Respondents Brief — Busic v. United States

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‘Gupreme Cour, U.S |

FILED |

JAN EZ 1980

Nos. 78-6020 and 78-6029 | 4

Ue cL POR, CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

MICHAEL M. BUSIC, PETITIONER

Vv.

UNITED STATES OF AMERICA

ANTHONY LAROCCA, JR., PETITIONER

UNITED STATES OF AMERICA

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

WADE H. McCreg, Jr.

Solicitor General

PHILIP B, HEYMANN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

MARK I. LEvy

Assistant to the Solicitor General

CAROLYN L. GAINES

Attorney

Department of Justice

Washington, D.C. 20530

—s

aE asc RI We cn ee

III ei tasentasgne ab cclaeechg, Cbs tnincca nanos,

EES OIA RARE eae

Constitutional and statutory provisions in-

tec IRON SCE ea tCnaP MOOI a RRS ee

Summary of argument ..00...0............cccccccecceeeeee

Argument:

I. A defendant who uses a firearm to com-

mit an assault upon a federal officer

may be sentenced, at the government’s

election, under either the aggravated

ussault provision of 18 U.S.C. 111 or

the felony-firearm provision of 18

Tate MDD a cethanteseccesepntcncntecerenpaenns

A. Section 924(c) by its terms applies

to felonies that provide an enhanced

penalty for the use of a dangerous

ENS aaa OTE TN IB EE

B. The sentencing provisions of Sec-

tion 924(c) demonstrate Congress’

intent that punishment be imposed

in accordance with the terms of that

statute notwithstanding that the

predicate felony contains an en-

hanced penalty for the use of a dan-

SD: PHI netics rcnenieicetsttetioticcicinamsinn

Argument—Continued

Il.

III.

C. The legislative history of Section

924(c) confirms that the sentencing

provisions of that statute are appli-

cable even though the underlying

felony provides an enhanced penalty

for the use of a dangerous weapon...

D. The decision in Simpson v. United

States is not dispositive of the issue

presented in this case ........00..002.0.....

A defendant may be consecutively sen-

tenced for aiding and abetting an as-

sault with a firearm upon a federal offi-

cer, in violation of 18 U.S.C. 2 and 111,

and for carrying a second firearm dur-

ing the commission of that assault, in

violation of 18 U.S.C. 924(¢) (2) ........

In the event the Court vacates petition-

ers Section 924(c) sentence, the appro-

priate disposition of the case would be

to remand to the district court for re-

sentencing on the Section 111 counts....

anaemia Sry ys

Cases:

American Fur Co. v. United States, 27

CITATIONS

US. (2 Pe) 98

Andrus v. Allard, No. 78-740 (Nov. 27,

Lt ) ne he

Barnes v. United States, 412 U.S. 887....

Barrett v. United States, 423 U.S. 212... 42, 48

Bell v. United States, 349 U.S. 81 ............

Page

Cases—Continued Page

Benton v. Maryland, 395 U.S. 784 .......... 51

Berra v. United States, 351 U.S. 181...... 45

Blackledge v. Perry, 417 U.S. 21.00.0000... 63

Blockburger v. United States, 284 U.S.

TRENT SRE a Ale ee 15, 53, 54

Board of Education of the City of New

York v. Harris, No. 78-873 (Nov. 28,

RARDIN Oc a 10

Bordenkircher v. Hayes, 484 U.S. 357...... 63

Borum v. United States, 409 F.2d 433,

cert. denied, 395 U.S. 916 00000... 66

Bozza v. United States, 330 U.S. 160........ 16, 64

Bradley, In re, 318 U.S. 50 ...................... 68

Brown v. Ohio, 432 U.S. 161 ........ 15, 54, 56, 69

Chaffin v. Stynchcombe, 412 U.S. 17........ 63

Chandler v. United States, 468 F.2d 834.. 66

Ebeling v. Morgan, 237 U.S. 625 ............ 53, 56

Ernst & Ernst v. Hochfelder, 425 U.S.

RES ERONaec n O 18

Gore v. United States, 357 U.S. 386........ 42, 52

Government of the Virgin Islands v.

BEOUTY, BOO FBe B76 anc ccenccicecees 66

Greyhound Corp. v. Mt. Hood Stages, Inc.,

I 18

Grimes v. United States, 607 F.2d 6........ 40

Harris v. United States, 359 U.S. 19 ........ 54

Haynes v. United States, 390 U.S. 85........ 70

Huddleston v. United States, 415 U.S.

ESAT Se a 41

Iannelli v. United States, 420 U.S. 770.... 54

Kennedy v. United States, 330 F.2d 26.... 66

Kowalski v. Parratt, 583 F.2d 1071, cert.

denied, 429 U.S. 844 ow. 56

Iv Vv

Cases—Continued Page _ ’ pan Batchelder, No. 78-776 ue

it ° ’ . $i

Ladner v. United States, 358 U.S. 169...... 52 (June 4 ate race es itiees 14 a 42, 48, 45, 46

Lange, Ex parte, 85 U.S. (18 Wall.) 163.. United States v. Benedetto, 558 F.2d 171.. 66

Murphy v. Massachusetts, 177 U.S. 155... United States v. Benz, 282 U.S. 304 ........ 68

North Carolina v. Pearce, 395 U.S. 711.... 16, 17, United States v. Best, 571 F.2d 484 66

61, 63, 66, 68 rie " Prop, Ws 346,

ainda United States v. Bishop, 412 U.S. 346...... 45

Owensby Dies — ps rg 58... Ps United States v. Brewer, 528 F.2d 492... 45

P. ennsylvania ited § / 506 i od 688. 55 United States v. Brown, 602 F.2d 909..20, 39, 47

Perkins v. U 6 : " “* 78-969 (Now. United States v. Bynoe, 562 F.2d 126...... 66

sng a tates, No. 78-959 (Nov. i United States v. Carter, 526 F.2d 1276... 45

Fr PO FF SRSA SSSR RE Re eee eeRSeeamaEeaaeeReEerenazanes / °

Pollard v. United States, 352 U.S. 354... 64 ae Flan 499 rena heck clitacs 55

Preiser v. yin oO ros ay yg em 44 United States v. Corson, 449 F.2d 544...... 66

Reiter ri goog orp, NO. (6- - United States v. Culbert, 435 U.S. 371... 14, 42

(June , in Pare — P 37 US 54 59 United States v. Dorsey, 591 F.2d 922.... 40, 55

Sanabria v. Uni ian atcha a United States v. Durbin, 542 F.2d 486... 66

Sansone v. United States, oadapegy re United States v. Eagle, 589 F.2d 1166,

Santa Fe Industries, Inc. v. Green, 4380 cert. denied, 429 U.S. 1110 40

US. 462 .............. cesteeeeteettteeettcnsccnsnnneneeee 18 United States v. Edick, 608 F.2d 772........ 66

—— v. United States, 431 U.S. as United States v. Eisenmann, 396 U.S.

si ea ?,

a | RM ar wich ROR A Sid obs 45

Simpson v. United States, 435 U.S. 6.......passim | United States v. Fisher, 6 U.S. (2 Cranch)

Southeastern Community College v. Davis, 358 ae ee RPA tN A IY 42

No. coghea Stag diggs Me weseennnneece Ps United States v. Frady, 607 F.2d 3838..... 66

Swain v. Pressley, 430 U.S. 372 ............. United States v. Fredenburgh, 602 F.2d

