# Respondents Brief — Simpson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 964

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2108%3A5. Public record. Not legal advice.