Respondents Brief — Whalen v. United States
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No. 78-5471
ju the Supreme Court of the Mh JR., CLERK
OcTOBER TERM, 1978
a
THOMAS W. WHALEN, PETITIONER
v.
UNITED STATES OF AMERICA
4
ON WRIT OF CERTIORARI TO THE
DISTRICT OF COLUMBIA COURT OF APPEALS
BRIEF FOR THE UNITED STATES
WADE H. McCREE, JR.
Solicitor General
PHILIP B. HEYMANN
Assistant Attorney General
ANDREW L. FREY
Deputy Solicitor General
ALLAN A, RYAN, JR.
Assistant to the Solicitor General
JEROME M. FEIT
ELLIOTT SCHULDER
Attorneys
Department of Justice
Washington, D.C. 20530
omen
Opinion below ..............
Jurisdiction ...
Question presented .....
Constitutional and statutory provisions in-
volved .....
Statement ..... i
Summary of argument ...........
Argument:
I. The Double Jeopardy Clause does not
bar the imposition, in a single sentenc-
ing proceeding following a single trial,
of any combination of punishments
authorized by the legislature for the
offenses of which the defendant stands
convicted
A. Introduction
B. Rape and first degree (felony)
murder are not the “same” offense
for double jeopardy purposes ........
C. The Double Jeopardy Clause for-
bids imposition only of a “multi-
ple” punishment that the legislature
has not authorized
1. The protection against succes-
sive trials and the protection
against multiple punishments
are distinct
14
14
14
18
30
30
Argument—Continued
2. The Double Jeopardy Clause
does not limit the power of the
legislature to fix punishment...
38. The “Blockburger Test” is not
the exclusive standard for de-
termining whether a defend-
ant may be consecutively sen-
tenced
II. The determination by the highest court
of the District of Columbia that the ap-
plicable local statutes authorize consecu-
tive punishments for rape and ‘for a
murder committed in the course of that
rape is correct and should not be over-
turned
A. This Court should not review the
construction given by the highest
court of the District of Columbia
to a statute of purely local appli-
cation
B. Petitioner’s failure to raise the
statutory construction issue in his
petition also justifies a refusal to
review it
C. Congress intended to allow consecu-
_ tive sentences for felony murder
and rape
1. Felony murder and the underly-
ing felony were discrete offenses
at common law
Page
53
55
62
Ill
Argument—Continued
Conclusion
Cases:
2. The history of the District’s
first degree murder statute
shows that felony murder and
rape are separately punishable
offenses ....
3. The murder and rape statutes
protect different societal in-
WOOD: sicesinccnse
4. The effect of D.C. Code Ann.
§ 23-112 authorizes consecutive
sentences for petitioner’s case..
CITATIONS
Abbate v. United States, 359 U.S. 187......
Albrecht v. United States, 273 U.S. 1..22, 23, 39
Allen v. State, 199 Kan. 147, 427 P.2d
598
Page
67
74
79
86
43, 74
65
Ashe v. Swenson, 397 U.S. 436......3, 31, 48, 62, 74
United States, 349 U.S. 811 ........ 31, 39, 61
Bell v.
Benton v. Maryland, 395 U.S. 784 ............ 31, 32
Blango v. United States, 373 A.2d 885...... 66-67
Blockburger v. United States, 284 U.S.
299 .... 9, 20, 26
Borum v. United States, 409 F.2d 433,
cert. denied, 395 U.S. 916 ... 36, 80
Bouie v. City of Columbia, 378 U.S. 3477.... 38
Bozza v. United States, 330 U.S. 160 ........ - $6
Brown v. Ohio, 482 U.S. 161 : passim
Calder v. Bull, 3 U.S. (3 Dall.) 386 _....... 38
Callanan v. United States, 364 U.S. 587.... 61
Candler v. State, 363 N.E. 2d 1238 ..........
67
Cases—Continued Page
Carter v. McClaughry, 183 U.S. 366 .......- 43
Cassius v. Arizona, 110 Ariz. 485, 520
P.2d 1104, cert. dismissed as improvi-
dently granted, 420 U.S. 514 -............... 49
Coker v. Georgia, 433 U.S. 584 ................ 38, 77
Commonwealth v. Bastone, 466 Pa. 548.... 65
Commonwealth v. Watkins, 379 N.E. 2d
1040 64
Davenport v. United States, 353 F.2d 882... 82
Dorszynski v. United States, 415 U.S. 424.. 31, 37
Ebeling v. Morgan, 237 U.S. 626 .............. 39
Ellis v. United States, 395 A.2d 404 ........ 76
Ennis v. State, 364 S.2d 497 ......................-- 26
Fisher v. United States, 328 U.S. 463........ 57, 58
Fowler v. United States, 374 A.2d 856.... 84
Fuller v. United States, 407 F.2d 1199,
cert. denied, 393 U.S. 1120 ................. 63-64, 66
Garrett v. State, 573 S.W. 2d 543 -.......... 67
Gavieres v. United States, 220 U.S. 338.. 22
General Talking Pictures Co. v. Western
Electric Co., 304 U.S. 176 .................... 59
Gore v. United States, 357 U.S. 386.....17, 20, 37,
41, 60-61
Green v. United States, 355 U.S. 184_...31, 32, 66
Griffin v. United States, 336 U.S. 704...... 57
Hall v. United States, 343 A.2d 35 ~......... 75
Hammond v. United States, 345 A.2d 140.. 84
Harris v. Oklahoma, 433 U.S. 682 ............ 28
Harris v. State, 555 P.2d 76 et 28
Harris v. United States, 359 U.S. 19 ........ 23
Iannelli v. United States, 420 U.S. 770... 21, 22-
23, 48, 60
Ingram v. United States, 353 F.2d 872... 81
Cases—Continued Page
Ingraham v. Wright, 430 U.S. 651 ............ 38
Irby v. United States, 390 F.2d 482 ......... 75
Jeffers v. United States, 432 U.S. 187_..... 11, 24,
26, 27, 32, 44, 51
Ladner v. United States, 358 U.S. 169 ...... 39
Lange, Ex Parte, 85 U.S. (18 Wall.)
163 ... 34, 35
Lockett v. Ohio, 488 U.S. 586 38
Loving v. Virginia, 388 U.S. 1 38
McFadden v. United States, 395 A.2d 14.. 75-76
Morgan v. Devine, 237 U.S. 682 -............. 43, 52
Neilsen, In re, 131 U.S. 176 29, 30
North Carolina v. Pearce, 395 U.S. 711.... 35
People v. Lytton, 257 N.Y. 310 65
People v. Moran, 246 N.Y. 100 ................ 67
People v. Nichols, 230 N.Y. 221 65, 67
Pernell v. Southall Realty, 416 U.S. 363.. 12-18,
57, 58
Price v. Georgia, 398 U.S. 323 31, 32
Prince v. United States, 352 U.S. 322...... 31
Pynes v. United States, 385 A.2d 772, pet.
for cert. pending, No. 78-5471 .............. 76
Robinson v. California, 370 U.S. 660 ........ 38
Roe v. Wade, 410 U.S. 118 ..... 38
Rogers v. State, 83 Nev. 376 . ane i 65
Rouse v. United States, 402 A.2d 1218...... 75
Sanabria v. United States, 487 U.S. 54..22, 24, 38
Scarborough v. United States, 481 U.S.
563 61
Shanahan v. United States, 354 A.2d 524.. 64
Simpson v. United States, 435 U.S. 6....11, 44, 60
Smith v. Daily Mail Publishing Co., No.
78-482 (June 26, 1979) 38
Smith v. United States, 418 F.2d 1120...... 82
VI
Cases—Continued Page
Stanley v. Georgia, 394 U.S. 557 .............. 38
State v. Barton, 5 Wash. 2d 234, 104
Pie OP a a ae 65
State v. Cooper, 13 N.J.L. 361 Se Rae ee 29
State v. Foy, 224 Kan. 558 67
State v. Pittman, 118 Ariz. 71, 574 P.2d
1290 65
State v. Reyes, 209 Or. 595, 308 P.2d 182.. 65
State v. Stancliff, 467 S.W. 2d 26 ............ 65
Thompson v. Oklahoma, 429 U.S. 1053...... 30, 48
Trop v. Dulles, 356 U.S. 86 ....................---- 34
United States v. Ball, 163 U.S. 662 ........ 31
United States v. Batchelder, No. 78-776
(June 4, 1976) : & 61
United States v. Branic, 495 F. 2d 1066... . 62, 63
United States v. Butler, 462 F.2d 1195.... 73, 75
United States v. Culbert, 435 U.S. 371...... 61
United States v. DiFrancesco, No. 78-1250
(2d Cir. Aug. 6, 1979) .................-.-..--- 37
United States v. Dioguardi, 492 F.2d 70,
cert. denied, 419 U.S. 873 ieee ae 39
United States ex rel. Ferrari v. Hender-
son, 474 F.2d 510, cert. denied, 414
SEE aatistcicci eects ... 36-37
United States v. Gaddis, 424 U.S. 544. es 51
United States v. Greene, 489 F.2d 1145,
cert. denied, 419 U.S. 977 -.............-...... 63, 75
United States v. Jackson, 390 U.S. 570... 68
United States Ex Parte, 242 U.S. 27 ........ 38
United States ex rel. Jackson v. Follette,
462 F.2d 1041, cert. denied, 409 U. S.
1045 63
United States v. Jorn, 400 U.S. 470 .......... 32
United States v. Lee, 489 F.2d 1242 _._..... 5
United States v. Long, 524 F.2d 660 39
VII
Cases—Continued Page
United States v. Stokes, 365 A.2d 6165 ...... 5
United States v. Stolarz, 550 F.2d 488...... 75
United States v. Tateo, 377 U.S. 468 ........ 31
United States v. Universal C.1.T. Credit
Corp., 344 U.S. 218 ..2.......... 38
United States v. Whitaker, 447 F.2d 314. 75
United States v. Wiltberger, 18 U.S. (5
re Pe ee 38
Vanetzian v. Hall, 562 F.2d 88 26
Waller v. United States, 389 A.2d 801,
pet. for appeal pending, No. 78-5928... 76
Wheeler v. United States, 165 F.2d 225,
cert. denied, 333 U.S. 880 -.....00...00...... 67
Constitution, statutes and rules:
United States Constitution:
Article III ; 57
First Amendment 38
Fifth Amendment, Double Jeopardy
Clause passim -
Eighth Amendment ... 38
Fourteenth Amendment, Due Process
SEU AE RISERANS ORS ee 35
Ex Post Facto Clause 38
Act of March 3, 1901, ch. 854, 31 Stat.
PE Noises cesecsiccieqaceceboteduetncs 67-68
Section 1, 31 Stat. 1189 2... 68
Section 798, 31 Stat. 1821 _...00.... 68
Section 800, 31 Stat. 1821 2.0.0. 68
Section 801, 31 Stat. 1821 0.0... 68
Section 802, 31 Stat. 1821 _....0.. 68
Section 808, 31 Stat. 1822 0... 68
Section 934, 31 Stat. 1841 69
vill
Constitution, statutes and rules—Continued Page
Act of June 12, 1940, ch. 339, Section 1,
54 Stat. 347 - 69
Act of March 22, 1962, Pub. L. No. 87-
423, Section 1, 76 Stat. 46 70
Act of July 29, 1970, Pub. L. No. 91-358,
Section 204, 84 Stat. 600 68
District of Columbia Court Reform and
Criminal Procedure Act of 1970, Pub.
L. No. 91-358, 84 Stat. 473 e¢ seq....... 57
Section 210, 84 Stat. 604 79
Section 210, 84 Stat. 610 79
10 U.S.C. 818 34
10 U.S.C. 857 34
10 U.S.C. 858 34
10 U.S.C. 858a 34
18 U.S.C. 371 23
18 U.S.C. 924(c) ...11, 12, 15, 48
18 U.S.C. 1955 23
18 U.S.C. 1962 -_.. 11-12, 48
18 U.S.C. 1962 (c) 15
21 U.S.C. 841(b) 34
21 U.S.C. 846 27, 28
21 U.S.C. 848 27, 28, 34, 49
21 U.S.C. 848(b) (1) 27
21 U.S.C. 848(b) (2) ..............-------- 27
28 U.S.C. 1257 57
28 U.S.C. 2106 = 87
D.C. Code Ann. (1973 ed.) :
§ 22-501 24
§ 22-504 41
§ 22-1801 (a) 6
§ 22-2201 .... me 5, 6, 79
5 eR EI TEA BSE STE UI} passim
Constitution, statutes and
rules—Continued Page
§ 22-2403 5, 19, 69, 72
8 22-2404 ............ 3, 5, 18, 70, 71
| EEE Saeco 3, 6, 18, 25
§ 23-112 .....3, 18, 79, 80, 81, 82, 83, 84, 85, 86
ciara ba call, icatnenccgats 4
§ 24-203 (a) ......... ....68, 72, 79
Mt RS SSS) een 59
Fed. R. Crim. P. 31(c) : 717
Miscellaneous:
Arent and MacDonald, The Felony Murder
Doctrine And Its Application Under
the New York Statutes, 20 Cornell L.Q.
288 (1935) ss--e-----04, 65, 66
W. Blackstone, Commentaries 63
7 Brooklyn L. Rev. 79 (1937) ; 30
107 Cong. Rec. 12154 (1961) ~............... 72
108 Cong. Rec. (1962):
ga ciate acne 71, 75
pm 4282 wz... ; 13
p. 4145 as 74
H.R. Rep. No. 677, 87th Cong., 1st, Sess.
(1961) 72
H.R. Rep. No. 91-907, 91st Cong., 2d
Sess. (1970) csiaags ARN 57, 68, 80, 81, 82
Kirchheimer, The Act, The Offense and
Double Jeopardy, 58 Yale LJ. 513
{| | FESO eecres 75
Lugar, Criminal Law, Double J eopardy
and Res Judicata, 39 Iowa L. Rev. 317
(1954) .. . 29-30
Manual for Courts-Martial (1951 & Cum. |
Supp. 1959) 34
Miscellaneous—Continued Page
Note, Statutory Multiple Punishment and
Multiple Prosecution Protection, 50
Minn. L. Rev. 1102 (1966) ................ 29
Note, Twice in Jeopardy, 75 Yale L.J.
262 (1965) sil ....22, 40, 62, 69, 75
Perkins, A Re-examination of Malice
Aforethought, 43 Yale L.J. 557 (1934)... 64, 66
2 F. Polock and F. Maitland, History of
English Law (2d ed. 1905) : 69
S. Rep. No. 373, 87th Cong., 1st Sess.
(1961) 72
S. Rep. No. 1175, 75th Cong., 1st Sess.
(19387) 70
R. Stern & E. Gressman, Supreme Court
Practice (5th ed. 1978) -.....................---- 59
Wechsler and Michael, A Rationale of the
Law of Homicide: I, 37 Colum. L. Rev.
TOR Caper? eh 64, 66, 76, 77
Iu the Supreme Court of the United States
OCTOBER TERM, 1978
No. 78-5471
THOMAS W. WHALEN, PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI TO THE
DISTRICT OF COLUMBIA COURT OF APPEALS
BRIEF FOR THE UNITED STATES
OPINION BELOW
The opinion of the court of appeals (A. 8-27; Pet.
App. la-15a) is reported at 379 A.2d 1152.
JURISDICTION
The judgment of the court of appeals was entered
on November 10, 1977. A petition for rehearing was
denied on July 14, 1978 (A. 27; Pet. App. 16a).
The petition for a writ of certiorari was filed on
(1)
September 25, 1978, and was granted on April 16,
1979." The jurisdiction of this Court rests upon 28
U.S.C. 1257(3).
QUESTION PRESENTED
Whether the imposition of consecutive sentences for
felony murder and for the underlying felony, in
a single sentencing proceeding following a single trial,
violates the Double Jeopardy Clause of the Fifth
Amendment.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
1. The Fifth Amendment to the United States
Constitution provides in pertinent part:
* * * [Nor shall any person be subject for the
same offence to be twice put in jeopardy of life
or limb * * *.
2. D.C. Code Ann. § 22-2401 (1973 ed.) provides
in pertinent part:
Whoever, being of sound memory and discre-
tion, kills another purposely, either of deliberate
and premeditated malice or by means of poison,
or in perpetrating or attempting to perpetrate
any offense punishable by imprisonment in the
penitentiary, or without purpose so to do kills
another in perpetrating or in attempting to per-
petrate any arson, * * * rape, mayhem, robbery,
or kidnapping, or in perpetrating or attempting
to perpetrate any housebreaking while armed
1The petition for certiorari was filed on behalf of both
petitioner and James E. Pynes. The order granting certiorari
was limited to petitioner’s case.
3
with or using a dangerous weapon, is guilty of
murder in the first degree.
8. D.C. Code Ann. § 22-2404 (1973 ed.) provides
in pertinent part:
The punishment of murder in the first degree
shall be death by electrocution unless the jury
by unanimous vote recommends life imprison-
ment; or if the jury, having determined by
unanimous vote the guilt of the defendant as
charged, is unable to agree as to punishment it
shall inform the court and the court shall there-
upon have jurisdiction to impose and shall im-
pose either a sentence of death by electrocution
or life imprisonment.
