fourth Circuit's opinion, they do talk in terms of a conviction, but in other portions of the opinion they talk about a temporary disability running because of the Iowa action.

Unidentified Justice: My question is whether you... you must believe, then, that under our rules you are entitled to present this issue.

Mr. Lanier: No, Your Honor.

We did not raise that.

Unidentified Justice: Well, I know, but--

Mr. Lanier: But since it was argued, we feel that we should have an opportunity to reply to the conviction element of the case.

Unidentified Justice: --Are you suggesting that the court of appeals uses the term "conviction" casually and loosely, without regard to consequences of the use of that term, having a statute before them where that was very relevant?

Mr. Lanier: Mr. Chief Justice, I believe the Fourth Circuit did in their holding indicate... go away from the term "conviction".

Granted, they did use the term "conviction".

They did tend to go away from the term "conviction" in their holding that whatever happened in Iowa was a temporary disability that was relieved upon the expunction.

Unidentified Justice: Relieved for all purposes, under all circumstances?

Mr. Lanier: That was the holding of the Fourth Circuit, that the relief was unconditional and absolute.

Under that reasoning, I think it would be relevant to go to the Iowa statute.

Unidentified Justice: Are we or are we not bound to accept the court of appeals' holding as a determination that there was in law and fact a conviction in Iowa?

Mr. Lanier: Mr. Chief Justice, I think you are correct.

Unidentified Justice: Well, Mr. Lanier, does that mean you are retreating from the position you took in your brief?

This is your brief, the red one, isn't it?

Mr. Lanier: Yes, Your Honor.

Unidentified Justice: On Page 14, in your summary of argument, where you say in the first short full paragraph on the page,

"The ruling of the Fourth Circuit Court of Appeals should be affirmed because there never was a conviction. "

Do you... Is that a statement of your position?

Mr. Lanier: Justice Rehnquist, that is a statement of our position on the brief.

Unidentified Justice: Well, then, you do assert that, quite apart from the Fourth Circuit's ruling on expunction, there never was a conviction under the statute in the first place.

Is that correct?

Mr. Lanier: That's correct.

Unidentified Justice: Then we have to read the opinion again and see whether when they used... the three judges used the term "conviction" they mean what lawyers and judges usually mean by the term "conviction".

Mr. Lanier: Which, Mr. Chief Justice, seems to vary a great deal, adding to the ambiguity created by the federal Act and the use of the term "has been convicted".

Unidentified Justice: But you never... you didn't suggest to the court of appeals what happened here shouldn't be considered a conviction, did you?

You didn't make the argument in that court that you are making here.

Did you?

Mr. Lanier: Your Honor, I believe there was argument at the Fourth Circuit that it was not a conviction.

Unidentified Justice: What was expunged?

Mr. Lanier: Mr. Justice Marshall, what was expunged was the record of the Iowa deferred judgment proceedings.

We would resist the characterization that the plea offered was accepted by the trial judge.

The Iowa statute has directed toward a state interest in not evoking the criminal process.

Under the Iowa statute, the trial judge has really three alternatives.

He can go ahead and accept the plea, sentence and fine, either/or, or he can use the two elements under the Iowa code, Section 789-A.1.

He can suspend sentence and put the defendant under a probationary period, and then, after the expiration of the probationary period, the court may make a recommendation to the chief executive of the state for an expunction.

Or, he can take the least punitive element of that statute, and he can defer judgment on the plea.

We take the position that the plea was offered, that the judge did not accept the plea--

Unidentified Justice: All I... I want to ask a very simple question.

What was expunged?

Mr. Lanier: --The record of the deferred judgment proceedings in Iowa.

Unidentified Justice: The entire proceeding?

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

Unidentified Justice: Do you think Congress contemplated that this national legislation should be subject to the idiosyncracies of more than fifty different state statutes, and twenty odd thousand judges' interpretation of that statute in those states?

Mr. Lanier: I think that Congress did interpret that way by using the state definition of the sentence, the maximum sentence, to trigger the disabilities under the federal Act.

I think Congress definitely contemplated looking at the state law.

Unidentified Justice: How does that help you?

Mr. Lanier: Looking at--

Unidentified Justice: Here is something for which the punishment was more than one year, was it not?

Mr. Lanier: --That's correct.

The Act also looks to the state.

If the state classifies an act as a misdemeanor, state classification of misdemeanor, and it is less than two years, then it is beyond the reach of the federal gun control Act.

Unidentified Justice: Well, if Congress meant what you are suggesting, wouldn't it have been very simple to add a few words, that is, unless such conviction is expunged, or unless the record of such proceeding is expunged?

Mr. Lanier: Congress could have done that.

Some of the circuits have held that the express exclusion of expungement is not binding in the Arrington, Frier, and Ferguson decisions, in that they said under the federal Youthful Offender Act, the expungement portion of that provision will not toll the disability.

Therefore, we hold that the... it is our position that when you look at those circuits' review of the idea of expunction, they did intend it not to impose a disability.

As to the question raised by the government in the situation of whether or not there has been any determination as to whether this Kennison is a particularly risky person, the Iowa statute addresses that also.

Before the Iowa trial judge can impose or elect to give the deferred judgment proceedings, he makes a determination whether or not the nature and seriousness of what is charged, the stability of the person's employment, any prior record, and the state interest in what will effect the maximum opportunity for rehabilitation and the protection of the community at large.

These decisions are by Iowa statute required to be considered by the sentencing judge or the trial judge.

Unidentified Justice: Do you think a license could have been issued... would he have a right to have a license the day after his guilty plea?

Mr. Lanier: No, Your Honor.

I think he would be under a temporary disability, much like the federal Act speaks in terms of being under a temporary disability after indictment.

Unidentified Justice: Well, if that is so, he must have been convicted within the meaning of the statute.

During that period of probation, at least, he was disqualified for a license.

You agree with that, apparently.

Mr. Lanier: Yes, Your Honor.

Unidentified Justice: Well, then, there had to be a conviction, didn't there?

Mr. Lanier: Your Honor, I find the Iowa statute there a little bit unique in the criminal concept--

Unidentified Justice: Well, it may be unique, but you have said that he was disqualified during the period of his probation.

Mr. Lanier: --That's correct, Your Honor, but he was still--

Unidentified Justice: Within the meaning of this federal statute.

Mr. Lanier: --Yes, he was disqualified during that period of probation.

Unidentified Justice: That had to mean that for a while, anyway, there was a conviction.

Mr. Lanier: Your Honor, we take the position that the defendant in this case actually consented to the probation under the terms of the Iowa statute, and that Iowa has spoken in this term, and said, we don't want the criminal law to come into effect in this particular case.

The legislature has authorized it, and has given the judicial branch through the trial judge the authority not to evoke the criminal process.

Unidentified Justice: Of course, your other argument is that even if there was a conviction, it was removed by the expunction.

Mr. Lanier: That's correct.

And the--

Unidentified Justice: Mr. Lanier, did you represent the client before the court of appeals?

Mr. Lanier: --Yes, Your Honor.

Unidentified Justice: And before the Administrative Law Judge?

Mr. Lanier: No, Justice O'Connor, my law partner represented him before the Administrative Law Judge, Judge Travis.

Now... and I was not at Fourth Circuit and on the brief.

Unidentified Justice: You did not make the oral argument?

Mr. Lanier: At Fourth Circuit?

Unidentified Justice: Yes.

Mr. Lanier: No, Your Honor.

No, Ms. Justice O'Connor.

Unidentified Justice: Was the case orally argued to the Fourth Circuit?

Mr. Lanier: Yes, Mr. Justice.

Unidentified Justice: But not by you?

Mr. Lanier: That's correct.

Unidentified Justice: Could you have made the same argument if it hadn't been expunged?

Mr. Lanier: Justice Marshall--

Unidentified Justice: And I used "it" deliberately.

Could you?

Mr. Lanier: --No.

Unidentified Justice: Why not?

Mr. Lanier: Because the expunction was an unconditional action.

Unidentified Justice: No.

Why not?

Mr. Lanier: Why not... I'm sorry, Mr. Justice.

Unidentified Justice: Why not?

What would prevent you from arguing that?

Mr. Lanier: Arguing that the expunction--

Unidentified Justice: That you were entitled to a license.

Mr. Lanier: --If it hadn't been expunged--

Unidentified Justice: What hadn't been expunged?

Mr. Lanier: --The record of the deferred judgment proceedings.

Unidentified Justice: Your conviction, right?

Mr. Lanier: No, Your Honor, we still resist the fact that there was a conviction.

Counsel for the petitioners argue there was an adjudication in this case.

We find no adjudication there.

There was a decision to do nothing.

Unidentified Justice: But the state is the one that decides today he is and tomorrow he is not.

Mr. Lanier: In conjunction with the defendant.

It is a consensual act in Iowa.

Unidentified Justice: That's right.

So the state decides it.

The day before the state expunged it, he couldn't get it.

Mr. Lanier: That's correct.

Unidentified Justice: The day after it, he could get it.

Mr. Lanier: Yes, Mr. Justice.

Unidentified Justice: So the state is deciding a federal statute.

You just said that the state, that is, through the judge, had decided, and I think you used the words "do nothing".

Now, in Iowa, can you put people on probation for a year or two years or three by doing nothing?

Just pluck them off the street?

Mr. Lanier: The trial judge in conjunction with the defendant elected a deferred judgment.

Unidentified Justice: Well, there had to be a proceeding first, did there not?

Mr. Lanier: There was a proceeding.

Unidentified Justice: Charging him with kidnapping, was it, and armed conduct?

Mr. Lanier: The kidnapping charges were dismissed prior to--

Unidentified Justice: Yes, I know, but the charge was... that's how he got into the court, was it not?

Mr. Lanier: --That's correct.

He was charged with possession of a concealed weapon.

Unidentified Justice: In connection with the kidnapping?

Mr. Lanier: The result of a plea bargain.

Unidentified Justice: Well, no, I'm talking about the facts now.

Forget the plea bargaining.

He was charged with using firearms in connection with the kidnapping?

That's the charge I am speaking of.

That's the way I read this record.

Mr. Lanier: Mr. Chief Justice, I believe the charge of kidnapping was dropped, and then the possession--

Unidentified Justice: Yes, I know it was dropped, but the initial charge was a charge of kidnapping using a firearm.

Is that not correct?

Mr. Lanier: --That's not correct.

Unidentified Justice: Well, then, tell me what is the charge.

Mr. Lanier: He was initially charged with the only charge of kidnapping.

Unidentified Justice: Yes.

Kidnapping whom?

Mr. Lanier: His wife, a South Carolina citizen in Iowa.

They dropped the kidnapping charge, and then charged, not as a lesser included under the kidnapping charge, but then charged with possession of a concealed weapon.

Unidentified Justice: A new charge.

Mr. Lanier: A new charge, which was... which was the subject of the negotiated or the conditional plea in Iowa.

Unidentified Justice: So his plea then was an admission that whatever he did, whether you call it kidnapping or whatever, whatever the offense was, it was accomplished by him by the use of a firearm.

Is that correct?

Mr. Lanier: Mr. Chief Justice, I say that is not correct, either, because there may be a difference in terms between use and possession.

He was charged with possession.

He was never charged with using it, just the fact, the simple fact of possession.

Unidentified Justice: Whose gun was it?

Mr. Lanier: It was his wife's gun also.

He was offered a deferred judgment, not a suspended sentence.

The judge would have sentenced him at that time.

We take the position that Boykin went a little bit further than saying that a plea of guilty is in itself a conviction.

It said, all that remains is a judgment of guilt and a sentence thereon.

We submit that those two other elements of judgment of guilt and sentence thereon are absent in this case, and they are absent because Iowa intended them to be absent, because Iowa intended not to evoke the state criminal law in this situation.

Unidentified Justice: But are we entitled to assume on this record that whatever he did that led to the charge of kidnapping, he did it at a time when he had a firearm on his person or in his possession?

Mr. Lanier: Yes.

In the car that he was using at the time.

In this case, it appears that the government is using the petitioner in this case, the Linity in reverse.

They are saying, we admit that we have to trigger the federal firearms statute through the state criminal statute, and we will only invoke it or we will invoke it to impose disabilities.

They have said that there is a proceeding under the Act, the federal firearms Act, where the Secretary can remove the disability.

In Iowa, there was a state judge determination that this man was not a risky person.

He made that determination and elected not to evoke the criminal law of the state of Iowa.

He did that because the statute in itself says he has to consider these things and in fact put on the record why he elected--

Unidentified Justice: Was an order issued at the end of his trial?

Mr. Lanier: --Some type of order was issued that was not a judgment.

Unidentified Justice: Is it in the record any place?

Mr. Lanier: Your Honor, I don't think that order is in the record.

Unidentified Justice: Well, isn't it rather important as to what happened?

Mr. Lanier: I am sorry, Justice Marshall.

Unidentified Justice: Isn't it rather important?

Suppose the judge says, I find you guilty and sentence you.

Wouldn't that be a different case from what you have been arguing?

Mr. Lanier: Absolutely.

Unidentified Justice: And I don't know what he said, do I?

And you don't, either.

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

Unidentified Justice: Thank you.

May I ask if under the Iowa expungement procedure they physically destroy the records of the proceeding?

Mr. Lanier: The only record... the record of the... the Iowa statute compels the expunction, it does not specify the destruction, of the deferred judgment proceedings.

There is a record, called an administrative record, that is kept in the office of the clerk.

That administrative record is kept in order to advise the court if there is... Under the Iowa statute, you can have two deferred judgments for a misdemeanor, and only one for a felony.

So we take the position that the record housed in the clerk's office is just to determine whether or not he is eligible for a deferred judgment.

Unidentified Justice: What are the contents of the administrative record after the expungement proceeding is terminated?

What is retained?

Do you know?

Does the statute tell us?

Mr. Lanier: The statute does not tell us what it contains.

In this case, there appears to be an analogy that can be made that people that are confronted with the Iowa statute come in and go out of a disability status.

The Fourth Circuit has held that from the time of the granting or the... the granting of the probationary period, that Kennison is disabled, that at the end of the probationary period, under the deferred judgment statute, that that probation is ended, and his record of the conditional plea of a deferred judgment is expunged.

If the only thing there is is offer to plea under the deferred judgment statute, and those proceedings are expunged, we submit there is nothing left of a conviction, and that administrative record retained by the clerk of court is nothing more than something... the equivalent of an arrest record, which we would submit evokes no disabilities under the federal Act.

The state statute involved, when the trial judge elects to use the deferred judgment as opposed to the suspended sentence, works automatically.

Petitioner's brief indicates that the disabilities are not automatic, they are not unconditional, and they are not absolute on the theory that nothing... no recommendation was made by the trial judge to restore the disabilities imposed or to restore civil rights in Kennison's case.

