Respondents Brief — Simpson v. United States

Soper soe

Preme Cout, u. &

ee RL Eo ge

Nos. 76-5761 and 76-5796 |

Iu the Supreme Court of the Pinttei States CR

OCTOBER TERM, 1977

MICHAEL LEE SIMPSON and TOMMY WAYNE SIMPSON,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

MICHAEL LEE SIMPSON, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

DANIEL M. FRIEDMAN,

Acting Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

H. BARTOW Farr, III,

Assistant to the Solicitor General,

WILLIAM G. OTIS,

JOHN J. KLEIN,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Opinion below _.....----------___-.-. shismnnantiiens

I a

I I aac ccc ieee

REE

Statement

Introduction and summary of argument __

Argument:

I. The imposition of cumulative penalties

for use of a firearm to commit a felony

and aggravated bank robbery does not

offend the Double Jeopardy Clause _ __.

II. The imposition of cumulative penalties

for use of a firearm to commit a felony

and aggravated bank robbery is con-

sistent with the congressional intent _

A.

Conclusion

Section 924(c) by its terms pun-

ishes the use or possession of a fire-

arm during the commission of any

federal felony and contains specific

and comprehensive penalty provi-

sions for that offense -

The legislative history ,of the ou

Control Act supports nambigu-

ous language of Section 924(c) -

The decisions of other courts of ap-

peals recognize that Congress in-

tended to apply Section 924(c) to

all federal felonies -

Page

oo fF WS WH WH

11

11

16

25

28

II

CITATIONS

Cases: Page

American Fur Company v. United States,

2 § pee ek ae Se Sk 25

Barrett v. United States, 423 U.S. 212 11

Blockburger v. United States, 284 US.

TOP con cnnidhtcdanéecnhsbocteiaiadeediaaiacaia mada __.....5, 8, 9, 10

Brown v. Ohio, No. 75-6933, decided

June 16, 1977 - ua

Gore v. United States, 357 U. g, 386 _ 8

Huddleston v. United States, 415 US.

| err eRe hs _ 15, 25

lannelli v. United States, 420 U.S. 770 _ 8, 9,11

Jeffers v. United States, No. 75-1805, de-

cided June 16,1977 0. 8

North Carolina v. Pearce, 395 U. S, 711 8

Perkins v. United States, 526 F.2d 688 _ . 26

Rewis v. United States, 401 U.S. 808 _ 25

Scarborough v. United States, No. 75-

1344, decided June 6, 1977 . ——— *

Schwegmann Bros. v. Calvert Corp. . 341

U.S. 384 - 21

Train v. Colorado Public h nforest Research

Group, 426 U.S. 1 .- _. 11, 20

United States v. Bass, 404 U. Ss. 336 | _ 15, 25

United Statee v. Beasley, 438 F.2d 1279,

certiorari denied, 404 U.S. 866 10

United States v. Bramblett, 348 U.S. 503 25

United States v. Crew, 538 F.2d 575, cer-

tiorari denied subnom. Jones v. United

States, 429 U.S. 852 . | 26

United States v. Eagle, 539 F. 24 1166 —

Cases—Continued Page

United States v. Grant, 549 F.2d 942, cer-

tiorari denied, June 20, 1977, No. 76-

6463, petition for certiorari pending

sub nom. Whitehead v. United States,

No. 76-6258 _____. > Nee Oe AS Re ee ca 25-26

United States v. Marshall, 427 F. 2d 434 _ 10

United States v. Oregon, 366 U.S. 643 _ 21

United States v. Ramirez, 482 F.2d 807,

certiorari denied sub nom. Gomez v.

United States, 414 U.S. 1070 26

United States v. Sudduth, 457 F.2d 1198 26

United States v. Thomas, 521 F.2d 76 10

United States v. Wiltberger, 5 Wheat. 76 - 11

Yates v. United States, 354 U.S. 298 15

Statutes:

Gun Control Act of 1968, Pub. L. 90-618,

82 Stat. 1213. _. 16

Major Crimes Act, 18 U. S, C. 1153 | a 26

Omnibus Crime Control Act of 1970, Title

II, Pub. L. 91-644, 84 Stat. 1889 24

eereeweees 12

Le 10

ee 17

ee _Passim

18 U.S.C. 924(c) (1) - _..... Passim

18 U.S.C. 925... - , . 15

18 U.S.C. 2113 _..... __ ...... . 2

18 U.S.C. 2113(a) oa 2,4, 11, 13, 14

18 U.S.C. 2113(b) 10, 13, 14, 15

18 U.S.C. 2113(d) _ _. ... Passim

Miscellaneous: «Page Iu the Supreme Court of the United States

Hearings on H.R. 5037, H.R. 5038, H.R. OCTOBER TERM, 1977

5384, H.R. 5385 and H.R. 5386 before

Subcommittee No. 5 of the House Com-

mittee on the Judiciary, 90th Cong.,

ee a eerie 16-17 . mn Tae

H.R. 17735, 90th Cong., 2d Sess. (1968) _ 24 MICHAEL LEE SIMPSON and TOMMY WAYNE SIMPSON,

H.R. Conf. Rep. No. 1956, 90th Cong., 2d PETITIONERS

etal 24 v.

H.R. Rep. No. 1577, 90th Cong., 2d Sess.