Notwithstanding any other provision of law,
a person convicted of first degree murder and
upon whom a sentence of life imprisonment is
imposed shall be eligible for parole only after
the expiration of twenty years from the date he
commences to serve his sentence.
4. D.C. Code Ann. § 22-2801 (1973 ed.) provides
in pertinent part:
Whoever has carnal knowledge of a female
forcibly and against her will * * * shall be im-
prisoned for any term of years or for life.
5. D.C. Code Ann. § 23-112 (1973 ed.) provides:
. A sentence imposed on a person for conviction
of an offense shall, unless the court imposing
such sentence expressly provides otherwise, run
consecutively to any other sentence imposed on
such person for conviction of an offense, whether
or not the offense (1) arises out of another
4
transaction, or (2) arises out of the same
transaction and requires proof of a fact which
the other does not.
6. D.C. Code Ann. § 24-203 (1973 ed.) provides in
pertinent part: )
(a) Except as provided in subsections (b)
and (c), in imposing sentence on a person con-
victed in the District of Columbia of a felony,
the justice or judge of the court imposing such
sentence shall sentence the person for a maxi-
mum period not exceeding the maximum fixed
by law, and for a minimum period not exceed-
ing one-third of the maximum sentence imposed,
and any person so convicted and sentenced may
be released on parole as herein provided at any
time after having served the minimum sentence.
Where the maximum sentence imposed is life
imprisonment, a minimum sentence shall be im-
posed which shall not exceed fifteen years’ im-
prisonment * * *.
STATEMENT
In the District of Columbia, first degree murder is
an offense that may be established in one of four
ways. First, the prosecution may prove that the de-
fendant purposely killed the victim with deliberate
and premeditated malice. Second, it may prove that
the defendant purposely killed by means of poison.
Third, it may prove that the defendant purposely
killed the victim in the course of committing (or
attempting to commit) any felony. Fourth, the prose-
cution may prove that the defendant killed in the
5
course of committing (or attempting to commit) one
of six specified major felonies, including rape. If the
prosecution chooses the fourth means of proof, it
need not prove that the homicide was purposeful.
D.C. Code Ann. § 22-2401. First degree murder
proven in either the third or fourth way is com-
monly known as “felony murder.” Regardless of the
method of proof, a conviction for first degree murder
in the District of Columbia is punishable by imprison-
ment for a term of 20 years to life. D.C. Code Ann.
§ 22-2404.?
On September 10, 1972, between 10:30 a.m. and
12:30 p.m., Rebecca Rieser was raped and strangled
in her room in the McLean Gardens apartment com-
plex in Washington, D.C. (I Tr. 36, 52-58, 62-65;
II Tr. 229). Petitioner, a maintenance worker at
McLean Gardens, was indicted by a grand jury on
seven counts of murder, rape, burglary, and robbery
arising out of those events. He was tried by a jury
in the Superior Court of the District of Columbia
and was convicted on two counts of first degree
murder (based on the felony murder provision of
D.C. Code § 22-2401, with rape and burglary as the
felonies) ; second degree murder, in violation of D.C.
Code Ann. § 22-2403; rape, in violation of D.C. Code
2 The statute also provides for a sentence of death upon con-
viction for first degree murder, but that provision has been
held unconstitutional. See United States v. Stokes, 365 A.2d
615, 616, n.4 (D.C. App. 1976); United States v. Lee, 489
F.2d 1242, 1247 (D.C. Cir. 1978). |
Ann. § 22-2801; and burglary, in violation of D.C.
Code Ann. § 22-1801 (a).*
The trial court sentenced petitioner to concurrent
terms of 20 years to life imprisonment on each first
degree murder count and 15 years to life imprison-
ment on the second degree murder count. It also
sentenced him to 15 years to life imprisonment for
rape and 10 to 30 years imprisonment for burglary,
the sentences to run consecutively to each other and
to the sentences imposed on the murder counts (A. 5).
The District of Columbia Court of Appeals re-
versed the convictions for burglary and first degree
murder based on the burglary on the ground that
the indictment had been improperly amended (A. 9-
12).* It affirmed the convictions and consecutive sen-
tences for rape and first degree murder based on
rape. In doing so, the court held that the offenses of
rape and first degree (felony) murder do not merge
so as to preclude separate convictions and consecu-
tive sentences. The court concluded that the “societal
interests which Congress sought to protect by enact-
ment of D.C. Code 1978, § 22-2401 (felony murder)
and § 22-2801 (rape) are separate and distinct. The
rape statute is to protect women from sexual assault.
The felony murder statute purports to protect human
8 At the close of the government’s case, the court entered
a judgment of acquittal on the counts charging robbery and
first degree (felony) murder based on the robbery (IV Tr.
586-587).
4 The court of appeals denied the government’s petition for
rehearing on this issue (Pet App. 16a), and we have not
sought further review of that ruling in this Court.
7
life—it dispenses with the need for the prosecution
to establish that the accused killed with a particular
state of mind, and instead permits the jury to infer
the requisite intent from the fact that a felony was
committed” (A. 15-16). In addition, the court held,
“* * * while the underlying felony is an element of
felony murder it serves a more important function
as an intent-divining mechanism. Consistent with this
view it is clear that rape is not a lesser included
offense of felony murder, and that merger is inap-
propriate even absent societal interest analysis”
(A. 17).
Having affirmed the conviction for felony murder,
the court of appeals vacated the concurrent sentence
for second degree murder, finding it to be a lesser
included offense of felony murder (A. 14). The
court refused, however, to reverse petitioner’s con-
viction for second degree murder.
Thus, petitioner is now serving consecutive sen-
tences of 15 years to life for rape and 20 years to life
for murder. He does not challenge the validity of the
convictions, but only the consecutive nature of the
sentences. If the court of appeals’ judgment is af-
firmed, petitioner will be eligible for parole after
serving 35 years’ imprisonment. If petitioner’s posi-
tion is sustained and the consecutive sentences are
invalidated, he will be eligible for parole at least
five years sooner.*®
5 Whether the minimum sentence in the event of reversal
would be 20 or 30 years depends upon the way in which this
Court disposes of the case. See note 48, infra.
SUMMARY OF ARGUMENT
The District of Columbia Court of Appeals held
that the D.C. Code authorizes the imposition of con-
secutive sentences for first degree (felony) murder
and for the rape that was charged and proved as the
predicate felony. The court reasoned that even if rape
is considered an “element” of the felony murder, the
two offenses do not merge upon conviction because
the two statutes were designed to protect separate
societal interests, and the two offenses were suffi-
ciently distinct. Petitioner challenges the constitu-
tionality of his consecutive sentences under the Double
Jeopardy Clause and, for the first time in his brief on
the merits in this Court, asserts that the court of
appeals misunderstood the congressional intent re-
garding the permissibility of such sentences.
I
Petitioner contends that in this case, because the
prosecution had to prove the commission of the rape
in order to obtain a conviction for first degree (fel-
ony) murder, the rape constituted a “lesser included”
offense of felony murder and was accordingly the
“same” offense for double jeopardy purposes. He fur-
ther asserts that the Double Jeopardy Clause bars
multiple punishments for the “same” offense, even in
a single sentencing proceeding following a single trial,
and even if the sentences conform to legislative au-
thorization. We disagree with both contentions.
A. In the first place, rape and first degree (felony)
murder are not the “same” offense for purposes of
considering punishment under the Double Jeopardy
Clause, because it is not ordinarily necessary to com-
mit the former offense in order to commit the latter.
Under Blockburger v. United States, 284 U.S. 299,
304 (1932), consecutive sentences are permissible for
a violation of two separate statutory provisions if
“each provision requires proof of a fact which the
other does not.” That test is met here, for rape re-
quires proof of carnal knowledge while first degree
murder requires proof of homicide. The fact that the
prosecution here proved the commission of rape does
not make rape a necessarily included offense of mur-
der, since proof of the commission of any felony or of
premeditation is sufficient to support a first degree
murder conviction.
B. But even if first degree (felony) murder and
rape are regarded as greater and lesser included of-
fenses, or are for any other reason considered the
“same” offense, double jeopardy principles do not bar
separate, cumulative punishments for the “same” of-
fense so long as such punishments have been au-
thorized by the legislature. In this respect, there is a
critical difference between the Double Jeopardy
Clause’s protection against successive trials and its
protection against multiple punishments. While
successive trials for the same offense are prohibited
by the Double Jeopardy Clause as a constitutional
policy of finality for the defendant’s benefit, the pro-
tection against multiple punishments, in the con-
10
text of a single sentencing following a single trial,
safeguards the defendant only from being punished
more than the legislature intended.
Thus, the critical inquiry in the present case is not
whether petitioner has been subjected to more than
one punishment (indeed, legislatures commonly pro-
vide “multiple” punishments such as imprisonment
and a fine for the same offense), but whether Con-
gress intended that defendants convicted of felony
murder and the underlying felony in the District of
Columbia may be sentenced to consecutive terms for
each crime. The Double Jeopardy Clause imposes no
substantive restrictions on the legislature’s power to
prescribe punishment for crimes, and it is useless for
petitioner to establish, as we assume he has done, that
under the Double Jeopardy Clause his conviction for
rape would have precluded a subsequent trial for first
degree (felony) murder based on that rape. His task,
rather, is to establish that the sentencing court here
exceeded its legislative authorization, and this he
has failed to do. vy
Petitioner relies on Blockburger, supra, and
Brown v. Ohio, 432 U.S. 161 (1977), for the asser-
tion—critical to his case—that consecutive sentences
may never be imposed where two offenses are the
“same” under Blockburger, i.e., where one requires
proof of no fact that the other does not. This Court
has never struck down cumulative sentences on such a
ground; more importantly, petitioner overlooks the
fact that the Blockburger analysis was devised only
as a means of discerning legislative intent. But legis-
ll
lative intent on the question of multiple punishment
can be discerned in other ways as well, as this Court
has recognized (see, e.g., Simpson v. United States,
435 U.S. 6, 11-13 (1978); Jeffers v. United States,
432 U.S. 187 (1977) (plurality opinion) ), and peti-
tioner stands Blockburger on its head by arguing,
in effect, that legislative intent, no matter how
clearly expressed, should be ignored unless it con-
forms to the Blockburger test. It is one thing to
hold, as Blockburger did, that the presence of distinct
elements in two offenses demonstrates a legislative
intent to allow consecutive punishments; it is quite
another to use the distinct-offense test of Block-
burger, as petitioner does, to thwart legislative intent.
C. Even if petitioner’s theory regarding the exist-
ture’s power to authorize cumulative punishments
ence of constitutional restrictions upon the legisla-
were correct in the context of traditional greater
and necessarily included lesser offenses (such as
armed robbery and robbery, or first and second de-
gree murder), it is inappropriate to reach the same
conclusion with respect to the differently structured
class of offenses in which there is a compound offense
and a predicate offense. In addition to felony murder
and the predicate felony, other examples of such
“compound” offense/“predicate” offense situations in-
clude the prohibition against the use or unlawful
carrying of a firearm during the commission of any
other federal felony (18 U.S.C. 924(c)) and the pro-
scription against conducting the affairs of an enter-
prise through a pattern of racketeering activity (18
12
U.S.C. 1962). We find it inconceivable that the Dou-
ble Jeopardy Clause could properly be held to bar
additional punishment for the use of a firearm in
the commission of another crime even though the leg-
islature has specifically prescribed such punishment.
Yet that is the result to which petitioner’s reasoning
necessarily leads if it is correct, since the predicate
felony under Section 924(c) is as much a “lesser
included offense” of the firearms violation as rape
is of felony murder.
Indeed, no “lesser included offense” rule can serve
well in the felony murder context, because rape (or
burglary or kidnapping) is never a truly included
offense of murder; they are distinct acts, one com-
mitted independently of the other. That the legisla-
ture has allowed evidence of intent to commit the
felony to serve as evidence of intent to commit the
murder as well should not bar the imposition of con-
secutive sentences. The question, at bottom, should
always be one of legislative intent, and the sentenc-
ing court must look to whether the legislature has pro-
vided for multiple punishments in cases such as these.
The District of Columbia Court of Appeals held in
this case that Congress intended to allow consecutive
punishment of first degree (felony) murder and rape.
This Court should follow its traditional practice of
not reviewing the construction given by the highest
court of the District of Columbia to acts of Congress
that are purely local in their application. Pernell v.
138
Southall Realty, 416 U.S. 363, 367 (1974). Further-
more, petitioner did not raise in his petition for a
writ of certiorari the question whether the court of
appeals’ construction of local law was correct; he
makes that argument for the first time in this litiga-
tion in his brief of the merits. For these reasons, this
Court should not now undertake to review the con-
clusion of the court of appeals that local law permits
separate punishments for the two crimes of which
petitioner stands convicted.
If the Court does address that question, however,
we believe it is clear that Congress did intend to
allow cumulative punishment. The development of
the felony murder doctrine at common law demon-
strates that the underlying felony has never been
considered a lesser included offense of murder, and
Congress intended to apply that law in the District
of Columbia. A contrary holding would mean that
second degree murder would be subject to a more
severe punishment, when combined with an associated
felony, than first degree (felony) murder.
Furthermore, as the court of appeals held, the
first degree (felony) murder statute and the rape
statute were designed to protect entirely distinct
societal interests, thus refuting petitioner’s sug-
gestion that the felony murder provision is merely
a form of aggravated punishment for the felony when
the defendant causes the victim’s death in the course
of committing the felony. Finally, by enacting D.C.
Code Ann. § 23-112 in 1970, Congress expressly pro-
vided for cumulative punishment for separate con-
victions in circumstances such as these unless the
14
sentencing court specifies that the sentences are to be
concurrent. These factors, considered together, dem-
onstrate that the District of Columbia Court of Ap-
peals was correct in its conclusion that the sentence
imposed here did not exceed that authorized by Con-
gress.
ARGUMENT
THE DOUBLE JEOPARDY CLAUSE DOES NOT BAR
THE IMPOSITION, IN A SINGLE SENTENCING
PROCEEDING FOLLOWING A SINGLE TRIAL, OF
ANY COMBINATION OF PUNISHMENTS AUTHOR-
IZED BY THE LEGISLATURE FOR THE OFFENSES
OF WHICH THE DEFENDANT STANDS CONVICTED
A. Introduction
Both in petitioner’s brief and in ours, frequent
reference is made to the terms “same offense” and
“greater and lesser included offenses.” Care must be
taken with the meaning of these terms. While they
have been widely used in double jeopardy cases, in
cases dealing with the statutorily authorized punish-
ment for offenses, and in cases concerning the proper
mode of instructing the jury regarding related of-
fenses, they ordinarily are applied to offenses that
stand in such a relationship to one another that it
is impossible to commit one of the offenses without
committing the other. In such a case, the subsidiary,
or “lesser,” offense is necessarily included within the
greater. The present case, however, is one of a «lass
involving statutes bearing a somewhat different rela-
tionship to each other, viz., in which the “included”
offense is one of a class of offenses, any one of which
15
may be proved (and at least one of which must be
proved) as part of the proof of the “greater” of-
fense.* Whether this difference is of legal signifi-
cance to the double jeopardy analysis is, of course,
one of the important areas of disagreement between
us and petitioner.
In this case, after the court of appeals had re-
versed petitioner’s convictions on certain counts, he
stood convicted and consecutively sentenced for rape
and for first degree (felony) murder committed in
the course of the rape. It is his contention that,
because on the facts of the case the jury could not
have arrived at a valid guilty verdict on the charge
of murder without also finding that he had per-
petrated or attempted to perpetrate the rape of the
deceased, such rape was a “lesser included” offense
of the murder. It is his further submission that the
Double Jeopardy Clause bars the imposition of cumu-
lative punishments for offenses standing in this rela-
tionship to one another, regardless whether the legis-
lature intended to authorize such punishment.
We dispute both steps in petitioner’s argument.
We submit that, whatever may have been required to
be proved in the particular circumstances of this case,
* Rather than calling these “greater” and “lesser included”
offenses, it is more accurate to call them “compound” and
“predicate” offenses. In addition to cases like the instant one,
involving felony murder and an underlying felony, the same
issue is presented with statutes like 18 U.S.C. 924(c), pro-
hibiting the use or unlawful carrying of a firearm during the
commission of a federal felony, and 18 U.S.C. 1962(c), pro-
hibiting the conduct of the affairs of an enterprise by a pat-
tern of racketeering activity. See discussion at pages 48-49,
infra.
t 16
rape and first degree (felony) murder are not the
“same” offense for purposes of double jeopardy multi-
ple punishment analysis, since it is not ordinarily
necessary to commit the former offense in order to
commit the latter. If that is so, petitioner’s constitu-
tional contentions fall of their own weight. But even
if we are wrong in this submission, we contend that
the Double Jeopardy Clause places no restrictions on
the amount or number of punishments that may be
imposed in a single sentencing following a single trial,
save only that the punishments may not exceed those
authorized under the circumstances by the legislature.
Here, the court of appeals determined that Con-
intended to authorize the sentencing court to
ulate the statutory punishments specified for
rape and for first degree (felony) murder for a de-
fendant who has been convicted of killing in the
course of a rape (the reviewability and correctness
of that conclusion are addressed in Part II, infra).