Touche Ross & Co. v. Redington, No. 78- 1143 66. 67

S00: (fame 36, 1978)... 17-18 United States v. Garcia, 555 F.2d 708... "BB

United States v. agrees 362 pins oe 66 United States v. Gilliland, 312 U.S. 86... 48, 45

aes eye 1200, NO. (5- 60 United States v. Gordon, 548 F.2d 748.... 45

‘ 9 AIUD) -00--eeeeenenennnnnnnnnnennnnnnnnnnnenes United States v. Hamel, 551 F.2d 107...... 45

rhs en ie a age F.2d 770, cert. a United States v. Howard, 504 F.2d 1281. _—+55

iolaad Sard (mou 49 United States v. Jones, 607 F.2d 269... 45

United States v. Librach, 520 F.2d 550,

cert. denied, 429 U.S. 939 ...................... 45

Cases—Continued Page

United States v. Melvin, 544 F.2d 767,

cert. denied, 430 U.S. 910 0000002. 45

United States v. Naftalin, No. 78-561

tg RE Pe ee 42

United States v. Nelson, 574 F.2d 277,

cert. denied, 439 U.S. 956 .................... 40

United States v. Radetsky, 535 F.2d 556,

cert. denied, 429 U.S. 820 .........00000... 45

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

cert. denied, 414 U.S. 1070 —.....0. 55

United States v. Risi, 603 F.2d 1193........ 55

United States v. Roach, 590 F.2d 181...... 39

United States v. Sacco, 367 F.2d 368........ 66

United States v. Scott, 437 U.S. 82 ...... 17, 62, 65

United States v. Shillingford, 586 F.2d

OUUE senninsintncdicaapeinadeadabadacee nen 39

United States v. Smith, 523 F.2d 771,

cert. denied, 429 U.S. 817 ..00.000000000200.... 45

United States v. Stewart, 579 F.2d 356,

cert. denied, 439 U.S. 936 0.000000. 39-40

United States v. Stewart, 585 F.2d 799,

cert. denied, No. 78-6007 (Apr. 30,

STO E wittientiidatiataictnaegaiabbiiiln ita iene 39, 63

United States v. Sudduth, 457 F.2d 1198.. 55

United States v. Tateo, 377 U.S. 463....16, 64-65

United States v. Turner, 518 F.2d 14...... 66

United States v. Universal C.1.T. Credit

Corp., 344 U.S. 218 ................. Sn Pare 52

United States v. Vaughan, 598 F.2d 336.. 40

United States v. Welty, 426 F.2d 615........ 66

United States v. Wilson, 420 U.S. 382... 65, 67

United States v. Wiltberger, 18 U.S. (5

Whey % eee 18

Cases—Continued Page

Wayne County Prosecutor v. Recorder’s

Court Judge, 280 N.W. 2d 793, appeal

dismissed sub nom. Brintley v. Michi-

gan, No. 79-5506 (Nov. 13, 1979)........ 56

West v. United States, No. 78-5252 (6th

a ee eee 56

Whaley v. North Carolina, 379 F.2d 221.. 66

Constitution and statutes:

United States Constitution:

Fifth Amendment (Double Jeopardy

oe acy RE FETE Se passim

(Due Process Clause) —...0.000.00.0........ 63, 69

Gun Control Act of 1968:

Pub. L. No. 90-618, 82 Stat. 1213..24, 26, 43

Omnibus Crime Control and Safe Streets

Act of 1968, Pub. L. No. 90-351, 82

BR ANSE ST ETL eel 25

Omnibus Crime Control Act of 1970, Title

II, Pub. L. No. 91-644, 84 Stat. 1889... 34

adh ° Mi” 2 «ees aaa Creo oe 18

dk 2,5, 14, 15, 48, 52, 54

le ERIE |. EASES passim

wh. 3 Si a i ee 22

th nc RO TA 26

wt eee 4

dt | ecco seine 4

ol TART passim

IS USC. 9B4(e) (1) passim

18 U.S.C; 924(¢) (2) passim

18 U.S.C. 1202(a) (1)

‘

VIIt IX

Constitution and statutes—Continued Page Miscellaneous—Continued Page

lec a passim ee SR ERIN EES ae dee 34

ee Se ok | | re 9, 20, 39, 40, 43 I Ui insallcadnlaiiicala icisistinnaipdecssBisloubitisiis 34

alle ce TL aT OE 22 : IIE a siiccshesie ocdseinaninalagabincans 35

Ruse sew 4 hah Ae a 35

clio a LED 4 IT ice ccctcatidseesicetuioncsndaimanacie uciaias 35

a NI WI eihsisininiccciscoveeceniniehicsbedia am 4 RAR nce eee 34, 35

een | | cece 4 eI hcisiatnsdesiassinibiininicsnietiicovsecanstebedecaidien 35

iE E:T ( | Senne 4 | ESA De iene 34

ne ae te ae ee ee 3 16.57 61 i Anti-Crime Program: Hearings on H.R.

ee ee Si diet iti i 5037, H.R. 5088, H.R. 5884, H.R. 5885

2B U.S.C. 2255 a nnneenneeeennneeeeeeetnneeeeeee 60 and H.R. 5886 Before Subcomm. No. 5

42 U.S.C. 1983 ne eaeeesnnnesseeeeenneceeeeee 44 of the House Comm. on the Judiciary,

ecaiimmianeais | 90th Cong., Ist Sess. 213 (1968) ........ 25

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

114 Cong. Rec. (1968) : eg ee: RT 34

mm 217i tC 56 H.R. Rep. No. 1577, 90th Cong., 2d Sess.

“{ . _ ee 56 | (1968) —nneesovnnne esnennncnnnneewi soeneanneeoe 25

“ns 27 Report by the President’s Commission on

p. 22231... 24, 26, 28. 32. 56 | Law Enforcement and Administration

pp. 22232-22935 a: an 98 of Justice, The Challenge of Crime In

Sf ae 12, 24, 28, 29, 30 A Free Society (Feb. 1967) ................. 25

p. LER eee 28. 29. 32 : 2A C. Sands, Statutes and Statutory Con-

= ESE Aaa danni eae a fh yin 33 struction (3 ed. i: Se 44

"=F ek Se ECLA CRIED 56 S. Rep. No. 1097, 90th Cong., 2d Sess.

“ 33 (1968) on -——annsnneeeonensnenerneeeeneetneetneesnes 25

EE i OL ey 82, 33 S. Rep. No. 1501, 90th Cong., 2d Sess.

II so iiiceie siesrateccneciniinacanictd arate dass 56 i) 25

pp. 22247-22248 33 Stern, When to Cross-Appeal or Cross-

I ir On toi Ba 31. 33 | Petition—Certainty or Confusion?, 87

“ — Sra 33.9 4 Harv. L. Rev. 763 (1974) 2000020... 71

“= OTE 34 !

pp. 27142-27144 37

SE eee 34

ee ee

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 78-6020

MICHAEL M. BUSIC, PETITIONER

Vv.

UNITED STATES OF AMFRICA

No. 78-6029

ANTHONY LAROCCA, JR., PETITIONER

UNITED STATES OF AMERICA

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinions of the court of appeals (App. 36-54,

57-60) are reported at 587 F.2d 577. The opinion of

the district court (App. 21-34) is not reported.

(1)

eg eee ee

JURISDICTION

The judgment of the court of appeals (App. 55-56)

was entered on January 5, 1978; thereafter, the gov-

ernment’s petition for rehearing was granted, and the

judgment on rehearing (App. 61) was entered on

December 12, 1978. The petition for a writ of cer-

tiorari in No. 78-6020 was filed on January 10, 1979,

and the petition for a writ of certiorari in No. 78-

6029 was filed on January 11, 1979. The petitions

were granted and the cases consolidated on June 4,

1979 (App. 62, 63). The jurisdiction of this Court

rests on 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether sentence may be imposed under 18

U.S.C. 924(c) where the statute creating the predi-

cate felony permits an enhanced penalty for use of

a dangerous weapon, but the enhancement provision

is not invoked and thus the defendant’s punishment

is not doubly enhanced because of his use of a fire-

arm (No. 78-6029).

2. Whether, in the circumstances of this case, con-

secutive sentences may be imposed for aiding and

abetting a co-conspirator’s assault with a deadly

weapon (a firearm) upon a federal officer, in viola-

tion of 18 U.S.C. 2 and 111, and for unlawfully carry-

ing a second firearm during the commission of that

assault, in violation of 18 U.S.C. 924(c) (2) (No. 78-

6020).

3. Whether, in the event the Court vacates peti-

tioners’ Section 924(c) sentences, the disposition of

the case that would be “just under the circumstances”’

(28 U.S.C. 2106) would be to remand to the district

court for re-sentencing on the Section 111 counts,

subject to the restriction that the re-sentence not

exceed the sentence petitioners originally received for

the armed assault offenses under Sections 924(c) and

111.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fifth Amendment to the United States

Constitution provides in pertinent part:

* * * [N]or shall any person be subject for the

same offense to be twice put in jeopardy of life

or limb * * *

2. 18 U.S.C. 924(c) provides:

Whoever—

(1) uses a firearm to commit any felony for

which he may be prosecuted in a court of the

United States, or

(2) carries a firearm unlawfully during the

commission of any felony for which he may

be prosecuted in a court of the United

States[, ]

shall, in addition to the punishment provided for

the commission of such felony, be sentenced to

a term of imprisonment for not less than one

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

second or subsequent conviction under this sub-

section, such person shall be sentenced to a term

of imprisonment for not less than two nor more

than twenty-five years and, notwithstanding any

other provision of law, the court shall not

suspend the sentence in the case of a second or

subsequent conviction of such person or give him

a probationary sentence, nor shall the term of

imprisonment imposed under this subsection run

concurrently with any term of imprisonment im-

posed for the commission of such felony.