However, that is not necessary under the deferred judgment portion.

The statute specifically states that under the deferred judgment statute, upon discharge from probation, if the judgment has been deferred under 789-A.1, the court's criminal record with reference to the deferred judgment shall be expunged, and that is the conclusion of the case.

We submit that the... whatever happened in Iowa was not a conviction, and in any event, upon the successful completion of the probationary period involved in the case, that the expungement lifted the disabilities under the federal firearms Act.

Unidentified Justice: Excuse me.

Do we have any appendices besides that in the petition?

I don't mean these... these are copies of brief before court of appeals.

I mean of--

Mr. Lanier: The appendix from Fourth Circuit was adopted.

It is in a blue binding, black--

Unidentified Justice: --Blue binding?

Well, where is it?

Mr. Lanier: --I believe that the appendix from the Fourth Circuit was submitted by the petitioner.

Unidentified Justice: Nine copies?

I just don't have any.

That's all I'm complaining about.

Well, I thought there was a motion to dispense with printing the Joint Appendix, and that was granted.

Mr. Lanier: That's correct, and that was granted.

Unidentified Justice: So it has just been... it has been filed here, like a record.

The original record.

Mr. Lanier: That's correct.

Unidentified Justice: Ask the clerk over there.

Could I see it?

I understand there is nothing up here now.

That is all I want to find out.

Has a record been lodged with the Court?

Mr. Lanier: Yes, the record has been filed.

Unidentified Justice: Where is it?

Mr. Lanier: The fact of the expunction has been addressed, as I stated previously, under Ferguson, Frier, and Arrington, and in those circuit courts the court has held that the federal expunction under the Youthful Offender Act effectively lifts the disabilities imposed upon the federal Gun Control Act.

We would rely also on those decisions in those circuits.

Thank you.

Chief Justice Burger: Very well.

Do you have anything further, Mr. Geller?

ORAL ARGUMENT OF KENNETH S. GELLER, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Geller: One or two things, Mr. Chief Justice.

First, in answer to Justice Stevens' question, Iowa doesn't in fact destroy the record.

Unidentified Justice: Does not?

Mr. Geller: Does not.

In fact, the Bureau of ATF found out about Kennison's conviction in this case from the Iowa authorities.

Unidentified Justice: Mr. Geller, supposing you had exactly the same procedure you had here in Iowa, and 30 days after the guilty plea was accepted and there was a conviction entered, the defendant came in by his attorney and moved for leave to withdraw his guilty plea, and said he had misunderstood, just, whatever charges.

The judge just said... And then the prosecutor came in and said, we do not oppose the motion, and the judge said, leave to withdraw plea granted.

Mr. Geller: I would... My position would be, I think the government's position would be that there would not be a conviction in that case.

The plea has been legally set aside, vacated.

There has been no finding that the defendant committed the crime.

Unidentified Justice: But the same finding... I want to have the same finding that you got here.

Mr. Geller: Yes, but an expunction is not a finding that the defendant did not commit the crime.

That is crucial.

Unidentified Justice: Well, but in my hypothetical, the same thing.

Mr. Geller: Yes.

I don't agree, Justice Stevens.

If the--

Unidentified Justice: Supposing two years later, then, just instead of expunging, he came in and said, I move to withdraw my guilty plea, and the judge said, motion granted.

Mr. Geller: --Well, I think I would have to know more about the state procedure to see whether this is--

Unidentified Justice: Same state procedure you have got here.

Mr. Geller: --If there is no... if it is just an expunction, if there is no finding that the--

Unidentified Justice: It just gives the judge the authority to allow the defendant at the end of the probation period to withdraw his guilty plea.

Mr. Geller: --I would think that if the basis for the relief, it has nothing to do with the fact that the defendant did not commit the crime--

Unidentified Justice: He just says in his motion, I want to withdraw it, and the prosecutor doesn't oppose it.

Do we have that kind of a statute here?

Mr. Geller: --We don't.

In fact, if I could just turn for a second to the case we have before us before my time runs out, because there is in fact an order entered in this case by the trial judge.

It is Government's Exhibit 13, which I think the Court will find in the record, and it begins by saying that the defendant has entered a plea of guilty.

It has not just been offered.

The judge has accepted it.

And under cases of this Court like Boykin, I think that a guilty plea is a conviction for these purposes.

There is no question here that the plea--

Unidentified Justice: Well, do you think Boykin was attempting to categorize guilty pleas in a strictly technical sense?

Mr. Geller: --No, of course... of course not, but we are trying to categorize what Congress meant by... what it meant when it used the word "conviction".

We think it was using it in the same sense that the Court has frequently used it, such as in Kercheval and Boykin, a formal finding of guilt.

Now, the sorts of questions that, Justice Stevens, you were asking about what is left after the expungement, and Justice Blackmun was asking about how does state law deal with this expunction, that is... those are the sorts of questions that federal courts would have to wrestle with, and federal administrative officials would have to wrestle with day after day in enforcing this important federal statute if the Court holds that state expunction provisions, which vary wildly from state to state, and are very ambiguous as to what has been expunged, what is the basis for the expunction, if the Court were to hold that that finding in itself wipes out the important disabilities imposed by the Gun Control Act, we don't think Congress could ever have intended that, especially in light of Section 925(c).

Unidentified Justice: I don't mean to be too repetitious, Mr. Geller, but I am not sure I understand your answer to my question.

Mr. Geller: Yes.

Unidentified Justice: And it really would be helpful to me.

Mr. Geller: Yes.

Unidentified Justice: Take my hypothetical.

Precisely the same kind of judgment that we have here.

And a year later, a lawyer comes in and files a motion asking leave to withdraw the plea, and on the ground that the prosecutor does not oppose it, and the prosecutor says, that is right, the judge says, we had a finding, you start out the same way you did there, but the leave is hereby withdrawn, and the judgment is vacated.

What is the government's position as to whether he would be disabled or not?

Mr. Geller: Well, if I may, I would like to give a somewhat more extended answer than one word.

On one pole, we have the Lewis situation.

Unidentified Justice: I understand that.

Mr. Geller: On the other pole, it seems to me we have the Kennison situation, where there is no question that the conviction was expunged for reasons wholly unrelated to guilt.

Now, Justice Stevens, you have just presented a hypothetical which is in between those two.

It seems to me that you have to make a further inquiry.

I would have to have facts that are not included in your--

Unidentified Justice: Are you able to answer my hypothetical?

Mr. Geller: --I think the answer is that if the judge has not made a finding that the defendant did not commit the crime, then there has been a conviction.

He has been convicted under Section 922(c).

Unidentified Justice: Your answer is, under my hypothetical, he would be disabled.

I just want you to answer it.

Mr. Geller: I think that's my answer, but I'd like to know more of the facts before I commit the government to that position.

Unidentified Justice: But those facts and the hypothesized statute aren't present in this case.

Mr. Geller: Are not what the Court has before us here by any means.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10:00.

Attribution:

The OYEZ Project

Featured:

Busic v. United States - Oral Argument, Part 1

Thu, 13 Sep 2012 22:03:49 +0000

Case:

Busic v. United States

Media File:

78-6020_19800227-argument-1

Related Transcript:

78-6020_19800227-argument-1

Transcript:

Argument of Gerald Goldman

Chief Justice Warren E. Burger: We'll hear arguments next in Busic against the United States and LaRocca against the United States, consolidated.

Mr. Goldman, you may proceed whenever you're ready.

Mr. Gerald Goldman: Thank you.

Mr. Chief Justice and may it please the Court.

Petitioner Anthony LaRocca was convicted and sentenced consecutively under the enhanced penalty provisions of two federal statutes for the identical use of a firearm.

Two counts alleged that he had assaulted federal officers with a pistol in violation of Section 111 of Title XVIII, while another count charged that he used the same pistol to commit these same felonies in violation of Section 924 (c) (1).

Petitioner challenges the Section 924 (c) conviction and sentence.

In punishing assaults on federal officers, Section 111 has long provided an augmented penalty if a firearm is used to accomplish the assault.

The issue presented here is this.

When Congress adopted Section 924 (c) in 1968 to provide an enhanced penalty generally for the use of a firearm in the commission of a federal felony, did it intend to duplicate the coverage of Section 111?

Frankly, it's surprising that it's necessary to bring this issue to this Court.

Indeed, adopting petitioner's construction of the statute, the Justice Department in 1971 advised all U.S. attorneys not to prosecute defendants under Section 924 (c) where one of the pre-existing enhanced penalty statutes already applied.

Chief Justice Warren E. Burger: Is that a matter of policy on the part of the department?

Mr. Gerald Goldman: I believe the department was acting on the basis of the very principles of interpretation that guided this Court to come to the same exact conclusion in Simpson against the United States, in particular, the rule on specificity that calls for a more specific criminal statute to govern to the exclusion of a more general statute.

And in addition, in the following year 1972, in a letter to the U.S. Attorney for Baltimore, the department again reiterated the same position and also said, “We adopt the statement of Representative Poff as government policy.”

Representative Poff's statement was precisely on point.

He said his -- his proposal was not intended to apply to the preexisting statutes in as much as they already serve to deter the use of firearms.

Now, the Government of course could change its views on a question like this, but not in this case.

Justice John Paul Stevens: Mr. Goldman, would you also contend that if you -- if LaRocca had not used the gun, but had merely carried it and therefore, there could not have been enhancement under 111 that he could -- there could've been enhancement under 924 (c) (2)?

Mr. Gerald Goldman: Well, Mr. Justice Stevens that is the question that is presented in the companion case, Mr. Busic's case.

Mr. Busic was charged under Section 924 (c) (2).

Justice John Paul Stevens: I understand -- I understand but your -- you said if I understood you correctly, I want to understand if this is your position that if there is a -- an alleged violation of a statute which carries an enhancement provision as 111 does, then 924 (c) in its entirety is simply inapplicable.

Mr. Gerald Goldman: Well, our position, it suffices for our case merely to call attention to the overlap between the preexisting statutes in Section 924 (c) (1).

Our position is that Simpson and the tools of construction relied on there vitiate a conviction under 924 (c) (1) quite clearly.

There is then a separate question whether Simpson and the principles on which it relies also vitiate a conviction under Section 924 (c) (2).

The Court could conclude in the negative with respect to that question that that would in no way diminish the force of Mr. LaRocca's petition.

Justice John Paul Stevens: Why do you suppose Congress would deliberately select a lesser enhancement for a -- a felony described in 111 than in other felonies?

That's your position, isn't it?

Mr. Gerald Goldman: Well, our position is that the preexisting enhanced penalty statutes establish an array of punishments, some more some less than Section 924 (c) and that in enacting 924 (c), Congress chose not to deal with how to reconcile these -- these provisions.

Congress chose rather to extend coverage to felonies that were not already subject to an augmented penalty if a firearm is used.

That's precisely what Representative Poff stated and furthermore --

Justice John Paul Stevens: I understand, if you take his statement literally, then even if there is a -- the gun being used, you couldn't even use 924 (c) (2), I mean, a gun that's being carried but not used?

Mr. Gerald Goldman: Yes.

I think his -- his statement is subject to that interpretation, but at a minimum, he must have meant that if for instance Section 111 applies, then his proposal was not intended to duplicate that coverage.

Justice John Paul Stevens: Well, the minimum of course wouldn't be that if the enhancement provision 111 applies, there shall be no other enhancement.

That would be the real minimum.

Now, you say that's not right, I know but that's also a permissible reading.

Mr. Gerald Goldman: Our -- our minimum position is that if Section 111 applies --

Justice John Paul Stevens: I understand.

Mr. Gerald Goldman: -- 924 (c) does not apply.

Justice John Paul Stevens: I'm saying that minimum permissible reading of what Congressman Poff said was that if the enhancement provision of 111 applies, there should be no other enhancement.

One could also read his statement that way.

Mr. Gerald Goldman: One could read his state -- but the precise words he used were as follows, "My proposal is not intended to apply to Sections 111, 112, 113 of Title XVIII which already define the penalties for the use of a firearm.”

In our case, it precisely involves the use of a firearm, not to carrying but the use.

Furthermore, this statement is entitled, I believe, to great weight.

It was expressly made for the sake of legislative history at the time the amendment was introduced.

Furthermore, it went uncontradicted except for Senator Dominick whose own amendment failed at enactment, no one suggested a different interaction to govern among these provisions.

Chief Justice Warren E. Burger: That's not surprising on the floor debate, is it --

Mr. Gerald Goldman: Well, this was the only source, Mr. Chief Justice, of legislative history.

Any congressman who wished to determine the scope of this provision had to look only to Representative Poff's statement.

Justice William H. Rehnquist: Well, we -- he would look first I would think to the statute itself, wouldn't he?

Mr. Gerald Goldman: Yes, he would but he would also, I presume, look at the discussion when the amendment was introduced.

Justice William H. Rehnquist: If -- if there were ambiguity, your -- in -- uncertainty as to what it meant (Voice Overlap).

Mr. Gerald Goldman: Well, there's no question that there is ambiguity in this statute.

That has to be the necessary conclusion from this Court's decision in Simpson.

At the very least, the parties are -- agree that Simpson holds that 924 (c) does not apply to a violation of an enhancement provision as in the bank robbery statute or as in Section 111.

To that extent, it's agreed that 924 (c) has exceptions.

That is established by Simpson.

Now, what seems very convincing to us is that the Justice Department itself when it first analyzed this statute, focused exactly on Representative Poff's statement and said, “We adopt this as official policy.”

At the very, very least, that must indicate an ambiguity in this situation that under the rule of lenity it must be resolved in the defendant's favor.

That's not all that we have here.

We also have the principle that calls for a more specific criminal statute to govern where two statutes addressed the same concern.

The Court has already analyzed these various considerations and weighed them carefully and come to a conclusion.

It did that in Simpson against United States.

In Simpson, the petitioners attacked sentences under the enhancement provisions of both the bank robbery statute and Section 924 (c), but contrary to the suggestion that the Government is trying to make that Simpson merely forbids double enhancement, the petitioners there weren't arguing simply against double enhancement.

They maintained instead that 924 (c) does not apply at all where its purpose is already served by a preexisting statute that it -- that is designed to deter the use of firearms.

Accordingly, those petitioners asked to have their Section 924 (c) convictions vacated even though the heaviest sentences they received had been imposed under the enhancement paragraph of the bank robbery statute.

And the Court responded by concluding, "Congress cannot be said to have authorized the imposition of the additional penalty of Section 924 (c) for commission of bank robbery with firearms already subject to enhanced punishment."

In fact, the Court went beyond that.

The Court specifically endorsed the Justice Department's original interpretation of this provision.

Furthermore, the reasoning of this Court in Simpson leaves no room for doubt about the true import of that decision.