In effect, the court construed the punishment pro-
visions of the pertinent sections of the District of
Columbia Code as though they read as follows:
For the commission of a premeditated homicide,
the defendant shall be sentenced to a term of
from 20 years’ to life imprisonment. For the
commission of any homicide, whether or not
premeditated, in the course of a rape, the de-
fendant shall be sentenced to a minimum term
of from 20 to 35 years’ imprisonment and a
maximum term of life imprisonment.
We do not believe it can be seriously contended
that a penalty provision drafted in the above lan-
17
guage by Congress would raise a double jeopardy is-
sue. See Gore v. United States, 357 U.S. 386, 391-392
(1958). The existing statutory scheme has been con-
strued as being intended to reach the identical result.
To hold the existing statutory scheme unconstitu-
tional would thus be to trivialize the Double Jeopardy
Clause and the very important policies that it serves.
It would elevate form over substance and permit Con-
gress to achieve a concededly legitimate result only if
it does so by jumping through certain prescribed
hoops.
That the Double Jeopardy Clause deals with sub-
stance and not form, and does not require Congress
to go through any particular motions in fixing the
appropriate penalty for criminal conduct, was under-
lined by this Court in Gore v. United States, supra.
The Court was there faced with a statutory scheme
that treated a single narcotics transaction as three
separate offenses, each carrying a five year penalty.
The defendant had been convicted of violating all
three statutes at a single trial and had been given
consecutive sentences. He claimed that these sentences
violated the Double Jeopardy Clause. The Court re-
jected the claim. It pointed out that Congress could
have passed a single statute making it a crime, pun-
ishable by 15 years’ imprisonment, to commit acts
that would have violated all three of the existing stat-
utes. This being the case, the Court concluded that
the only issue was whether the Congress had intended
that the five year sentences be cumulative. Conclud-
ing that it had, the Court rejected the double jeopardy
claim. ;
18
8B. Rape And First Degree (Felony) Murder Are Not
The “Same” Offense For Double Jeopardy Purposes
‘The evidence showed that petitioner, in what must
have been one brief and violent episode, raped and
murdered Rebecca Rieser. In the District of Colum-
bia, rape is punishable by imprisonment for any
term of years or for life, D.C. Code Ann. § 22-
2801, and petitioner was convicted and sentenced
to a term of 15 years to life imprisonment for
that crime. As noted above (see pages 4-5, supra),
murder in the first degree includes a purposeful
killing in the course of any felony or any kéill-
ing of another person while perpetrating or at-
tempting to perpetrate one of six specified major
felonies, including rape. D.C. Code Ann. § 22-2401.
Petitioner was convicted of first degree (felony)
murder as well as rape, and his sentence of 20 years
to life imprisonment (see D.C. Code Ann. § 22-2404)
was made to run consecutively to the rape sentence.
Had petitioner been convicted of first degree mur-
der through proof that he killed with “deliberate and
premeditated malice,” rather than through proof that
he killed while committing another felony, he would
not have even a colorable claim that his consecutive
sentences for the two offenses violate the Double
Jeopardy Clause. Murder and rape are utterly dis-
tinct offenses by any measure, and it could hardly
be suggested that, if the government’s evidence
proved that a defendant had raped his victim, and
also murdered her “purposely * * * of deliberate and
premeditated malice,” the defendant could not, con-
sistent with the Double Jeopardy Clause, be sentenced
19
consecutively for each crime.’ Petitioner recognizes
this truth. Br. 30 n.15.
Petitioner’s claim in this case depends on the fact
that, at his trial, the government proved the first
degree component of the murder—as it incontestably
was entitled to do—by proving that the homi-
cide was committed in the course of rape. Under
this “felony murder” theory, the government was
not required to prove that the killing was done
“purposely * * * of deliberate and premeditated
malice.” D.C. Code Ann. § 22-2401.° As the court
of appeals stated, “[t]he felony murder statute
* * * dispenses with the need for the prosecution
to establish that the accused killed with a particu-
lar state of mind, and instead permits the jury
to infer the requisite intent from the fact that a
felony was committed” (A. 15-16).° The essence of
petitioner’s claim is that, in these circumstances, rape
T Petitioner was not charged with first degree murder in
this fashion; he was charged with three counts of first
degree murder, based on the predicate felonies of rape, bur-
glary and robbery (on the last count the court entered a
judgment of acquittal at the close of the government’s case,
see note 8, supra) and one count of second degree murder
(A. 1-2).
8In order to convict petitioner of second degree murder,
on the other hand, the government did have to prove that
petitioner killed with a particular state of mind, i.e., malice
aforethought. D.C. Code Ann. § 22-2408. Petitioner concedes
(Br. 80 n.15) that he may be sentenced consecutively for
rape and second degree murder.
* As we show below (see pages 68-64, infra), this theory
of transferred intent embodied in Section 2401 has its origins
in the common law notion of “implied malice” that developed
as part of the felony murder doctrine.
20
is a lesser included offense of first degree (felony)
murder, and thus the two offenses “are, for double
Jeopardy purposes, ‘the same’ offense for which only
one punishment can be imposed * * *; therefore
cumulative punishment for felony-murder (rape)
and the underlying rape constitutes impermissible
reyes punishment for the same rape offense” (Br.
Petitioner contends only that the Double Jeopardy
Clause prohibits multiple punishments for the “same”
offense. Thus, the threshold question is whether rape
and first degree (felony) murder, as defined in the
District of Columbia Code, are the “same” or “dif-
ferent” offenses for double jeopardy purposes. For
present purposes, we assume that the court below
correctly concluded that Congress meant to punish
these two offenses separately; indeed, petitioner did
not contend otherwise in the court of appeals, nor did
he challenge this conclusion in his petition for certio-
rari (see pages 58-60, infra). If the two offenses are
not the “same,” it is clear that, as a constitutional
matter, they may be punished consecutively, since
the Double Jeopardy Clause does not even arguably
forbid two punishments for different offenses. Gore
v. United States, supra, 357 U.S. at 392-393.
The test announced in Blockburger v. United
States, 284 U.S. 299 (1932), provides a relatively
simple, albeit mechanistic, means of determining
whether two offenses are the “same.” In Blockburger,
the defendant made two separate sales of narcotics.
He was tried, convicted, and consecutively sentenced
on two counts relating to each sale: first, that he had
21
sold drugs not in the original package (an offense
under one statute), and second, that he had sold
drugs not pursuant to written order of the purchaser
(an offense under another statute). In this Court,
he contended that he could be punished only once for
each sale, simply because there had been only one sale
on each occasion. The Court disagreed (id. at 304):
The applicable rule is that where the same act
or transaction constitutes a violation of two dis-
tinct statutory provisions, the test to be applied
to determine whether there are two offenses or
only one, is whether each provision requires proof
of a fact which the other does not.
The Court determined that the original-package of-
fense and the written-order offense met this test, for
each required proof of an element that the other did
not. Ibid.
Thus, the Blockburger test was devised as a method
of determining whether Congress had created one
crime or two, and thus whether a defendant could
be sentenced to one jail term or two. “The test
articulated in Blockburger serves the function of
identifying congressional intent to impose separate
sanctions for multiple offenses arising in the course
of a single act or transaction.” Jannelli v. United
States, 420 U.S. 770, 785 n.17 (1975). The Court
decided that, in the absence of other evidence, the
congressional intent could be determined by inquiring
whether each crime required proof of an element
that the other did not. If so, the offenses were not
the same; otherwise, they were.
Although the decision in Blockburger addressed a
problem of statutory construction and not of consti-
tutional doctrine (Blockburger raised no double
jeopardy claim, and the Court did not decide any),
the test itself was clearly derived from this Court’s
earlier double jeopardy decisions. See 284 U.S. at
304 (citing Gavieres v. United States, 220 U.S. 338,
842 (1911), and Albrecht v. United States, 278 U.S.
1, 11-12 (1927)). The Blockburger test and its ante-
cedents have been employed “to determine whether
a single transaction may give rise to separate prose-
cutions, convictions, and/or punishments under sepa-
rate statutes.” Sanabria v. United States, 437 U.S. 54,
70 n.24 (1978). As we explain below, however (see
pages 43-44, infra), this Court has never held that
the Blockburger test is the only standard for de-
termining whether multiple sentences are constitu-
tionally permissible. In any event, we now demon-
strate that, under the Blockburger test, the District
of Columbia rape and first degree (felony) murder
statutes at issue here create different offenses that
may be punished separately without offending the
Double Jeopardy Clause.
The Blockburger or “distinct elements” test. (see
Note, Twice in Jeopardy, 75 Yale L.J. 262, 273
(1965) ) emphasizes the elements of the two crimes
as they are set forth in the statutes; indeed, the word
“provision” was specifically used by the Court in
setting forth the test (see page 20, supra). “If each
[offense] requires proof of a fact that the other does
not, the Blockburger test is satisfied, notwithstanding
a substantial overlap in the proof dffered to establish
the crimes * * *.” Brown v. Ohio, 482 U.S. 161, 166
(1977), quoting from Jannelli v. United States,
supra, 420 U.S. at 785 n.17. This Court has con-
sistently applied the test in this manner.
For example, in Albrecht v. United States, supra,
the defendant was sentenced consecutively for illegal
possession and sale of liquor. He contended that,
since the same liquor was involved in the possession
and the sale count, he was being doubly punished in
violation of the Double Jeopardy Clause. But be-
cause it is theoretically possible for one to possess
without selling on the one hand, and to cause delivery
of contraband which he has never possessed, on the
other hand, the Court concluded that the two offenses
are distinct, notwithstanding the fact that the evi-
dence adduced at trial showed that the defendant
had in fact sold the same liquor that he had pos-
sessed. Similarly, in Harris v. United States, 359
U.S. 19 (1959), the defendant claimed that he could -
not be cumulatively sentenced for buying narcotics
except in or from the original stamped package and
for receiving and concealing unlawfully imported
narcotics, since in order to convict him of both of-
fenses, the prosecution had to prove only one act of
possessing the same narcotics, while the remaining
elements of each offense were supplied by statutory
presumptions. But because “the violation, as dis-
tinguished from the direct evidence offered to prove
that violation, was distinctly different under each of
the respective statutes,” the Court held that the con-
secutive sentences were permissible. 359 U.S. at 23
(emphasis in original) .*°
10 The same argument was rejected in Jannelli v. United
States, supra, where the Court concluded that conspiracy
Petitioner argues (Br. 16-18 & n.6) that the
Blockburger test makes sense only when applied to
the specific allegations in the indictment, rather than
to the statutory elements of the offenses."' This argu-
ment ignores the language of the test and the manner
in which this Court has consistently applied it. It
makes little sense, moreover, to say that two statu-
tory offenses that were intended by the legislature
to be punished consecutively may only be so punished
if the indictment is drawn by the prosecutor in a
certain way. While petitioner’s approach may be
helpful in the successive prosecution context, see
Sanabria v. United States, ewpra, 487 U.S, at 65-66,
it ia unsuitable for purposes of determining the pro-
priety of consecutive sentences because it elevates
the form of a particular indictment—which may
contain superfluous allegations—over the substance
(18 U.S.C, 871) and conducting an illegal gambling business
involving five or more persona (18 U.S.C. 1955) were not the
“aame” offense under the Blockburger teat deapite the fact
that the gambling offense in that case waa operated conspira-
torially. Although as a practical matter the group involved
in the gambling business will almoat always act in concert, it
ia at least possible that the five persona “involved” in the
operation might not be in criminal concert. See 420 U.S.
at 785 n.17; see alao Jeffera V. United States, 482 U.S. 187,
148 n.18 (1977) (plurality opinion).
1 Petitioner also argues (Br, 17-18) that under our analysis,
assault with intent to kill as defined in the District of Colum-
bia Code (D.C, Code Ann, § 22-501) is not a lesser included
offense of firat degree murder because it is possible to commit
the latter offense without committing the former by poisoning
the victim. Petitioner overlooks the fact that administration
of poison is proscribed along with other forma of assault in
section 601.
of the crimes as defined by the legislature. As we
show below (see pages 30-87, infra), these two aspects
of double jeopardy implicate different interests.
Applying the Blockburger test to the offenses for
which petitioner was convicted and consecutively
sentenced, it is clear that they are different and thus
separately punishable under the Double Jeopardy
Clause. The District of Columbia rape statute (D.C.
Code Ann, § 22-2801) requires proof of carnal know!l-
edge, while the applicable felony murder provision of
the first degree murder statute (D.C. Code Ann, § 22-
2401) does not, Likewise, in order to convict for fel-
ony murder the prosecution must show that the de-
fendant killed his victim, whereas a killing need not be
proved to convict for rape. Satisfaction of the Block-
burger test thus demonstrates that Congress defined
separate crimes that may be cumulatively punished.
Petitioner contends (Br, 18), however, that because
the jury could not convict him of first degree (felony)
murder unless it found that he had committed the
underlying felony, here rape, the rape was a lesser
included offense of first degree (felony) murder.
Petitioner further contends that since greater and
lesser included offenses are considered the “same”
offense for double jeopardy purposes, he may not be
punished separately for rape and first degree (fel-
ony) murder. Petitioner’s conclusion falls with his
premise, since the underlying offenses are not lesser
included offenses of felony murder.”
1? And his conclusion is wrong even if the premise is cor-
rect. See pages 30-58, infra,
A greater offense will invariably require proof of
every fact necessary to show the lesser included of-
fense as well as proof of one or more additional
elements. See Jeffers v. United States, 482 U.S. 187,
150 (1977) (plurality opinion); Brown v. Ohio,
supra, 482 U.S. at 167-168. Under D.C. Code Ann.
§ 22-2401, however, neither rape nor any of the other
enumerated felonies is a necessarily included offense
of felony murder, since proof of the commission of
any of those enumerated felonies is sufficient to sup-—
port a felony murder conviction. Put another way,
the statute does not require that rape need always
be proven in order to secure a conviction for murder
committed in the course of a felony. See Ennis v.
State, 364 S.2d 497, 499 (Fla. App. 1978) ; cf. Vanet-
zian v. Hall, 562 F.2d 88, 89-90 & n.2 (1st Cir.
1977).
None of this Court’s decisions relied upon by peti-
tioner supports his argument that rape and first de-
gree (felony) murder are the “same” offense. In
Brown v. Ohio, supra, this Court held that, once
the defendant had been convicted and punished for
the offense of “joyriding’—taking or operating an
automobile without the owner’s consent—he could not
thereafter be tried for theft of the auto. The Court
noted that joyriding was, under Ohio law, a lesser
included offense of auto theft. 432 U.S. at 163-164,
167. Because each [offense did not] require “proof
of a fact that the other does not * * *,” Brown v.
Ohio, supra, 482 U.S. at 166, quoting Blockburger
v. United States, supra, 284 U.S. at 304, the offenses
were the “same.” The Court thus held that the trial
court had erred in overruling Brown’s objection that
27
the Double Jeopardy Clause barred a trial for the
auto theft following his trial and conviction for joy-
riding. See 482 U.S, at 163-164.
Here, in contrast to Brown, the court of appeals, in
construing the provisions of the District of Columbia
Code, has concluded that rape is not a lesser included
offense of first degree (felony) murder. Moreover,
unlike the situation under the applicable Ohio stat-
utes, which made it impossible to commit auto theft
without also committing joyriding because one can-
not steal a car unless one takes it without the owner’s
consent, one can certainly rape without killing or
kill without raping. Even when one does both, as
petitioner did, he performs two separate acts; first
he rapes, then he kills.
In Jeffers v. United States, 482 U.S. 187 (1977),
the plurality assumed, without deciding, that the “in
concert” language of 21 U.S.C. 848 requires proof
of an agreement among the persons involved in the
continuing enterprise. 482 U.S. at 149-150. Based
on that assumption, the plurality concluded that the
offense of conspiracy defined in 21 U.S.C. 846 was a
lesser included offense within Section 848, and that
the two offenses were the “same” for double jeopardy
purposes, 4382 U.S. at 150-151; see also id. at 158
(opinion of Stevens, J.). If the term “in concert” re-
fers to an agreement, then, like the situation in Brown
and unlike that here, it is impossible to violate the con-
tinuing criminal enterprise statute without at the
same time committing the offense of conspiracy.”
18 Petitioner contends (Br. 21; emphasis in original) that
under the approach we urge, the plurality in Jeffers would
While Harris v. Oklahoma, 433 U.S. 682 (1977),
is somewhat more pertinent, it too does not confirm
petitioner’s view of the Blockburger test. Harris was
convicted of felony murder arising out of an armed
robbery. He was then charged, in a second prosecu-
tion, with the armed robbery. Prior to trial he moved
to dismiss the information, asserting that under the
Double Jeopardy Clause his earlier conviction barred
any subsequent trial for armed robbery. Harris v.
State, 555 P.2d 76, 78 (Okl. Crim. App. 1976). This
motion was denied, and petitioner was tried, con-
victed, and sentenced to 30 years’ imprisonment. /d.
at 77. This Court reversed in a per curiam opinion.