3. 18 U.S.C. 111 provides:

Whoever forcibly assaults, resists, opposes, im-

pedes, intimidates, or interferes with any person

designated in section 1114 of this title while en-

gaged in or on account of the performance of his

official duties, shall be fined not more than $5,000

or imprisoned not more than three years, or both.

Whoever, in the commission of any such acts

uses a deadly or dangerous weapon, shall be fined

not more than $10,000 or imprisoned not more

than ten years, or both.

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the Western District of Pennsylvania,

petitioners were convicted on five counts of narcotics

offenses, in violation of 21 U.S.C. 841(a) (1), 848(b),

and 846 (Counts 1-5), and on six counts of unlawful

possession of firearms, in violation of 26 U.S.C. 5861

(a) (Counts 8-13).’ Petitioners were also convicted

1 Petitioner Busic was not charged in Count 12. Busic was

also convicted on three additional counts of unlawful posses-

sicn of firearms, in violation of 18 U.S.C. 1202(a) (1) (Counts

14-16). Both Busic and LaRocca had previously been con-

victed of firearm and assault felonies (App. 11-14).

on two counts of armed assault on federal officers, in

violation of 18 U.S.C. 2 and 111 (Counts 6 and 7).

In addition, petitioner Busie was convicted of unlaw-

fully carrying a firearm in the commission of a fed-

eral felony, in violation of 18 U.S.C. 924(c) (2)

(Count 18), and petitioner LaRocca was convicted

of using a firearm in the commission of a federal

felony, in violation of 18 U.S.C. 924(c)(1) (Count

19).

Petitioners were each sentenced to a total of 30

years’ imprisonment, apportioned as follows: concur-

rent terms of five years’ imprisonment on Counts 1

through 4, with special parole terms on each count

ranging from two to three years, and of four years’

imprisonment on Count 5; five years’ imprisonment on

Counts 6 through 18, to be served concurrently with

each other but consecutively to the sentences on

Counts 1 through 5; petitioner Busic was also sen-

tenced to terms of two years’ imprisonment on Counts

14 through 16, to be served concurrently with each

other and with the sentences imposed on Counts 6

through 18, and to 20 years’ imprisonment on Count

18, to be served consecutively to all other terms; pe-

titioner LaRocca was sentenced to 20 years’ imprison-

ment on Count 19, to be served consecutively to all

other terms.

The evidence at trial showed that Charles D. Har-

vey, an undercover agent of the Drug Enforcement

Administration, first met petitioners on May 7, 1976,

at the home of Richard Hervaux, a government in-

formant. At that time petitioners agreed with Har-

vey that he would accompany them to Florida to pur-

chase drugs from one of their suppliers for re-dis-

tribution in the Pittsburgh area. Several days later,

Harvey again met with petitioners and received sam-

ples of the marijuana and cocaine that he was to

purchase from their Florida source. The next day,

after Harvey had arranged for his trip to Florida,

LaRocca called him and insisted on seeing some

“front money.” A meeting was set for the following

day in the parking lot of a shopping center in Mon-

roeville, Pennsylvania (App. 38).

After he arranged for surveillance, Harvey went

to the shopping center with $30,000 in cash, as agreed.

Petitioners were already there in LaRocca’s car. La-

Rocca entered Harvey’s car, and the two drove to the

other side of the parking lot. As Harvey withdrew

the money from the trunk, LaRocca reached for his

gun. Harvey ran, but LaRocca caught him and

pointed his gun at Harvey’s chest. At that point

Harvey gave a pre-arranged signal to the surveil-

lance agents; as the agents began to converge on the

scene, LaRocca fired at Harvey and missed. LaRocca

then fired two shots at the vehicle containing agents

Alfree and Petraitis of the Bureau of Alcohol, To-

bacco, and Firearms, and two shots at the vehicle

containing agent Macready of the DEA. LaRocca was

immediately arrested and disarmed (App. 38-39).

The officers also arrested Busic, who had been

leaning on a nearby car during the shootout. Upon

his arrest, Busic exclaimed, ‘““Remember, I didn’t shoot

at anybody and I didn’t pull my gun” (Tr. 41).

Busic was thereupon searched, and a pistol was

found in his belt. A search of LaRocca’s car un-

covered an attache case containing another pistol and

a plastic box containing ammunition. An inventory

search of the car conducted the following day dis-

closed yet another pistol under the driver’s seat and

another box of ammunition in the glove compartment

(App. 39).

In an opinion issued prior to the decision of this

Court in Simpson v. United States, 435 U.S. 6 (1978),

the court of appeals held that 18 U.S.C. 924(c) (1) is

applicable to a defendant who is also charged with

aggravated assault of a federal officer under 18

U.S.C. 111 (App. 41-43). It further held, however,

that when the deadly weapon used in the Section 111

assault is a firearm and the felony charged under

Section 924(c) (1) is the assault that forms the basis

of the charge under Section 111, sentencing the de-

fendant on both counts would violate the Double

Jeopardy Clause (id. at 43-47). Accordingly, the

court of appeals remanded petitioner LaRocca’s case

to the district court for resentencing under either

Section 111 or Section 924(c)(1), at the govern-

ment’s election, but not both (App. 47). In contrast,

the court affirmed petitioner Busic’s convictions be-

came it concluded that a prosecution for unlawfully

carrying a weapon during the commission of a felony

under 18 U.S.C. 924(c) (2) requires proof of an ele-

ment—the unlawful possession of a firearm-—that is

not an element of the offense under Section 111 (App.

47-48).

;

Re ne re rt rn re re

Following this Court’s decision in Simpson, the

court of appeals granted a petition for rehearing,

vacated the portion of its first opinion dealing with

the Double Jeopardy Clause, and reached the same

disposition of the case by applying the rationale of

this Court’s opinion in Simpson (App. 57-60). The

court of appeals concluded (id. at 59-60) that Simp-

son prohibits sentencing a defendant under both

Section 111 and Section 924(c) (1), but that the gov-

ernment has the option of proceeding under either

section; accordingly, it remanded LaRocca’s case for

resentencing, in the discretion of the government,

under either Section 111 or Section 924(c)(1).* The

court found the rationale of Simpson inapplicable to

Busic’s conviction under Section 924(c)(2) for un-

lawfully carrying a firearm during the commission

of a felony, and it affirmed that conviction (id. at

60).

2 The court of appeals, both in its original opinion (App.

47 n.5) and again on rehearing (App. 60 n.3), rejected the

government’s alternative argument that LaRocca’s conviction

under Section 924(c) could be upheld on the ground that

petitioners’ firearms were carried and used not only in the

commission of the assault offense, but also in the commission

of the narcotics conspiracy of which the jury had convicted

them. The court concluded that “[i]t is a fair inference from

the record that the conspiracy to distribute drugs terminated

as of the time that [petitioners] decided to rob Harvey” and

that “the jury was entitled to convict [petitioners] on these

[conspiracy] counts even if it found that the conspiracy was

shorter in duration than was charged in the indictment”

(App. 47 n.5). We do not press that argument in this Court,

and thus it can be assumed that the predicate felony for

petitioners’ convictions under Section 924(c) was the assault

on federal officers.

SUMMARY OF ARGUMENT

In Simpson v. United States, 485 U.S. 6 (1978),

this Court held that in a prosecution for a bank

robbery committed with firearms “where the Gov-

ernment relied on the same proofs to support the

convictions under [18 U.S.C. 924(¢c) and 18 U.S.C.

2113(d)]” (485 U.S. at 12), Congress did not in-

tend “to authorize, * * * not only the imposition of

the increased penalty under § 2113(d), but also the

imposition of an additional consecutive penalty under

§ 924(c)” (4385 U.S. at 8). The Court found that

the legislative history of Section 924(c), although

“sparse” (435 U.S. at 15), “points in the direction

of a congressional view” (ibid.) that cumulative

penalties under Section 924(c) were not to be im-

posed when the defendant had already received an

enhanced sentence under Section 2113(d) for the same

conduct. The Court also concluded that “to construe

the statute to allow the additional sentence authorized

by § 924(c) to be pyramided upon a sentence already

enhanced under § 2113(d) would violate the estab-

lished rule of construction that ‘ambiguity concern-

ing the ambit of criminal statutes sheuld be resolved

in favor of lenity’” (485 U.S. at 14; citation

omitted).