The Court there found the legislative history instructive not merely because it indicated a congressional version to a cumulative punishment, but because it underlined the limited scope of the provision.

They adopt --

Justice Byron R. White: Was the -- was the 924 conviction vacated in Simpson?

Mr. Gerald Goldman: Yes it was on remand.

The Court remanded the case.

Justice Byron R. White: Well, how about here, did we order it?

Mr. Gerald Goldman: No, the Court ordered that case be remanded for further proceedings in accordance with the opinion.

The opinion specifically concluded that 924 (c) should not apply and that relief was awarded by the lower courts on remand.

Justice Byron R. White: Well, you said that -- you say we -- we held that -- that there can be no conviction under 924 (c) and also 111?

Mr. Gerald Goldman: Yes and the reason for that -- the way I would put it is, the Court held that there could not be sentences under both provisions because 924 (c) did not apply where the statutes overlap.

Justice John Paul Stevens: But Mr. Goldman --

Justice Byron R. White: And so you -- you think that means that that we held that he could not be convicted under -- a defendant couldn't be convicted under both?

Mr. Gerald Goldman: Exactly.

Justice John Paul Stevens: Then shouldn't our disposition have been to vacate the sentence under 924 (c) instead of sending it back and letting the lower courts take their choice?

Mr. Gerald Goldman: Well I don't believe the lower courts really had a choice because the Court instructed that there be further proceedings in accordance with the opinion and the opinion specifically endorsed the Justice Department's position that 924 (c) doesn't apply because of the rule of specificity.

Justice John Paul Stevens: No, but the mandate did not direct that the 924(c) --

Mr. Gerald Goldman: That -- that is literally so, yes.

Justice John Paul Stevens: Yes.

Justice Byron R. White: If you say Simpson held that there -- that the Government could not have convicted under 924 (c) alone?

Mr. Gerald Goldman: Yes, that is our position.

Justice Byron R. White: What -- that's what you think the -- Simpson held that?

Mr. Gerald Goldman: Yes.

Justice Byron R. White: That if you're going to -- if you're going to attempt to get enhancement at -- at all in a bank robbery case, you must proceed under 111?

Mr. Gerald Goldman: That's correct.

I'm sorry, in a -- in a assault case.

Justice Byron R. White: In assault case, yes.

Mr. Gerald Goldman: But the same principle would be also true for the bank robbery.

Justice Byron R. White: So that you -- you may -- you -- you have no choice -- the Government has no choice to proceed under 924 alone?

Mr. Gerald Goldman: That's correct.

Justice Byron R. White: And I -- I think that -- do you think that's essential in -- that position is essential to -- for you to win here?

Mr. Gerald Goldman: Yes and we also maintain that the rationale of Simpson permits no other no other -- no other conclusion.

The adoption of the Poff amendment said by its author not to apply to preexisting enhancement statutes and the rejection of the Dominick Amendment said by its author to apply to these statutes, persuaded the Court that Congress meant to confine 924 (c) to felonies that were not already subject to an enhanced penalty for firearm was used in their commission.

Even more pointedly, the Court's invocation of the rule that dictates that the more specific criminal statute governs, it leaves no choice about this matter.

That principle could only have been invoked to dictate that 924 (c) gave way to the bank robbery statute.

Logically, there was no other way of -- of invoking that principle.

Now, considerations of stare decisis ought to weigh very heavily in this area.

Not only is this a question purely of statutory interpretation, but Congress at this very moment has under act of consideration, legislation directly on point.

In proposing bills to recodify Title XVIII, both the House and the Senate have suggested provisions that would unify and rationalize the entire field of enhanced penalties to deter the use of firearms.

Both statu -- both proposed statutes would bring together in one section all preexisting provisions and furthermore would've proposed penalties much more in line with Section 111 than with Section 924 (c).

Chief Justice Warren E. Burger: Are these -- are these parts of the criminal code revision or independent of the criminal code revision?

Mr. Gerald Goldman: These are the pending bills to recodify it, yes.

Chief Justice Warren E. Burger: The -- the package.

Mr. Gerald Goldman: Yes.

Justice William H. Rehnquist: Do you make anything of Congressman Poff's vote against the conference report in your interpretation of legislative history?

Mr. Gerald Goldman: We don't believe that that vote undercuts his initial explanation in any way, no.

Justice William H. Rehnquist: The explanation of why he voted against it?

Mr. Gerald Goldman: That's correct.

I don't believe there's any ambiguity in his introductory explanation that makes it necessary to look at later events to decipher what he meant.

The interesting thing is that the action actually taken by the Conference Committee cuts just the other way.

It shows that Congress was prepared to have litigation in these circumstances.

So that there was -- there'd be no inconsistency in concluding that Congress intended Section 111 to govern to the exclusion of 924 (c).

It's very difficult to make anything of an action taken by the Conference Committee against us on this point notwithstanding that Representative Poff voted against the bill, fact is that Congress adopted it.

Justice William H. Rehnquist: Well, but it says we -- you -- your -- you had to take the bitter with a sweet to a certain extent, that we -- you used Congressman Poff when he's available to help you, but you reject him when he is not on your side.

Mr. Gerald Goldman: Well, I guess our position is that we don't really see any tension between his introductory statement and his ultimate vote.

What Congressman Poff was concerned about was establishing a deterrent to the use of firearms where no deterrent already existed.

Where one already existed, he wasn't concerned with the problem.

Congress simply didn't choose to duplicate coverage that already existed.

As I say, the -- at the very least, given the fact that the Justice Department agreed with us only -- less than 10 years ago, one has to conclude that there's ambiguity about this matter and if that's true, we have to win under the rule of lenity.

Justice Byron R. White: Could I ask you -- I suppose the Government really couldn't in any event proceed under 924 alone, it doesn't describe an offense, does it?

Mr. Gerald Goldman: I believe the Court held in Simpson that 924 (c) does constitute a separate crime.

Justice Byron R. White: And -- so that -- if the Government -- if the Government -- with respect to some other felony that isn't covered by an enhancement, a non-111 felony, you can just say you violated 924.

Chief Justice Warren E. Burger: Yes, alone.

Mr. Gerald Goldman: Yes, I think you could although 924 (c) by its terms contemplates that there will be --

Justice Byron R. White: You did -- then you have to go to some other felony statute?

Mr. Gerald Goldman: Yes.

Justice Byron R. White: And have to prove a felony under another statute?

Justice Potter Stewart: You have to prove the commission of that felony before 924 becomes operative.

Mr. Gerald Goldman: That's correct, yes.

It's unclear, I'm not sure the Government would have to actually charge --

Justice Potter Stewart: No.

Mr. Gerald Goldman: -- the other felony, but yes it would most certainly have to prove it.

Justice Byron R. White: Well -- well, it's an element of the offense anyway?

Mr. Gerald Goldman: That's correct.

Justice Potter Stewart: Right.

Justice Byron R. White: So -- so 924 itself doesn't describe a separate offense?

Mr. Gerald Goldman: Well, I believe the course --

Justice Byron R. White: I mean the underlying -- there's an underlying offense that's described by another statute.

Mr. Gerald Goldman: That's true.

There is a lesser included offense which is the other felony.

Chief Justice Warren E. Burger: Mr. Goldman, we'll resume there at 1 o'clock, I'll have a question for you then.

Mr. Gerald Goldman: Thank you, Mr. Chief Justice.

Featured:

Busic v. United States - Oral Argument, Part 2

Thu, 13 Sep 2012 22:03:50 +0000

Case:

Busic v. United States

Media File:

78-6020_19800227-argument-2

Related Transcript:

78-6020_19800227-argument-2

Transcript:

Argument of Samuel J. Reich

Chief Justice Warren E. Burger: Mr. Reich, you -- you may proceed whenever you're ready.

Mr. Samuel J. Reich: Mr. Chief Justice and may it please the Court.

I represent Michael Busic under the evidence.

While the assaults were taking place, Mr. Busic carried a gun in his belt.

This weapon was never drawn, never pointed or fired.

By his conduct, he didn't endanger any lives.

The evidence shows that while most of these incidents were taking place, Mr. Busic had stopped in a drugstore to buy a pack of cigarettes.

When he came out and he was confronted by the authorities, he surrendered without resistance.

As to the assault charges of and these actual assaults were --

Chief Justice Warren E. Burger: I take if that was in face of greater finer power?

Mr. Samuel J. Reich: That was disputed, Your Honor.

He certainly surrendered himself and the evidence is clear that he never rendered any active assistance during the assaults.

Justice Potter Stewart: And he some sort of statement to that effect --

Mr. Samuel J. Reich: Yes.

He said, “Remember, I never drew my weapon or never fired my weapon.”

He didn't -- he wasn't familiar with the Pinkerton doctrine, but that's what he said.

Justice John Paul Stevens: Mr. Reich, you don't contest the sufficiency of the evidence to prove the aided and abetted in the -- in the other offense, do you?

Mr. Samuel J. Reich: We did in the lower court, yes, Your Honor.

Justice John Paul Stevens: But that's not before --

Mr. Samuel J. Reich: That is not before you when --

Justice John Paul Stevens: So we must assume that he did aide and abetter.

Mr. Samuel J. Reich: Yes, yes.

As to the assault charges that Busic was indicted for aiding and abetting LaRocca's use of the firearm which LaRocca was using during the assaults.

As to the count under 924 (c), Busic was charged with carrying the weapon he had in his gun belt although he could have been charge under the indictment with using LaRocca's firearm under Part I of Section 924 (c).

Justice William H. Rehnquist: He was also – could have – could and probably was on the evidence convicted of carrying a firearm unlawfully, wasn't he?

Mr. Samuel J. Reich: I --

Justice William H. Rehnquist: Didn't he -- didn't he -- didn't he have a felony record or --

Mr. Samuel J. Reich: Yes.

Yes.

He did have a felony record and he was convicted.

He was indicted with every charge conceivable for possession of every weapon in sight.

Under the 924 (c) count, there is no question that he carried a gun in his belt.

Justice William H. Rehnquist: And it was carried unlawfully?

Mr. Samuel J. Reich: It was carried unlawfully.

That is also correct, Your Honor.

Justice Potter Stewart: Just unlawfully.

Mr. Samuel J. Reich: Under Section 924 (c), one can violate the chapter and -- or the statute in one of two ways, alternatively by using or by carrying the firearm during the commission of the underlying federal felony.

A reading of the statutes indicates that the unit of prosecution is the underlying federal felony and not the number of weapons involved.

And as we see it this becomes very critical in showing the similarity between Busic's case and that is his codefendant, LaRocca.

Chief Justice Warren E. Burger: Do you think it makes no difference that the one of these fellows sprayed the parking lot with the machine gun and the other one didn't hear his gun? It has nothing to do with this case I suppose.

Mr. Samuel J. Reich: No, it does not have anything to do with this case, although under the -- under the evidence and under the law that was applicable which is not disputed in this Court both could be convicted for their participation in the assault and that is --

Chief Justice Warren E. Burger: Is it one carried and the other used his firearms?

Mr. Samuel J. Reich: The -- the point that I'm making about Section 924 (c) Your Honor is that the possibilities of prosection are not multiplied because of the number of weapons involved.

One is liable under 924 (c) either for using or for carrying firearm and the important distinction here is that Busic could have been convicted either for using vicariously LaRocca's firearm or carrying his own.

Now, what the Third Circuit has said in this case is that LaRocca who is the one spraying the parking lot with the bullets, to use the Chief Justice's observation, can be sentenced only once whereas Busic who watched and stood by and is only responsible vicariously can be punished twice.

As we read the Simpson case, we read Simpson to establish that a Simpson or a LaRocca type defendant can be convicted and punished only once, and that is for the underlying federal offense when that offense contained its own enhancement provision and it our position that Busic is entitled to identical treatment as LaRocca.

Now, the Government assumes in its brief that the Blockburger issues vanish because Busic was charged and sentenced for carrying his own weapon.

Even (c) (2) is superimposed on an underlying or the underlying assault felonies and different elements are not required as to each.

There is an additional element for the 924 (c) (2) violation and that is the carrying of the firearm.

I point out to the Court that under Section 111, the basic charge is forcible, assault or resistance or impeding a federal officer.

There is an enhanced provision if one uses a dangerous or deadly weapon or such as a firearm in doing that, but the underlying charge is fully included in the 924 (c) violation and therefore if this Court were to hold that our statutory contentions are invalid the Court would still be required to move on to the Blockburger issues and the Double Jeopardy issues.

I also point out that these assault incidents involve the same transactions.

The unit of prosecution as I understand it is the assaults charged in the indictments.

There are two transactions, the 924 (c) seems to apply to both of them.

Justice William H. Rehnquist: Is the term “unit of prosecution” a “word of art” --

Mr. Samuel J. Reich: I believe so, yes sir.

I'm using at that way.

Justice William H. Rehnquist: I know but I – do you derive it from a higher authority than your own use?

Mr. Samuel J. Reich: I believe that this is – this was based on my analysis of the – of the cases, although --

Chief Justice Warren E. Burger: Are there any cases you treat it as a term of art?

Mr. Samuel J. Reich: No, no.

The cases, the most recent cases in this Court talk of the Blockburger test, but I believe that even in Simpson, this Court did acknowledge in passing that we were talking about – the Court was talking about the one transaction which was the bank robbery.

If Busic and LaRocca are to be treated differently, obviously this will result in creating a very easy way to evade the protections which Simpson sought to create against double jeopardy.

We point out that using always includes carrying and using can never be less serious misconduct than carrying and usually it involves more serious misconduct.

Simpson itself involved two or more weapons.

As I understand the facts of Simpson both of the defendants in that bank brandished their firearms and possessed their firearms.

Justice William H. Rehnquist: Does -- does 924 (c) involved just the firearms?

Justice Potter Stewart: Yes.

Mr. Samuel J. Reich: 924 (c) involves firearms, but firearms is broader than guns.

Chief Justice Warren E. Burger: Yes –

Justice William H. Rehnquist: But the dead -- deadly weapon is broader which is in term I believe the use of 111 is broader than firearm.

Mr. Samuel J. Reich: That is true and as this Court noted in the Simpson case, the primary purpose of the -- of 2113 in that case and we believe that the assault case was to deal with the use of firearms, handguns and the like.

Chief Justice Warren E. Burger: Well, 111 would include a hatchet or a --

Mr. Samuel J. Reich: It would include any -- any deadly weapon.

Yes -- yes Your Honor, but I believe that the legislative history on that point is similar to the bank robbery statute.

Those provisions were included primarily to cover handguns, but to cover anything -- anything else.

As a matter of fact, there are some cases I believe it hold – you're going to have a violation of – of that provision using a shoe and possibly a fist, but primarily it is directed towards the gun.