It held that “[w]hen, as here, conviction of a greater
crime, murder, cannot be had without conviction of
the lesser crime, robbery with firearms, the Double
Jeopardy Clause bars prosecution for the lesser crime
after conviction of the greater one.” 433 U.S. at 682.
have concluded that Section 846 does not define a lesser
offense of Section 848, “because, as with felony murder,
any one of a range of predicate offenses could have been
charged to establish the § 848 violation. These offenses could
have been different from those the defendant was alleged to
have conspired to commit under § 846.” But it is clear from
the structure of the statute that the “in concert” language of
Section 848 refers not to the predicate offense which the
defendant must be shown to have committed under subdivision
(b) (1), but to the continuing series of violations which must
be shown under subdivision (b) (2). Thus, regardless of
which particular crime serves as a predicate offense, the
government must still always establish, as a separate statu-
tory requirement, a pattern of violations committed “in con-
cert” with other members of the enterprise. Accordingly,
while no particular substantive offense would be necessarily
included within the continuing enterprise offense defined in
Section 848, the conspiracy offense would be.
But the Court did not expressly hold that robbery
and murder were the “same” offense under the Block-
burger test; indeed, the brief opinion in Harris does
not even cite the Blockburger decision. Instead, the
Court relied primarily on Jn re Nielsen, 181 U.S. 176
(1889), which, like all of the other cases cited in
Harris, involved multiple prosecutions."
In Nielsen the Court held that a conviction for co-
habitation with two wives over a two and one-half
year period barred a later prosecution for adultery
with one of the wives on the day following the end
of that period. As this Court recently observed in
Brown v. Ohio, supra, the adultery and cohabita-
tion charges in Nielsen each required proof of an
element which the other did not; nonetheless, the
Court in Nielsen “held the separate offenses to be
the ‘same’ for purposes of protecting the accused
from having to ‘run the gantlet’ a second time.”
Brown v. Ohio, supra, 482 U.S. at 167 n.6." Thus,
4 What Harris does establish is that, had petitioner been
previously convicted or acquitted of the felony murder, he ~
could not thereafter have been tried for the rape that formed
the predicate for the murder conviction.
The Court in Nielsen (181 U.S. at 190) cited with ap-
proval the decision of the New Jersey Supreme Court in
State v. Cooper, 18 N.J.L. 861 (1888), which held that a
conviction for arson barred a subsequent indictment for
felony murder based on the death of a man killed in the fire.
Cooper lends no support to petitioner, however, since that
successive prosecution decision has uniformly been viewed as
applying the “same transaction” test. See Note, Statutory
Multiple Punishment and Multiple Prosecution Protection,
50 Minn. L. Rev. 1102, 1106 n.24 (1966); Lugar, Criminal
Law, Double Jeopardy and Res Judicata, 89 Iowa L. Rev. 817,
30
Harris v. Oklahoma, like Nielsen, may simply be il-
lustrative of the general rule that “[e]ven if two of-
fenses are sufficiently different to permit the imposi-
tion of consecutive sentences, successive prosecutions
will be barred in some circumstances where the second
prosecution requires the relitigation of factual issues
already resolved by the first.” Brown v. Ohio, supra,
432 U.S. at 166-167 n.6.
A good deal of the difficulty in petitioner’s argu-
ment is due to the fact that he has attempted to apply
principles developed in the context of deciding
whether successive trials are permissible to a case
that involves the imposition of consecutive sentences
in a single sentencing proceeding following a single
trial. As we now show, even if first degree (felony)
murder and rape are regarded as greater and lesser
included offenses, or are for any other reason con-
sidered the “same” offense, double jeopardy prin-
ciples do not bar separate, cumulative punishments
for the “same” offense so long as such punishments
have been authorized by the legislature.
C. The Double Jeopardy Clause Forbids Imposition Only
of a “Multiple” Punishment That the Legislature Has
Not Authorized |
1. The Protection Against Successive Trials and the
Protection Against Multiple Punishments are
Distinct
There is a critical difference between the Double
Jeopardy Clause’s protection against multiple pun-
$25 n.82 (1954) ; Note, 7 Brooklyn L. Rev. 79, 88 n.48 (1987).
The “same transaction” test has never been accepted by this
Court in the double jeopardy context. See, ¢.g., Thompson Vv.
Oklahoma, 429 U.S. 1068 (1977) (Brennan, J., dissenting).
i
81
ishment and its protection against successive prosecu-
tions following conviction or acquittal. The latter
protection needs no further reference to define it:
once the defendant is acquitted or convicted of an
offense, “the State with all its resources and power
[is not] allowed to make repeated attempts to con-
vict” him of that offense. Green v. United States,
355 U.S. 184, 187 (1957). See also Benton v. Mary-
land, 395 U.S. 784, 194 (1969); Ashe v. Swenson,
897 U.S. 486, 446-447 (1970).*° The prohibition
against multiple punishment, however, can be de-
fined only by reference to the punishment that the
legislature " has authorized for the offenses, because
“(t]he punishment appropriate for the diverse fed-
eral offenses is a matter for the discretion of Con-
gress * * *.” Bell v, United States, 349 U.S. 81, 82
(1955). See Prince v. United States, 352 U.S. 322
(1957); Dorszynski v. United States, 418 U.S. 424,
431 (1974). As this Court stated in Brown v. Ohio,
supra, 482 U.S. at 165: “Where consecutive sentences
are imposed at a single criminal trial, the role of the
16 There are, of course, exceptions to this rule. For exam-
ple, there is no constitutional bar to retria) of a convicted
defendant who wins reversal of his conviction on appeal,
United States v. Ball, 168 U.S. 662 (1896) ; Price v. Georgia,
898 U.S. 828 (1970), or has it set aside on collateral attack,
United States v. Tateo, 8377 U.S. 468 (1964).
17 The double jeopardy prohibition of the Fifth Amendment
is applicable to the states through the Fourteenth Amend-
ment, Benton v. Maryland, supra, 895 U.S. at 794, and “the
same constitutional standards apply against both the State
and Federal Governments.” Jd. at 795. Hence, in this brief
we use the terms “legislature” and “Congress” inter-
changeably.
constitutional guarantee [against double jeopardy]
is limited to assuring that the court does not exceed
its legislative authorization by imposing multiple
punishments for the same offense:”’
Furthermore, the protection against successive
prosecutions is designed to prevent the government
from “subjecting [the defendant] to embarrassment,
expense and ordeal and compelling him to live in a
continuing state of anxiety and insecurity, as well as
enhancing the possibility that even though innocent
he may be found guilty.” Green v. United States,
supra, 355 U.S. at 187-188; Benton v. Maryland,
supra, 395 U.S. at 796. Stated somewhat differently,
the successive-prosecution protection “serves ‘s con-
stitutional policy of finality for the defendant’s bene-
fit.’”” Brown v. Ohio, supra, 432 U.S. at 165, quot-
ing United States v. Jorn, 400 U.S. 470, 479 (1971)
(plurality opinion). Thus, for example, the protec-
tion against successive prosecutions protects against
a retrial for murder when the first trial for murder
results in a conviction only of manslaughter. Price
v. Georgia, 398 U.S. 323 (1970). In this inquiry, the
fact that the second trial resulted in a punishment
no greater than that imposed after the first trial is
irrelevant, because the protection “is cast in terms
of the risk or hazard of trial and conviction, not
of the ultimate legal consequences of the verdict.”
Id, at 331 (emphasis added); see Jeffers v. United
States, supra, 4382 U.S. at 151 n.18 (plurality
opinion).
These concerns are superfluous when it comes to
construing the scope of protection offered by the
33
guarantee against multiple punishment. A defendant
who is cumulatively punished, whether legally or il-
legally, in a single sentencing proceeding following a
single trial, suffers no continuing expense, ordeal or
anxiety, nor are his chances of being convicted al-
though innocent enhanced. His trial is “final.” The
protection against multiple punishments is dormant
until the trial is over and sentencing begins.
Finally, successive prosecution for the same of-
fense is, by itself, unconstitutional. No legislature
could constitutionally enact a law providing that a
defendant tried and convicted of an offense could
thereafter be tried again and convicted of the same
offense.
But the inquiry into the multiple-punishment pro-
tection is not so simple.* The fact is that the legisla-
ture can and frequently does authorize two punish-
ments for the same crime. It may, in fact, provide as
many different penalties for a given crime as it thinks
18]t is of course true that where the Double Jeopardy
Clause bars a.second trial, a fortiori it bars any punishment
imposed as a result of that trial. Thus, when this Court has
held that a subsequent trial that in-fact has taken place should
not have taken place under the Clause, it holds the punish-
ment, no less than the trial, unconstitutional. See, ¢e.g., Brown
v. Ohio, supra, 482 U.S. at 162. In such cases, however, the
Court has had no need to examine, and has not examined,
the distinctions between the two protections. In some
cases it has not even mentioned what the second punishment
was. E.g., Harris v. Oklahoma, supra. Because the second
sentence is the consequence of an unconstitutional trial, there
is no need to subject it to multiple-punishment analysis. In-
deed, any such analysis would be pointless, for no matter
what the outcome, the sentence would still be invalid because
the trial was prohibited.
34
appropriate. Most offenses are punishable by both |
fine and imprisonment. Others have additional punish-
ments prescribed as well. See, e.g., 21 U.S.C. 848
(conviction of participating in a continuing criminal
enterprise subject to punishment by imprisonment, by
a fine, and by forfeiture of profits and interest in the
enterprise) ; 21 U.S.C. 841(b) (conviction of manu-
facture or distribution of drugs subject to punishment™
by imprisonment, a fine, and a special parole term in
addition to any imprisonment imposed). A general
court-martial, for example, may in appropriate cases
impose a punishment in four forms—confinement at
hard labor, reduction in rank, forfeiture of pay, and
a dishonorable discharge. 10 U.S.C. 818, 857, 858,
858a; Manual for Courts-Martial J] 126-127 (1951
& Cum. Supp. 1959); Trop v. Dulles, 356 U.S. 86
(1958).
The subject of multiple punishment was first dis-
cussed in constitutional terms in Ex Parte Lange, 85
U.S. (18 Wall.) 163 (1873). In that case, the trial
court erroneously imposed a sentence of imprison-
ment and a fine when the authorized sentence was
imprisonment or a fine. Lange paid the fine, and
the trial judge then recalled him and “corrected” the
sentence to provide only for imprisonment. This
Court held that once Lange had paid the fine (which,
having been paid into the Treasury, could not be
refunded) he had suffered punishment as the statute
provided, and the trial court could not thereafter
resentence him without subjecting him to impermissi-
ble double punishment:
35
If there is anything settled in the jurisprudence
of England and America, it is that no man can
be twice lawfully punished for the same offence.
And * * * there has never been any doubt of
[this rule’s] entire and complete protection of
the party when a second punishment is proposed
in the same court, on the same facts, for the
same statutory offence.
Ex Parte Lange, swpra, 85 U.S. (18 Wall.) at 168,
quoted in North Carolina v. Pearce, 395 U.S. 711,
717-718 (1969).
The imposition of both a fine and imprisonment
in Ex Parte Lange was a multiple punishment pro-
hibited by the Double Jeopardy Clause simply be-
cause Congress had not authorized both; it had au-
. thorized only one or the other. When the legislature
has authorized both a fine and imprisonment as pun-
ishment, no one has ever seriously suggested that a
court that imposes both violates the Double Jeopardy
Clause. True, the. punishment is “multiple” in the
literal sense that it takes more than one form, but
it is not “multiple” in the constitutional sense because
the defendant is subjected only once to the punish-
ment that the legislature has authorized; the fact
that it may take two—or more—forms is irrelevant
for double jeopardy purposes.”
19 Jt is not entirely clear why the Lange Court chose to
rest its decision on double jeopardy grounds, since the same
result was compelled by the statute under which Lange was
convicted, wholly without regard to the existence of the con-
stitutional double jeopardy protection. Moreover, it would
seem indisputable that the Due Process Clause would preclude
the imposition of a sentence depriving a defendant of either
liberty or property in a manner or to an extent not authorized
by legislative enactment.
This principle is most strikingly illustrated by com-
paring Ex Parte Lange with Bozza v. United States,
330 U.S. 160 (1947), a case that is the converse of
Lange. In Bozza, the defendant was convicted of a
crime for which Congress had prescribed a manda-
tory punishment of imprisonment and a $100 fine.
The judge sentenced Bozza to imprisonment but made
no mention of a fine. Shortly afterwards, the judge
recalled Bozza and sentenced him again, this time
both to imprisonment and the $100 fine. Because the
second sentence imposed a “valid punishment for an
offense instead of an invalid punishment for that
offense” (id. at 167), this Court rejected Bozza’s con-
tention that he had been twice punished in violation
of the Double Jeopardy Clause. The Court distin-
guished Lange on the ground that Bozza, unlike
Lange, “had not suffered any lawful punishment un-
til the court had announced the full mandatory sen-
tence of imprisonment and fine.” Id. at 167 n.2 (em-
phasis in original). Bozza thus was punished not
only in two forms—imprisonment and a fine—he was
sentenced twice, first invalidly and later validly. But
neither the double punishment nor the multiple sen-
tencing violated the Double Jeopardy Clause, because
he was sentenced only to what Congress had re-
quired.” See also United States ex rel. Ferrari v.
A different case may well have been presented had Con-
gress authorized imprisonment, or a fine, or both. The first
sentence would then have been valid, and it is possible that
the court could not have recalled Bozza to add the fine to his
sentence. See Borum v. United States, 409 F.2d 488 (D.C.
_ Cir. 1967), cert. denied, 895 U.S. 916 (1969). This concern
does not implicate the multiple punishment protection as
87
Henderson, 474 F.2d 510, 513 (2d Cir.), cert. denied,
414 U.S. 843 (19738).
In short, while one may answer the question
whether a defendant has been successively prosecuted
in violation of the Double Jeopardy Clause by deter-
mining whether his second trial follows a previous
acquittal or conviction for the same offense, one may
not conclusively determine the question of multiple
punishment simply by ascertaining the punishment
to which he has been subjected. One must compare
the defendant’s sentence with the sentence that the
legislature has authorized for the crime. “In every
instance the problem is to ascertain what the legis-
lature intended.” Gore v. United States, 357 U.S.
886, 394 (1958) (Warren, C.J., dissenting). See
Dorszynski v. United States, 418 U.S. 481 (1974).
2. The Double Jeopardy Clause Does Not Limit the
Power of the Legislature to Fix Punishment
It is important to recognize not only that the pro-
tection against multiple punishments is to be de-
termined by reference to what the legislature has
provided, but also that the Double Jeopardy Clause
places no restrictions on the power of the legislature
to define crimes and to ordain their punishment.”
such, for the defendant could validly have been sentenced at
the outset to both forms of punishment; the question it raises
has to do with whether a court can vacate a valid sentence
and impose a harsher one. Cf. North Carolina v. Pearce,
supra; United States v. Di Francesco, No. 78-1250 (2d Cir.
Aug. 6, 1979).
21 Other provisions of the Constitution circumscribe this
power to some extent. As to the power to define offenses, for
example, the Due Process Clause of the Fourteenth Amend-
Brown v. Ohio, supra, 482 U.S. at 165; Sanabria v.
United States, 487 U.S. 54, 69 (1978). Under our
constitutional system, that is the legislature’s duty.
United States v. Wiltberger, 18 U.S. (5 Wheat.) 76,
95 (1820); Ex Parte United States, 242 U.S. 27, 42
(1916). Thus, the legislature, by prescribing the
“allowable unit of prosecution,” United States v.
Universal C.I.T. Credit Corp., 344 U.S. 218, 221
(1952), free of any restraints imposed by the Double
Jeopardy Clause, may “punish[] separately each step
leading to the consummation of a transaction * * *
ment prohibits a legislature from making abortion during the
first trimester of pregnancy a crime, Roe v. Wade, 410 U.S.
118, 164 (1978); the Due Process Clause and the Equal
Protection Clause each prohibit the legislature from making
miscegenation a crime, Loving v. Virginia, 388 U.S: 1, 12
(1967); and the First Amendment forbids the legislature
from making it a crime to possess obscene material in one’s
home, Stanley v. Georgia, 394 U.S. 557, 568 (1969), or for a
newspaper to publish the name of a youth charged as a
juvenile offender, Smith v. Daily Mail Publishing Co., No. 78-
482 (June 26, 1979), slip op. 8.
As to punishment, the Eighth Amendment precludes pun-
. ishment for being a drug addict, Robinson v. California, 370
U.S. 660, 666-667 (1962), and prohibits a legislature from
prescribing the death penalty for rape, at least in the absence
of excessive brutality or serious injury. Coker v. Georgia,
488 U.S. 584 (1977); id. at 601-604 (Powell, J., concurring
and dissenting). See Lockett v. Ohio, 488 U.S. 586 (1978),
and cases there discussed, and cases cited in Ingraham Vv.
Wright, 480 U.S. 651, 667 (1977). And the Ex Post Facto
Clause prohibits the legislature from increasing the punish-
ment after the crime has been committed. Calder v. Bull,
8 U.S. (8 Dall.) 886, 390 (1798) ; Bowie v. City of Columbia,
878 U.S. 347, 853 (1964). Those decisions are of no help to
petitioner here, and he does not rely on them.
and punish[] also the completed transaction.” Al-
brecht v. United States, 273 U.S. 1, 11 (1927). The
legislature can make criminal, and authorize cumu-
lative punishment for, discrete acts that are part of
a single course of action, e.g., Blockburger v. United
States, supra (consecutive prison terms permissi-
ble for two crimes committed by a single sale of
narcotics) ; Ebeling v. Morgan, 237 U.S. 625 (1915)
(five consecutive terms upheld for cutting six mail
bags in one episode), or a single act that affects more
than one person, ¢e.g., Bell v. United States, 349 U.S.