In No. 78-6029, petitioner LaRocca presents the

question whether a defendant who uses a firearm to

assault a federal officer may be sentenced, at the

discretion of the government, either under 18 U.S.C.

924(c)(1) or under the enhancement provision of

18 U.S.C. 111. While we acknowledge that the hold-

ing in Simpson would bar an enhanced sentence un-

der Section 111 for armed assault and an additional,

cumulative sentence under Section 924(c) (1) for use

of the same firearm, Simpson does not resolve the

distinct question whether sentence may be imposed

under Section 924(c)(1) when the defendant is not

sentenced to the enhanced penalty provided in Section

111. In our view, “[t]he overall structure of the Act,

Congress’ statements of purpose and policy, the legis-

lative history, and the text” (Board of Education of

the City of New York v. Harris, No. 78-873 (Nov.

28, 1979), slip op. 10) of Section 924(c) all support

the court of appeals’ decision that a defendant can

be sentenced, at the government’s election, either un-

der Section 924(c) or under the enhancement pro-

vision of the predicate felony.

The language of Section 924(c) unambiguously

states that it applies to all federal felonies, and

no exception is made for felonies that have their

own enhancement provision for using a dangerous

weapon. In addition, the penalties provided in

Section 924(c) were specially designed to deter

firearm violations and are qualitatively and quan-

titatively different from those contained in Section

111. Under Section 924(c), the sentence imposed for

the firearm offense cannot be concurrent to the sen-

tence for the predicate felony and, in cases of repeat

offenders, the defendant cannot receive probation or

a suspended sentence. None of these restrictions is

applicable to a sentence under Section 111. Likewise,

Section 924(c) provides a minimum mandatory sen-

tence of one year’s imprisonment, and a maximum of

10 years’ imprisonment, for a defendant convicted

of his first firearm offense; for repeat offenders, the

mandatory minimum term of imprisonment is two

years, with a maximum of 25 years. Section 111, on

the other hand, provides a sentence of no more than

10 years’ imprisonment for an armed assault of a

federal officer (an enhanced penalty of only seven

years above the maximum term of three years for

simple assault), requires no mandatory minimum sen-

tence, and makes no provision for increased sentences

for recidivists. Given these differences in the penalty

structures, it is highly unlikely that Congress in-

tended that a defendant who used a firearm to assault

a federal officer would be completely exempt from

sentence under Section 924(c) and would be subject

only to the lesser punishment provided in Section

111. A contrary conclusion in this case, unlike in

Simpson, would not “give[] full play to[] the de-

terrence rationale of §924(c)” (4385 U.S. at 14).

Moreover, acceptance of petitioners’ construction of

Section 924(c) would lead to the improbable results,

again not likely to have been intended by Congress,

of punishing more leniently (a) the use of a firearm

to assault a federal officer than the use of the same

firearm to commit virtually any other federal felony,

and (b) the actual use of the firearm to commit an

assault than unlawfully carrying (but not using) the

firearm during the commission of an assault.’

3 Prior to enactment of Section 924(c), the offenses of bank

robbery and assault on a federal officer were singled out from

the entire panoply of federal offenses as ones requiring spe-

mw re wm rr me me wee twee

mem teem ees.

The legislative history of Section 924(c) further

supports the view that Congress intended defend-

ants who use firearms to assault federal officers

would be subject to the stiff penalties specified in that

provision. The Gun Control Act of 1968 in general,

and Section 924(c) in particular, were enacted to in-

crease both the deterrence and the punishment of

firearm offenses. These objectives were forcefully ad-

vanced by Congressman Poff, who introduced the floor

amendment that was substantially enacted as Section

924(c), and his proposal was specifically designed to

increase both the certainty and the length of im-

prisonment for firearm offenders. While Congress-

man Poff did state, in a passage heavily relied on in

Simpson, that his amendment “is not intended to

apply to title 18, section[] 111 * * * which already

define[s] the penalties for the use of a firearm in

assaulting officials” (114 Cong. Rec. 22232 (1968)),

it is inconceivable that he intended by this statement

that defendants who used firearms to assault federal

officers would be exempt altogether from the specific

and strict penalty scheme of Section 924(c).

We do not believe that Congressman Poff was ad-

dressing himself to the question (which was not

raised in the debates) whether Section 924(c) could

be invoked in lieu of the enhancement provisions in

cial deterrents, in the form of increased penalties, to the use

of firearms in their commission. It defies reason to suppose

that in 1968, when Section 924(c) was enacted, Congress

completely reversed its field and concluded that the offenses

for which more severe penalties had previously been applied

should thereafter be treated with special leniency.

LLL A A i A I

— + ee

we Ee ee

-_-- = ee ee

existing law for using dangerous weapons. It is one

thing to conclude on the basis of this statement, as

the Court did in Simpson, that Congress did not in-

tend to permit the double enhancement of sentences

where a defendant is charged and convicted under

both Section 924(c) and the aggravated offense pro-

visions of Sections 111 or 2118; it is quite a differ-

ent matter, however, to determine that Congress

meant to foreclose the prosecutor from charging, and

the court from sentencing, under the penalty pro-

visions of Section 924(c) at all.

Moreover, Congressman Poff expressly recognized

that existing law was inadequate to deter and punish

crimes involving the use of firearms. Indeed, Con-

gressman Poff voted against the Conference Report,

even though it adopted his amendment in large meas-

ure, because it modified his proposal by deleting the

prohibition on concurrent sentences and limiting to

repeat offenders the ban on probation and suspended

sentences. In light of his clear and strongly held posi-

tion on the need for more severe penalties for firearm

offenses and his vote against the Conference Report

because it weakened certain sentencing provisions in

his amendment, we submit it is highly unlikely that

Congressman Poff intended that armed assaults on

federal officers be punished solely under the existing

enhancement provision of Section 111—a provision

that not only has lesser terms of incarceration than

Section 924(c), but also contains no restrictions

against suspended or concurrent sentences or proba-

tion. The legislative history contains no suggestion

that Congressman Poff did not fully expect that de-

fendants who used firearms to assault federal officers

would be subject to the stringent penalties under

Section 924(c) that were specifically enacted to curb

firearm offenses.

Since the text and legislative history of Section

924(c) clearly show that its penalty provisions were

intended to be applicable here, there is no occasion

to resort to the rule of lenity. “[I]n the instant case

there is no ambiguity to resolve. * * * Where, as

here, ‘Congress has conveyed its purpose clearly, * * *

we decline to manufacture ambiguity where none

exists.’”” United States v. Batchelder, No. 78-776

(June 4, 1979), slip op. 7, quoting United States v.

Culbert, 435 U.S. 371, 379 (1978).

In No. 78-6020, petitioner Busic contends that

Simpson prohibits the imposition of consecutive sen-

tences for an armed assault on a federal officer, in

violation of the enhancement provision of 18 U.S.C.

111, and for unlawfully carrying a firearm during

the commission of that assault, in violation of 18

U.S.C. 924(c) (2). In the circumstances of the pres-

ent case, this contention is without merit. Petitioner

Busic was convicted and sentenced under 18 U.S.C.

2 and 111 for aiding and abetting LaRocca’s use of

a firearm to assault federal officers; Busic was sen-

tenced to an enhanced penalty under Section 111 be-

cause LaRocca, aided and abetted by Busic, had

used a firearm. In addition, Busic was also convicted

and sentenced under Section 924(c)(2) for unlaw-

fully carrying (but not using) a second firearm dur-

ing the commission of that assault. Busic’s two con-

secutive sentences on these convictions are thus based

on two separate firearms; Busic is directly liable

for unlawfully carrying his own gun and is vicar-

iously liable as an aider and abettor for LaRocca’s

use of a firearm. Nothing in Simpson remotely pre-

cludes this result.

Nor do these consecutive sentences violate the

Double Jeopardy Clause. Under Blockburger v.

United States, 284 U.S. 299, 304 (1932), each of the

offenses under 18 U.S.C. 2 and 114 and 18 U.S.C.