OR et a ae tal 16, 17 | UNITED STATES OF AMERICA

Report by the President’s Commission on | 4

Law Enforcement and Administration

A Free Society (February 1967) ___ — me. TOS

S. Rep. No. 1097, 90th Cong., 2d Sess. MICHAEL LEE SIMPSON, PETITIONER

Sener: re Ee ane: | pee 17 v.

S. Rep. No. 1501, 90th Cong. . 2d Sess.

"RENE sre ST ed 17 UNITED STATES OF AMERICA

S. 3633, 90th Cong., 2d Sess. (1968) ___. 24

114 Cong. Rec. (1968) :

p. 22229 18 ON WRIT OF CERTIORARI TO THE UNITED STATES

~_ js ~~ ee ae ee ee Seer

p. 22232 _ se

pp. 22232-22935 ss caieia. 18

p. 22233 TA eR 19, 21 BRIEF FOR THE UNITED STATES

| iTS

p. 2287 0

“ pte ee ee fee ee — OPINION BELOW

I Sines —cenaeinpmsetnnernieai 24 | The unpublished order of the court of appeals (App.

29-30) is noted at 542 F.2d 1177.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered

on October 14, 1976 (App. 29). A petition for rehear-

ing was denied on November 9, 1976 (App. 31). The

petition for a writ of certiorari in No. 76-5761 was

filed on November 26, 1976, and in No. 76-5796 on

December 3, 1976. The petitions were granted on

April 18, 1977 (App. 32-33). The jurisdiction of this

Court rests upon 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether a defendant convicted of assault or en-

dangering life by “the use of a dangerous weapon”

during a bank robbery, in violation of 18 U.S.C.

2113(d), can be convicted and consecutively sentenced

for using a firearm during the robbery, in violation

of 18 U.S.C. 924(c).

STATUTES INVOLVED

18 U.S.C. 2113 provides in pertinent part:

(a) Whoever, by force and violence, or by in-

timidation, takes, or attempts to take, from the

person or presence of another any property or

money or any other thing of value belonging to,

or in the care, custody, control, management, or

possession of, any bank, credit union, or any sav-

ings and loan association; * * *

* * * * *

Shall be fined not more than $5,000 or impris-

oned not more than twenty years, or both.

* * * * *

3

(d) Whoever, in committing, or in attempting

to commit, any offense defined in subsections (a)

and (b) of this section, assaults any person, or

puts in jeopardy the life of any person by the use

of a dangerous weapon or device, shall be fined

not more than $10,000 or imprisoned not more

than twenty-five years, or both.

18 U.S.C. 924(c) provides:

Whoever—

(1) uses a firearm to commit any felony

for which he may be prosecuted in a court

of the United States, or

(2) carries a firearm unlawfully during

the commission of any felony for which he

may be prosecuted in a court of the United

States

shall, in addition to the punishment provided for

the commission of such felony, be sentenced to a

term of imprisonment for not less than one year

nor more than ten years. In the case of his second

or subsequent conviction under this subsection,

such person shall be sentenced to a term of im-

prisonment for not less than two nor more than

twenty-five years and, notwithstanding any other

provision of law, the court shall not suspend

the sentence in the case of a second or subsequent

conviction of such person or give him a proba-

tionary sentence, nor shall the term of imprison-

ment imposed under this subsection run concur-

rently with any term of imprisonment imposed

for the commission of such felony.

+

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Kentucky, petition-

ers were convicted of aggravated bank robbery and

of using firearms to commit the robbery, in violation

of 18 U.S.C. 2113(a) and (d) and 924(c). Each was

sentenced to consecutive terms of 25 years’ imprison-

ment on the robbery count and 10 years’ imprisonment

on the firearms count (App. 25-26). After another

jury trial for a second robbery, petitioners were again

convicted of one count of aggravated bank robbery

and of one count of using firearms to commit the

crime. Each was sentenced to 25 years’ imprison-

ment for the robbery and 10 years’ imprisonment for

the firearms count, the sentences to run consecutively

to each other and to the sentences previously imposed

(App. 27-28). The court of appeals affirmed in a

consolidated appeal (App. 29-30).

On September 8, 1975, petitioners robbed at gun-

point the East End Branch of the Commercial Bank

of Middlesboro, Kentucky, taking approximately

$40,000. Less than two months later, on Novem-

ber 4, 1975, petitioners returned to Middlesboro,

where they robbed the West End Branch of the Com-

mercial Bank. This robbery was alsc accomplished

at gunpoint, and again about $40,000 in bank funds

was taken (App. 21-22).

To accomplish their escape after the second rob-

bery, petitioners stole the bank manager’s automobile

after locking the bank personnel in the vault. A

police roadblock was set up outside of town, and,

5

after an exchange of gunfire, petitioners were taken

into custody (App. 13).

At sentencing following each conviction, counsel for

petitioners argued that the aggravated robbery con-

viction merged with the firearms offense for purposes

of sentencing, thereby precluding cumulative punish-

ment for the two crimes (App. 8-10, 17). The trial

court disagreed, ruling that Section 924(c) creates

a separate offense for which “the statutes and the

legislative history indicate[ ] an intention to impose

an additional punishment” (App. 17). Applying the

same reasoning, the court of appeals affirmed peti-

tioners’ convictions and sentences (App. 29-30). Be-

cause of an apparent conflict between the decision

below and the decision of the Eighth Circuit in

United States v. Eagle, 539 F.2d 1166, the United

States did not oppose the petitions for certiorari.