81 (1955) (Congress could have, but apparently did
not, provide that carrying two women across state
lines in one vehicle is two separately punishable
crimes); Ladner v. United States, 358 U.S. 169
(1958) (Congress could have, but apparently did
not, provide that firing one shot that injures two
federal officers is two separately punishable crimes).
See also United States v. Long, 524 F.2d 660 (9th
Cir. 1975) (purchases of two pistols in a single
transaction, where defendant uses the same false
name, punishable by two consecutive prison terms) ;
United States v. Dioguardi, 492 F.2d 70 (2d Cir.),
cert. denied, 419 U.S. 873 (1974) (two stock pur-
chases as part of one fraudulent scheme may be con-
-secutively punished).
For example, a legislature could enact a statute
providing that “[w]hoever is convicted of crime X
shall be punished by 10 years in prison, and then
shall be punished again by another five years in
prison, and then shall be punished a third time by
40
paying a fine of $1000.” Is there any difference
between this provision and a provision that “[w]ho-
ever is convicted of crime X shall be punished by 15
years in prison and a fine of $1000”? Clearly not.
The former language is simply an eccentric way of
stating what is more conventionally stated by the
latter language.” Thus, a defendant who has been
convicted of crime X and sentenced to a total of 15
years’ imprisonment and a $1000 fine pursuant to
the former provision has no double jeopardy argu-
ment, despite the fact that he literally has been
punished three times for the “same offense” of com-
mitting crime X.
From this point it requires little elaboration to
conclude that a legislature could provide that who-
ever commits crime X shall be punished by 10 years
in prison and an additional five years for committing
crime Y, a lesser included offense of crime X. To
argue that crime Y is a lesser included offense of
crime X would gain the defendant nothing when it
came time for sentencing, for it would be perfectly
clear that the legislature intended to punish the com-
mission of the lesser included offense by adding five
years to the sentence imposed for the greater offense.
And a defendant would add nothing to his argument
by demonstrating that crime Y might be the “same
offense” as crime X in the sense that all its elements
were also elements of crime X. The fact would re-
main that the legislature, in carrying out its duty to
22See Note, Twice in Jeopardy, 75 Yale L.J. 262, 302
(1965).
41
define crime and ordain punishment, had provided a
certain punishment for those who committed .both
crime X and crime Y. Nothing in the Double Jeop-
ardy Clause or elsewhere in the Constitution prohibits
the legislature from carrying out its duty in this
fashion.
Of course, legislatures do not normally provide
criminal penalties in such circumlocutory fashion.
Instead of providing a 10-year prison term followed
by a five-year prison term, they normally provide
simply a 15-year term. Where necessarily included
lesser offenses are involved, legislatures normally ex-
press their intent by providing a certain punishment
for the lesser offense and a more severe punishment
for the greater. Compare, e.g., D.C. Code Ann.
§ 22-504 (assault punishable b $500 fine, or up to
12 months’ imprisonment, or both); D.C. Code Ann.
§ 22-501 (assault with intent to kill punishable by
two to 15 years’ imprisonment). But a legislature’s
normative practice is beside the point,” which is
simply that, when a claim is made, as it is here, that
a defendant has been sentenced to multiple punish-
ments in violation of the Double Jeopardy Clause,
such a claim cannot be decided merely by concluding
that the offenses for which the defendant stands
cumulatively punished might be the “same offense”
* This Court has found it instructive, when deciding
whether multiple punishment is authorized, to determine
whether the legislature could have provided the punishment
imposed on the defendant by a circumlocutory definition of
crimes and punishments. See Gore v. United States, supra,
857 U.S. at 892-398.
for purposes of invoking the Clause’s protection
against successive prosecutions. The legislature is
free to punish the offense or offenses in a variety of
ways, and if the sentence imposed does not ae
what the legislature has authorized, the defendan
has received all the protection the Double Jeopardy
Clause affords. See Brown v. Ohio, swpra, 432 U.S.
at 165.
It is therefore useless for petitioner to establish
that his conviction for rape would have precluded a
successive prosecution for felony murder based on
that rape. He must establish, rather, that the trial
court, in imposing separate sentences for rape and
felony murder in a single sentencing proceeding fol-
lowing a single trial, has exceeded its legislative
authorization by imposing multiple punishments
where the legislature did not authorize them. This
petitioner has failed to do.
3. The “Blockburger Test” Is Not the Exclusive
Standard for Determining Whether a Defendant
May Be Consecutively Sentenced
Consistent with the distinction that has been
drawn between the two aspects of double jeopardy
we have just discussed, this Court has recognized
that the standards for determining what action vio-
lates the successive-prosecution protection, and what
action violates the multiple-punishment protection,
are not necessarily the same. See Brown v. Ohio,
supra, 432 U.S. at 166-167 n.6. For example, Justice
48
Brennan, who has consistently maintained that the
Double Jeopardy Clause normally requires the prose-
cution to bring all charges arising out of one transac-
tion in a single trial (see, ¢.g., Thompson v. Oklahoma,
429 U.S. 1053 (1977) (Brennan, J., dissenting) ),
has nevertheless made clear that this is “an entirely
different constitutional issue” from multiple punish-
ments, Abbate v. United States, 359 U.S. 187, 198
(1959) (opinion of Brennan, J.); Ashe v. Swenson,
supra, 397 U.S. at 448-460 (concurring opinion), and
that the Clause does not, as a general matter, “pro-
hibit the imposition at one trial of cumulative penal-
ties for different crimes committed during one trans-
action.” Ashe v. Swenson, swpra, 397 U.S. at 460 n.14
(concurring opinion).
Petitioner nonetheless asserts (Br. 10-13) that the
Blockburger test is the constitutional criterion for
determining whether cumulative punishment may be
imposed. But this Court has never had occasion in
previous cases to make a definitive pronouncement on
the question. Indeed, petitioner fails to cite a single
case (and we are aware of none) in which this Court
struck down consecutive sentences on constitutional
grounds because two offenses were found to be the
“same” under the Blockburger test. The Court has
either upheld multiple punishments after finding that
each offense requires proof of different elements,
e.g., Carter v. McClaughry, 188 U.S. 365 (1902);
Morgan v. Devine, 237 U.S. 682 (1915); Gore v.
United States, supra, or it has struck down cumula-
tive penalties as a matter of statutory construction,
44
without deciding whether the offenses are the “same”
under Blockburger. E.g., Simpson v. United States,
435 U.S. 6, 11-13 (1978); Jeffers v. United States,
supra, 432 U.S. at 155-158 (plurality opinion) ; Bell
v. United States, supra; Ladner v. United States,
supra.
Petitioner’s argument focuses on certain language
in the opinion in Brown v. Ohio, supra. The Court
in Brown stated, quite correctly, that the Blockburger
test was established to determine whether two of-
fenses were sufficiently distinguishable to permit the
imposition of double punishments. 432 U.S. at 166.
The Court then proceeded to adopt that test to ad-
judicate the question whether Brown’s second prose-
cution was barred. In doing so the Court said: “If
two offenses are the same under [the Blockburger]
test for purposes of barring consecutive sentences
at a single trial, they necessarily will be the same
for purposes of barring successive prosecutions.”
Ibid. But this statement should not be read to decide
that the Blockburger test is conclusive with regard
to the constitutionality of multiple punishments, for
it would then be inconsistent with this Court’s recog-
nition elsewhere in Brown that “[w]here consecutive
sentences are imposed at a single criminal trial, the
role of the constitutional guarantee [against double
jeopardy] is limited to assuring that the court does
not exceed its legislative authorization by imposing
multiple punishments for the same offense.” 432 U.S.
- at 165 (emphasis supplied).
45
Moreover, the language in Brown upon which peti-
tioner relies was unnecessary to the Court’s decision,
since Brown was a successive-prosecution case, not a
multiple-punishment case. Brown first raised his
Double Jeopardy claim when he was indicted for the
auto theft following his trial, conviction and punish-
ment for joyriding. 432 U.S. at 163. Later, he
pleaded guilty to the theft only on condition that his
double jeopardy claim would be considered. When
the court rejected that claim, it imposed sentence on
the guilty plea, but it is clear that Brown’s double
jeopardy objection was to the second prosecution; it
ripened before his punishment and was independent
of the punishment.
In addition, there is evidence in Jefferz v. United
States, supra, that petitioner’s reliance on the Brown
dictum is unfounded. In Jeffers, the petitioner was
successively tried, successively convicted, and cumu-
latively punished for what this Court assumed to be
a greater and a lesser included offense. 432 U.S. at
150 (plurality opinion); id. at 158 (opinion of
Stevens, J.). The plurality first concluded that peti-
tioner’s request for separate trials created an excep-
tion to the rule established in Brown that the Double
Jeopardy Clause prohibited successive prosecutions
for a greater and a lesser included offense. Id. at
150-154. The plurality then turned to the multiple-
punishment question, addressing the defendant’s
argument that the punishment he had received as a
result of two convictions exceeded the maximum pun-
ishment authorized for the greater offense.
46
In addressing this issue, the plurality stated: “The
critical inquiry is whether Congress intended to pun-
ish each statutory violation separately.” 432 U.S. at
155 (emphasis added). “If some possibility exists
that * * * two statutory offenses are the ‘same of-
fense’ for double jeopardy purposes, * * * it is neces-
sary to examine the problem closely, in order to avoid
constitutional multiple punishment difficulties.” Ibid.
Only after examining the “comprehensive penalty
structure” (id. at 156), the legislative history (id.
at 156 & n.26), and the applicability of the policy
justifying separate crimes for conspiracy and the
substantive offense (id. at 156-157) did the plurality
conclude that Congress had in fact not intended cum-
ulative punishment for the two particular offenses
involved in that case. This approach is consistent
with our submission that the permissibility of cumu-
lative punishment is a function of legislative intent.
Harris v. Oklahoma, supra, is also consistent with
our analysis. As we have-previously shown (see
*% Nor does anything in Justice White’s separate opinion
(482 U.S. at 158) or in Justice Stevens’ opinion, joined by
three other Justices, lend any support to petitioner’s reading
of Brown. Justice White would have upheld the cumulative
punishment, and Justice Stevens concluded that the second
prosecution violated the Double Jeopardy Clause. It is thus
reasonable to assume that Justice Stevens, and those Justices
who joined his opinion, concurred in the reduction of the
punishment because they believed the second trial itself was
unconstitutional (see note 18, page 33, supra), and not
necessarily because they believed, as petitioner does, that
Blockburger governs the constitutionality of cumulative
punishments imposed after a single trial.
47
pages 28-29, supra), Harris, like Brown, was a suc-
cessive prosecution case. The Court in Harris did
not even address the question whether the two of-
fenses—felony murder and armed robbery—for
which the defendant was separately prosecuted were
the “same” offense under Blockburger. The suc-
cessive prosecutions in Harris were barred, not be-
cause the offenses were the “same” (indeed, we
submit they are not), but to protect the defendant
from having to “run the gantlet” of a second prose-
cution. In any event, the Court in Harris had no
occasion to and did not address the question whether
consecutive punishments for the murder and the rob-
bery could have been imposed on Harris had he been
tried on both charges at a single trial.
Moreover, acceptance of petitioner’s position that
cumulative punishments are prohibited whenever suc-
cessive prosecutions would be prohibited presents se-
rious consequences. To illustrate our point, let us
return to the hypothetical legislature that enacts a
statute providing that whoever commits crime X shall
be punished by 10 years in prison and, for commit-
ting the lesser included offense of crime Y, shall be
punished by an additional five years. See page 40,
supra. If, as petitioner claims, the Blockburger test
governs the constitutionality of cumulative punish-
ment, a defendant who committed both offenses could
be sentenced only to 10 years in prison. This .result
would be squarely contrary to the legislature’s un-
mistakable intent. The fact that the legislature chose
to express that intent in a way that did not define
48
two distinct crimes under the Blockburger analysis —
would be no reason to hold that the additional five-
year sentence is prohibited by the Double Jeopardy
Clause. The Blockburger test, after all, was devised
as a means of ascertaining legislative intent. Jannelli
v. United States, supra, 420 U.S. at 785 n.17. To
hold that legislative intent, no matter how clearly
expressed, will be ignored unless it conforms to the
Blockburger test would unjustifiably stand the Block-
burger test on its head. It is one thing to hold, as
Blockburger did, that the presence of distinct statu-
tory elements demonstrates a legislative intent to
allow cumulative punishment; it is quite another to
use the distinct-offense test of Blockburger to thwart
legislative intent, and this Court has never done so.
Our concern with petitioner’s approach is not
merely hypothetical. Under petitioner’s analysis, a
federal district court could never impose consecutive
sentences upon a defendant convicted both of using
or carrying a firearm in the commission of a federal
felony pursuant to 18 U.S.C. 924(c) and of the under-
lying felony, despite statutory language unequivocally
expressing congressional intent to permit such sen-
tences; the predicate felony is, after all, a “lesser in-
cluded offense” of the firearms charge in exactly the
same sense that rape is a lesser included offense of
felony murder, viz., the jury necessarily must find the
commission of an underlying felony to convict under
Section 924(c). Similar problems may arise with re-
spect to a number of other federal statutes, ¢.g., 18
U.S.C. 1962 (conduct of enterprise through a pattern
49
of racketeering activity) ; 21 U.S.C. 848 (continuing
criminal enterprise involving substantive narcotics
offenses), as well as with state laws.”
Petitioner, however, appears to qualify his absolute
“rule” by conceding (Br. 23 n.10) that it may indeed
be possible to punish consecutively for violations of
what he calls greater and lesser included offenses (but
what more precisely may be termed “compound” and
“predicate” offenses) in certain limited circum-
stances where the statutory scheme resembles “tradi-
tional enhancement provisions.” But if Congress
could have accomplished the result through an en-
hanced sentencing procedure, it should be permit-
ted, if it chooses, to create a separate felony fire-
arm offense (or in this case, a separate felony mur-
der offense), since the effect and purpose are precisely
the same as those of the “traditional enhancement
provisions.” Petitioner’s approach simply fails to
acknowledge the independent role of the legislature
in definining conduct as criminal and in determining
appropriate sentences. If the enhanced sentence stat-
ute is constitutional (and petitioner appears to con-
cede as much), it is because the legislative intent to
23 In Cassius Vv. Arizona, cert. dismissed as improvidently
granted, 420 U.S. 514 (19765), the Court had before it an
Arizona statute making it an offense to commit a felony
while released on bail, and providing additional punishment
for that offense. The Supreme Court of Arizona had ruled
that consecutive punishment in that instance did not offend
double jeopardy (110 Ariz. 485, 520 P.2d 1109 (1974) ) ; under
petitioner’s argument, the statutory provision of separate
punishment would be unconstitutional.
50
punish cumulatively renders inapplicable any inde-
pendent constitutional policy against multiple pun-
ishment. And if the constitutional question is one
of ascertaining legislative intent, then Congress
should be free to express its intent to punish conse-
cutively greater and “lesser included” offenses.
Petitioner’s argument draws its support largely
from labels (“same offense”, “greater and _ lesser-
included offenses”) and isolated statements taken
from prior opinions of this Court addressing prob-
lems essentially different from those of this case. Apart
from its logical flaws, the argument is contrary to com-
mon sense. Rape (or burglary, or kidnapping, or arson)
combined with homicide makes for a very odd pair of
greater and lesser “included” offenses. Common
sense tells us that assault is in fact a lesser included
offense of assault with a deadly weapon, because one
cannot assault with a deadly weapon unless one as-
saults. Similarly, manslaughter is in fact a lesser
included offense of murder, because one cannot kill
with deliberation or malice aforethought unless one
kills. When we look to the Blockburger test to define
“lesser included offenses” such as these, we merely
confirm what common sense already tells us. On the
other hand, common sense tells us that rape and
murder are not greater and lesser included offenses
in any real sense, for one can certainly rape without
killing or kill without raping. If the rape is a lesser
“included” offense of murder it is so, not because it
necessarily took place as part of the killing, but only
51
because the legislature has defined first degree mur-
der to include a killing committed in the course of
committing a rape.
But even assuming that the Blockburger test as
applied to necessarily included offenses sets a con-
stitutional limit on multiple punishment and thus
should, for example, bar consecutive sentences for
assault and assault with a deadly weapon, the same
result does not necessarily follow with respect to
“felony murder” and the felony that is proven along
with it.” Blockburger was not devised to limit pun-
ishments for “compound” and “predicate” offenses
such as felony murder and the underlying felony,
and, more importantly, it does not reflect reality
when it is applied in that context. Indeed, no
“lesser included offense” rule can serve well in the
felony murder context, because rape (or burglary
or kidnapping) is never a truly included offense of
26 The question of consecutive sentences for true greater
and lesser included offenses is unlikely to arise with any
great frequency, since the defendant may avoid the problem
by requesting the trial court to instruct the jury that it need
not deliberate on the lesser included offense if it finds the
defendant guilty of the greater offense. See Jeffers v. United
States, supra, 482 U.S. at 158-154 (plurality opinion). Cf.