924(c)(2) plainly “requires proof of a fact whith

the other does not.” Furthermore, since the two of-

fenses in this case related to separate firearms, the

government was required to prove as independent

facts that a different firearm was involved in each

count; proof regarding the firearm in one offense did

not serve to satisfy any of the elements of the other

offense. See Brown v. Ohio, 432 U.S. 161, 167 n.6

(1977). Accordingly, the Double Jeopardy Clause

does not bar Busic’s consecutive sentences.

Ill

In the event the Court disagrees with our principal

contention and vacates petitioners’ sentences under

Section 924(c), we submit that the disposition of the

case that would be “just under the circumstances”

(28 U.S.C. 2106) would be to remand for re-sentenc-

ing on the Section 111 counts, subject to the restric-

tion that the re-sentence could not exceed the sen-

tences petitioners originally received for the armed

assault offenses under Sections 924(c) and 111i.

Petitioners were each convicted on more than a

dozen felony counts, including, as relevant here, two

armed assaults on federal officers. Prior to the de-

cision in Simpson v. United States, petitioners were

sentenced to 25 years’ imprisonment for these armed

assaults—20 years’ imprisonment under Section 924

(c), and five years’ imprisonment under Section 111

(concurrent with other terms of incarceration that

are unaffected by this appeal). Petitioners’ armed

assaults on federal officers—whether denominated as

violations of Section 924(c), or of Section 111, or

both—plainly warrant the severe condemnation and

punishment ordered by the district court. However,

if this Court overturns petitioners’ Section 924(c)

sentence but does not remand for re-sentencing on

the Section 111 counts, only a five-year term of im-

prisonment would be imposed for the armed assault

offenses. Such an unforeseen and undeserved wind-

fall to petitioners should not be countenanced.

The Double Jeopardy Clause does not bar such re-

sentencing. As this court has recognized in North

Carolina v. Pearce, 395 U.S. 711 (1969), and Bozza

v. United States, 330 U.S. 160 (1947), the Double

Jeopardy Clause does not in all situations protect a

defendant from receiving a greater sentence than was

initially imposed. In particular, we submit that the

Double Jeopardy Clause does not require the Court

to ignore the important “societal interest in punish-

ing one whose guilt is clear” (United States v. Tateo,

377 U.S. 463, 466 (1964) ) and in ensuring that such

punishment is commensurate with the character of

the defendant and the nature and severity of his

criminal conduct. In the instant case, petitioners’

original sentences under Section 924(c) and Section

111 derive from the same armed assaults on federal

officers, petitioners have initiated the appellate pro-

ceedings that give rise to the need for re-sentencing,

and the re-sentencing we advocate would not exceed

the sentence for the armed assault offenses that pe-

titioners initially received. In these circumstances, it

cannot be said in any meaningful sense that re-sen-

tencing would be “an act of governmental oppression

of the sort against which the Double Jeopardy Clause

was intended to protect” (United States v. Scott, 437

U.S. 82, 91 (1978)) or would subject petitioners to

“multiple punishments for the same offense” (North

Carolina v. Pearce, supra, 395 U.S. at 717).

ARGUMENT

I. A DEFENDANT WHO USES A FIREARM TO COM-

MIT AN ASSAULT UPON A FEDERAL OFFICER

MAY BE SENTENCED, AT THE GOVERNMENT’S

ELECTION, UNDER EITHER THE AGGRAVATED

ASSAULT PROVISION OF 18 U.S.C. 111 OR THE

FELONY-FIREARM PROVISION OF 18 U.S.C. 924

(c)(1)

A. Section 924(c) By Its Terms Applies To Felonies

That Provide An Enhanced Penalty For The Use

Of A Dangerous Weapon.

This Court has repeatedly recognized that the pri-

mary guide to the meaning of a statute is its text.

See, e.g., Perrin v. United States, No. 78-959 (Nov.

27, 1979), slip op. 5; Andrus v. Allard, No. 78-740

(Nov. 27, 1979), slip op. 4; Touche Ross & Co. v.

Redington, No. 78-309 (June 18, 1979), slip op. 7-8;

Southeastern Community College v. Davis, No. 78-

711 (June 11, 1979), slip op. 6; Reiter v. Sonotone

Corp., No. 78-690 (June 11, 1979), slip op. 3-4;

Greyhound Corp. v. Mt. Hood Stages, Inc., 487 U.S.

322, 330 (1978); Scarborough v. United States, 431

U.S. 563, 569 (1977); Santa Fe Industries, Inc. v.

Green, 430 U.S. 462, 472 (1977); HZrnst & Ernst

v. Hochfelder, 425 U.S. 185, 200-201 (1976) ; United

States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95-96

(1820). Here, the language defining the offense in

Section 924(c) clearly supports our position that a

defendant may be sentenced under that provision not-

withstanding that the predicate felony provides, as

an alternative to Section 924(c)(1), an enhanced

penalty for using a dangerous weapon. Section 924

one who “uses a firearm to commit any felony for

which he may be prosecuted in a court of the United

States” and that such a person “shall, in addition to

the punishment provided for the commission of such

felony, be sentenced to a term of imprisonment for not

less than one year nor more than ten years” (em-

phasis added).* A felony for such purposes is defined

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

death or imprisonment for a term exceeding one

year,” a definition that clearly includes assaulting a

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

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

as many as 25 years’ imprisonment.

federal officer in violation of 18 U.S.C. 111. Thus,

while it does not speak to the double enhancement

issue presented in Simpson, Section 924(c) by its

terms does authorize sentencing pursuant to its pro-

visions for the commission of a federal felony with a

firearm regardless of whether the predicate felony

contains an enhancement provision for the use of a

firearm or other dangerous weapon.

B. The Sentencing Provisions Of Section 924(c) Dem-

onstrate Congress’ Intent That Punishment Be

Imposed In Accordance With The Terms Of That

Statute Notwithstanding That The Predicate Fel-

ony Contains An Enhanced Penalty For The Use

Of A Dangerous Weapon.

This construction—that sentence may be imposed

under Section 924(c) even where the underlying

felony provides an enhanced penalty for the use of a

dangerous weapon—is supported by the sentencing

provisions of Section 924(c). Instead of merely au-

thorizing imposition of longer terms of incarceration

than can be imposed under the various enhancement

statutes, Section 924(c) establishes mandatory mini-

mum sentences, requires increasingly severe sentences

for recidivists (without possibility of suspension or

probation), and prohibits concurrent sentencing.

Thus, a first offender under Section 924(c) must re-

ceive at least a one-year consecutive sentence and may

receive a 10-year consecutive sentence, while a repeat

offender must serve (without suspension or proba-

tion) a minimum two-year consecutive sentence and

may receive (without suspension or probation) a

—

a nea

consecutive 25-year sentence.’ By contrast, neither

Section 111 nor Section 2113(d) prescribes manda-

tory minimum sentences or prohibits concurrent sen-

tences, suspended sentences or probation. Moreover,

the maximum sentence of 10 years’ imprisonment un-

der the enhancement provision of Section 111 is only

seven years greater than the maximum sentence for

simple assault, and no-increased penalty is provided

for second or subsequent offenders.°

In our view, it is most unlikely that Congress in-

tended to subject persons who commit armed assaults

on federal officers to lesser penalties, and thus to a

lesser deterrent, than all other gun-wielding felons.

Having specifically studied the firearm problem, Con-

gress responded by enacting the strict, and unique,

sentencing provisions of Section 924(c) in order to

deter and punish more severely the incidence of fire-

arm offenses. No reason suggests itself why Congress

conceivably would have exempted from this specific

5 As we discuss below (pages 24-87, infra), these compre-

hensive penalties reflect Congress’ determination to curb the

particularly lethal risks created by the use of a firearm in

the commission of a felony—risks that Congress could legiti-

mately have concluded are more serious than the risks attend-

ing the use of any other dangerous weapon, which would be

sufficient to trigger the enhancement provision of Section 111.

* Similarly, the maximum sentence for aggravated bank

robbery under Section 2113(d) is only five years greater than

the maximum for simple bank robbery, whether or not the

robber is a recidivist. In contrast, under Section 924(c), the

use of a gun in the commission of the robbery would subject

the defendant to an additional sentence of up to 10 years for

a first offense and up to 25 years for a second offense. See

United States v. Brown, 602 F.2d 909, 912 & n.2 (9th Cir.