INTRODUCTION AND SUMMARY OF ARGUMENT

The principal question in this case is one of con-

gressional intent: whether Congress intended that a

defendant convicted and sentenced for assault or

endangering life with a deadly weapon during a bank

robbery (.© *".S.C. 2113(d)) may also be convicted

and senter »~ for using a firearm in the commission

of that ban: robbe., (18 U.S.C. 924(c)). As peti-

tioners apparently recognize, there is no real issue

under the Double Jeopardy Clause because the two

offenses are sufficiently different to meet the standard

laid down in Blockburger v. United States, 284 U.S.

299, 304: “whether each [statutory] provision re-

quires proof of a fact which the other does not.”

6

That test is satisfied here, because under Section 924

(c)(1) the prosecution must prove that the defen-

dant used a firearm to commit a federal felony but

need not show that the defendant assaulted anyone

or placed anyone’s life in danger, whereas under Sec-

tion 2113(d) the prosecution must prove that the

defendant, while committing bank robbery or lar-

ceny, either assaulted or endangered the life of

another person “by the use of a dangerous weapon

or device” but need not show that the weapon or

device was a firearm.

The case, therefore, turns on the language and

legislative history of Section 924(c). The text of

Section 924(c) plainly states that it is to apply

to use of a gun to commit “any felony for which

[the defendant] may be prosecuted in a court of the

United States” and that punishment under that sec-

tion shall be “in addition to the punishment provided

for the commission of such felony.” Section 924(c)

also sets forth comprehensive penalties, including

special provisions regarding multiple offenses, mini-

mum sentences, suspended or probationary sentences,

and (after amendment) concurrent sentences, which

are substantially more far-reaching and specific than

the penalty provisions of Section 2112(d) and com-

parable statutes.

The legislative history reveals a commitment by

Congress to combat with strong measures the “in-

creasing rate of crime and lawlessness and the grow-

ing use of firearms in violent crime.” During the

House floor debates on Section 924(c), several leg-

7

islators (including sponsoring Congressman Poff)

indicated that the provision would encompass all

felonies punishable in federal court and _ stressed

the need for tough sentencing laws that would de-

ter potential felons from carrying a firearm dur-

ing their crimes. One Congressman specifically ad-

dressed the distinction between firearms and other

dangerous weapons, noting that “use of a gun ex-

tends both its potential and actual seriousness beyond

that of crimes committed without deadly weapons

or with weapons effective only at a very short range.”

Moreover, a Senate bill, designed as a counterpart to

the already-approved House bill, made clear that it

should apply to all federal felonies, including those

already penalizing assaults with a dangerous weapon.

We believe that the terms of Section 924(c) and

its overall legislative history evidence a congressional

intent at variance with the statement of Congress-

man Poff that it “was not intended to apply to

title 18 * * * sections 2113 or 2114 concerning armed

robberies of the mail or banks * * *.” Neither the

Act nor its legislative history suggests that this

view, not committed to writing and offered in passing

during a floor debate largely concerned with other

matters, was understood by or commended itself to a

majority of the voting House members, much less

to a majority of the Senate members that voted on

the final bill. Under these circumstances, and in

view of the awkward consequences of Congressman

Poff’s construction, we submit that this statement

should not be accorded conclusive weight.

8

ARGUMENT

I. THE IMPOSITION OF CUMULATIVE PENALTIES

FOR USE OF A FIREARM TO COMMIT A FELONY

AND AGGRAVATED BANK ROBBERY DOES NOT

OFFEND THE DOUBLE JEOPARDY CLAUSE

For present purposes, we may assume that the

Double Jeopardy Clause forbids the imposition of

cumulative penalties when a person is convicted of

two crimes, one of which is a lesser included offense

of the other. See Brown v. Ohio, No. 75-6933, de-

cided June 16, 1977, slip op. 4-5; Jeffers v. United

States, No. 75-1805, decided June 16, 1977, slip op.

17; North Carolina v. Pearce, 395 U.S. 711, 717. On

the other hand, it is settled that there is no constitu-

tional inhibition to multiple sentences if the offenses

are sufficiently distinguishable to meet the test laid

down in Blockburger v. United States, 284 U.S. 299.

Brown v. Ohio, supra, slip op. 5; Iannelli v. United

States, 420 U.S. 770, 782; Gore v. United States, 357

U.S. 386, 392-393. The question, then, is simply one

of congressional intent. Jeffers v. United States,

supra. Accordingly, we consider first whether the

crimes defined in Sections 2113(d) and 924(c) (1)

are “separate” offenses for double jeopardy purposes.

As we have just noted, the standard set forth in

Blockburger, supra, has long been recognized as “[t]he

established test for determining whether two offenses

are sufficiently distinguishable to permit the imposi-

tion of cumulative punishment” (Brown v. Ohio,

supra, slip op. 5). Although some exceptions (not

relevant here) have been noted (see Brown v. Ohio,

9

supra, slip op. 5-6, n. 6), “[t]he applicable rule is

that where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test

to be applied to determine whether there are two

offenses or only one, is whether each provision re-

quires proof of a fact which the other does not”

(Blockburger v. United States, swpra, 284 U.S. at 304).

As “[t]his test emphasizes the elements of the two

crimes” (Brown v. Ohio, supra, slip op. 5), it is not

significant that proof of the several crimes in some

cases may be coincidental. “If each requires proof

of a fact that the other does not, the Blockburger test

is satisfied, notwithstanding a substantial overlap in

the proof offered to establish the crimes” (Jiannelli

v. United States, 420 U.S. 770, 785, n. 17).