United States v. Gaddis, 424 U.S. 544, 550 (1976). Petitioner
could not ask for such an instruction in this case because in
the District of Columbia as in other jurisdictions, a defendant
charged with first degree (felony) murder is not entitled to
a lesser included offense instruction with respect to the predi-
cate felony (see page 67 infra).
murder; they are distinct acts, one committed inde-
pendently of the other. The legislature has simply
made the felony do service as a sort of constructive
murderous intent, in order to upgrade what might
otherwise be a second degree murder or a man-
slaughter (see pages 62-67, infra). But the mere fact
that evidence of the same criminal intent—to commit
the underlying felony—suffices to prove both felony
murder and the underlying felony when both are
separately charged does not bar the imposition of con-
secutive sentences. “[T]he test is not whether the
criminal intent is one and the same and inspiring
the whole transaction, but whether separate acts have
been committed with the requisite criminal intent
and are such as are made punishable by the act of
Congress.” Morgan v. Devine, supra, 237 U.S. at
640.
The question, at bottom, should always be legisla-
tive intent. Congress and other legislatures that fol-
low the common law rule (see pages 63 to 66, infra)
allow the jury to infer intent to kill from what it
must first find to be intent to commit rape or another
felony, but the legislature has not thereby directed
the court to ignore the commission of the felony when
time comes to sentence for murder. The fact that the
definition of felony murder incorporates commission
of the felony itself is different from the fact that
the definition of assault with a deadly weapon incor-
porates the definition of assault. Assault with a
53
deadly weapon, or assault with intent to kill, is an
aggravated form of assault, and thus punishable
more severely than simple assault. But killing a per-
son is not an aggravated form of rape; the fact that
the prosecution must prove the rape on its way to
proving the killing if it is to secure a first degree
murder conviction without proof of deliberation or
malice may be a restriction on the prosecution, but
it is not a restriction on the sentencing court. The
court must look to whether the legislature has pro-
vided for multiple punishments.
II
THE DETERMINATION BY THE HIGHEST COURT
OF THE DISTRICT OF COLUMBIA THAT THE AP-
PLICABLE LOCAL STATUTES AUTHORIZE CON-
SECUTIVE PUNISHMENTS FOR RAPE AND FOR A
MURDER COMMITTED IN THE COURSE OF THAT
RAPE IS CORRECT AND SHOULD NOT BE OVER-
TURNED
We have argued above that the dispositive ques-
tion in determining whether the Double Jeopardy
Clause prohibits a particular set of consecutive pun-
ishments, imposed in a single sentencing proceeding
following a single trial that results in conviction of
two or more offenses arising out of the same episode,
is whether the total sentence exceeds that authorized
by the legislature in the circumstances. In the ab-
sence of direct evidence of legislative intent, the
Blockburger test is an important device for answer-
ing the question; but, if we are correct, it is not
invariably conclusive. Cases such as Simpson v.
United States, supra, show that cumulative punish-
ment may be barred, in accordance with the will of
the legislature, for offenses that are “different” un-
der the Blockburger test. Conversely, multiple pun-
ishments (such as fine, imprisonment, and probation
or special parole) are routinely imposed for a single
offense, when authorized by statute. The same direct
focus upon legislative authorization, we have argued
above, is the governing inquiry in considering the
allowable punishment for separately defined: offenses,
whether or not they are arguably the “same offense”’
under the constitutional analysis governing the per-
missibility of successive prosecutions.
In the present case, the District of Columbia Court
of Appeals, construing criminal statutes applicable
solely to the District of Columbia, determined that
the consecutive sentences imposed upon petitioner
were authorized under those statutes. The correctness
of that construction was not presented to this Court
in the petition for a writ of certiorari as an issue
for review in this case. Both these considerations
strongly suggest that this Court should not now un-
dertake to review the conclusion of the court below
that the sentences imposed herein were legislatively
‘authorized, but that it should decide this case on
the premise that this conclusion was correct as a
matter of statutory construction. But if this Court
S-
55
does decide to review the issue of statutory au-
thorization for the sentence imposed upon petitioner,
we argue below that the court of appeals was correct
in concluding that the sentence was consonant with
legislative authorization.
A. This Court Should Not Review The Construction
Given By The Highest Court Of The District Of
Columbia To A Statute Of Purely Local Application
In his petition for certiorari, the sole question pre-
sented by petitioner involved the constitutionality,
under the Double Jeopardy Clause of the Fifth
Amendment, of the consecutive sentences imposed
upon him for rape and first degree (felony) murder.
In his brief on the merits, however, petitioner for the
first time argues (Br. 26-39) that Congress did not
intend to authorize the punishment imposed upon him
and that the court of appeals erred in reaching the
contrary conclusion. We submit that this Court
should not undertake to review the non-constitutional
aspects of the court of appeals’ decision, which in-
volve the construction of statutes applicable solely
within the District of Columbia.
Petitioner contended below that his conviction for
rape, and his consecutive sentence therefor, should be
vacated because under District of Columbia law the
rape merged with the felony murder conviction; he
argued also that such a result was required by the
Double Jeopardy Clause. Pet. Ct. App. Br. 76-81.
The court of appeals rejected this argument. It rec-
ognized that “[m]erger of two offenses is ordinarily
appropriate when the lesser offense consists entirely
56
of some but not all of the elements of the greater
offense,” A. 14 (citations omitted). But, said the .
court, “[i}n determining whether merger is appro-
priate, this court has refused to analyze solely by
abstract consideration of the statutes involved or the
wording of the indictment, and has looked instead
to the societal interests protected by the statutes un-
der consideration.” Id. at 15 (citations omitted).
The court then held that the societal interests
served by the rape statute (to protect women from
sexual assault) and that served by the felony murder
statute (to protect human life) are “separate and
distinct” (A. 15) and that there was no evidence
to suggest that Congress intended the offenses to
merge (id. at 16). The court of appeals also concluded
that “while the underlying felony is an element of
felony murder it serves a more important function as
an intent-divining mechanism” (id. at 17). Thus, the
court held, “rape is not a lesser included offense of
felony murder and * * * merger is inappropriate
even absent societal interest analysis.” Jbid. The
court of appeals thus took two paths to arrive at the
conclusion that Congress had not intended felony
murder and the underlying felony to merge; each
was deemed to dictate its holding that consecutive
sentences for the two offenses were authorized.
Whether the foregoing ruling be viewed as one
of statutory construction or of local common law,
this Court should accept it as dispositive of the non-
constitutional issues in this case. It has long been
the practice of this Court to decline review of deci-
57
sions of the District’s courts on common-law ques-
tions of evidence and substantive criminal law (see,
¢.g., Griffin v. United States, 386 U.S. 704, 717-718
(1949); Fisher v. United States, 328 U.S. 468, 476
(1946) ), and the Court has recently stated that “the
same deference is owed the courts of the District
with respect to their interpretation of Acts of Con-
gress directed toward the local jurisdiction.” Pernell
v. Southall Realty, 416 U.S. 368, 867 (1974). Par-
ticularly in light of the reorganization of the Dis-
trict’s court system in 1970,” which was designed in
substantial part to enhance the status of the District
of Columbia Court of Appeals and to place it on a
footing comparable to that of the highest court of
a state,” “the decisions of the District of Columbia
Court of Appeals on matters of local law—both com-
mon law and statutory law—will be treated by this
Court in a manner similar to the way in which we
treat decisions of the highest court of a State on ques-
tions of state law” (id. at 368).
These principles clearly dictate that the Court
should not in this case consider petitioner’s contention
that the court of appeals misconstrued local law in
holding that cumulative punishments were statutorily
authorized. While the Court retains power under
Article III to consider the claim, such consideration
27 See generally District of Columbia Court Reform and
Criminal Procedure Act of 1970, Pub. L. No. 91-858, 84
Stat. 478.
2 See H.R. Rep. No. 91-907, 91st Cong., 2d Seas. 85 (1970) ;
cf. 28 U.S.C. 1257.
would be appropriate only in “ ‘exceptional situations
where egregious error has been committed’ ” (Pernell
v. Southall Realty, swpra, 416 U.S. at 369, quoting
Fisher v. United States, swpra, 328 U.S. at 476).
This is plainly not such a situation.
B. Petitioner’s Failure To Raise The Statutory Con-
struction Issue In His Petition Also Justifies A Re
fusal To Review It
Petitioner presented one question in his petition
for certiorari: “Whether the doctrine of merger of
offenses, an integral part of the Double Jeopardy
Clause of the Fifth Amendment to the Federal Con-
stitution, precludes the * * * trial court{] from
- imposing consecutive sentences on * * * petitioner
Whalen for felony-murder and the underlying of-
fense of rape * * *” (Pet. 3-4). He contended that
the conclusion of the District of Columbia Court of
Appeals that the two offenses did not merge was con-
stitutional error and that, under the Blockburger
test, the offenses “are considered ‘the same offense’
because one ‘merges’ into the other” (id. at 8). Peti-
tioner concluded that “because proof of the felony
supplies vital elements of the first degree murder
charge * * * cumulative punishment for both felony-
murder and the underlying felony violates the Double
Jeopardy Clause” (id. at 10-11).
Thus, until now petitioner has taken no issue with
the court of appeals’ conclusion that Congress in-
tended to permit cumulative punishments for felony
murder and the underlying felony. The question he
presented was simply whether cumulative punish-
ment violates the Double Jeopardy Clause. Only in
his brief on the merits has he rephrased the “Ques-
tion Presented” (compare Pet. 3-4 with Br. 2) and
argued that Congress did not intend to authorize
cumulative punishment. (The arguments set forth at
Br. 26-39 were not presented to the court of appeals
either).
It is axiomatic that this Court will ordinarily con-
sider “[o]nly the questions set forth in the petition
or fairly comprised therein * * *.” Sup. Ct. R.
23(1)(c). See, ¢g., General Talking Pictures Co.
v. Western Electric Co., 304 U.S. 175, 177-178
(1938); R. Stern & E. Gressman, Supreme Court
Practice § 6.27 (5th ed. 1978). Although the question
of the existence of legislative authorization is critical
to any inquiry into the constitutional permissibility
of cumulatve punishments, it cannot be said that
the question whether Congress intended to permit
cumulation of punishment for felony murder and
the underlying felony is fairly comprised within the
question whether the Double Jeopardy Clause bars
such punishment because of the nature of the of-
fenses themselves. In other words, the petition was
predicated entirely on the assumption that neither
the legislature nor the courts may constitutionally
bring about consecutive sentences for rape and felony
murder because the offenses are the “same” for
double jeopardy purposes (see also Br. 22-24).
The answer to this question does not inherently de-
pend upon, or entail, the kind of inquiry into legis-
lative debate and intentions that petitioner now in- |
vites the Court to undertake.
vi
}
60
%
It is true that the Court’s practice of declining °
to review questions not presented in the petition is
not without exceptions for extraordinary circum-
stances (see discussion in Stern & Gressman, supra).
In the present case, however, no such circumstances
exist; to the contrary, the fact that the arguments
petitioner now presents for the first time are ad-
dressed to matters of local law reinforces the pro-
priety of adhering in this case to the general prin-
ciple that questions not presented in the petition will
not be decided by the Court.
C. Congress Intended To Allow Consecutive Sentences
For Felony Murder and Rape
Should the Court nevertheless choose to review the
court of appeals’ holding that the local District of
Columbia statutes authorize the sentences imposed
upon petitioner, we submit that an examination of
congressional intent demonstrates that the sentences
are legislatively authorized.
The inquiry into whether Congress has authorized
cumulative punishment is generically similar to any
other inquiry to determine congressional intent. Af-
ter analyzing the language of the statutes themselves,
one looks to the pertinent legislative history, Simpson
v. United States, supra, 435 U.S. at 13; the purpose
and structure of the statutes, Jannelli v. United
States, supra, 420 U.S. at 787-789; their historical
ancedents at common law, Callanan v. United States,
364 U.S. 587, 589-591 (1961) ; the circumstances un-
der which they were enacted, Gore v. United States,
supra, 357 U.S. at 390-391 ; Simpson v. United States,
61
supra, 435 U.S. at 18 (Rehnquist, J., dissenting) ;
and appropriate canons of statutory construction in
the absence of a “discernible legislative judgment,”
Tannelli v. United States, swpra, 420 U.S. at 786. As
we show in this section, such an inquiry in this case
demonstrates that Congress intended to authorize
courts in the District of Columbia, in their discretion,
to impose consecutive sentences in the circumstances
of this case. :
At the outset of this inquiry, we acknowledge that
“[w]hen Congress leaves to the Judiciary the task
of imputing to Congress an undeclared will, the am-
biguity should be resolved in favor of lenity.” Bell
v. United States, 349 U.S. 81, 83 (1955); Simpson
v. United States, supra, 485 U.S. at 14-15. But as
this Court has also recognized, the rule of lenity, “as
is true of any guide to statutory construction, only
serves as an aid for resolving an ambiguity; it is.
not to be used to beget one.” Callanan v. United
States, 364 U.S. 587, 596 (1961) (footnote omitted).
See also United States v. Culbert, 435 U.S. 371, 379
(1978); United States v. Batchelder, No. 78-776
(June 4, 1979), slip op. 7. “The rule comes into
operation at the end of the process of construing
what Congress has expressed, not at the beginning as"
an overriding consideration of being lenient to wrong-
doers.” Callanan v. United States, supra, 364 U.S.
at 596. See also Scarborough v. United States, 431 °
U.S. 563, 577 (1977).
r
= %
1. Felony Murder And The Underlying Felony Were
Discrete Offenses At Common Law
The statute under which petitioner was convicted
of first degree murder (D.C. Code Ann. § 22-2401)
provides four definitions of first degree murder:
a purposeful killing with deliberate and premedi-
tated malice; a killing by means of poison; a purpose-
ful killing in the course of committing (or attempt-
ing to commit) any felony; and a homicide, without
the purpose to kill, in the course of committing (or
attempting to commit) arson, rape, mayhem, robbery,
kidnapping, or, if armed, housebreaking. In connec-
tion with the last of these definitions, it has been
stated: “[B]y eliminating the element of ‘purpose’
with respect to these * * * serious felonies, Congress
intended to apply the common law felony murder rule
to them—that is, that a homicide committed in the
course of their perpetration is murder because the
‘malice’ required for murder [at common law] can be
implied from the commission of the felony.” United
States v. Branic, 495 F.2d 1066, 1069 (D.C. Cir.
1974) (emphasis in original; footnotes omitted). This
conclusion can be illuminated by a brief examination
of felony murder as it took shape in the common
law.
At common law, offense categories were relatively
few and distinct, Ashe v. Swenson, supra, 397 U.S.
at 445 n.10, and the law distinguished, for example,
among rape, arson and murder. See Note, supra,
75 Yale L. J. at 279. Homicides were divided into
two categories, murder and manslaughter, with mur-
63
der requiring a showing of malice. See 4 W. Black-
stone, Commentaries * 190. Malice could be either
express or implied, and a killing committed in
the course of a felony was considered murder be-
cause malice was implied by the actor’s intent to
commit the felony.” See United States v. Branic,
supra, 495 F.2d at 1069; United States v. Greene,
489 F.2d 1145, 1168 (D.C. Cir. 1973) (Bazelon,
C. J.; statement of reasons for granting rehearing
en banc), cert. denied, 419 U.S. 977 (1974) ; United
States ex rel. Jackson v. Follette, 462 F.2d 1041,
1047 (2d Cir.), cert. denied, 409 U.S. 1045 (1972);
Fuller v. United States, 407 F.2d 1199, 1228 (D.C.
29 See 4 W. Blackstone, supra at 198-201:
Express malice is when one, with a sedate deliberate
mind and formed design, doth kill another; which formed
design is evidenced by external circumstances discovering
that inward intention ; as lying in wait, a dent men-
aces, former grudges, and concerted schemes to do him
some bodily harm. * * *
Also in many cases where no malice is expressed the
law will imply it, as, where a man wilfully poisons
another; in such a deliberate act the law presumes
malice, though no particular enmity can be proved. * * *
And if one intends to do another felony, and undesignedly
kills a man, this is also murder. Thus if one shoots at A.
and misses him, but kills B., this is murder, because of
the previous felonious intent, which the law transfers
from one to the other. The same is the case where one
lays poison for A., and B., against whom the prisoner
had no malicious intent, takes it, and it kills him; this is
likewise murder. So also if one gives a woman with child
a medicine to procure abortion, and it operates so vio-
lently as to kill the woman; this is murder in the person
who gave it.
64
Cir. 1968) (en banc), cert. denied, 398 U.S. 1120
(1969). Even an accidental killing, if perpetrated
in the course of another felony, was deemed murder
rather than manslaughter, on the theory of implied
malice. See Shanahan v. United States, 354 A.2d
524, 526 (D.C. App. 1976); Arent and MacDonald,
The Felony Murder Doctrine and Its Application Un-
der the New York Statutes, 20 Cornell L. Q. 288, 292
(1935) ; Perkins, A Re-examination of Malice Afore-
thought, 43 Yale L. J. 537, 557-558 (1934).”