Justice Potter Stewart: Well conversely, I -- I suppose both in 924 (c) with respect to firearm or within 111 with respect to the aggravation use of a deadly or dangerous weapon, the use have to -- has to be of the firearm or of the weapon as a firearm or as a weapon I suppose --

Mr. Samuel J. Reich: In 924 (c), yes.

Justice Potter Stewart: In other words, a bank robber who used this gun to bang down the door at the bank wouldn't be using -- probably be using a firearm he wouldn't be using it as a firearm.

Mr. Samuel J. Reich: I -- I don't believe that the --

Justice Potter Stewart: Conversely, the cases you've just cited where a person's fist if used as a weapon is a weapon.

Mr. Samuel J. Reich: Yes.

Justice Potter Stewart: But normally isn't, right?

Mr. Samuel J. Reich: Well, whether it would constitute a deadly weapon or dangerous weapon, it would depend on who – who the person is, but I think your observation is correct Your Honor.

Justice Potter Stewart: Luckily, that's one of the few questions that's not involved in this case.

Mr. Samuel J. Reich: Yes.

If there is to be disparity treatment as to Busic and LaRocca because LaRocca used one gun and Busic carried another, the Simpson division can be evaded by selective theories of prosecution even in this case.

There --

Chief Justice Warren E. Burger: There's nothing new or improper about using selective theories as you could to the prosection, is it?

Mr. Samuel J. Reich: There is nothing new or novel except when the theories arise under the same statute or under the -- and entirely the same set of facts.

Chief Justice Warren E. Burger: The same transaction --

Mr. Samuel J. Reich: Well, there are a number of transactions where you can -- where the Government could indict the person for tax evasion and bribery and everything that seems to relate without controverting any constitutional provision.

Here, we're talking about a situation where the Government has the choice of charging simple assault and either charging or not charging the enhanced violation by using the dangerous or deadly weapon.

They can charge the defendants with using their own weapons or each defendant with using the weapon of the codefendant.

And then when you come to 924 (c), you can charge a defendant with use either of his own weapon or his codefendant's weapon were carrying one or the other weapon.

If there is a distinction based on the fact that one defendant uses and one defendant carries a firearm or a distinction based on the number of firearms involved, Simpson itself means nothing under the facts of the -- of the Simpson case.

Justice William H. Rehnquist: You -- you can -- I would think we had Simpson to say you -- the holding is you cannot have consecutive sentences.

You're asking for a much broader reading that says, “You can't choose which statute to prosecute under even though it's only imposed only one sentence.”

Mr. Samuel J. Reich: I believe that Simpson held that you cannot have multiple sentences where the two types of statutes are involved, but I also believe that the language of the statute -- of the Simpson case establishes the underlying reasoning that you can't have consecutive sentences because the statute 924 (c) is inapplicable to a felony which already has its own enhancement provision.

Justice Byron R. White: (Inaudible) you can't even be under Simpson arguably.

You can't even be convicted under 924 (c) if it -- where the underlying felony already has enhancement provision?

Mr. Samuel J. Reich: -- that is the way I read Simpson, yes Your Honor.

Justice Byron R. White: Which would mean that that's 924 in all of its sections, none of these sections are applicable?

Mr. Samuel J. Reich: 924 (c), I don't address myself to the rest of the statute because Representative Poff was only speaking of 924 (c).

As I read the Gun Control Act, even though there are different -- well different statues were put in there because of different considerations, but as far as 924 (c) is concerned --

Justice Byron R. White: That's what I mean in 924 (c) would -- and that reasoning would cover both (c) (1) and (c) (2).

Mr. Samuel J. Reich: I believe it must.

Now, (c) (1) is not even a separate sentence.

(c) (1) is a phrase which is joined by an or, and the sentence is completed in (c) (2) and I find it difficult to conclude that when Representative Poff made that statement for legislative history, he was stopping in mid-sentence as to his views regarding the applicability of the statute.

He said the statute is not applicable where the underlying felony contains its own enhancement provision.

I'm not -- obviously, I'm not quoting of that, I'm paraphrasing it.

Justice Potter Stewart: But if a person at a time he made out a fraudulent income tax return unlawfully had a gun on his pocket, he could -- could he or could he not in your submission be prosecuted both under 924 (c) (2) and under the income tax evasion of criminal statute?

Mr. Samuel J. Reich: In the lower court -- in the lower court, we made precisely that observation to the -- to the Court --

Justice Potter Stewart: What --

Mr. Samuel J. Reich: My answer is as I understand the opinion, he could if --

Justice Potter Stewart: On both?

Mr. Samuel J. Reich: Yes.

I find that -- I find that result to be illogical and absurd, but under 924 (c) we were making the point in the lower court that you have to have more than a conspiracy involved and if someone's carrying a firearm during a tax conspiracy, an income tax conspiracy, the logic of the Government's position in the lower court was that he could be convicted of attacks conspiracy and also the 924 (c) violation.

Chief Justice Warren E. Burger: But the legislative history show pretty clearly that what Congress was concerned about was the use of firearms or weapons as an implement of the particular crime and would arguably implemented if he cited as just making a false income tax return.

Mr. Samuel J. Reich: That is the argument --

Chief Justice Warren E. Burger: And upon his desk.

Mr. Samuel J. Reich: That is the argument that I would – I would make if it's part of the issue.

Chief Justice Warren E. Burger: (Inaudible) legislative history?

Mr. Samuel J. Reich: I -- in terms of the use of the statute to apply to conspiracies, they doesn't -- the legislative history seem to speak very broadly in terms of covering all kinds of federal felonies and we had the same argument come up if the person is involved in a continuing drug conspiracy.

Chief Justice Warren E. Burger: Well, aren't you really -- aren't doing something that would come from Senator Dominick's amendment hadn't been adapted.

He wanted a broad scale.

Mr. Samuel J. Reich: I think they both did.

I think Representative Poff did.

Well I think Representative Poff drew the line is that he did not want to have broad coverage under the Act and create Double Jeopardy problems, and that's the way I read the legislative history.

I don't think Representative Poff --

Justice Potter Stewart: At least he didn't want to have double enhancement.

Mr. Samuel J. Reich: He did not want to have double enhancement and I believe that that -- that is clear from -- from his statement.

Now, the -- the question that has come up that I feel requires a response is exactly what kind of relief are we asking for on behalf of the carrier of a different firearm.

The ultimate position that this Court might reach and I think properly so is that consistent with the Simpson language and Representative Poff's statement, no carrier can be convicted where there is an -- an underlying felony with an enhancement provision, but that is not necessary to give Busic relief in this case.

All that is necessary to give Busic relief in this case is that the Court conclude that he cannot -- that 924 (c) consistent with Simpson is not applicable where the defendant carried a firearm, but could have been -- but was subject to enhancement because of use of a firearm, not necessarily the same firearm.

I go back to the language of 924 (c) which is alternative and not base on the -- on the number of firearms involved but merely the existence of the underlying federal felony.

The crux of the case that I think makes Busic's case identical to LaRocca's case is that Busic was subject to sentence enhancement because of his use of a firearm.

Justice John Paul Stevens: Mr. Reich, supposing LaRocca had not used his firearms, suppose they're both just carried, in your judgment, but nevertheless there was a –

Justice Potter Stewart: Assult.

Justice John Paul Stevens: -- principle part of 111 was violated, would you say that Busic would be subject to enhancement under (c) (2) or not?

Mr. Samuel J. Reich: I would say he would not be.

That would require the Court to accept the ultimate position which we're arguing that 924 (c) has no application whatever where the underlying felony already contains an enhancement position --

Justice John Paul Stevens: Even though the reason for enhancement in (c) (2) is not a reason for enhancement of the underlying felony?

Mr. Samuel J. Reich: In view of the legislative history I believe that there is a gap there, but I hasten to point out that in this case as to Busic and LaRocca, it's not necessary to get to that issue since Busic --

Justice John Paul Stevens: Because you do rely on the fact of enhancement by reason of the aiding and abetting a felony where a gun was used?

Mr. Samuel J. Reich: Right.

Justice Potter Stewart: Are you saying that the prosecutor must charge a person either under (c) (1) or (c) (2) and make up his mind and if you charge them under (c) (1), you can't be charged under (c) (2)?

Mr. Samuel J. Reich: I'm saying that he cannot -- the prosecutor cannot use 924 (c) at all where the underlying felony is one which already subjects that defendant to enhancement.

Justice Potter Stewart: Well, that's LaRocca's basic argument, isn't it?

Isn't that LaRocca's basic argument?

Mr. Samuel J. Reich: Yes but there -- I see my time up is up.

There is a difference between the using and the carrying --

Justice Potter Stewart: Well, I know, the statute --

Mr. Samuel J. Reich: And I'm showing the relationships between the two.

Justice Potter Stewart: Yes.

Mr. Samuel J. Reich: The difference is that the Busic's sentence could be enhanced because he used LaRocca's firearm and a gun -- and the statute wouldn't permit multiple punishments if there were 10 guns used.

Justice Potter Stewart: Yes, yes.

And I think your time is up.

Mr. Samuel J. Reich: Thank you, Your Honors.

Chief Justice Warren E. Burger: Mr. Levy.

Argument of Mark I. Levy

Mr. Mark I. Levy: Mr. Chief Justice, and may it please the Court.

In June of 1968, the Congress alarmed by recent public tragedies and arising incidents of firearm related crimes passed the Gun Control Act.

Among the principal provisions of that Act is Section 924 (c) which focuses directly on the crime problem by punishing the use and unlawful carrying of firearms in a commission of federal felonies.

By its terms, Section 924 (c) is applicable to the commission of any federal felony, nevertheless, petitioners argued that they fall outside the scope of Section 924 (c) because the underlying or predicate felony of which they where convicted, assault on federal officers, provides an enhance penalty for using a deadly or dangerous weapon to commit the assault.

They contend that the enhancement provision of the predicate felony operates to the absolute exclusion of Section 924 (c) and that the Government is not authorized to prosecute under or the District Court to sentence under Section 924 (c) whenever the underlying offense contains its own enhancement provision for the use of a dangerous weapon.

In support of their contention, petitioners rely on this Court's decision in Simpson versus United States.

They assert first that the holding in Simpson governs the instant case and second, that the Court's analysis in Simpson compels the result they urge here.

We submit however that the issue in Simpson and the issue in this case are quite different and that neither the holding nor the reasoning of Simpson is controlling here.

The defendants in Simpson having convicted of armed bank robbery and have been given both an enhanced punishment under the bank robbery statute and a consecutive punishment under Section 924 (c).

Thus, the issue in Simpson was whether cumulative sentences for the use of a firearm could be imposed under the enhancement provision of the bank robbery statute and under 9 -- Section 924 (c).

In other words, whether the defendant's sentence could be doubly enhances.

After noting at several places in the opinion that this was the issue for decision, the Court held that Congress had not intended to authorize such double enhancement and therefore that the defendant's use of a firearm could not be consecutively punished for the Section 924 (c) offense and for the aggravated bank robbery.

This holding, the cumulative enhanced punishment for use of a firearm, are not permitted by Section 924 (c), does not dispose of the distinct issue presented in this case whether Section 924 (c) is applicable at all where the predicate felony contains an enhancement provision but their provision is not invoked and that's the defendant's sentence is not doubly enhanced.

It is one thing to hold that Congress did not intend that the aggravating circumstances of using a gun be twice punished.

It is a far different matter to hold, as petitioner seek here, that Congress intended the penalties provided in Section 924 (c) to be wholly irrelevant.

Justice Byron R. White: I suppose if Simpson just in so many words said -- said that 924 (c) is just isn't applicable at all when you're dealing with an underlying felony that has an enhancement provision that that sort of language would be very relevant in this case.

Mr. Mark I. Levy: It would be relevant.

I think that sort of language would exceed the scope of the issue presented in Simpson.

Justice Byron R. White: Well, maybe -- maybe but that -- it would be -- it would be at least reflect that eight justices then opinion that --

Mr. Mark I. Levy: Yes, it would.

Justice Potter Stewart: And would have been deciding that case on a very broad ground.

Justice Byron R. White: Yes.

Justice Potter Stewart: It would have been dicta -- it would have been the grounds of decision, had the Court said that?

Mr. Mark I. Levy: Had the Court said that?

I think that's right but I don't -- (Voice Overlap)

Justice Byron R. White: What do you think its reasoning was?

How did it arrive with its result?

You said Congress didn't intend the double -- these consecutive punishments because they understood Mr. Poff in certain way or not?

Mr. Mark I. Levy: Well, I think starting a step further back the Court was confronted with a somewhat unusual issue in Simpson of double enhancing use of a firearm.

That's quite uncommon under the Federal Code and I think the Court was simply not satisfied that Congress had intended that unusually severe result given the language and legislative history and other factors that were cited by the Court in Simpson.

I don't think that the Court in Simpson held that they – that the defendants there couldn't be twice punished because they couldn't be punished at all under 924 (c).

I do not read the opinion to say that.

Justice Byron R. White: You certainly don't agree with your colleague on the other side then that the –

Justice Potter Stewart: No.

Justice Byron R. White: -- that the Government couldn't proceed under 924 (c) alone where the underlying felony already has an enhancement provision.

Mr. Mark I. Levy: That's right.

I do disagree with that.

Justice Byron R. White: You have to.

Mr. Mark I. Levy: Absolutely.

That is this case.

Beyond the holding, the analysis employed in Simpson also does not require the conclusion that Section 924 (c) is applicable simply because the underlying felony provides an enhanced penalty for use of a dangerous weapon.

The Court in Simpson relied on three general considerations.

First, that the double enhancement of punishments was not necessary to promote the purpose or the deterrence rationale of Section 924 (c).

Second that the legislative history and particularly a statement by Congressman Poff on the Floor of the House pointed in the direction of a congressional intent not to allow sentences to be doubly enhanced.

And third, that several canons of statutory construction supported the view that double enhancement was not authorized by Section 924 (c).

Looking to each of these factors in turn, it can be seen that none of them supports the result urged by petitioners.

First, the statutory structure and purpose; the penalty provision of Section 924 (c) are unique and having been specifically designed to punish and deter firearm violations, they are fundamentally different both quantitatively and qualitatively from the penalties provided in Section 111.

With respect to the length of sentences, Section 924 (c) specifies an increased punishment for using a firearm of up to 10 years for first offense and up to 25 years for a second or subsequent offense.

In contrast, Section 111 increases the penalty where a dangerous weapon is used by only seven years.

In addition, Section 924 (c) provides a mandatory minimum sentence of one year for first offenders and two years for second and subsequent offenders.

Section 111 provides no mandatory minimum penalty.

Section 924 (c) also establishes more severe penalties for recidivists than for first offenders.

Section 111 on the other hand makes no provision for the imposition of increased sentences on recidivists.

Finally, Section 924 (c) restricts the availability of probation, suspended sentences, and concurrent sentences.