The Blockburger test is plainly satisfied in the

present case. Under Section 924(c)(1) the prosecu-

tion must prove that the defendant used a firearm to

commit a federal felony but need not show that the

defendant committed an assault or placed any life

in danger. Nor must the prosecution prove that

the felony committed was a bank robbery, aggravated

or not. Under Section 2113(d), the prosecution must

prove not only that the defendant committed bank

robbery or larceny but that in the process he either

assaulted another person or endangered the life of

another person “by the use of a dangerous weapon

or device.” It need not show that the dangerous

weapon or device was a firearm but may meet its

burden by showing that the defendant used a knife,

lead pipe, or other weapon effective only at a limited

10

range. Moreover, some courts of appeals have re-

quired a showing that the weapon was in fact im-

mediately capable of inflicting harm, a further re-

quirement inapplicable to use of a firearm under

Section 924(c). See, e.g., United States v. Thomas,

521 F.2d 76 (C.A. 8); United States v. Marshall,

427 F.2d 434 (C.A. 2). Contra, United States v.

Beasley, 488 F.2d 1279 (C.A. 6), certiorari denied,

404 U.S. 866.

It is thus apparent that a defendant can be con-

victed under either Section 924(c) or Section 2113(d)

yet acquitted under the other. For example, a de-

fendant who employs a dangerous weapon other than

a firearm faces liability only under Section 2113(d)

and is not subject to the minimum sentence provisions

and other restrictions of Section 924(c). Likewise,

a defendant who uses a firearm to commit larceny in

an unoccupied bank under Section 2113(b) is not

subject to the assault or endangerment provisions of

Section 2113(d). Nor would there be a conviction

under Section 2113(d) for carrying an unloaded

firearm in those circuits holding that a present ability

to inflict serious harm is necessary under that Sec-

tion; by contrast the definition of a firearm for pur-

poses of Section 924(c) includes an unloaded weapon.

18 U.S.C. 921(a) (3).

Satisfying the Blockburger test ends any constitu-

tional challenge to the convictions and sentences in

these cases. Indeed, it goes further: the Blockburger

test “serves a * * * function of identifying congres-

sional intent to impose separate sanctions for multiple

11

offenses arising in the course of a single act or trans-

action.” Jannelli v. United States, supra, 420 U.S. at

785, n. 17. Nevertheless, there remains at least a pos-

sibility that Congress, although constitutionally free

to impose additional penalties for violation of 18

U.S.C. 924(c) in a case like the present one, has

otherwise disclosed its intention not to do so. We

therefore turn to that question.

II. THE IMPOSITION OF CUMULATIVE PENALTIES

FOR USE OF A FIREARM TO COMMIT A FELONY

AND AGGRAVATED BANK ROBBERY IS CON-

SISTENT WITH THE CONGRESSIONAL INTENT

A. Section 924(c) by its terms punishes the use or

possession of a firearm during the commission of

any federal felony and contains specific and com-

prehensive penalty provisions for that offense.

From United States v. Wiltberger, 5 Wheat. 76

(1820), through Scarborough v. United States, No.

75-1344, decided June 6, 1977, slip op. 6, this Court

has recognized that the primary guide to the meaning

of a statute is its text. This settled rule of construc-

tion depends not on any rigid notion that other avail-

able aids to interpretation are inconsequential (see

Train v. Colorado Public Interest Research Group,

426 U.S. 1, 10) but on the common-sense idea that

Congress best indicates what it means by what it

says. Where “there is no ambiguity in the words [of

the statute], * * * there is no justification for indulg-

ing in uneasy statutory construction” (Barrett v.

United States, 423 U.S. 212, 217).

12

Section 924(c) on its face contains little hint of

ambiguity. It states plainly that it applies to anyone

who “uses a firearm to commit any felony for which

he may be prosecuted in a court of the United States”

and directs without equivocation that such a person

“shall, in addition to the punishment provided for the

commission of such felony, be sentenced to a term

of imprisonment for not less than one year nor more

than ten years.”* A felony for such purposes is de-

fined by 18 U.S.C. 1(1) as “[a]ny offense punishable

by death or imprisonment for a term exceeding one

year,” a definition that clearly includes bank robbery

and aggravated bank robbery in violation of 18 U.S.C.

2113(a) and (d). Thus, the statute by its terms

would seem to provide an additional penalty for com-

mission of a federal felony with a firearm, whether

or not a separate provision increased the penalty for

use of a firearm or other dangerous weapon.

This construction is reinforced by the fact that

Section 924(c) provides penalties qualitatively (as

well as quantitatively) different from the penalties

incorporated in the aggravated bank robbery statute

or similar laws dealing with “dangerous weapons.”

Far from merely providing for longer terms of in-

carceration, Section 924(c) establishes mandatory

minimum sentences, imposes increasingly severe sen-

tences on recidivists (without possibility of suspen-

sion or probation), and prohibits concurrent sentenc-

? More severe sanctions are imposed upon a second or sub- -

sequent offender, who faces a sentence of at least two and as

many as 25 years’ imprisonment.

~

13

ing. Thus, a first offender under Section 924(c) must

receive at least a one-year consecutive sentence, while

a second-time offender must serve (without suspen-

sion or probation) a minimum two-year consecutive

sentence and may receive (without suspension or pro-

bation) a consecutive 25 year sentence. As we later

discuss (see pp. 16-25, infra), these comprehensive

penalties reflect Congress’ determination to curb the

particularly lethal risks created by the use, not just

of any dangerous weapon, but specifically of a gun.