When homicides were subdivided by statute into
murder in the first and second degrees and man-
slaughter, “the doctrine of felony murder was pre-
served, and the underlying felony was viewed as pro-
viding the ‘premeditation’ and ‘deliberation’ otherwise
required for first degree murder, as well as malice,
where necessary.” United States v. Greene, supra, 489
F.2d at 1168 (Bazelon, C.J.). See United States ex
rel. Jackson v. Follette, supra, 462 F.2d at 1048; Com-
monwealth v. Watkins, 379 N.E.2d 1040, 1049 (Mass.
1978}; Wechsler and Michael, A Rationale of the
Law of Homicide: I, 37 Colum. L. Rev. 701, 703-707
(19387); Arent and MacDonald, supra, 20 Cornell
L. Q. at 294-295.
30 See 4 W. Blackstone, supra, at 192-193:
And in general, when an involuntary killing happens in
consequence of an unlawful act, it will be either murder
or manslaughter, according to the nature of the act which
occasioned it. If it be in prosecution of a felonious intent,
or in its consequences naturally tended to bloodshed, it
will be murder; but if no more was intended than a mere
civil trespass, it will only amount to manslaughter.
65
Under the common law, therefore, murder was but
one offense, and the felony murder rule simply pro-
vided an alternative means of establishing malice.”
Consistent with this view, the common law form of
indictment for murder, charging a premeditated kill-
ing with malice aforethought, is sufficient in most
jurisdictions to charge and convict a defendant for
felony murder. See, e.g., Commonwealth v. Bastone,
466 Pa. 548, 353 A.2d 827 (1976) ; State v. Stancliff,
467 S.W.2d 26 (Mo. 1971); Rogers v. State, 83 Nev.
376, 482 P.2d 331 (1967); Allen v. State, 199 Kan.
147, 427 P.2d 598 (1967); State v. Reyes, 209 Or.
595, 308 P.2d 182 (1957) ; People v. Lytton, 257 N.Y.
310, 314-315, 178 N.E. 290, 292 (1931); People v.
Nichols, 230 N.Y. 221, 226-227, 129 N.E. 883, 884
(1921) ; Arent and MacDonald, supra, 20 Cornell L.
Q. at 310 & n.127." Because felony murder is one
of several forms of first degree murder, where felony
murder is charged the jury may be instructed on
second degree murder or manslaughter as lesser in-
81 Because the intent to commit the underlying felony sup-
plies the malice necessary to convict for murder, the under-
lying felony need not be consummated in order to invoke the
felony murder doctrine. See D.C. Code Ann. § 22-2401 (“per-
petrating or * * * attempting to perpetrate” an underlying
felony). See also, e.g., State v. Pittman, 118 Ariz. 71, 574
P.2d 1290, 1294 (1978).
82 See also State v. Barton, 5 Wash.2d 284, 289, 105 P.2d
63, 67 (1940) (information charging a defendant with a kill-
ing with premeditation and while engaged in the commission
of a robbery is not duplicitous since it charges only one
crime, murder in the first degree; the reference to robbery
is merely incidental to, and descriptive of, the murder).
66
cluded offenses, see Fuller v. United States, supra,
407 F.2d 1229-1230; Arent and MacDonald, supra,
20 Cornell L. Q. at 310 & n.132; cf. Green v. United
States, supra, 355 U.S. at 194 n.14, and a defendant
may not be separately punished for felony murder and
any lesser degree of homicide.
On the other hand, the underlying felonies have not
historically been considered lesser included offenses
of felony murder. While the underlying felonies in-
herently involve a substantial risk to human life, at
the same time these felonies are necessarily separate
and distinguishable from the homicidal assault. See
Arent and MacDonald, supra, 20 Cornell L. Q. at 290-
291, 298-301; Wechsler and Michael, supra, 37
Colum. L. Rev. at 713-716, 744-745 & n.161; Perkins,
supra, 43 Yale L. J. at 560-563. The reason for this
limitation has been cogently stated (Arent and Mac-
Donald, supra, 20 Cornell L. Q. at 298):
Every time a homicide which is not justifiable
or excusable is committed, the killer may be said
to have been engaged in a felony. To hold him
guilty of felony murder, however, would elimi-
nate all existing distinctions between murder
and manslaughter and their various degrees. A
necessary qualification of the felony murder
rule, therefore, is that the felony in which the
defendant was engaged must have been inde-
pendent of the homicide.
Thus, in the District of Columbia, as in other juris-
dictions, the underlying felony in a felony murder
prosecution must have elements “so distinct from that
of the homicide as not to be an ingredient of the
homicide.” Blango v. United States, 373 A.2d 885,
sod
67
889 (D.C. App. 1977). See also State v. Foy, 224
Kan. 558, 582 P.2d 281, 288 (1978); Garrett v.
State, 573 S.W.2d 548, 545 (Tex. Crim. App. 1978) ;
People v. Moran, 246 N.Y. 100, 102, 158 N.E. 35,
36 (1927); People v. Nichols, supra, 230 N.Y. at
226, 129 N.E. at 884. Furthermore, in the Dis-
trict of Columbia (and elsewhere) the defendant
in a trial for felony murder is not entitled to have
the jury instructed that the underlying felony is a
lesser included offense of felony murder. See, ¢.g.,
Wheeler v. United States, 165 F.2d 225, 229 (D.C.
Cir. 1947), cert. denied, 333 U.S. 880 (1948);
Candler v. State, 266 Ind. 440, 363 N.E.2d 12338, 1243
(1977) ; People v. Nichols, supra, 230 N.Y. at 225-
228, 129 N.E. at 884-885.
Thus, felony murder and the underlying felonies
traditionally have been regarded as discrete and in-
dependent offenses. Although lesser degrees of homi-
cide have been considered lesser included offenses of
felony murder, the underlying felonies have not been
so regarded. And it was this historical background,
as the court of appeals concluded in Branic, supra,
that Congress intended to apply in the law of felony
murder in the District of Columbia. As we now show,
Congress, consistently with this history, considered
felony murder and the underlying felonies as defined
in the District of Columbia Code to be separate of-
fenses for punishment purposes.
2. The History of the District’s First Degree Murder
Statute Shows That Felony Murder And Rape Are
Separately Punishable Offenses
a. Congress first enacted a general code for the
‘District of Columbia in 1901. Act of March 3, 1901,
ch. 854, 31 Stat. 1189. That code provided that
“Tw]hoever, being of sound memory and discretion
purposely, and either of deliberate and premeditated
malice or by means of poison, or in perpetrating or
attempting to perpetrate any offense punishable by
imprisonment in the penitentiary, kills another, is
guilty of murder in the first degree.” Section 798,
31 Stat. 1821. Murder in the first degree carried a
mandatory sentence of death by hanging.” Section
801, 31 Stat. 1821. Rape was made punishable by
five to 30 years’ imprisonment or, if the jury so pro-
vided, death by hanging. Section 808, 31 Stat. 1322."
In enacting the code, Congress provided that the com-
mon law would remain in force to the extent consis-
tent with the code. Section 1, 31 Stat. 1189. There
was no specific provision governing cumulation of sen-
tences, although cumulation was clearly contemplated,
88 Murder in the second degree was defined as any other
homicide with malice aforethought (Section 800, 31 Stat.
1821) and was punishable by imprisonment for 20 years to
life (Section 801, 31 Stat. 1821). Manslaughter was punish-
able by up to 15 years’ imprisonment, or a fine of $1,000, or
both (Section 802, 31 Stat. 1821).
% Until 1970, the punishment provided for rape under the
D.C. Code remained unchanged. In response to United States
v. Jackson, 390 U.S. 570 (1968), which held a similar federal
death penalty provision invalid, Congress amended the rape
statute to permit the imposition of a sentence of imprison-
ment “for any term of years or for life.” Act of July 29, 1970,
Pub. L. No. 91-858. Section 204, 84 Stat. 600. See H. R. Rep.
No. 91-907, 91st Cong., 2d Sess. 66-67 (1970). Where a life
sentence is imposed for rape, D.C. Code Ann. § 24-203 (a)
provides that the minimum term of imprisonment shall not
exceed 15 years.
69
because Congress provided that “[c]umulative sen-
tences aggregating more than one year shall be
deemed one sentence” for the purpose of determin-
ing where the sentence was to be served. Section 984,
31 Stat. 1341.
It is not surprising that in 1901 Congress did not
address the question whether a conviction of first
degree murder (whether by means of felony murder
or with deliberate and premeditated malice) could
run consecutively to the sentence for another felony.
The mandatory sentence for first degree murder was
death; that sentence made any question of imprison-
ment for another crime superfluous.”
b. In 1940, Congress amended the 1901 murder
statute to the form now contained in D.C. Code Ann.
§ 22-2401. Act of June 12, 1940, ch. 339, 54 Stat.
347. What legislative history there is indicates that
the change was effected to eliminate any element of
purpose from felony murder. The Attorney General,
recommending the change, stated that the word “pur-
posely,” placed in the statute so as to apply to felony
murder as well as other types of first degree murder,
had “no proper function” in connection with the
85 Although in one English case, the defendant was sen-
tenced to be “drawn for treason, hanged for robbery and
homicide and disemboweled for sacrilege, beheaded as an
outlaw and quartered for divers depredations.” Note, supra,
75 Yale L.J. at 300, quoting 2 F. Pollock and F. Maitland,
History of English Law 501 (2d ed. 1905).
86 Congress carried forward the definition of second degree
murder as contained in the 1901 Act, and as now found in
D.C. Code Ann. § 22-2408.
70
former, and he recommended that the statute be
changed to conform to the general practice of not
requiring a purposeful killing for a felony murder
conviction. S. Rep. No. 1175, 75th Cong., 1st Sess.
2 (1937). Congress accepted this proposal only in
part, eliminating the requirement of a “purposeful”
killing only for the six serious felonies and retaining
it for homicides committed in the course of other
felonies. D.C. Code Ann. § 22-2401. Because the
mandatory death penalty remained unchanged for
first degree murder, there was no more reason in
1940 than there had been in 1901 to deal with cumula-
tive sentences, and Congress apparently did not con-
sider the matter. |
c. In 1962, Congress replaced the mandatory death
penalty for first degree murder with the present lan-
guage of D.C. Code Ann. § 22-2404, which allows,
as an alternative, a sentence of 20 years to life im-
prisonment. Act of March 22, 1962, Pub. L. No.
87-428, Section 1, 76 Stat. 46. With the possibil-
ity of parole after 20 years for those convicted of
first degree felony murder, the question whether such
a sentence could run consecutively to a sentence im-
posed for the underlying felony became relevant for
the first time. But Congress concentrated on the
merits of abolishing the mandatory death sentence
and did not expressly address the matter of consecu-
tive sentences. Both the language and the history of
Section 2404 indicate, however, that Congress in-
tended the statutory penalties to apply with equal
force to all defendants convicted of first degree mur-
71
der, whether their convictions rested upon the felony
murder or premeditated murder provisions of Section
2401.
Section 2404 provides, with respect to the sentence
of life imprisonment authorized for first degree
murder:
Notwithstanding any other provision of law, a
person convicted of first degree murder and upon
whom a sentence of life imprisonment is im-
posed shall be eligible for parole only after the
expiration of twenty years from the date he
commences to serve his sentence.
This language does not differentiate between defend-
ants convicted of first degree murder under a “felony
murder” theory and those convicted of first degree
murder upon proof of “deliberate and premeditated”
homicide. The penalty provisions refer simply to “a
person convicted of first degree murder.” Indeed, as
petitioner himself concedes (Br. 35), the legisla-
tive record manifests Congress’ belief that a person
convicted of felony murder would be subject to the
same penalty as one convicted of premeditated mur-
der. See, e.g., 108 Cong. Rec. 4128-4129 (1962) (re-
marks of Sen. Hartke). Since it is beyond serious
dispute that Congress intended to permit imposition
of consecutive sentences when a defendant is con-
victed of premeditated murder and another felony,
such as rape, committed as part of the same transac-
tion, the absence of any distinction between felony
murder and premeditated murder strongly suggests
that Congress must also have intended to authorize
72
cumulative punishments for felony murder and the
underlying felony.”
The legislative history conclusively demonstrates
that the purpose of the mandatory 20-year minimum
sentence was to distinguish between the penalties for
first and second degree murder. See S. Rep. No. 373,
87th Cong., 1st Sess. 2 (1961); H. R. Rep. No. 677,
87th Cong., 1st Sess. 2 (1961) ; 107 Cong. Rec. 12154
(1961) (remarks of Rep. Abernethy). Under the
applicable provisions cf law (which are still in ef-
fect), a defendant convicted of murder in the second
degree could have received a sentence not exceeding
15 years to life imprisonment. See D.C. Code § 22-
2408 and D.C. Code § 24-208(a). To ensure that all
defendants convicted of murder in the first degree
would be treated more severely than those convicted
of second degree murder, “the language of this legis-
lation would distinguish the parole eligibility of one
sentenced to life imprisonment as the result of a
first degree murder conviction. Such an individual
must serve at least twenty years before being eligible
for the consideration of parole, notwithstanding any
other provision of law,” H. R. Rep. No. 677, supra,
at 2 (emphasis added). See S. Rep. No. 378, supra,
81In support of the proposition that Congress believed
persons convicted of felony murder deserving of less punish-
ment than those convicted of premeditated murder, petitioner
cites (Br. 86 n.28) a passage from a letter by former United
States Attorney Acheson in support of the legislation. But the
passage merely points out that a discretionary death penalty
is preferable to a mandatory one because it allows for some
variation in punishment based on the mitigating or aggravat-
ing circumstances of a given case.
78
at 2; 107 Cong. Rec. 12154 (1961) (Rep. Aber-
nethy) ; 108 Cong. Rec. 4181 (1962) (Sen. Hartke).
It would totally undermine Congress’ clear intent
to deal more harshly with first degree murders to
suggest, as does petitioner, (Br. 30 n.15), that while
rape and second degree murder may always be pun-
ished consecutively ** (for a total sentence of 30 years
to life imprisonment), rape and first degree murder
may not be consecutively punished (resulting in a
maximum sentence of only 20 years to life) whenever
the first degree murder conviction is based on a felony
murder theory.” Moreover, by setting a minimum of
“at least” 20 years before a defendant becomes eligi-
ble for parole consideration, Congress clearly contem-
plated the possibility that sentences for first degree
murder, including felony murder, would run consecu-
88 See United States v. Butler, 462 F.2d 1195 (D.C. Cir.
1972), upholding consecutive sentences for second degree
murder, housebreaking and larceny.
** Contrary to petitioner’s assertion (Br. 85 n.21) a convic-
tion for felony murder does not necessarily imply a separate
conviction for the underlying felony. It is only when the
underlying felony is charged in a separate count of the indict-
ment that a jury may convict, and sentence may be imposed,
on both charges. The decision whether to charge the underly-
ing felony under a separate count is a matter within the
discretion of the prosecution. Thus, it is not surprising that,
as petitioner notes (Br. 87), the debate on Senator Morse’s
proposed amendments (that life imprisonment without the
possibility of parole be included as a sentencing option in
addition to, or instead of, death and 20 years to life imprison-
ment) includes no comment concerning the cumulation of
penalties for murder and another felony, since the debate
focused on the appropriate punishment for one convicted only
of the single offense of murder in the first degree.
74
tively to sentences for other crimes, presumably in-
cluding the enumerated felonies underlying felony
murder.
This development of the law of first degree murder
demonstrates that Congress intended rape and first
degree (felony) murder to constitute separate, and
separately punishable, offenses. As petitioner con-
cedes (Br. 30 n.15), Congress intended to punish the
felony separately from the homicide when it was
committed together with a second degree murder, and
there is no evidence that Congress intended a differ-
ent (and more lenient) rule for first degree murder.
3. The Murder and Rape Statutes Protect Different
Societal Interests
. Historical development and legislative history are
not the only means of ascertaining legislative intent
in this area. Another means of determining whether
the legislature intended to punish violations of two
statutory provisions separately is to ask whether the
statutes are designed to implement different social
policies. “If the same acts violate different federal
statutes protecting separate federal interests those
interests can be adequately protected at a single trial
by the imposition of separate sentences for each stat-
ute violated.” Abbate v. United States, supra, 359
U.S. at 200 (separate opinion of Brennan, J.). See
Ashe v. Swenson, supra, 397 U.S. at 460 n.14 (Bren-
nan, J., concurring).
The societal interest analysis has been employed
to ascertain, with respect to a variety of statutes,
75
whether Congress intended to authorize the imposi-
tion of consecutive sentences. See, e.g., United States
v. Butler, 462 F.2d 1195, 1199 (D.C. Cir. 1972)
(second degree murder, housebreaking, and larceny) ;
Irby v. United States, 390 F.2d 482, 483-434 (D.C.
Cir. 1967) (en banc) (housebreaking and robbery) ;
Rouse v. United States, 402 A. 2d 1218 (D.C. App.
1979) (armed robbery and carrying a pistol without
a license). See also Note, supra, 75 Yale L.J. at 320-
321; Kirchheimer, The Act, The Offense and Double
re 58 Yale L.J. 513, 522-528 (1949). In the
present case, the court of a concl
os ppeals uded from this
the societal interests which Congress sought to
protect by enactment of D.C. Code 1973, § 22-
“oe 2401 (felony murder) and § 22-2801 (rape) are
separate and distinct. The rape statute is to -
aah women from sexual assault. The felony
mu
“es der escscrs purports to protect human
(A. 15; footnote omitted)." See also United States
v. Greene, supra, 489 F. 2d at 1169 (Bazelon, C.J.).