1979).

firearm legislation those defendants who use such

firearms to commit federal felonies that have their

own enhancement provisions for the use of dangerous

weapons.’ Petitioners’ construction of Section 924 (c)

has the perverse consequence of rendering the stiff

penalty provisions that Congress enacted to deter the

increasing use of firearms inapplicable to the very

class of offenses—including assault on a federal of-

ficer and bank robbery—where Congress had already

found that enhanced penalties were needed to deter

and punish those who used dangerous weapons. Un-

like in Simpson, where the Court found that double

enhancement of punishments was not necessary to

promote the statutory objectives, it cannot be con-

cluded in the present case that petitioners’ argument

“is In complete accord with, and gives full play to,

the deterrence rationale of § 924(c)” (485 U.S. at

14).

Nor is it possible fairly to conclude that Congress

intended (or that the language of the statute should

be ignored in order to bring about) the irrational re-

7 Indeed, the principle of giving “precedence to the terms

of the more specific statute where a general statute and a

specific statute speak to the same concern’”—on which the

Court relied in Simpson (485 U.S. at 15)—suggests that in

a case where a firearm is employed in the commission of a

bank robbery or an assault on a federal officer, the more spe-

cific firearm provision in Section 924(c) should be given

precedence over a more general enhancement provision for

dangerous weapons. Moreover, Section 924(c), which was

enacted in 1968, long after the enhancement provisions of

Section 111 or Section 2118, more fairly reflects the contem-

porary congressional view of the gravity of the use of firearms

in the commission of federal felonies. See page ”, infra.

sults that would follow from petitioners’ construction

of Section 924(c), some of which may be illustrated

by the following examples:

(a) John Doe assaults a federal officer, threaten-

ing him with a knife; Richard Roe assaults a federal

officer with a firearm, shooting him and wounding

him severely. Both are subject only to the penalties

provided by Section 111, which allows seven years’

enhancement for the use of any dangerous weapon.

This result does not square with the intent of Con-

gress in enacting Section 924(c) to punish with

special severity the criminal use of firearms.

(b) John Doe burglarizes a post office (18 U.S.C.

2115), using a firearm to shoot the lock off the door;

Richard Roe robs a bank with a firearm, firing a

number of shots at patrons and employees of the

bank, seriously wounding several. Doe is subject to

ten years’ imprisonment under Section 924(c), Roe

only to an enhanced penalty of five years’ under Sec-

tion 2113(d). Congress could not rationally have

intended such a discrepancy simply because Roe used

his firearm to rob a bank. |

together use firearms to hijack an interstate shipment

(18 U.S.C. 659). As a second offender under Sec-

tion 924(c), Doe is subject to an additional penalty

of a minimum of two years and as much as 25 years’

punishment, which may not be suspended or mx: :

concurrent with the sentence for the theft. Roe, on

the other hand, although having committed two prior

crimes of violence employing firearms (as compared

to one firearm crime involving no danger to individ-

uals by Doe), must be treated as a first offender un-

der Section 924(c), subject to a maximum term of

10 years’ imprisonment, 15 years less than that ap-

plicable to Doe, and eligible for a concurrent sentence

or probation on the firearm charge. Again, it is im-

possible to square the more lenient treatment of Roe,

who has a more serious history of firearms abuse,

with the manifest congressional goal of punishing

such abuse severely. _

(d) Doe robs a bank, unlawfully carrying but not

using a firearm; Roe robs a bank, using a firearm.

If we are correct that Section 924(c) is applicable

to one who unlawfully carries (but does not use) a

firearm during the commission of a felony that pro-

vides an enhanced penalty for using a dangerous

weapon," Doe is subject to the more severe penalties

§ Taken literally, petitioner Busic’s contention that Section

924(c) does not apply when the underlying felony provides

enhanced punishment for the use of a firearm (78-6020 Br.

9) would mean that a defendant could not be punished under

Section 924(c) (2) for unlawfully carrying a firearm during

a bank robbery or an assault on a federal officer. However,

since the enhancement provisions of those offenses do not

penalize carrying, but not using, a dangerous weapon, the end

result would be that a defendant who unlawfully carries a

firearm would receive no enhanced sentence and would be

subject to the same punishment as a defendant who com-

mitted the offense without carrying a firearm. Such an un-

supportable result would be directly contrary to Congress’

establishment of a separate offense in Section 924(c) (2) for

unlawfully carrying a firearm during the commission of a

federal felony, and would ignore the express congressional

purpose in adding Section 924(c) to the Gun Control Act “to

of Section 924(c) and Roe, whose offense is plainly

more serious, is not. This inconsistency again flies

in the face of the clear legislative purpose of Congress

in enacting Section 924(c).

Rather than attributing such untenable results to

the Congress, we believe that Section 924(c) should

be interpreted, in accord with its clear language, to

allow sentences to be imposed under its provisions

even though the predicate felony contains an en-

hanced penalty for the use of a dangerous weapon.

C. The Legislative History Of Section 924(c) Confirms

That The Sentencing Provisions Of That Statute

Are Applicable Even Though The Underlying Fel-

ony Provides An Enhanced Penalty For The Use

Of A Dangerous Weapon.

The Gun Control Act of 1968 (Pub. L. No. 90-618,

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

was enacted largely in response to a single concern:

persuade the man who is tempted to commit a Federal felony

to leave his gun at home.” 114 Cong. Rec. 22231 (1968) (re-

marks of Congressman Poff). Even Congressman Poff’s

statement that Section 924(c) “is not intended to apply” to 18

U.S.C. 111 or 18 U.S.C. 2113 (114 Cong. Rec. 22232 (1968) ),

upon which the Court heavily relied in Simpson (435 U.S. at

13-14), was limited to those statutes that provided an en-

hanced penalty for the use of a firearm. Thus, there is no ba-

sis for imputing to Congress the loophole that would exist if

the penalties under Section 924(c) (2) for unlawfully carry-

ing a firearm are not applicable to those federal felonies, such

as Sections 111 and 2113, that contain an enhancement pro-

vision for using a dangerous weapon.

the “increasing rate of crime and lawlessness and the

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

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

worsening crime situation in recent years had aroused

considerable attention and alarm in Congress. Dur-

ing 1967, Congress held extensive hearings on crime

control legislation, including proposed gun control

bills, in which frequent references were made to the

fact that in 1965 firearms were used in approxi-

mately 5,600 murders, 34,700 aggravated assaults,

and the vast majority of the 68,400 armed robberies,

and that guns killed all but 10 of the 278 law en-

forcement officers murdered in the preceding five

years.® More recent and even more troubling statistics

on the use of firearms in violent crime were cited in

Attorney General Clark’s letter to Congress request-

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

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

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

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

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

dent’s Commission on Law Enforcement and Administration

of Justice, published in February 1967 as The Challenge of

Crime In A Free Society 239. See Anti-Crime Program:

Hearings on H.R. 5087, H.R. 5038, H.R. 5384, H.R. 5385 and

H.R. 5386 Before Subcomm. No. 5 of the House Comm. on

the Judiciary, 90th Cong., 1st Sess. 218, 241, 261 (1967). The

Crime Commission’s Report was also considered by the Senate

Judiciary Committee in connection with the legislation even-

tually enacted as the Omnibus Crime Control and Safe Streets

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

The Committee Report on that bill cited further statistics on

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

dicating significant increases in 1966 and 1967 over the 1965

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

Congress confronted the danger revealed by these

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

panded federal control over the sale and shipment of

firearms across state lines by prohibiting gun sales

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

bidding their purchase through interstate mail or-

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

crime problem directly by punishing the use and

unlawful carrying of firearms in the commission of

serious crimes. Section 924(c), introduced and

adopted on June 19, 1968, was addressed to the second

objective.”

The language that became Section 924(c) was of-

fered by Congressman Poff as a substitute for a floor

amendment made by Congressman Casey to the House

version of the Gun Control Act. 114 Cong. Ree.