By contrast, Section 2113(d) does not prescribe

mandatory minimum sentences, nor does it prohibit

concurrent sentences or probation. Moreover, the

maximum sentence of 25 years’ imprisonment under

Section 2113(d) is only five years greater than the

maximum sentence for simple bank robbery under

Section 2113(a),? though it is 15 years more than

the maximum for larceny under Section 2113(b) and

24 years longer than the maximum for petit larceny

under Section 2113(b). Were petitioners’ reading

of congressional intent correct, therefore, a bank rob-

ber armed with a gun would be subject at most to an

additional five years’ imprisonment for his first of-

fense (with no mandatory minimum sentence), while

all other felons so armed would be exposed to an addi-

tional sentence of at least one, and possibly 10 years.

If the gun-wielding bank robber were a recidivist, he

* A maximum fine of $5,000 under Section 2113(a) is in-

creased to $10,000 under Section 2113(d).

14

would remain exposed to only five additional years

of imprisonment (with no mandatory minimum)

under Section 2113(d), with the possibility of proba-

tion or a concurrent sentence, whereas all other per-

sons twice convicted of using a firearm to commit a

felony would face an additional consecutive sentence

of at least two and possibly 25 years’ imprisonment

without suspension or probation under Section 924(c).

In light of these differences, it is unlikely that Con-

gress intended punishment under Section 2113(d) for

bank robbers to preempt the important sentencing

provisions of Section 924(c).

It can be argued, of course, that Congress expected

prosecutors, as a means of avoiding this curious re-

sult, to prosecute armed bank robberies and larcenies

under Section 2113(a) or (b) and Section 924(c)

alone, abandoning the provisions of Section 2113(d).

But, whatever sense this argument might make in the

context of bank robberies under Section 2113(a), it

leads to equally curious results under Section 2113(b).

Because Section 2113(d) permits a greater sentence

for armed offenses under Section 2113(b) than would

Section 924(c), a person using a knife to commit lar-

ceny in a bank would face 25 years’ imprisonment,

while his counterpart with a gun would face only 20

years as a first offender. Were the value of the stolen

property less than $100, the 25-year maximum under

Section 2113(d) would stand in contrast to an 11-year

maximum for a first offender under Sections 2113(b)

and 924(c). In view of these peculiar consequences,

15

it seems far more reasonable to read Section 924(c),

as it is written, to provide not alternative penalties

but penalties “in addition to the punishment provided

for the commission of [the underlying] felony.”

We further note that, had Congress in fact desired

to create an exception of the sort that petitioners

desire, it had a convenient opportunity to do so in

the drafting of Section 925 of the Gun Control Act of

1968, entitled “Exceptions; Relief from disabilities.”

In that Section Congress explicitly stated that “[t]he

provisions of this chapter shall not apply with re-

spect to” a list of carefully defined acts that otherwise

would have been unlawful.* Yet nowhere in that Sec-

tion is there an indication that the applicability of

Section 924(c) was limited to certain federal felonies.

In view of that silence, it is inappropriate for the

courts to permeate a statute with major exceptions

that Congress could have adopted but never did. See

Yates v. United States, 354 U.S. 298, 305; United

States v. Bass, 404 U.S. 336, 339; Huddleston v.

United. States, 415 U.S. 814, 831.

*In sum, Section 925 excludes from the provisions of the

Act the transportation or importation of firearms and am-

munition which are furnished to the United States or to any

state or political subdivision or sold, issued, or shipped by

the Secretary of the Army in support of enumerated military

and civilian training activities.

16

B. The legislative history of the Gun Control Act

supports the unambiguous language of Section

924(¢).

The legislative history of Section 924(c), while

hardly extensive, is generally consistent with the

belief that Congress intended to step up the punish-

ment of federal felonies committed with firearms.

Although one statement by Congressman Poff puts

forth a contrary view, we do not regard it as of suffi-

cient weight to override the language of the statute

and other strong indicia of congressional intent.

The Gun Control Act of 1968 (Pub. L. 90-618, 82

Stat. 1213), of which Section 924(c) became a part,

was enacted largely in response to a single concern:

the “increasing rate of crime and lawlessness and

the growing use of firearms in violent crime” (H.R.

Rep. No. 1577, 90th Cong., 2d Sess. 7 (1968)). The

worsening crime situation in recent years had aroused

considerable attention and alarm in Congress. Dur-

ing 1967, Congress held extensive hearings on crime

control legislation, including proposed gun control

bills, in which frequent references were made to the

fact that firearms were used in approximately 5,600

murders, 34,700 aggravated assaults, and the vast

majority of 68,400 armed robberies during 1965 and

that guns killed all but 10 of the 278 law enforce-

ment officers murdered in the preceding five years.*

‘These figures were set forth in the Report by the Presi-

dent’s Commission on Law Enforcement and Administration of

Justice, published in February 1967, as The Challenge Of

Crime In A Free Society, p. 239. See Hearings on H.R. 5037,

H.R. 5038, H.R. 5384, H.R. 5385 and H.R. 5386 before Sub-

17

More recent and even more troubling statistics on

the use of firearms in violent crime were cited in

Attorney General Clark’s letter to Congress request-

ing adoption of the Gun Control Act (H.R. Rep. No.