* The societal interest test has also been courts
to determine whether two offenses are phar rbd other
as greater and lesser included offenses for jury instruction
purposes. (Fed. R. Crim. P. 81(c)). See United States v
Stolarz, 550 F.2d 488, 491 (9th Cir. 1977): United States
Vv. Whitaker, 447 F.2d 814, 818 (D.C. Cir. 1971); Hall v
United States, 848 A.2d 85, 89 (D.C. App. 1975).
“' The District of Columbia Court of Appeals has uphel
separate convictions for felony murder and the :
felony on this theory in other cases. See McFadden v. United
76
Petitioner asserts (Br. 28), however, that it is
equally plausible to believe that the societal interests
in guarding against rape and murder are both fully
protected by the felony murder provision. But Con-
gress made the felony murder provision of Section
2401 applicable whether or not the underlying felony
was actually consummated (see note 21, swpra). In
addition, as Blackstone long ago observed (see note
29, swpra) and the statute itself implies, the felony
murder provision serves to protect the lives not only
of the victim of the underlying felony but of all per-
sons in close proximity to the commission of the
felony, even including accomplices. These two factors
—that an attempt to commit a felony is sufficient to
trigger the provisions of the first degree murder stat-
ute and that the victims of the murder and of the
underlying felony may differ—strongly indicate that
Congress had in mind the protection of separate in-
terests when it separately enacted the felony murder
and the rape statutes.”
States, 395 A.2d 14, 17-18 (1978) (felony murder/mayhem) ;
Ellis v. United States, 895 A.2d 404, 418 (1978) (felony
murder/armed robbery) ; Waller v. United States, 889 A.2d
801, 808-809 (1978), appeal pending, No. 78-5928 (felony
murder/attempted armed robbery) ; Pynes v. United States,
885 A.2d 772, 778-774 (1978), pet. for cert. pending, No. 78-
5471 (see note 1, supra) (felony murder/armed kidnapping) ;
Harris v. United States, 877 A.2d 84, 88 (1977) (felony
murder/burglary) ; Blango v. United States, 878 A.2d 885,
889 (1977) (same).
42 Contrary to petitioner’s contention (Br. 29), there is
nothing in Wechsler and Michael, supra, that suggests that
felony murder necessarily embraces the same interests as the
717
Furthermore, while there is an inevitable overlap
in the interests served by the felony murder provision
and the various predicate felony statutes, “the recog-
nition that the law of homicide serves other ends
besides the prevention of homicide does not negate
the point that its dominant purpose is the protection
of life.” Wechsler and Michael, supra, 37 Colum. L.
Rev. at 729. It is clear that the rape and felony
murder provisions have, as their “dominant pur-
poses,” the protection of different interests.”
underlying felony. Indeed, Wechsler and Michael acknowl-
edge that “when the actor’s proximate end is itself criminal
or otherwise undesirable, the use of means that involve a
homicidal risk obviously cannot be justified.” 87 Colum. L.
Rev. at 744-745 (footnotes omitted). While noting that the
felony murder rule has been criticized when applied in cases
where the homicidal risk is not one that is or ought to be
known to the actor, the authors point out that the rule does
not “make criminal any behavior that would not otherwise
be criminal. Whether or not the actor knew or ought to have
known that his act was dangerous to life is relevant, however,
to the issue whether or not the treatment employed should be
that which we are prepared to use in the effort to prevent
behavior that is dangerous to life.” Jd. at 745 n.161. The
“treatment” employed by Congress to deter éxcessive violence
in the commission of dangerous felonies was the prospect of
punishment for felony murder in addition to the punishment
imposed for the underlying felony.
* As a plurality of this Court pertinently observed in Coker
Vv. Georgia, 488 U.S. 584, 597-598 (1977) (footnotes omitted) :
[Rjape * * * is highly reprehensible, both in a moral
sense and in its almost total contempt for the personal
integrity and autonomy of the female victim and for the
latter’s privilege of choosing those with whom intimate
relationships are to be established. Short of homicide, it
is the “ultimate violation of self.” It is also a violent
/
78
Petitioner nevertheless argues (Br. 31) that the
felony murder provision is merely “a form of aggra-
vated punishment for the felony itself, when aggra-
vating consequences occur.” This is wrong. Under
the felony marder rule the defendant is not punished
for the underlying felony itself, but for the homicide
that accompanies the felony. This is evident from
the fact that the punishment for first degree (felony)
murder is exactly the same regardless of the nature
of the predicate felony. Compare petitioner’s brutal
crime because it normally involves force, or the threat
of force or intimidation, to overcome the will and the
capacity of the victim to resist. Rape is very often ac-
companied by physical injury to the female and can also
inflict mental and psychological damage. Because it un-
dermines the community’s sense of security, there is
public injury as well.
Rape is without doubt deserving of serious punish-
ment; but in terms of moral depravity and of the injury
to the person and to the public, it does not compare with
murder, which does involve the unjustified taking of
human life. Although it may be accompanied by another
crime, rape by definition does not include the death of or
even the serious injury to another person. The murderer
kills; the rapist, if no more than that, does not. Life is
over for the victim of the murderer; for the rape victim,
life may not be nearly so happy as it was, but it is not
over and normally is not beyond repair. We have the
abiding conviction that the death penalty, which “is
unique in its severity and irrevocability,” Gregg v. Geor-
gia, 428 U.S., at 187, is an excessive penalty for the
rapist who, as such, does not take human life.
See also 488 U.S. at 608 (opinion of Powell, J.) ; id. at 611-
612 (Burger, C.J., dissenting).
79
rape and ensuing purposeful killing of his victim “
with a defendant who steals a $200 watch from a
store and then kills a store guard who attempts to
prevent his escape: according to petitioner, each
would be subject to exactly the same punishment,
even though Congress has deemed rape a sufficiently
serious offense to make it punishable b’ a maximum
of 15 years to life imprisonment, wiile grand lar-
ceny is punishable by no more than 3 and 1/8 to 10
years’ imprisonment (D.C. Code Ann. § 22-2201;
§ 24-203(a)). This equality of treatment under the
murder statute, wholly without regard to the degree
of social harm occasioned by the underlying felony
(at least in the case of purposeful killings), refutes
any suggestion’ that the penalty prescribed for felony
murder is deemed also to redress the social harm
occasioned by the felony.
4. D.C. Code Ann. § 23-112 Authorizes Consecutive
Sentences For Petitioner’s Case
The District of Columbia Court Reform and Crim-
inal Procedure Act of 1970, Pub. L. No. 91-358, 84
Stat. 478, contains a provision specifically authoriz-
ing the District of Columbia courts to impose a sen-
tence such as petitioner received in this case. Section
210 of that Act, 84 Stat. 604, 610, added present
Section 23-112 to the District of Columbia Code. It
provides as follows:
** While the jury did not have to find a purposeful killing
in order to convict petitioner of felony murder, it necessarily
made that finding in convicting him of second degree murder.
A sentence imposed on a person for conviction of
an offense shall, unless the court imposing such
sentence expressly provides otherwise, run con-
secutively to any other sentence imposed on such
person for conviction of an offense, whether or
not the offense (1) arises out of another trans-
action, or (2) arises out of the same transaction
and requires proof of a fact which the other does
not.
The statute thus expresses a legislative policy, appli-
cable by its literal terms to the facts of this case, in
favor of consecutive sentencing for two offenses, re-
gardless of their relationship to one another, unless
the sentencing court expressly elects concurrency.
A consideration of the origin and purposes of this
statute confirms the conclusion from its language that
petitioner’s statutory construction contentions are un-
tenable, Section 23-112 was enacted to clarify the
authority of the sentencing court by overruling two
related lines of judicial decisions of which Congress
disapproved. First, the provision was intended to
overturn Borum v. United States, 409 F. 2d 488
(D.C. Cir. 1967), cert. denied, 395 U.S. 916 (1969),
which had held that sentences imposed at different
times for unrelated offenses were presumed to run
concurrently with one another in the absence of an
express specification at the time of the imposition of
the second sentence that it was to be consecutive to
the earlier one. See H.R. Rep. No. 91-907, 91st Cong.,
2d Sess. 113 (1970). To this end, the statute pro-
vides that sentences shall be consecutive unless the
court provides that they be served concurrently.
81
The second issue that the statute addresses, and
the one that more directly concerns us here, is sen-
tencing for offenses arising out of the same transac-
tion. To place this matter in perspective, it is neces-
sary to consider what the governing law was in the
District of Columbia prior to 1970, for the Committee
specifically disapproved that law and changed it
print Section 23-112. See H.R. Rep. 91-907, supra,
at 114,
In Ingram v. United States, 853 F.2d 872 (D.C.
Cir, 1965), the defendant was convicted of both as-
sault with intent to kill and assault with a dangerous
weapon, based on one assault with a knife. The two
offenses were defined in different provisions of the
D.C. Code, and each required proof of a fact that
the other did not. See 863 F.2d at 856 (Burger, J.,
dissenting).“° The trial judge sentenced the defend-
ant to consecutive terms on each count, but the court
of appeals reversed. Although the court recognized
that the two offenses were distinct under Blockburger,
it found it necessary to look beyond such “stereotyped
formulae.” 853 F.2d at 874. In doing so, the court
found no clear indicia of intent to punish consecu-
tively when both offenses arose out of the same as-
sault, and it applied a rule of lenity to conclude that
doubts on the matter should be resolved in favor of
the defendant. It therefore held that consecutive
sentences were illegal. Then-Circuit Judge Burger,
** Assault with intent to kill required proof of that intent;
assault with a dangerous weapon required proof of use of a
dangerous weapon.
82
dissenting, would have affirmed the consecutive sen-
tences on the ground that, by requiring different
elements of proof for each offense, Congress had suf-
ficiently indicated its intent that the offenses could
be consecutively punished, and that further inquiry
into its intent was unnecessary.
In Davenport v. United States, 353 F.2d 882 (D.C.
Cir. 1965), decided by a different panel shortly after-
wards, the court followed the analysis set forth in
Ingram and concluded that consecutive sentences
were illegal for assault with a dangerous weapon and
manslaughter, because Congress had not clearly in-
tended such. Finally, in Smith v. United States, 418
F.2d 1120 (D.C. Cir. 1969), the court followed In-
gram and again invalidated consecutive sentences for
assault with intent to kill and assault with a dan-
- gerous weapon. The court stated that, while consecu-
tive sentences could be imposed where the “actions
and intent of defendant constitute distinct successive
criminal episodes,” that was not the case there, where
the defendant committed only a single assault. Id.
at 1121.
In devising Section 23-112, the House Com-
mittee specifically disapproved Ingram, Davenport
and Smith. It declared the general rule (which the
cited cases acknowledged) that “whether or not con-
secutive sentences may be imposed depends on the
intent of Congress.” H.R. Rep. No. 91-907, supra,
at 114. “Since Congress in enacting legislation rarely
specifies its intent on this matter,” the Committee
continued, “courts have long adhered to the rule that
Congress did intend to permit consecutive sentences
when each offense ‘requires proof of a fact which
the other does not.’” Jbid., citing Blockburger v.
United States, supra, and Gore v. United States,
supra. The District of Columbia courts, the Com-
mittee said, “have retreated from this settled prin-
ciple of law” in finding congressional intent not clear
“despite the offenses being defined in separate pro-
visions [of the D.C. Code].” Ibid. The Committee
concluded : |
To obviate the need for the courts to search for
legislative intent, section 23-112 clearly states
the rule for sentencing on offenses arising from
the same transaction. For example, a person
convicted of entering a house with intent to steal
and stealing therefrom shall be sentenced con-
secutively on the crimes of burglary and larceny
unless the judge provides to the contrary.
The very least that is clear from Section 23-112,
considering the House Committee’s report, is that
Congress was rejecting the rule of Ingram, Daven-
port and Smith that some evidence of congressional
intent beyond the fact that Congress had delineated
separate elements was required before a judge could
impose consecutive sentences for crimes arising out
of the same transaction. Henceforth, Congress said
in enacting Section 23-112, if a defendant is con-
victed of two crimes arising out of the same trans-
action, a consecutive sentence is not illegal if each
crime requires proof of an element that the other
does not. In fact, said Congress, not only may the
judge punish consecutively in such circumstances, the
84
sentences shall be consecutive “unless the court im-
posing * * * sentence expressly provides otherwise
***” D.C. Code Ann. § 23-112.
The crucial inquiry in the present case is whether
Congress meant that only in such circumstances (1.¢.,
where each offense requires proof of a fact that the
other does not) may the judge sentence consecutively.
Plainly it did not. Section 23-112 states that, unless
the judge provides otherwise, sentences on two of-
fenses shall run consecutively “whether or not” one
requires a proof of a fact that the other does not.
Had Congress intended to prohibit the judge from im-
posing consecutive sentences where the Blockburger
test is not satisfied, it would have said “if (or “only
if”) each offense” instead of “whether or not the
offense.” Plainly, “if” and “whether or not” are not
synonymous; they are in fact antonymous.“
In short, Congress has specifically provided in Sec-
tion 23-112 for consecutive sentencing in cases such
as petitioner’s. In so arguing, we do not mean to
suggest the implausible conclusion that Congress was
authorizing consecutive sentences for a greater and
a necessarily included lesser offense (such as armed
robbery and robbery). That question, after all, would
not often arise, since offenses standing in such a
46 istrict of Columbia Court of Appeals has relied on
andes in upholding consecutive sentences for a
arising out of the same transaction where each requires a
of a fact that the other does not. E.g., Hammond v. Unite
States, 345 A.2d 140 (1975) (assault with a dangerous weapon
and carrying a dangerous weapon) ; Fowler Vv. United States,
874 A.2d 856, 859-860 (1977) (larceny and false pretenses).
85
relationship to one another are not ordinarily charged
in separate counts and thus produce only a single
conviction. Moreover, since Congress would be so
unlikely to have intended such a result, it would be
proper to refuse to give the statute its literal mean-
ing if such a case ever arose. But the question is
entirely different in cases involving a predicate of-
fense rather than a necessarily included one, since the
result provided by the statutory language is well
within the range of rational legislative policy choices
(here, indeed, as shown above, the result is supported
by history and reason) .*
It may well be that, in enacting this statute, Con-
gress was primarily concerned with offenses that were
not greater and lesser included in any sense, but its
words clearly addressed the instant circumstances.
This Court is not at liberty to narrow the statute to
apply only to the specific aspects of the problem that
Congress had uppermost in mind, and then to provide
precisely the opposite outcome for related aspects of
the problem that may have been of lesser concern
to Congress. Congress wrote the statute in a way
that covers both situations. If there were some in-
dication in the legislative history that Congress did
not intend consecutive sentences where proof of one
offense is a predicate to conviction on another, per-
*" Nor do we suggest that the general provisions of Sec-
tion 23-112 would override specific evidence of legislative in-
tent, in connection with particular pairs of offenses, not to
allow cumulative punishment, as in Simpson and Jeffers.
There is, however, no such evidence here.
haps an argument could be made in petitioner’s favor.
But that is not the case. Congress was unmistakably
removing restrictions that the District of Columbia
Circuit had imposed on the trial court’s discretion to
provide for consecutive sentences, and in doing so
Congress refrained from imposing substantive re-
strictions on the trial court. In sum, not only does
Section 23-112 not prohibit the sentences imposed on
petitioner, it affirmatively allows such a sentence
“whether or not” the elements are the same.
CONCLUSION
The judgment of the District of Columbia Court
of Appeals should be affirmed. If, however, the judg-
ment is reversed, the case should be remanded to the
court of appeals for the purpose of reinstating peti-
tioner’s sentence for second degree murder.“
‘* The trial court sentenced petitioner to a term of from
15 years to life imprisonment for second degree murder. This
sentence was to run concurrently with the sentence for first
degree (felony) murder and, like that sentence, consecutively
to the rape sentence. The sole reason for vacating this sentence
on appeal was that second degree murder is a lesser included
offense of first degree murder; since the court upheld the
sentence on the latter charge, it followed that the sentence on
the former should be vacated (A. 14). Petitioner acknowl-
edges that there is no bar to consecutive sentences for rape
and second degree murder (Br. 80 n. 15); should this Court
now conclude that the sentences upheld by the court of ap-
peals are invalid because the consecutive sentences for rape
and felony murder may not coexist, the intentions of the
sentencing court and the interests of justice call for rein-
statement of the valid consecutive sentence for second degree
murder (which would result in a total sentence of 80 years
87
Respectfully submitted.
WADE H. McCremz, JR.
Solicitor General
PHILIP B. HEYMANN
Assistant Attorney General
ANDREW L, FREY
Deputy Solicitor General
ALLAN A, RYAN, JR.
Assistant to the Solicitor General
JEROME M. FEIT
ELLIOTT SCHULDER
Attorneys
SEPTEMBER 1979
to life imprisonment, rather than the minimum of 85 years
that petitioner now faces or the minimum of 20 years that
would ensue from a simple reversal of the rape sentence).
Thus, if this Court does accept petitioner’s contentions, it
should exercise its power under 28 U.S.C. 2106 and remand the
case for correction of the sentence as described.
&. 6. GOVERNMENT PRINTING OFrice, 1970 so1sen = 64
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