In contrast, Section 111 provides no such limitations on the discretion of the sentencing judge to exercise leniency.

Petitioners have offered no reason why Congress would have meant Section 924 (c) to be inapplicable here.

In our view given the differences and penalty structures and given that the Gun Control Act was specifically designed to address the problem of firearms, it seems inconceivable that Congress intended that a defendant who uses a firearm to assault the federal officer would be completely exempt from sentence under Section 924 (c) and would instead be subject only to the lesser punishment provided in Section 111.

Thus, unlike in Simpson where the Court concluded that double enhancement was unnecessary to achieve the deterrence rationale in Section 924 (c).

The decision in Section 924 (c) is wholly inapplicable in the instant case would disregard the special penalties provided in that statute and what frustrate the purposes of the Gun Control Act.

Moreover, again in contrast to Simpson to hold here that Section 924 (c) does not apply whenever the predicate felony contains an enhancement provision for the use of a dangerous weapon would lead to several illogical results that are inconsistent with the purposes of the Act and that Congress surely did not intend.

The first consequences of such a holding would be that the defendant who uses a firearm to assault the federal officer would be subject to different and less onerous penalties than one who uses a firearm to commit virtually any other federal offense.

Indeed, this result would have the particularly perverse effect rendering stiff penalty provisions of Section 924 (c) inapplicable to the very felonies that Congress had previously singled out for greater rather than lesser deterrence and punishment.

Congress could not rationally have intended Section 924 (c) to produce such a result.

Justice William H. Rehnquist: Mr. Levy.

Mr. Mark I. Levy: Yes sir.

Justice William H. Rehnquist: Your opposing counsel points to irrational results, you point to irrational results.

Do you think it's fair to say that the comment anomalies and bizarre cases under one or both constructions more or less balance out?

Mr. Mark I. Levy: I do not.

I don't think our position does produce any anomalous results.

First Section 2114 upon which petitioners rely to produce such results, I understand does not have the same sorts of limitations on probations, suspended sentences, and concurrent sentences that Section 924 (c) does.

But beyond that it seems to me the correct answer to these asserted anomalies is to vest in the prosecutor the discretion in this area as in virtually all other areas to select the proper charge in any given case commensurate with the conduct that is alleged.

I think that prosecutor of discretion would eliminate any conceivable anomalies that might otherwise arise.

Justice Potter Stewart: But otherwise wholly uncontrolled and uninstructed discretion and we all know as a matter of fact that in some areas prosecutors just have such tradition in the prosecutor's office just to overcharge in every case.

Mr. Mark I. Levy: There are differences among prosecutors.

Justice Potter Stewart: -- or in certain types of cases and in other areas it's the tradition as otherwise and it's wholly unreviewable and uncontrolled of that discretion.

Mr. Mark I. Levy: That is correct it's on review when uncontrolled and it is also quite common there is nothing different about this area.

Justice Potter Stewart: They're not instructed I mean there no -- there no agreed upon criteria.

Mr. Mark I. Levy: Well, within the executive branch in terms of an administrative criteria there are guidelines that are used in some areas to control prosecutors in U.S. Attorney's Office it's -- we -- I agree that those are not subject to review by a court.

Justice William H. Rehnquist: Certainly the executive branch is not alone if there are anomalies because there are certainly are wide variances in exercise of sentencing --

Justice Potter Stewart: Yes.

Justice William H. Rehnquist: -- power by the federal judges as well.

Mr. Mark I. Levy: That's correct.

That's correct.

Justice Potter Stewart: But this, perhaps doesn't that we should be invited to promote or encourage.

Mr. Mark I. Levy: Well I think they're all – well first, I don't think again that this area is any different than any other and it seems to me the prosecutorial discretion is at the very least unavoidable and is in fact desirable in order to fit the charge to the particular case.

But beyond that I think that the consequences of not allowing such discretion here and imposing the rigid and very narrow view words by petitioners would be far worst.

Another illogical result of the petitioners; construction would be the defendant who use a gun to assault a federal officer and one who uses some other dangerous weapon such as a knife would both be sentenced under exactly the same penalty provisions of Section 111.

Such a result would be contrary to the purpose of Section 924 to punish with special severity the criminal use of firearms.

Moreover, since the recidivist provisions of Section 924 extend only to a second or subsequent conviction under that section, petitioners' interpretation would mean that a defendant who on several occasions uses a firearm to assault federal officers would not be covered by those repeat offender provisions and indeed he would remain outside those provisions even if he later uses a firearm to commit some other federal offence.

On the other hand, the defendant who twice uses a firearm to commit virtually any other federal felony would be subject to those harsher penalties.

The recidivist provisions were designed to punish with heightened severity.

Those people who have shown themselves to be recurrent abusers of firearms and no reason suggested so why Congress would have wanted the applicability of the recidivist provisions to depend upon whether the prior armed offense consisted of an assault instead of almost any other federal felony.

Finally if we are correct as we contend in our brief and we rely on the argument there that Section 924 (c) at all events prohibits the unlawful carrying of a firearm during the commission of an assault on a federal officer.

Petitioners' construction would mean that the defendant who actually uses the firearm would be subject solely to Section 111 while the defendant who only carries but does not use a firearm would be sentenced under the more stringent provisions of Section 924 (c).

Well Congress wanted to punish and deter both the use and the unlawful carrying of firearms.

It is impossible to believe that Congress intended to authorize more severe sanctions for unlawfully carrying a firearm and for its actual use.

In sum, the first consideration relied on in Simpson, the purpose of the statute, demonstrates here that Section 924 (c) is not inapplicable where the predicate felony contains its own enhancement provision.

The legislative history of Section 924 (c) the second factor relied on in Simpson also demonstrates that an armed assault on a federal officer is punishable under Section 924 (c).

This history makes it plain that Congress wanted to punish and to deter by means of stern measures the criminal use of firearms.

Congress recognized that this objective turned on a certainty as well as the severity of punishment.

Congressman Poff in introducing the Amendment that ultimately formed the basis for Section 924 (c) expressly stated that his proposal was stronger than the then pending Casey Amendment because it restricted the imposition of concurrent sentences, suspended sentences and probation.

The importance of this --

Justice Byron R. White: Do you think your position is consistent with the passage quoted by the Court in Simpson or the statement of Representative Poff?

Mr. Mark I. Levy: Yes I do.

Justice Byron R. White: How is that?

Mr. Mark I. Levy: Well I think it's consistent if you look at Senator -- Congressman Poff's statements in their entirety.

We do not believe that the statement relied on by the Court in Simpson which was an isolated statement which elicited no discussion and which was not directed to the issue presented in this case can be given dispositive weight here.

Chief Justice Warren E. Burger: What else did Congressman Poff say that you're – for my part I'm waiting to hear, what else he said that --

Mr. Mark I. Levy: Alright.

Chief Justice Warren E. Burger: -- you think where you have overlooked.

Mr. Mark I. Levy: In introducing his amendment, Congressman Poff emphasized that his proposal was stronger than the Casey Amendment which was then pending before the Congress because it had the limitations on the exercise of the trial judges' leniency discretion.

Congressman Poff later reiterated the importance of these features of his amendment and they were likewise stressed by other Congressmen who stressed the need to confine sentencing discretion in order to provide a significant only greater deterrent and generally was found an existing law and in the end after this discussion the house adopted the Poff amendment by vote of 412 to 11.

Justice Byron R. White: Well in accord in Simpson said that wasn't -- it wouldn't give this positive weight to the statement that Mr. Poff made but then it went on to the other parts of legislative history and held or at least it was the Court's opinion there is that the other parts of legislative history supported that statement of Mr. Poff.

Mr. Mark I. Levy: Well --

Justice Byron R. White: (Inaudible) your submission here --

Mr. Mark I. Levy: No if I could finish reciting the general legislative history and Congressman Poff's statements as I said Congress of Poff had emphasized several times the importance of the unique provisions of his proposal and indeed he felt so strongly about these provisions that when a Conference Committee weakened to some extent his amendment, he eventually voted against the conference report.

The Conference Committee had weakened his proposal by eliminating the restriction on concurrent sentences and limiting to repeat offenders the restrictions on suspended sentences and probation.

Congressman Poff found it so insignificant that he voted against the report.

That time he said it is not the severity of punishment that deters, it is the certainty of punishment that deters.

In a posture which the conference report leaves it the Amendment will not promote certainty of punishment whether with respect to the first offence actual time in jail will be no more certain than it is today.

Given these clear views underneath for certainty of punishment to deter armed felons, it is impossible we think to conclude that Congressman Poff intended that defendants who use firearms to assault federal officers would be excluded all together from Section 924 (c) and instead would be punished solely under the existing enhancement provision of Section 111.

A provi --

Justice Potter Stewart: Which is – it's literal language did say that 924 (c) was simply enactable to offences under those -- under those statutes, didn't he?

Mr. Mark I. Levy: He said it did not apply where the provision provided a penalty for the use of the dangerous weapon.

Justice Potter Stewart: My substitute is not intended to apply to Title XVII Section so on or the -- other two other Sections 2113 and 2114, 2231 or with Chapter XXXXV.

Substitute is simply not intended to apply the felonies under those Sections.

That's what he said.

Mr. Mark I. Levy: Well that is --

Justice Potter Stewart: Now, maybe he was speaking carelessly but that is what he said.

Mr. Mark I. Levy: That is what he said.

We think the construction of those words is best used what the Court held in Simpson that Congressman Poff was concerned about the double enhancement of penalties where the underlying the predicate felony.

Justice Potter Stewart: That's what the Court said.

Mr. Mark I. Levy: Excuse me?

Justice Potter Stewart: That is what the Court said.

Mr. Mark I. Levy: I think that that is what --

Justice Byron R. White: (Inaudible) you could say maybe that's what it held but isn't it what it said in – with respect to Mr. Poff's statement and the – and the other parts of legislative history that supported that statement that my brother Stewart just referred to.

Mr. Mark I. Levy: What the Court said about Poff's statement after quoting it was that his view was consistent with the deterrent rationale of Section 924 (c).

I read that to mean that it was consistent because there was no need for double enhancement in order to promote the deterrent rationale of the statute.

With respect to the other portions of the legislative history --

Justice Potter Stewart: Did you read Mr. Poff's statement if I understand your argument as though he had said my substitute is not intended to apply to those portions of Sections 111 and 12 which already define the penalties for use of firearms, a portion to which would be then the enhancement portion?

Mr. Mark I. Levy: No I think even more accurately we would say that 924 (c) does not apply when the enhancement provision of those predicate felonies has been involved.

Justice Potter Stewart: -- is invoked and the sentence is imposed under them.

Mr. Mark I. Levy: Exactly.

Justice Potter Stewart: Well that's why you read it, isn't it?

Mr. Mark I. Levy: Exactly yes sir.

Justice John Paul Stevens: Could I ask --

Mr. Mark I. Levy: I read it in light of the other statements and actions by Congressman Poff in the house.

Justice John Paul Stevens: I submit that's the same reading as the one I suggested.

Mr. Mark I. Levy: If it is then I agree.

Justice John Paul Stevens: Because it's the second paragraph that defines the penalty for the use of a firearm into assaulting an officer.

If you recall 111 has two paragraphs.

Mr. Mark I. Levy: Yes sir.

Justice John Paul Stevens: And it is the second paragraph that talks about the use of a fire -- use of a deadly weapon in assaulting an officer.

Mr. Mark I. Levy: That's correct, Mr. Justice Stevens.

Justice Potter Stewart: Well here's what the Court cited in -- wherein Simpson said the subsequent events in the Senate and Conference Committee pertaining to the statute, but for certain exclusion of Congress' view of the proper scope in 924 (c) was that expressed by representative Poff.

Mr. Mark I. Levy: I think the subsequent event that you just referred to was the Conference Committee's rejection of the Dominick Amendment which has been passed by the Senate.

Justice Byron R. White: Well I was just telling you and suggesting to you that the Court found other evidence in legislative history that supported this statement of Mr. Poff.

Mr. Mark I. Levy: I believe that the other evidence the Court found was the Committee's rejection of the Dominick Amendment.

Justice Byron R. White: I know, but the Court – but – but that evidence the Court thought maybe erroneously.

The Court thought it supported the statement of Mr. Poff.

Mr. Mark I. Levy: It supported the statement of Congressman Poff in the context of double enhancement.

The Dominick Amendment had been limited to certain enumerated predicate felonies and we read the Committee's rejection of that Amendment in favor of the broader Poff proposal to mean that Congress intended that 924 (c) would be broadly rather than narrowly applicable.

But with particular respect to Simpson, the Dominick Amendment had also allowed the double enhancement of penalties in exactly the way that the defendants in Simpson had been punished and --

Justice Potter Stewart: How Mr. Levy do you think the Simpson court limits a sentencing judge?

The only that he may if there's an armed bank robbery that he may sentence the convicted defendant either under the enhancement provision of the bank robbery statute or the 924 (c) and he has to choose and that -- that you think that's the stand of the Simpson holding?

Mr. Mark I. Levy: For the aggravated offence I think --

Justice Potter Stewart: Yeah, that's what I mean.

Mr. Mark I. Levy: -- that Simpson holds that he has to choose between them and that they cannot sentence under both.

Justice Potter Stewart: But that the – you think it doesn't limit the prosecution and what it can charge?

Mr. Mark I. Levy: I do not think it limits the prosecution.

Justice Potter Stewart: And it simply imposes that limitation upon a sentencing judge.

Mr. Mark I. Levy: That's correct.

I believe -- the Court thought that Congress could not authorize the double enhancement of punishment to the consecutive sentences under both statutes.

Justice Potter Stewart: And you think that's the extent of the holding of Simpson or the stand of the limitation that imposes upon government prosecution.

Mr. Mark I. Levy: I do.

I think that is the full extent of the Simpson holding.

Justice Potter Stewart: Thank you.

Mr. Mark I. Levy: The Dominick Amendment had allowed the double enhancement of punishments in a way that the Court in Simpson held Congress had not intended.

The Court in reaching that result had relied on the rejection of the Dominick Amendment that in the Court's in view corroborated their reading of the Poff statement.

I don't think that the rejection of the Dominick Amendment bears on the issue before the Court in this case whether the prosecutor has discretion to prosecute under 924 (c) in lieu of prosecution under the enhancement provision of Section 111.

In addition to the legislative history, the Court in Simpson also relied on several maximums of statutory construction.

In this case those maximums do not lead to the conclusion that section 924 (c) is inapplicable whenever the predicate felony provides for an enhanced penalty.

The Court in Simpson first invoked the usual role of avoiding constitutional decisions where possible.

In Simpson, the Government had relied on identical evidence to prove violations of Sections 924 (c) and 2113 (d) the aggravated provision of the bank robbery statute and the defendants who'd received consecutive sentences under those statutes.