1577, supra, at 18-20) and in the Senate and House

Judiciary Committee Reports on the Act (id. at 7-8;

S. Rep. No. 1501, 90th Cong., 2d Sess. 22 (1968) ).

Congress confronted the danger revealed by these

figures with a two-pronged approach. First, it ex-

panded federal control over the sale and shipment of

firearms across state lines by prohibiting gun sales

to out-of-state purchasers and to minors and by for-

bidding their purchase through interstate mail orders.

See 18 U.S.C. 922. Second, it attacked the crime

problem directly by punishing the use of firearms in

the commission of serious crimes. Section 924(c),

introduced and adopted on July 19, 1968,° was ad-

dressed to the second objective.

committee No. 5 of the House Committee on the Judiciary,

90th Cong., Ist Sess. 213, 242, 261 (1967) The Crime Commis-

sion’s Report was also considered by the Senate Judiciary

Committee in connection with the legislation eventually en-

acted as the Omnibus Crime Control and Safe Streets Act

of 1968. S. Rep. No. 1097, 90th Cong., 2d Sess. 31 (1968).

The Committee Report on that bill cited further statistics

on the use of firearms in the commission of serious crimes,

indicating significant increases in 1966 and 1967 over the 1965

figures reflected in the Crime Commission Report (id. at 76).

* Because the statute was introduced and approved on the

same day, there are no legislative hearings and no committee

reports concerning it; the pertinent legislative history is con-

tained in a few pages of the Congressional Record and consists

primarily of the views of supporters of the House bill and its

Senate counterpart.

18

The language which became Section 924(c) was

offered by Congressman Poff as a substitute for a

floor amendment made by Congressman Casey to the

House version of the Gun Control Act.* That amend-

ment had provided stiff minimum penalties for any-

one who, “during the commission of any robbery, as-

sault, murder, rape, burglary, kidnaping, or homi-

cide (other than involuntary manslaughter), uses or

carries any firearm which has been transported in

interstate or foreign commerce” (114 Cong. Rec.

22229 (1968))." Supporters of the Poff substitute

noted that the Casey language applied to the use or

possession of firearms in state as well as federal

felonies, and would thereby convert thousands of

state offenses into federal violations. This result was

criticized both as an intrusion upon state jurisdiction

and as the progenitor of an unmanageable load of

criminal cases in the federal system. See id. at 22232-

22235. Other Congressmen felt that the provision

violated principles of due process and equal protection

® Some minor changes concerning the penalty provisions of

the Poff proposal were adopted later. See note 9, in fra.

? The text of the amendment provided :

That whoever during the commission of any robbery,

assault, murder, rape, burglary, kidnaping, or homicide

(other than involuntary manslaughter), uses or carries

any firearm which has been transported in interstate or

foreign commerce shall be imprisoned—

(1) in the case of his first offense, for not less than

ten years;

(2) in the case of his second or more offense, for not

less than twenty-five years.

19

or that the burden of proving the jurisdictional nexus

unacceptably weakened the amendment. /d. at 22231

(remarks of Congressman Poff); id. at 22233 (re-

marks of Congressman Cramer).

The substitute bill presented by Congressman Poff

was intended to cure the perceived defects in the

Casey proposal by making it a separate federal offense

to use or unlawfully carry a firearm during the com-

mission of “any felony which may be prosecuted in a

court of the United States” (id. at 22231). In intro-

ducing his proposal, Congressman Poff made clear his

intention to strengthen, not weaken, the Casey lan-

guage:

[M]y amendment is a substitute for the Casey

amendment, but it is not in derogation of the

Casey amendment. Rather, it retains its central

thrust and targets upon the criminal rather than

the gun. In several particulars, the substitute

strengthens the Casey amendment. [Jbid.]

In particular, the Poff substitute provided for esca-

lating mandatory minimum sentences, without the

possibility of concurrent sentencing, and encompassed

all federal felonies, not merely those felonies enumer-

ated in the Casey proposal.

Despite the broad language, however, Congress-

man Poff made an additional statement that provides

virtually the entire basis for petitioners’ argument in

this case. After noting that his amendment did not

pertain to state offenses, Congressman Poff further

stated:

For the sake of legislative history, it should be

noted that my substitute is not intended to apply

to title 18, sections 111, 112, or 113 which already

define the penalties for the use of a firearm in

assaulting officials, with sections 2113 or 2114

concerning armed robberies of the mail or banks,

with section 2231 concerning armed assaults

upon process servers or with chapter 44 which

defines other firearm felonies. [114 Cong. Rec.

22232 (1968).]

No response or other comment was directed at this

remark, and the debate reverted immediately to the

issue of excluding state crimes.

As petitioners apparently believe that the state-

ments made by Congressman Poff should be given

conclusive effect, and treated as though they were in-

cluded in the text of the statute, it is essential to

determine the appropriate degree of weight that they

should be accorded. Although the words “any felony”

appear at first sight sufficiently clear to justify an

acceptance of their plain meaning, without giving

any weight whatever to Congressman Poff’s state-

ment, we acknowledge that even when the statute is

unambiguous, such indicia of legislative intent need

not be dismissed out of hand. This Court has re-

cently observed that “[w]hen aid to construction of

the meaning of words, as used in the statute, is avail-

able, there certainly can be no ‘rule of law’ which

forbids its use, however clear the words may appear

on ‘superficial examination’” (Train v. Colorado

Public Interest Research Group, 426 U.S. 1, 10).