22231 (1968)."" The Casey amendment had pro-

10 Because the statute was introduced on the floor of the

House and approved on the same day, there are no legislative

hearings and no committee reports concerning it; the perti-

nent legislative history is contained in a few pages of the

Congressional Record and consists primarily of the views of

supporters of the House bill and its Senate counterpart. See

Simpson v. United States, 485 U.S. 6, 18 n.7 (1978).

t As introduced, the Poff amendment provided:

+ e . = t

(1) uses a firearm to commit any felony which

may be prosecuted in a court of the United States,

or ,

(2) carries a firearm unlawfully during the com-

mission of any felony which may be prosecuted in

a court of the United States,

vided stiff minimum penalties for anyone who, “dur-

ing the commission of any robbery, assault, murder,

rape, burglary, kidnaping, or homicide (other than

involuntary manslaughter), uses or carries any fire-

arm which has been transported in interstate or

foreign commerce” (id. at 22229)." Supporters of

the Poff substitute noted that the Casey language

applied to the use or possession of firearms in state

as well as federal felonies, and would thereby con-

vert thousands of state offenses into federal viola-

tions. This result was criticized both as an intrusion

shall be sentenced to a term of imprisonment for not less

than one year nor more than ten years. In the case of

his second or subsequent conviction under this subsec-

tion, such person shall be sentenced to a term of imprise

onment for not less than five years nor more than

twenty-five years. The execution or imposition of any

term of imprir~nment imposed under this subsection may

not be suspended, and probation may not be granted.

Any term of imprisonment imposed under this subsec-

tion may not be imposed to run concurrently with any

term of imprisonment imposed for the commission of

such felony.

Some modifications concerning the penalty provisions of the

Poff proposal were subsequentiy adopted. See page 34 &

note 16, infra.

'? The text of the Casey amendment provided:

That whoever during the commission of any robbery,

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

(other than involuntary manslaughter), uses or carries

any firearm which has been transported in interstate or

foreign commerce shall be imprisoned—

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

ten years;

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

less than twenty-five years.

upon state jurisdiction and as the source of an un-

manageable load of criminal cases in the federal sys-

tem. Jd. at 22232-22235. Other Congressmen felt that

the provision violated principles of due process and

equal protection or that the burden of proving the ju-

risdictional nexus unacceptably weakened the amend-

ment. Jd. at 22231 (remarks of Congressman Poff) ;

id. at 22283 (remarks of Congressman Cramer).

The substitute amendment presented by Congress-

man Poff was intended to cure the perceived defects

in the Casey proposal by making it a separate federal

offense to use or unlawfully carry a firearm during

the commission of “any felony which may be prose-

cuted in a court of the United States” (id. at 22231).

In irtroducing his substitute, Congressman Poff

made clear his intention to strengthen, not weaken,

the Casey proposal (ibid.) :

[M]y amendment is a substitute for the Casey

amendment, but it is not in derogation of the

Casey amendment. Rather, it retains its central

thrust and targets upon the criminal rather than

the gun. In several particulars, the substitute

strengthens the Casey amendment.

* * * Indeed, the substitute is stronger. The

substitute provides that the penalties cannot be

suspended and that probation cannot be granted.

The Casey amendment contains no such provi-

sion.

My substitute is also stronger in that it com-

pels the court to impose the sentence to run con-

secutively upon the penalty previously imposed

for the basic crime. The Casey amendment per-

mits the court to make the two penalties run

concurrently and to suspend any part or all of

either or both.

In addition, in an ensuing discussion with Congress-

man Cramer, Congressman Poff emphasized that his

amendment would broaden the range of federal

felonies to be covered by the statute (id. at 22233):

MR. CRAMER. * * *

Thirdly, and really what bothers me the most,

is that the Casey amendment does not cover an

adequate number of crimes, including Federal

crimes. It does not even cover the large number

of heinous Federal crimes to which the amend-

ment offered by the gentleman from Virginia

[Mr. Poff] would apply; is that-correct?

MR. POFF. My amendment would apply to

all Federal felonies including heinous crimes in

all grades, down to the lowest level of a felony.

¥ * + * *

MR. CRAMER. * * *

And in the list of crimes the gentleman re-

ferred to three or four pages. there, any number

of those heinous crimes are not included under

the Casey amendment; is that correct?

MR. POFF. That is correct.

* * * * *

MR. POFF. Insofar as it is defined in the

Federal code as a felony itself, it would be in-

cluded [in the Poff amendment].'*)

18 See also 114 Cong. Rec. 22232 (1968) (emphasis added) :

MR. ICHORD: * * *

a * a + *

Are you contemplating—the gentleman makes it a

Federal offense, another separate Federal offense to use

Despite the breadth of his substitute, however,

Congressman Poff made an additional statement upon

which the Court in Simpson chiefly relied (435 U.S.

at 13-14), and which is again strongly urged by peti-

tioners here. After noting that his amendment did

not pertain to state offenses, Congressman Poff added

(id. at 22232);

For the sake of legislative history, it should

be noted that my substitute is not intended to

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

already define the penalties for the use of a

firearm in assaulting officials, with sections 2113

or 2114 concerning armed robberies of the mail

or banks, with section 2231 concerning armed

assaults upon process servers or with chapter 44

which defines other firearm felonies.

No response or other comment was directed at this

remark, and the debate reverted immediately to the

issue of excluding state crimes.

Whatever insight this passage might provide into

the congressional intent concerning the issue pre-

a firearm to commit any felony which may be committed.

If during the commission of any felony wherein such

firearm is used the party may be prosecuted in any court

of the United States? Does the gentleman contemplate

the second criminal proceeding or can this man be tried

in the original proceeding where he was first tried?

MR. POFF: * * *

The answer to his question is in the affirmative; name-

ly, it would be expected that the prosecution for the basic

felony and the prosecution under my substitute would

constitute one proceeding out of which two separate

penalties may grow.

sented in Simpson, it does not serve to answer the

question raised here. We do not believe that Con-

gressman Poff’s statement was addressed to the ques-

tion (which was not raised in the debates) whether

Section 924(c) could be invoked in lieu of the en-

hancement provisions in existing law for using dan-

gerous weapons. It is one thing to conclude on the

basis of this statement, as the Court did {i Simpson,

that Congress did not intend to permit the double

enhancement of sentences where a defendant is

charged and convicted under both Section 924(c) and

the aggravated offense provision of Sections 111 or

2113; it is an entirely different proposition, however,

to determine that Congress meant to preclude the

government from prosecuting, and the court from

sentencing, under the penalty provisions of Section

924(c) at all.

Moreover, viewing Congressman Poff’s statements

in their entirety, the legislative history of Section

924(c) fails to offer any suggestion that Congress

did not intend to apply the stringent penalty provi-

sions of that statute to defendants who used firearms

to commit even those federal felonies that had their

own enhanced penalty for using a dangerous weapon.

Indeed, one of the principal purposes of the Poff

amendment was to increase the deterrent to the use

of firearms in federal felonies.“ In explaining the

* As stated by Congressman Horton (114 Cong. Rec. 22247

(1968) ):

When a person commits a crime with a firearm, he

uses his weapon to terrorize his victim with the threat

minimum mandatory sentence provision in his pro-

posal, Congressman Poff stated (114 Cong. Ree.

22231 (1968) ):

The effect of a minimum mandatory sentence in

this case is to persuade the man who is tempted

to commit a Federal felony to leave his gun at

home. Any such person should understand that

if he uses his gun and is caught and convicted,

he is going to jail. He should further under-

stand that if he does so a second time, he is go-

ing to jail for a longer time.

In a later colloquy with Congressman Cramer, Con-

gressman Poff reiterated that his amendment, unlike

the Casey proposal, required mandatory minimum

sentences and eliminated concurrent and suspended

sentences. Id. at 22233. The importance of this

aspect of the Poff amendment was emphasized by a

number of congressmen during the debates. As Con-

gressman Railsback remarked (id. at 22243):

that, with the flick of his finger, he can snuff out one or

more innocent lives. Even where the crime does not result

in death or injury, the use of a gun extends both its

potential and actual seriousness beyond that of crimes

committed without deadly weapons or with weapons ef-

fective only at a very short range. The “equalizer,” as it

has been called, is a tool of terror, death, and injury in

the hands of a criminal. He who stoops to point its barrel

at an innocent victim, for money, for revenge, for “kicks,”

or for any other purpose, deserves to be singled out by

the laws as the worst kind of social menace.

Mr. Chairman, I believe that [the Poff] amendment,

which adds more severity to the punishment of such

offenders, is a legislative necessity.

Mr. Chairman, one of the major differences

between the Casey amendment and the substitute

amendment offered by the gentleman from Vir-

ginia [MR. POFF], is that in the one case the

sentence cannot, specifically cannot be suspended,

nor can probation be granted. And that is why

many of us feel that the Poff amendment is su-

perior in that important respect. Many of us

want to support a minimum mandatory penalty

which is provided in the Poff substitute, and

which is not provided in the Casey amendment.