In such circumstances the Court observed that there was the prospect of double jeopardy and following settled practice, it does look to see whether an interpretation of the statute was fairly possible to avoid the potential constitutional issue.

Here in contrast no analogous constitutional question is involved because under the Court of Appeals decision, petitioner's sentence cannot be doubly enhanced for the use of a firearm and hence this cannon of construction is not pertinent here.

The Court in Simpson also relied on the rule of lenity.

However, this rule is simply an auxiliary aid in discerning the congressional intent and it applies only when a Court has looked to all other available sources for guidance on the meaning of a statute and is still left with a serious ambiguity or uncertainty.

Moreover as the Court has recognized on other occasions even a criminal statute is not to be so strictly construed that the legislative purpose is defeated.

Given the structure, purpose, and legislative history of Section 924 (c) in giving the untenable results to what occur under petitioners' construction, the rule of lenity does not bear on a present issue.

Finally the Court in Simpson referred to the principle that precedents be given to the more specific of the two statutes.

However, this principle cannot be determinative whereas here the language, purpose, and history of the Act consistently point in the opposite direction.

Moreover, we do not understand the Court in Simpson to have held as a general matter that only one criminal statute can apply to a given situation simply because that statute maybe considered to be the most specific.

Such a proposition would be of dubious soundness and would contradict many long standing decisions of this Court and of the Court of Appeals that have consistently held to the contrary and have allowed the prosecutor discretion to choose among two or more statutes that apply to a given set of facts.

Justice Byron R. White: And what happened on remand in the Simpson.

Mr. Mark I. Levy: In Simpson on remand, the Court of Appeals they carried the 924 (c) sentences.

Justice Byron R. White: How about the conviction?

Mr. Mark I. Levy: I do not believe they vacated the conviction.

Justice Byron R. White: And did the Government take the position there that it could choose which to vacate or not?

Mr. Mark I. Levy: In Simpson the more severe penalty had been imposed on a 2113 (d) count.

Justice Byron R. White: I see.

Mr. Mark I. Levy: And so the issue didn't really arise whether the Government wanted to proceed with the 924 account.

We think the Court in Simpson relied on the Doctrine of Specificity only to illustrate that there are instances other than the particular one in Simpson in which two statutes are not simultaneously applicable to a given situation despite their literal language.

In this way the notion of specificity served to corroborate the conclusion already drawn from a legislative history of Section 924 (c) and from the rule of lenity.

However, this doctrine is in opposite in the instant case.

Since Section 924 (c) and the enhancement provision of Section 111 are not being simultaneously applied to petitioners.

The Court in Simpson also cited to a prior Department of Justice position on the applicability of Section 924 (c).

I think a reading of the United States Attorney's bulletin and cited by the Court in Simpson will show that – that the bulletin was not meant to be a definitive legal interpretation of the statute but rather was designed as advise to U.S. attorneys to be aware of and avoid possible problems under the statute.

Indeed the bulletin and expressly recognized that Section 924 (c) could be charged in the discretion of the prosecutor even where the predicate offense contained in enhancement provision.

Therefore we do not feel that the Court's citation to the U.S. Attorneys bulletin.

Justice Byron R. White: Do you agree that 924 is a separate crime?

Mr. Mark I. Levy: Yes we do.

Justice Byron R. White: And you charge under that section?

Mr. Mark I. Levy: Yes in the separate count of the indictment --

Justice Byron R. White: Suppose you -- suppose the underlying felony has no enhancement provision and you want to proceed under 924, I suppose you have to, don't, you in order to impose the penalty and you have to impose the penalty.

There's no -- the statute says shall.

Mr. Mark I. Levy: That's correct the statute shall.

Justice Byron R. White: And so if you have a non enhanced underlying felony you must proceed under 924.

Mr. Mark I. Levy: In order to have an enhanced sentence.

Justice Byron R. White: Well you have to have the enhanced sentence.

Mr. Mark I. Levy: I would think a prosecutor would have discretion not to try the 9 --

Justice Byron R. White: Well that's what the statute says -- the statute says --

Mr. Mark I. Levy: The statute says --

Justice Byron R. White: The statute says they -- he shall be punished.

Mr. Mark I. Levy: He shall be punished when he had been convicted, I don't think the statute directs that the prosecutor in ever in case bring all conceivable --

Justice Byron R. White: So you think -- you think that it would be quite proper under it to charge both 924 and that the underlying felony in separate counts?

Mr. Mark I. Levy: Yes I do and I also think it would be quite proper in an appropriate case to charge just the underlying felony and not charge 924 (c).

There's no requirement that the prosecutor in all cases where it is available prosecute the defendants to the fullest maximum extent.

Justice Potter Stewart: But if the charges of enhancement of bank robbery or use of firearm whatever that is, 2113 (b) I think it is, and also violation of 18 U.S.C. 924 (c) and the -- he's convicted of both, you told me a moment ago and in fact I invited you to tell me that you thought Simpson gave the judge an option of sentencing either on the enhancement provision or under 924 (c) but in light of the language that my brother White has just called our attention to I suppose the judge doesn't have an option.

He has sentence him under 924 (c) and under Simpson he cannot sentence him then under the enhancement provision because it says “shall” because of that word shall.

Isn't that – wouldn't that follow?

Mr. Mark I. Levy: If I understand --

Justice Potter Stewart: Shall is directory language.

It takes a way any discretion of the judge might -- sentencing judge might otherwise have.

Mr. Mark I. Levy: Yes, if the defendant were convicted under both.

Justice Byron R. White: Well, he was.

Mr. Mark I. Levy: The petitioners' argument in this case was not that it was mandatorily sense in the 924 (c).

Justice Potter Stewart: No --

Mr. Mark I. Levy: But only that he shouldn't have been prosecuted at all.

Justice Potter Stewart: But under your theory of the case that you had amended to say the judge has no discretion.

He has to do it under 924 (c) and when he does he cannot under Simpson do it under 2113 (d), isn't that correct?

Mr. Mark I. Levy: In this case the issue doesn't arise because the more severe sentence was given under 924 (c)

Justice William H. Rehnquist: Providing that he was charged under 9 --

Justice Potter Stewart: That's right.

In a hypothetical case he was charged and convicted under both.

Justice Byron R. White: Well he would have to be charged under 924 and even they have the 924 (c) enhancement?

Mr. Mark I. Levy: That's right.

Justice Potter Stewart: That's right.

Mr. Mark I. Levy: That's right.

Justice William H. Rehnquist: So the judge under Simpson must now in view of the word shall give him a sentence under 924 (c)

Mr. Mark I. Levy: Now I think the words --

Justice Potter Stewart: And he may not, under Simpson, give him a sentence any sentence at all under 2113 (d), isn't that correct?

Mr. Mark I. Levy: I'm not sure.

I think the work “shall” in the portion of 924 (c) you just quoted say “shall” in addition to the penalty for the predicate offense and I think the purpose of the word shall --

Justice Potter Stewart: Shall be sentenced.

Mr. Mark I. Levy: I think the purpose of the word there shall is to make it clear that the penalty for 924 (c) was in addition to the penalty for the underlying predicate felony.

Justice Potter Stewart: It said shall be sentenced, that's way the present (Inaudible)

Mr. Mark I. Levy: Yes it does Mr. Justice Stewart.

Justice Byron R. White: So what the -- so you're saying that where the underlying felony has an enhancement provision and you're charged in the 924 you would – you would add the 924 enhancement to the unenhanced penalty.

Justice Potter Stewart: That's right.

That's right.

Mr. Mark I. Levy: We think that is --

Justice Byron R. White: -- of the underlying felony.

Mr. Mark I. Levy: We think that is a correct interpretation –

Justice Byron R. White: But nevertheless you have to sentence under 924 (c).

Mr. Mark I. Levy: That's correct.

Justice John Paul Stevens: I'm not sure you haven't over simplified it because the world shall I think is also on the bank robbery statute, 2113 (d).

It would tell you can't use both and --

Justice Potter Stewart: You can't use both.

Justice John Paul Stevens: -- and neither shell what seems to me would take precedents over the other.

Justice Potter Stewart: That maybe the answer.

Mr. Mark I. Levy: I think that's certainly the effect of the holding in Simpson.

Justice Potter Stewart: In both places.

Justice John Paul Stevens: You mean you just had to choose one or the other, is what it's all about.

Justice Byron R. White: Well about the only position you have suggested it is that you couldn't sentence under either.

Justice Potter Stewart: But that's – that's what your brother suggested.[Laughter]

Mr. Mark I. Levy: In sum we think the structured purpose in legislative history all establish that Section 924 (c) is applicable, whereas in this case the predicate felony contains its own enhancement provision.

If the Court has no further questions, we respectfully request that the judgment of the Court of Appeals be affirmed.

Chief Justice Warren E. Burger: Very well.

Do you have anything further, Mr. Goldman?

Argument of Gerald Goldman

Mr. Gerald Goldman: Yes Mr. Chief Justice, I'll try to be brief.

I think the most recent colloquy very happily demonstrates that this case cannot be resolved on the basis of an analysis of anomalies.

There are anomalies all over the place and it won't do for the Government to point to those to justify its position.

Chief Justice Warren E. Burger: Does it suggest to you, Mr. Goldman that those members of the House who were present when Mr. Poff made his statement, there's a question how many of them do you think understood what he was saying and what its impact was and what the whole problem was?

Mr. Gerald Goldman: Well I think he very accurately stated what he meant.

We are not addressing the interplay of these provisions --

Chief Justice Warren E. Burger: I'm not I wasn't -- I wasn't pointing at what he meant.

How many of them do you think understood what you understand his statement to be let's put it that way?

Mr. Gerald Goldman: Well because I think his words accurately conveyed his thoughts.

I believe those who listened to him and read what had to say agreed with that.

The fact is that some of these preexisting statutes do read in terms of shall.

That's true of the provision in 2114 and under Simpson its clear that a prosecution can't rely under 2114 and under 924 (c).

The proper resolution is indeed the one that Representative Poff said he intend to.

Justice Byron R. White: Well if the Government says you can convict under both and that you can sentence only on the one.

Mr. Gerald Goldman: But that would be to contradict the shall mandatory language in one or the other of these two statutes both of which provide for mandatory sentencing.

Justice Byron R. White: Well Simpson did that?

Mr. Gerald Goldman: Well Simpson was quite clearly correctly decided this.

The -- at a minimum.

Justice Potter Stewart: At a minimum.

Mr. Gerald Goldman: Mr. Poff's statement is understood by everybody to forbid cumulative sentencing.

In fact I think it's helpful just to quote for a second from the Justice Department's own U.S. Attorneys bulletin in the 1971.

They said then a number of federal statutes already include special provisions providing for increase penalties where firearms is used in the commission of the offense and they gave some examples including Section 111.

Since the specific provisions of these statutes may take precedence over the general provisions of Section 924 (c) (1), the specific provision should be used where applicable.

Now, it doesn't assist the Government's case to emphasize the deterrent purpose of Section 924 (c).

If it is necessary to accomplish Congress' purpose to apply 924 (c) then it's necessary to do that in every single case and yet even the Government concedes that there's been no implied repeal of Section 111.

Just to --

Justice John Paul Stevens: (Inaudible) Section 111 anyway because it covers thing -- weapons other than guns.

Justice Potter Stewart: That's right.

Mr. Gerald Goldman: But there is even an implied repealed pro tanto for the area of the overlap, the Government concedes that.

Justice John Paul Stevens: No its just like -- that's right.

They claim that there's the alternatives were available but we've held it wasn't bad older or the other, not long ago that you can have alternative provisions of the same conduct.

Mr. Gerald Goldman: Yes that's true but in Bachelder there was affirmative evidence that Congress intended precisely that result.

Moreover neither statute in Bachelder there could be said to be more specific than the other.

Present case is distinguishable in both counts.

Justice John Paul Stevens: Mr. Goldman the thing when you look through the whole argument before the statute was passed Congress has said there shall be specially severe penalties for carrying a gun with certain limited numbers of offences and you construe it as anyone when they wanted to deter the use of guns they decided to get have the penalty for those offences to be less rather than greater.

It just doesn't seem to make much sense.

Mr. Gerald Goldman: But that's not true across the board.

Some of the penalties in the preexisting statutes -- are more serious.

Justice John Paul Stevens: But where it is true doesn't it seem to fit more squarely under the congressional purpose to say that Congress intended generally speaking to make more severe punishment applicable to using guns and you've been affected, that applies everywhere expect where they'd already taking care of the gun problem.

Mr. Gerald Goldman: Well I can only repeat our position that the person who sponsored this provision said in what we regard to be absolutely unequivocal language that he did not intend to address the problem of statutes where there is already a deterrent purpose being served.

The normal presumption I would think would be that Congress does not intend to duplicate itself in enacting criminal laws and yet that's exactly what the Government is suggesting here.

Now that happened in Bachelder, but there was affirmative evidence to that effect.

In this case the evidence is just the other way.

In addition, there is an additional tool of statutory construction in the interpretive preference for specific criminal laws that applies here and it did not apply in Bachelder.

One last word it's our position that when a sentence is vacated that also serves to vacate the conviction because a judgment of conviction requires a sentence under the federal rules so that when the sentence was vacated on remand in Simpson that also served to vacate the conviction.

Justice William H. Rehnquist: We made a lot of errors than in our vacation of sentences after the Furman case where we vacated sentences, but left conviction standing.

Justice Potter Stewart: That's right.

Mr. Gerald Goldman: Well I -- I think the question is whether --

Justice Byron R. White: (Inaudible) we just didn't know.

Justice Potter Stewart: You haven't educated us since that.

Mr. Gerald Goldman: Well I think the question is whether resentencing --

Justice John Paul Stevens: Maybe that the thing in what you say is true in federal cases and not in --

Mr. Gerald Goldman: And in addition to the question is whether resentencing is permissible under any circumstances.

Justice John Paul Stevens: That's right and that would be -- might or could be a matter of state law.

Mr. Gerald Goldman: And in Simpson --

Justice John Paul Stevens: But does in federal case (Voice Overlap)

Mr. Gerald Goldman: -- there should be no new sentence.

Yes sir.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Mr. Gerald Goldman: Thank you

Featured:

Lewis v. United States - Oral Argument

Thu, 13 Sep 2012 21:29:20 +0000

Case:

Lewis v. United States

Media File:

78-1595_19800107-argument

Related Transcript:

78-1595_19800107-argument

Featured:

United States v. Batchelder - Oral Argument

Sun, 20 Jun 2010 20:43:08 +0000

Case:

United States v. Batchelder

Media File:

78-776_19790418-argument.mp3

Related Transcript:

78-776_19790418-argument.xml

Transcript:

Argument of Andrew J. Levander

Chief Justice Warren E. Burger: -- Justice Stewart.