Nonetheless, when the legislative materials are as

sparse as they are in this case, it seems appropriate

also to remember that “statements [made on the

House floor], even when they stand alone, have never

21

been regarded as sufficiently compelling to justify

deviation from the plain language of a statute”

(United States v. Oregon, 366 U.S. 643, 648). As

Justice Jackson once observed: “[T]o select casual

statements from floor debates, not always distin-

guished for candor or accuracy, as a basis for making

up our minds what law Congress intended to enact

is to substitute ourselves for the Congress in one of

its important functions” (Schwegmann Bros. v. Cal-

vert Corp., 341 U.S. 384, 396 (concurring opinion) ).

That observation is particularly pertinent where, as

here, the statement relied upon was made in only one

of the two Houses of Congress and is contrary to both

the language of the statute and the principal thrust of

its legislative history.

Nothing else in the legislative history of Sec-

tion 924(c) reinforces the proposition that the stat-

ute applies to certain, but not all, federal felonies.

Indeed, Congressman Poff, when later asked to com-

pare the coverage of his amendment to the Casey

amendment, flatly stated: “My amendment would ap-

ply to all Federal felonies including heinous crimes in

all grades, down to the lowest level of a felony” (114

Cong. Rec. 22233 (1968) ). Moreover, the plain con-

cern of House members was to impose additional de-

terrence on the use of firearms—“to persuade the man

who is tempted to commit a Federal felony to leave

his gun at home” (id. at 22231; remarks of Congress-

man Poff)—rather than to treat firearms and other

dangerous weapons in the same manner. Thus, Con-

gressman Horton stated:

22

Even where the crime does not result in death

or injury, the use of a gun extends both its po-

tential and actual seriousness beyond that of

crimes committed without deadly weapons or

with weapons effective only at a very short range.

The ‘equalizer’ as it has been called, is a tool of

terror, death, and injury in the hands of a crim-

inal. He who stoops to point its barrel at an

innocent victim * * * deserves to be singled out

by the laws as the worse kind of social menace.

(Id. at 22247. ]

Whatever Congressman Poff’s view may have been,

therefore, there is no evidence that it was shared by

his co.leagues voting on the amendment.

Subsequent events also suggest that Congressman

Poff’s remarks did not reflect a common understand-

ing of the coverage of Section 924(c). Approxi-

mately two months later, while the Gun Control Act

remained pending, Senator Dominick introduced an

amendment to the Senate version of the Gun Control

Act that provided a sentence of up to life imprison-

ment for any person armed with a firearm while

committing certain enumerated federal crimes. The

list of crimes, included, inter alia, robbery and “any

* * * assault with a dangerout [sic] weapon” (114

8 The text of the Dominick proposal was, in pertinent part,

as follows:

§ 2401. Use of firearms in the commission of certain

crimes of violence

Whoever, while engaged in the commission of any of-

fense which is a crime of violence punishable under this

title, is armed with any firearm, may in addition to the

punishment provided for the crime be punished by,1m-

prisonment for an indeterminate number of years up to

——E - -

23

Cong. Rec. 27142 (1968)).* Senator Dominick took

express notice that several federal statutes, including

Section 2113(d), already provided greater penalties

for use of a “dangerous or deadly weapon” and then

declared (id. at 27143):

My amendment would not repeal these provi-

sions nor would it diminish their effectiveness.

While the terminology varies, in general it may

be said that each of these sections covers any dan-

gerous or deadly weapon. On the other hand, my

amendment covers only firearms. As such, it is

not intended to detract from these existing sec-

tions, but it would be available, if the prosecutor

and the court desired, for the purpose of stronger

penalties in those cases where firearms were in-

volved.

Senator Murphy, who co-sponsored the Dominick

amendment, recognized that it was designed as a

counterpart of the House version already adopted.

Although strongly supporting the Senate measure,

life, as determined by the court. Upon a subsequent con-

viction under this section by the same person, notwith-

standing any other provision of law, the court shall not

suspend the sentence of such person or give him a pro-

bationary sentence.

§ 2402. Definitions

As used in this chapter—

“Crime of violence” means any of the following

crimes or an attempt to commit any of the following

crimes: murder; voluntary manslaughter; Presiden-

tial assassination, kidnaping, and assault; killing

certain officers and employees of the United States;

rape; kidnaping; assault with intent to kill, rob,

rape, or poison; assault with a dangerout [sic]

weapon, robbery; burglary; theft; racketeering; ex-

tortion; and arson.

24

he noted that the House language made additional

penalties for use of a firearm mandatory and that it

applied to “any felony, as defined by this act.” Id. at

27144. The Dominick amendment then passed the

Senate after brief discussion and without any appar-

ent opposition, but was replaced in the final version

of the Gun Control Act by the Poff amendment, its

apparent counterpart in the House.’ Again, there is

no evidence that the views reflected in the statement

of Congressman Poff on the floor of the flouse had

commended themselves to the other Congressmen or

Senators-eacting on the bill.

In short, the legislative history of Section 924(c),

even according due regard to the remarks of Con-

gressman Poff, is not adequate to override the stat-

° After the Dominick amendment passed, the Senate voted

to amend the House bill, H.R. 17735, by deleting all of the

House language following the enacting clause and substituting

the text of the Senate bill, S. 3633, as amended. A conference

committee subsequently adopted the House version of Section

924(c), except that the prohibitions on suspended sentences

and probation were made applicable only to second and subse-

quent convictions and restrictions on concurrent sentencing

were eliminated. H.R. Conf. Rep. No. 1956, 90th Cong., 2d

Sess. 31-82 (1968). The bill was signed by the President on

October 22, 1968.