We’ll hear arguments first this morning in United States against Batchelder.

Mr. Levander, you may proceed whenever you’re ready.

Mr. Andrew J. Levander: Mr. Chief Justice, and may it please the Court.

This case is here on a government’s petition to review a decision of the United States Court of Appeals for the Seventh Circuit.

At issue is the interaction of the sentencing provisions of two separate titles of the federal gun laws, underlying a statutory decision of the court below of constitutional questions implicating the scope of prosecutorial discretion and validity of overlapping criminal statutes.

At the outset, I would like to emphasize that there is no question here concerning the correctness of respondent’s conviction.

The only question presented concerns respondent’s sentence.

Following a jury trial in the United States District Court for the Southern District of Illinois, respondent was convicted of one count of violating 18 U.S.C. 922 (h).

As this Court concluded in Barrett against United States, that statute unambiguously prohibits felons, such as respondent, from receiving a firearm that has traveled in interstate commerce.

The evidence supporting respondent’s conviction may be summarized briefly.

On July 31, 1975 respondent sold a .38 caliber pistol to a federal undercover agent for $70.00.

At this time, respondent stated to the agent that he had received the gun following a burglary in St. Louis, and that in the recent past he had had and transferred other firearms.

Respondent stipulated to the facts at trial that the pistol had traveled in interstate commerce, and also to the fact that he had been previously convicted of a felony in 1960.

The District Court sentenced respondent to five years imprisonment in accordance with Section 924 (a) of Title 18.

That statute makes clear that a violation of Section 922 (h) is punishable by up to five years imprisonment and/or $5,000.00 fine.

On appeal, the Seventh Circuit affirmed respondent’s conviction.

A divided panel however, concluded that despite the expressed provisions of Section 924 (a) respondent can only be sentenced up to two years in prison.

The court’s conclusion was based on the fact that respondent’s receipt of a firearm also violated Section 1202 (a) of Title 18.

And that provision carried only a two-year maximum penalty although it also carried a larger fine that is $10,000.00.

The Court of Appeals felt this overlap raise serious constitutional questions.

Its decision, however, accorded the rest on statutory grounds.

Judge McMillan dissented from the Court of Appeals decision noting that the overlap between the five-year statute and the two-year statute are very common among criminal statutes in Title 18, and that the Government has traditionally had the discretion to pursue a defendant under any of applicable statutes.

Chief Justice Warren E. Burger: Do you think that’s analogous to the discretion of the prosecutor whether he should charge a first-degree murder for example or second degree murder or manslaughter, or is there an alternative?

Mr. Andrew J. Levander: I think it’s very analogous, Your Honor.

And this Court in Gregg against Georgia founded that that discretion to actually charge first-degree murder or not to charge didn’t violate the constitutional rates, constitutional difficulties.

It is also similar to the discretion of this Court upheld in Bordenkircher against Hayes.

That is the discretion of the prosecutor to -- in plea bargaining to add various counts or not add various counts.

It is also --

Justice Potter Stewart: There’s also a difference is, unless I misunderstand it that the elements of the offense at least with respect to this defendant were exactly the same.

Mr. Andrew J. Levander: Well, Your Honor I don’t think that is -- I think that’s the Court of Appeals conclusion.

I don’t think that’s true if one looks at the statutes carefully.

Justice Potter Stewart: Well, I know with respect to other defendants, they might not have --

Mr. Andrew J. Levander: No, no even with respect to a convicted felon, there is a difference in the commerce clause element between these two statutes.

Following this Court’s decisions in Barrett, Bass and Scarborough there’s a difference between 1202 (a) which allows a defendant to be convicted if the firearm has either travelled interstate commerce or affected interstate commerce, whereas, Section 922 (h), the five-year statute, the firearm must have traveled interstate commerce.

Justice Potter Stewart: Again in this case, it was stipulated that the firearm had traveled in interstate commerce.

Mr. Andrew J. Levander: That’s correct.

Justice Potter Stewart: So with respect with this defendant, the elements are precisely the same, aren’t they, unlike a first and second-degree murder or unlike the Bordenkircher against Hayes situation?

Mr. Andrew J. Levander: Well if --

Justice Potter Stewart: Or was there a recidivist statute, as I remember it?

Mr. Andrew J. Levander: -- if, right.

Or that’s and as Oyler, as well.

Justice Potter Stewart: Right.

Mr. Andrew J. Levander: There is -- there are several decisions of this Court in which if one looks at what the proof of the Government is in terms of none contested elements of the crime, this Court has upheld the conviction under one statute or another, or found that no lesser included offense was necessary.

In Spies and in Bishop and those series of tax cases, the Court noted that even if Congress had drafted exactly identical statutes that might be unusual.

But they didn’t indicate in the least that those kind of identical statutes would be unconstitutional.

And in those cases, the defendant claimed that it was unfair or that he was entitled to a lesser included offense in the situation in which there was a felony -- he was prosecuted for felony but his exact conduct and exact elements would also prove a misdemeanor.

Justice Potter Stewart: Mr. Levander, as we all know, there has been kicking around the Congress for quite a while now.

A proposed basic wholesale revision of the federal criminal code, would that Bill if it’s ever enacted eliminate all these overlaps and duplications or many of them?

Mr. Andrew J. Levander: Well, it might eliminate some, however Section 1822 of S. 1437, that’s the current destination of the major provision of Title 18, contains both the equivalent of 922 (h), the five-year statute and 1202, and also continues to have a five-year penalty for the one and a two-year penalty for the other.

Although the fines are changed because under the revision, with my understanding Mr. Justice Stewart is that all felonies are punishable by certain standard fines.

Justice William H. Rehnquist: I would assume that in any comprehensive criminal code in astute defendant could find some set of facts which would violate more than one provision of it?

Mr. Andrew J. Levander: There are many in Title 18, as we indicate in the brief in a long footnote, there are just numerous Sections which violate -- which are overlapping to either similar or 100%.

For instance 18 U.S.C. 1001, which is the false statement statute overlaps with several other provisions both in Title 18 and other Titles concerning false statements to various government agencies and --

Justice Potter Stewart: An astute prosecutor could do it at least as well, and that’s the point, isn’t it?

Mr. Andrew J. Levander: That’s correct that traditionally the prosecutors had that discretion and a discretion to choose one statute or another is no greater discretion in the Government’s view than the discretion not to charge at all or.

The Court’s statutory decision which was basically that where a defendant’s conduct violates both a two-year -- the two-year provision and the five-year provision, he may only get the two-year sentence, was based on three maxims of statutory construction, principles of implied repeal, lenity and avoidance of constitutional questions.

The -- it is well-established in the cases of this Court that implied repeals are disfavored in the law.

And only where the two statutes in question will be clearly repugnant to one another will this Court hold that one statute has impliedly repealed another.

However, here we clearly do not have repugnant statutes.

The statutes viewed as a whole, cover very different grounds.

As the Court noted in Bass, the two statutes cover very different kinds of people.

For instance, in the five-year statute, fugitives from justice and addicts are covered.

And in the two-year statute, you have illegal aliens, ex-citizens and other groups which are not covered in the five-year statute.

Moreover, as I pointed out in response to Mr. Justice Stewart’s question a moment ago, the commerce clause element of the two statutes are quite different.

And there are also differences in the conduct which is prohibited.

The five-year statute only goes to receipt of a firearm, whereas the two-year statute goes to receipt, transportation, and possession.

And in Scarborough --

Justice John Paul Stevens: Well, do you think the differences between the two statutes are -- would be sufficient to justify consecutive sentences?

Mr. Andrew J. Levander: That’s a --

Justice John Paul Stevens: On these facts?

Mr. Andrew J. Levander: On these facts?

I think that the answer would probably be not, Mr. Justice Stevens.

I think that for instance in the Eighth Circuit recently there was a decision called White in which certiorari was denied recently, in which the defendant was convicted on both receiving under 922 (h).

And he was also convicted of transportation under 1202.

And in that sort of circumstance, I think that the Government would argue and did argue that consecutive punishment would be possible.

Not only are implied repeals disfavored, but normally one would think that implied repeal involves two statutes, one which is enacted after another.

Here however, the two statutes, the five-year statute and the two-year statute were enacted at the same time.

One is Title IV and one is -- the other is Title VII of the Omnibus Crime Control Act, and Safe Streets Act of 1968.

And it is very difficult to understand how it’s possible that two statutes which are enacted at the same time could possibly be an implied repeal of one or the other.

And indeed, the same Congress which enacted both statutes shortly thereafter reenacted both statutes with a different penalties in the Gun Control Act of 1968.

And at that time the Senate specifically considered raising the five-year statute to be a ten-year maximum penalty, although this provision was later deleted in conference.

But Congress was clearly aware of the two statutes, treated them as separate statutes and enacted and reenacted them, and obviously understood them to be self-fluctuating and separate gun titles.

The second principle of statutory interpretation upon which the Court of Appeals relied is the principle of lenity.

And it is true that where a criminal statute is ambiguous, this Court has often stated that it would be construed to benefit the defendant.

Here however, we submit there is no ambiguity whatsoever.

There’s certainly no ambiguity as the conduct prohibited, the Court so stated in Barrett.

And as to the penalty, 924 (a) without exception provides whoever violates the provision of this chapter in Section 924 (h), the five-year statute is part of that chapter, maybe punishable by up to five years imprisonment and a $5,000.00 fine.

There is no cross-reference or any indication of an exception in that statute.

Section 1202, the two-year statute on the other hand both sets out prohibited conduct and immediately after says that anyone who does this conduct shall be punished by up to two years imprisonment and a maximum $10,000.00 fine.

And it also is very unambiguous and it permits structure in its language, it appears to be just a self-contained statute.

The penalty applies just to those violations that are set forth in the two-year statute, and there’s no cross-reference in that statute to the five-year statute.

Moreover, the legislative history indicates that there is no ambiguity here, and that Congress clearly intended that the five-year statute and the two-year statutes be prosecuted and enforced separately.

The two-year statute was added as an amendment in the legislative process to the Omnibus Crime Control Act, and Senator Long was the sponsor of the two-year statute.

And he stated that this statute is not intended to take anything from but rather to add to “the existing penalties and provisions” of Title IV that is the five-year statute.

And again the legislative history of the Gun Control Act which is the second Act that was passed by Congress in 1968 concerning these matters shows that Congress treated the two statutes separately in separate Titles of the Gun Control Act.

It viewed them as separate parts.

The language suggested they’re separate parts.

Finally, I would note that the Court of Appeals suggested that allowing a defendant to be sentenced to five years when his conduct also violated a two-year statute would be an absurd result or an unfair result.

But I think that this Court of Appeals decision and analysis may create the difficult results.

For example, the Court of Appeals in footnote 5 of its decision refused to address the question which fine provision of the two statutes would apply.

Now the five-year penalty statute carries the $5,000.00 fine.

The two-year statute carries a $10,000.00 fine. If it is the doctrine of implied repeal that is applicable, well then seemingly, the $10,000.00 greater fine that’s found in the two-year statute would be the applicable one.

If it is the doctrine of lenity that’s controlling, then in seemingly it would be the $5,000.00 fine that’s found in the five-year statute.

Justice Potter Stewart: What was the sentence actually imposed -- the punishment actually imposed by the district judge in this case?

Mr. Andrew J. Levander: It was a five-year -- it was a five-year penalty, the maximum.

Justice Potter Stewart: And no fine?

Mr. Andrew J. Levander: And no fine.

That’s why the court it didn’t have to reach the --

Justice Potter Stewart: Right, then you would agree it didn’t.

Mr. Andrew J. Levander: That’s correct.

But the fact that it didn’t indicates -- I mean that that question raises some serious problems.

I think another absurd result that might result from this decision is that Section 922 (h) (1) under which the respondent was prosecuted and convicted applies not only to those who have been convicted of a felony but those who are under indictment for a felony.

There is no such equivalent provision in the two-year statute, therefore a defendant who was under indictment at the time that he received the firearm could still get the five-year penalty.

But a day later, when he was convicted his penalty, the penalty -- maximum penalty would be limited to two years under the Court of Appeals analysis.

The third maxim that the court relied on is the maxim that where possible, the court should construe a statute to avoid a serious constitutional question.

In the Government’s view, there are no serious constitutional questions here, but in any event, that the avoidance of a constitutional question is only possible where the statutes -- the statutes in question may be fairly read in alternative fashions.

Here, there’s just, as I said in regard to the maxim of lenity, there’s no ambiguity.

There’s only one reading that’s fairly possible.

And as this Court held in Swain against Presley and that sort of a situation, the Court cannot avoid the constitutional question and must face it.

Turning to the question of the constitutional -- underlying constitutional questions, as I’ve indicated, the two statutes although in application in this case have similar proof involved.

They are very different, the scope of the two statutes, the person’s activities and the commerce clause element are very different.

And indeed as this Court recognized both in Bass and in Scarborough, it may well have been that Congress thought that it was enacting in a two-year statute, a statute along the lines of Perez.

That is a statute not requiring individualized proof of commerce clause jurisdiction in each and every case.

And in so far as the Congress thought that it was doing that, the two statutes were very much different as to their commerce clause nexus.

After the decisions in Bass, Barrett and Scarborough they are still different although the gap is not quite as great.

We mentioned before that the Government has always suggested and this Court has always followed that the prosecutor has large discretion in charging and in choosing the statute under which to prosecute or not prosecute a defendant.

In part that that discretion is based on the constitution itself, Article 2, Section 3 of the Constitution and the doctrine of the separation of powers.

The only limitation on that prosecutorial discretion as indicated in Bordenkircher and in Oyler is where the prosecutor exercises his discretion on the basis of arbitrary or unconstitutional factors, such as race or religion or gender or something of that nature.

There’s no assertion in this case that there -- that the prosecution was based on any of those factors.

And indeed, looking at the record one can well imagine why the prosecutor chose to pursue the respondent under the five-year statute.

He had been convicted of murder in 1960.

He had a very long record before then and some 20 other prior convictions of some sort or other, including I think a felony conviction for writing in 1952.

And shortly after he’d been released from prison following his murder conviction, he was proceeding to apparently sell guns and trading guns, not only the gun in question but apparently he mentioned that he had had other guns in the recent past and had transferred those as well.

So the question becomes where could possibly statutes which have different elements be unconstitutional where they are clear.

And here, the conduct prohibited is clear, and the penalty provided for each of the two statutes is quite clear and there’s no exception made in under either statute.

The Court of Appeals and respondent suggest that the two statutes are identical.

And we would submit that even where the statutes were identical, there would be unconstitutional violation.

As long as it was clear that Congress intended there would be separate statutes.

This Court has indicated in Bell and in other cases that the major limitation on constitutional limitation on Congress’ power to enact separate statutes with different penalties or on to set the penalties for a criminal violation is the Eighth Amendment.

And there’s certainly no claim here that these statutes violate the Eighth Amendment.

It is arguable -- I suppose that if you have identical statutes that there might be some sort of due process violation in terms of notice.

However, the due process notice line of cases seems to focus mainly on the conduct prohibited.

And here the conduct prohibited is very clearly prohibited.

It’s prohibited by two statutes not just one as regards with respondent.

And there is less reason for the criminal law to be so precise in the penalty provision in the sense that for instance the kidnapping statute provides that the defendant who is convicted of kidnapping may be punished by anywhere from zero to life imprisonment.

So it’s clear that that kind of -- and that statute is not been held as unconstitutional, the breadth of its statutory provisions.

Here, it’s much even narrower one.

It’s from zero to five or if it’s under the three-year statute, from zero to two.

Lastly, I would point out that there is no unfairness to defendants if they’re prosecuted under the one statute or the other.

If a defendant’s conduct constitutes some horrible acts or in need of strict punishment, he can get more than five -- two years under the five-year statute.

If he is lucky enough to have been charged on the two-year statute, that’s fortuitous and he only gets the maximum two years.

And that kind of fortuitous mercy, this Court in Gregg against Georgia it said did not violate the Constitution.

And those defendants whose conduct is punishable by less than two years will receive less than two years under both statutes.

I would like to reserve the remainder of my time if there are no further questions.

Argument of Charles A. Bellows

Chief Justice Warren E. Burger: Very well.

Mr. Bellows.

Mr. Charles A. Bellows: Mr. Chief Justice, and Justices of the Supreme Court.

Section 922 (h) is a very severe and strict statute.

It doesn’t make any difference how long the interstate commerce took place as in our case.

It took place 30 years ago prior to the time he was charged with the crime.

It doesn’t make any difference whether or not he had been previously convicted of an offense in which he got probation.

Once he’d been convicted of a felony then he comes within that statute.

922 has history way back to 1933 where practically the same statute was involved in the Federal Arms Act.

Later on 1968, it was included in the Omnibus Crime Bill.

And it covers situation where a defendant is under indictment as well as being convicted.

Now, this may create a problem, its remarkable none of these problems has surfaced and I think they’re going to begin.

Supposed you had a case where a man was convicted under this 922 (h) and later on the other case in which he was under indictment, he was acquitted, what do you do?

It refers to fugitives.

It’s a fugitive for all the crime, what crimes are we talking about?

Parking tickets may be a crime.

Abandoning a wife may be a crime.

You have another provision referring to those adjudicated as mental defectives.

I can’t imagine charging a mental defective of receiving a gun.

I’ve never heard of a case such as this.

But this was intended, this statute, this Omnibus Bill is intended to prevent crime.

It could’ve been a very simple thing to have said among other things knowing under the age of 21 or 24 years of age shall receive a gun, or sell them.

I think that kind of a provision would really have brought down the incidents of crime in America but Congress didn’t want to go that far.

Now then we have the Amendment of 1202.

Now this is a last minute amendment.

Senator Long came along with an amendment and he was asked if it was a substitute for the Bill.

And all he said was “They did a good job.”

Meaning the committee did a good job.

“But my amendment takes nothing from the Bill.”

He could’ve very well have said “this is or is another amendment.”

And so he offers it.

And there’s no conversation.

There’s no debate about it and there are changes.

It includes those convicted of crimes.

It refers to those that charge from the Armed Services under dishonorable conditions, I don’t know what that means.

Someday that will surface if this remains on the books.

And it refers to those who have renowned United States citizenship.

Justice William H. Rehnquist: Well are you suggesting there’s something constitutionally infirm about the provision about someone discharged from the Armed Forces under dishonorable conditions?

Mr. Charles A. Bellows: I say these provisions are so ambiguous that serious consideration ought to be given by this Court as to whether or not both of them are constitutional.

In addition to the problem we have here of the two statutes where in the same crime subjects the offender to one sentence of two years and the other of five years.

Justice William H. Rehnquist: Was your client -- is there any claim that your client was discharged on a dishonorable provision?

Mr. Charles A. Bellows: No, I’m just pointing out -- I’m just pointing out some of the problems --

Justice William H. Rehnquist: Just run me through the statute, kind of a thing?

Mr. Charles A. Bellows: -- that’s eventually have in both of these statutes, Your Honor.

Now the Court of Appeals said that the statutes may be void for vagueness and that they violated due process of law and equal protection of law, and applied the rule of lenity.

Now the Solicitor General talks about my client having been previously convicted of the offense of murder.

The same thing would apply if he hadn’t been convicted of murder.

The young Assistant United States Attorney would have indicted him too under 922 (h).

They rarely ever used the 1202 when they bring in the file on a man who sold a gun or bought a gun, the national inclination of the prosecutor is “I will draft an indictment charging him under the more severe statute.”

There’s a recent case that the Solicitor General called my attention to when I was out of town, one decided March 28th by the United States Court of Appeals for the District of Columbia, where the defendant was found guilty of the two statutes.

One of the five-year sentence carrying a five-year sentence, one of the two years and they applied the rule of lenity.

Now, the government argues there’s no ambiguousness about the statutes and here’s an extraordinary example.

He says what’s ambiguous about five years?

What’s ambiguous about two years?

Of course if you had only one section, one statute all by itself it is ambiguous.

And I don’t say that the words have an ambiguous meaning all by themselves.

But when you put them to in together, you have an ambiguous situation.

Who has a right to choose where it’s the same offense, not two different offenses or one included in the other, but we have two same offenses.

Should a prosecutor have the right to assume the one that carries the harsher sentence?

Justice Byron R. White: Well, I suppose the prosecutor has some discretion in choosing whether to prosecute or not?

Mr. Charles A. Bellows: Yes, Your Honor.

Justice Byron R. White: And is this any worse in degree?

Mr. Charles A. Bellows: Yes.

As an old-time prosecutor, I did many times.

I would choose a particular section or decide to prosecute or not prosecute.

But where you have two sections both relating to the same crime, and the prosecutor says “You Mr. A, I’m going to charge with the section which calls for a five-year sentence.

And you Mr. B” -- another defendant -- “I’ll charge you under the section which carries a two-year sentence.”

I say there’s something wrong with it.

It’s --

Justice Byron R. White: You could say “I’ll charge you Mr. A but I’m not going to charge Mr. B.”

Mr. Charles A. Bellows: You could say that.

Justice Byron R. White: Something wrong with that?

Mr. Charles A. Bellows: Yes -- no he could do that.

He could say I won’t charge you.

But if he’s going to use that section, he’s got to apply it equally to all persons charged with the offense, if he’s going to use it.

Not the one charge the five-year sentence and one with two-year sentence.

Has he the right to do it, should he do that?

Justice Byron R. White: Let me go back to your District of Columbia case.

I think you said that he was convicted under both.

Mr. Charles A. Bellows: Under both.

Justice Byron R. White: And was he then of course sentenced under both?

Mr. Charles A. Bellows: Yes.

Justice Byron R. White: Were the sentences concurrent or --

Mr. Charles A. Bellows: They were concurrent.

Justice Byron R. White: Concurrent.

Mr. Charles A. Bellows: Yes.

Justice Byron R. White: But the Court of Appeals applied the rule of lenity and held it to two years?

Mr. Charles A. Bellows: Yes, Your Honor.

Justice Byron R. White: Alright.

Mr. Charles A. Bellows: Now, the Solicitor General argues that Congress intended that Section 922 governed related penalty.

There is nothing in the Act to show that at all.

The Solicitor General argues at the Court and the Court of Appeals rewrote the gun laws.

They didn’t do that.

What they did was, they took two sections, two statutes carrying different sentences and tried to give meaning to them rather than declare them unconstitutional.

They tried to give meaning to them by applying the rule of lenity.

Chief Justice Warren E. Burger: Well Mr. Bellows, a prosecutor faced with the decision before any charges made would be, or I’ll put it to you as a question.

Would he be entitled to take into account that the particular individual who had a prior murder conviction, and therefore so select the higher of the two penalty statutes on that ground?

Mr. Charles A. Bellows: No, when you have the same offense with two different punishments.

We have the same crime --

Chief Justice Warren E. Burger: What if that’s within discretion at all?

Mr. Charles A. Bellows: I will say no, Your Honor.

That where they have the same offense carrying two different penalties, two different sections, one allowing for a five-year sentence one of two-year sentence --

Chief Justice Warren E. Burger: The higher is just surplusage then.

It’s a nullity.

Mr. Charles A. Bellows: Well, it’s -- it could be described as that.

Chief Justice Warren E. Burger: That’s the consequence of the decision of the Court of Appeals here, is it not?

Mr. Charles A. Bellows: Well, the court said -- the Court of Appeals said this “You have two statutes here that are ambiguous and apparently are void under the Fifth Amendment for being vague.”

And rather than declare them unconstitutional, they said “We’ll give meaning to it by applying the rule of lenity.”

And -- or bringing the lower court to re-sentence the defendant to two years.

Justice William H. Rehnquist: Mr. Bellows, could you express -- explain precisely why these two statutes are “void for vagueness under the Fifth Amendment”?

Mr. Charles A. Bellows: Well, vague because how do you know what to apply?

Justice William H. Rehnquist: Well, five years is perfectly clear to me.

Mr. Charles A. Bellows: Yes.

Justice William H. Rehnquist: Ten years is perfectly clear to me.

Two years is perfectly clear to me.

There maybe a considerable overlap, but I can’t imagine how anyone could say it was vague?

Mr. Charles A. Bellows: Well, but when you have two statutes that cover the same offense of the purchaser or receipt of a gun, one says the defendant may receive up to five years and the one receives two years.

The vagueness is and this will -- is the prosecutor allowed to choose when we have two different sections.

Justice William H. Rehnquist: Well if your argument may be that the prosecutor ought not to be entitled to be given that discretion by Congress.

But I don’t see anything vague about the discretion is given.

Mr. Charles A. Bellows: It’s my point and -- but despite the Court of Appeals that that makes it vague, because it -- there are no guidelines.

Had Section 922 provided that where a man who’d been previously convicted of murder or rape or burglary, he shall then be found conviction.

The sentence may run up to five years.

I could say that would be a good section.

But there’s no such showing.

There’s nothing in the statute that says that.

All it says is if you bought the gun your -- the punishment may be five years.

And so it is vague, where who’s to choose between a section for applying the five years and the two years.

Justice Harry A. Blackmun: Really what you’re talking about are vague penalties in the -- to use the language of the Court of Appeals.

Mr. Charles A. Bellows: Yes, Your Honor.

Justice Harry A. Blackmun: Not vague language --

Mr. Charles A. Bellows: No, language alone if you had just 922 alone or 1202 alone, it’s perfectly clear that when you put together two of them that conflict with each other then I say there’s a vagueness.

Justice William H. Rehnquist: Has there ever been a case from this Court that held unconstitutional a statute which was perfectly clear as to its proscription but had the vagueness problem that you perceive as to penalties?

Mr. Charles A. Bellows: Not that I’m aware of.

I raise the question before this Court that in as much as the Court of Appeals said there are serious questions about the constitutionality of both of these sections that perhaps they ought to be declared unconstitutional.

I see no great harm if both these sections were declared unconstitutional and Congress rewrote them.

I see so many problems that could arise, eventually from all these -- from prosecutions under both statutes.

And as the Solicitor General pointed out, the anomalies that are here proves my point that there are really problems with both.

They were passed in a hurry.

These statutes are passed fast because they wanted -- the Congress wants to show the public they’re doing something to prevent crime.

But even though far enough --

Chief Justice Warren E. Burger: But Mr. Bellows, is this really fundamentally much different from the inconsistent verdicts that juries sometimes render in which we -- the courts have said that inconsistent verdicts are an inherent part of the system?

Mr. Charles A. Bellows: Juries are entitled to that.

Chief Justice Warren E. Burger: Well only because the courts have said they’re entitled to it though.

Mr. Charles A. Bellows: Yes.

And in our present case for instance, upon a voir dire by the court of the jurors after the verdict.

They wanted to know what the defendant was convicted of.

You know, it gets to that.

This is a tough case to fight in the courts where the indictment reaches them previously convicted of a felony, sometimes it creeps out what kind of a felony he is.

And jurors they can talk about anything.

For instance in this case the record will show they wanted to know why that Mr. Bellows come down the (Inaudible) and try the case.

So they can talk about anything they want.

And the vagaries of a jury are well known.

They can do as they please.

So I suggest --

Justice Byron R. White: They do?

Mr. Charles A. Bellows: Yes.

Now then as I stated that we have submitted the Court to consider the question as to whether or not both sections could be declared to be unconstitutional and it would be no great loss really, because it could be rewritten and a better job could be done.

Finally, we suggest that the amendment by Senator Long was really a repeal of 922 (h).

When he was asked “Is this a substitute” he didn’t talk, he didn’t answer it and maybe he didn’t want to start a rumpus.

But he just said “They did a fine job and it’ll help.”

And anyway, it’s not they weren’t simultaneously passed, 922 came before the 1202 (a), 922 (h) came way back in 1933, so it wasn’t something new.

It’s been on the books for many years.

And there was an established rule that if there exist a conflict in the same Act the last provision must control.

And I would submit to the Court that the 1202 (a) could be considered as a repeal of 922 (h).

Thank you, Your Honors.

Rebuttal of Andrew J. Levander

Chief Justice Warren E. Burger: Thank you Mr. Bellows.

Do you have anything further Mr. Levander?

Mr. Andrew J. Levander: Just a couple quick points if I might, Mr. Chief Justice.

First I would mention that although Section 922 (h) has its origins in a 1933 statute, the Federal Firearm Act, the statutes are very different.

The penalties were changed.

A presumption was eliminated that was in one statute and in another.

And the statutes were radically different in their scope.

Secondly, respondent suggests that Senator Long was not clear as to what he said when he introduced the Bill.

However, Senator Dowd asked him “Do I correctly understand that this amendment is not a substitute for Title IV?”

Answer, “This amendment would take nothing from the Bill, if I applaud what the committee did, this would add to the final work the committee did in this area.”

And lastly, respondent suggests that the prosecutors across the country, federal prosecutors are always using 922 (h), the five-year statute as opposed to the two-year statute.

However, statistics from 1977 and 1978 show that firearm prosecution is brought under one statute or the other.

About 40% were brought under the two-year statute.

Now, I don’t know exactly how many of those cases could only have brought -- been brought under the two-year statute because of the commerce clause element, but I suggest that the statistics indicate that the prosecutors are exercising their discretion in accordance with the factors that this Court approved in a footnote in Lovasco in which we cite in our brief.

If there are no further question.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

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