Title II of the Omnibus Crime Control Act of 1970 (Pub. L.

91-644, 84 Stat. 1889) amended Section 924(c) by reim-

posing the restriction that no sentence of imprisonment there-

under could be served concurrently with any term imposed

for the underlying felony. The amendment also reduced the

minimum mandatory sentence of imprisonment for repeat

offenders from five to two years.

25

ute’s clear language and purpose.” Congress was well

aware that firearms, which can often be concealed,

can discharge rapidly and repeatedly over great dis-

stances, and can use explosive substances, have a

lethal potential that other dangerous weapons do not

possess. Therefore, while Congress had already pun-

ished the use of “dangerous weapons” in committing

some crimes (including bank robbery), it had ample

reason to declare that any felon armed with a firearm

would face yet additional punishment. We believe

that it did so in Section 924(c).

C. The decisions of other courts of appeals recognize

that Congress intended to apply Section 924(c) to

all federal felonies.

Every court of appeals that has addressed the

specific issue has ag eed with the court below that

Congress intended Section 924(c) to supplement the

sanctions for bank robbery with a “dangerous weapon

or device.” See United States v. Grant, 549 F. 2d

*° Since the intent of Congress is sufficiently clear, there is

no occasion for the Court to apply the rule of lenity. Compare

Rewis v. United States, 401 U.S. 808, 812; United States v.

Bass, supra, 404 U.S. at 347. That principle is applicable only

when there is “uncertain[ty] about the statute’s meaning.”

Scarborough v. United States, supra, slip op. 14; United

States v. Bramblett, 348 U.S. 508, 510. Here, the wording

of Section 924(c), its structure and its legislative history

demonstrate with sufficient clarity that Congress intended to

restrict the use of firearms to commit “any felony.” Al-

though penal laws are to be strictly construed, they “ought

not to be construed so strictly as to defeat the obvious inten-

tion of the legislature.” American Fur Company v. United

States, 2 Pet. 358, 367; United States v. Bass, supra, 404 U.S

at 351; Huddleston v. United States, supra, 415 U.S. at 831.

942, 948 (C.A. 4), certiorari denied, June 20, 1977,

No. 76-6463, petition for writ of certiorari pending

sub nom. Whitehead v. United States, No. 76-6258;

United States v. Crew, 538 F.2d 575 (C.A. 4), cer-

tiorari denied sub nom. Jones v. United States, 429

U.S. 852; Perkins v. United States, 526 F.2d 688

(C.A. 5). See also United States v. Ramirez, 482

F.2d 807 (C.A. 2), certiorari denied sub nom. Gomez

v. United States, 414 U.S. 1070; United States v.

Sudduth, 457 F.2d 1198 (C.A. 10)." Although the

various courts of appeals did not discuss the remarks

of Congressman Poff, those decisions demonstrate at

the least that, aside from those remarks, there is little

reason to infer a congressional intent to limit punish-

ment under Section 924(c) only to certain crimes.

As the Fourth Circuit stated in United States v.

Crew, supra, 538 F.2d at 577-578:

fAjppellants would have use equate “using a

dangerous weapon or device” with “used or car-

11Qne court of appeals has taken a conflicting view. In

United States v. Eagle, 539 F.2d 1166, the Eighth Circuit

reversed the conviction under Section 924(c) of an Indian

defendant convicted at the same trial for assault “with

a dangerous weapon” in violation of the Major Crimes Act,

18 U.S.C. 1153. Based solely on the remark of Congressman

Poff heretofore discussed, the court concluded that “the legis-

lative history” of Section 924(c) (1) undercut its application

in such a case “because § 1153 itself provides an increased

penalty for use of a dangerous weapon” (539 F.2d at 1171).

The court stated that it was “not necessary to deterrence to

impose an increased penalty for use of a firearm by separate

statute * * * and [this] apparently was not intended by Con-

gress” (id. at 1172). For the reasons set forth above, we be-

lieve that conclusion to be incorrect.

CON A te A te as

27

ried a firearm” * * *. However, it is clear that

Congress never intended to equate these terms.

The passage of Section 924(c) was a Congres-

sional reaction to demands for “gun control” in

the wake of political assassinations. It is a nar-

rowly drawn statute intending to discourage a

felon from using or carrying a firearm, and does

not encompass the use of nonexplosive weapons.

On the other hand, Section 2113(d) punishes a

felon for the use of any weapon or device during

the course of a bank robbery which jeopardized

the lives of others. Therefore, the offenses are

not identical in law and fact, and the separate

sentences under Sections 2113(d) and 924(c)

are [appropriate].

These decisions correctly emphasize the legislative

policy to provide increased deterrence to the use of

firearms in federal felonies. As the courts of appeals

have noted, that intention is manifest in the legisla-

tive history of Section 924(c) and finds clear expres-

sion in the language of the statute itself. We believe,

therefore, that the court of appeals in this case cor-

rectly concluded that petitioners were subject to

cumulative punishment under Section 2113(d) and

Section 924(c).

28

CONCLUSION

It is therefore respectfully submitted that the judg-

ment of the court of appeals should be affirmed.

DANIEL M. FRIEDMAN,

Acting Solicitor General.*

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

H. Bartow Farr, III,

Assistant to the Solicitor General.

WILLIAM G. OTIs,

JOHN J. KLEIN,

Attorneys.

AUGUST 1977.

* The Solicitor General is disqualified in this case.

W G. S. GOVERNMENT PRiMTING OFrice; 1977 243246 43