Congressman Latta offered a similar view, stressing

that the Poff amendment would create a significantly

greater deterrent than was provided by existing law

(2bid. ; emphasis added) :

I want the criminal to know before he uses

a firearm in committing a crime that, when he

is convicted, just as sure as the sun rises tomor-

row he is going to jail for a certain number of

years. This is the deterrent that I want to see

written into this law, and I do not want any

discretion by any court because that is the buga-

boo in our present system. He believes that he

can beat the rap, and he takes the chance. I

want him to know that he cannot beat the rap

and that he is going to prison when convicted.!**!

The Poff amendment was adopted by the House in

lieu of the Casey proposal (114 Cong. Rec. 22248

15 See also, e.g., 114 Cong. Rec. 22234 (1968) (remarks of

Cong. Harsha); id. at 22237 (remarks of Cong. Rogers) ;

id. at 22243 (remarks of Cong. Wyman) ; id. at 22247-22248

(remarks of Cong. Horton).

(1968) ), and the Gun Control Act, including the Poff

amendment, passed the House by a vote of 412 to 11

(id. at 23094). Following the passage of a different

bill by the Senate, the Conference Committee accepted

in large measure the House version of Section 924(c).

However, the Conference deleted altogether the pro-

hibition on concurrent sentences and made the pro-

vision eliminating probation and suspended sentences

applicable only to second and subsequent convictions.

H.R. Conf. Rep. No. 1956, 90th Cong., 2d Sess. 31-32

(1968).*° These modifications in Conference caused

great concern in the House, and many congressmen

objected to the changes and urged that the Confer-

ence Report be rejected. As succinctly summarized

by Congressman MacGregor (114 Cong. Rec. 30580

(1968) ) :

The conferees * * * have destroyed the effec-

tiveness of the Poff amendment on minimum

mandatory sentences.

A similar assessment was offered by Congressman

Collier (id. at 30584) :

16 The Conference version of Section 924(c) was ultimately

accepted by the House (114 Cong. Rec. 30587 (1968) ) and the

Senate (id. at 30183), and the bill was signed by the President

on October 22, 1968.

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

L. No. 91-644, 84 Stat. 1889) amended Section 924 (c) by

reinstating the restriction that no sentence of imprisonment

thereunder could be served concurrently with any term im-

posed for the underlying felony. The amendment also reduced

the minimum mandatory sentence of imprisonment for repeat

offenders from five to two years. See Simpson v. United States,

supra, 435 U.S. at 14 n.9.

Mr. Speaker, I am deeply disturbed and disap-

pointed that the conferees have seen fit to gut

one of the most important provisions of the bill

which passed the House on the Gun Control Act

of 1968. * * * I believe that removal of the

mandatory sentence for commission of a crime

or felony while in possession of a firearm

eliminates an important aspect of the deterring

features of the bill. I regret that the conference

report also provides for the mandatory sentence

for second offenders to run concurrent with that

of penalties for other convictions. "7!

Among the most vigorous opponents of the Con-

ference Report was Congressman Poff himself, not-

withstanding that the Conference had adopted much

of the amendment he had introduced (114 Cong. Rec.

30583 (1968) ; emphasis added) :

MR. POFF. * * *

If the real purpose of gun control legislation

is to control crime, then the central control

mechanism of this bill has been fractured. As

the bill passed the House, the central crime con-

trol mechanism was the mandatory jail sentence

amendment. * * *

* * * * *

* * * [My amendment] was designed to per-

suade the man who has decided to set forth on

a criminal venture to leave his gun at home. It

7 See also, e.g., 114 Cong. Rec. 30579 (1968) (remarks of

Cong. Cramer) ; id. at 830581 (remarks of Cong. MacGregor) ;

td. at 30581-30582 (remarks of Cong. Hunt); id. at 30582

(remarks of Cong. Watson) ; id. at 30584 (remarks of Cong.

Hansen) ; id. at 30585 (remarks of Cong. Hall) ; ibid. (re-

marks of Cong. Skubitz) ; id. at 30586 (remarks of Cong.

Saylor).

is not the severity of punishment that deters.

It is the certainty of punishment that deters.

In the posture which the conference report

leaves it, the amendment will not promote cer-

tainty of punishment. Rather, with respect to

the first offense, actual time in jail will be no

more certain than it is today. The criminal who

is tempted to use a gun in the commission of his

crime can still do so with the full knowledge

that he has at least a 50-50 chance, even after

being caught, convicted and sentenced, of never

serving a day in jail. And even if it is his second

offense, he knows that any jail term he may be

required to serve may run concurrently with the

Same term that can be imposed under present

law for the base felony.

With such odds, why should he refrain from

using a gun?

Because the Conference had thus weakened the sen-

tencing provisions of his amendment, Congressman

Poff voted against the Conference Report. Given his

strong views on the need for certainty of punishment

to deter armed felons, it is impossible to conclude that

Congressman Poff intended that defendants who use

firearms to commit a bank robbery or an assault on

a federal officer would be punished entirely outside

the strict penalty scheme of Section 924(c) and would

instead be sentenced under Section 2113 or Section

111 without any limitation on the minimum term of

imprisonment, the possibility of probation or a sus-

pended sentence, or the availability of a concurrent

Sentence. Rather, it was the very inadequacy of ex-

isting law that led Congressman Poff to introduce

his amendment and ultimately to oppose the Confer-

ence Report.

In sum, the legislative history shows that Section

924(c) was enacted precisely because existing law

was considered inadequate to deter and punish fire-

arm offenses, and there is no indication whatever

that either the Congress as a whole or Congressman

Poff intended the penalties specified in Section 924(c)

to be inapplicable where the predicate felony con-

tains its own enhancement provision for use of a

dangerous weapon.'®

D. The Decision In Simpson v. United States Is Not

Dispositive Of The Issue Presented In This Case.

In light of the language and legislative history of

Section 924(c), we have argued above that the court

of appeals correctly held that on remand petitioner

18 The Court in Simpson also relied (435 U.S. at 14) on the

Conference Committee’s rejection of the Senate version of

Section 924(c) in favor of the modified Poff amendment. The

Senate had adopted a floor amendment introduced by Senator

Dominick that was limited to the use of firearms in certain

specified federal offenses (including Sections 111 and 2113)

and that authorized substantial penalties in addition to those

provided for the underlying felony even where the sentence

imposed for that predicate felony was already enhanced. See

114 Cong. Rec. 27142-27144 (1968). In our view, this action

by the Conference can best be understood as an indication of

congressional intent that Section 924(c) be broadly applicable

to all federal felonies rather than being limited to only certain

predicate offenses. In any event, while the Court in Simpson

construed the Conference’s rejection of the Dominick amend-

ment to support its holding that Congress did not intend to

authorize cumulative sentences under both Section 924(c) and

the aggravated predicate felony, nothing in the Conference

action on the Dominick amendment suggests that Congress

meant to render the stiff penalty provisions of Section 924 (c)

completely inapplicable whenever the underlying felony pro-

vided an enhanced punishment for using a dangerous weapon.

LaRocca could be sentenced under Section 924 ( e)(1).

However, petitioners argue that a contrary conclu-

sion is dictated by this Court’s decision in Simpson v.

United States, 435 U.S. 6 (1978), which they read to

hold that a defendant may not be sentenced under

Section 924(c) whenever the statute defining the

predicate offense provides an enhanced punishment

for using a dangerous weapon. In our view, this is

far too broad a reading of Simpson.

The actual holding in Simpson was quite narrow.

The Court framed the question in Simpson to be

“whether §§ 2113(d) and 924(c) should be con-

strued as intended by Congress to authorize, in the

case of a bank robbery committed with firearms, not

only the imposition of the increased penalty under

§ 2113(d), but also the imposition of an additional

consecutive penalty under § 924(c)” (435 U.S. at 8;

emphasis added). Concluding that Congress had not

intended “the additional sentence authorized by

§ 924(c) to be pyramided upon a sentence already

enhanced under § 2113(d)” (485 U.S. at 14; em-

phasis added), the Court held “that in a prosecution

growing out of a single transaction of bank robbery

with firearms, a defendant may not be sentenced

under both § 2113(d) and § 924(c)” (435 U.S. at

16; emphasis added). Significantly, the Court did

not direct that the sentence under Section 924(c) be

vacated, as petitioners now contend is required by

Simpson, but rather only “reversed and remanded to

the Court of Appeals for proceedings consistent with

;

this opinion” (435 U.S. at 16)."° Thus, properly read,

the decision in Simpson holds only that a defendant

may not be subjected to cumulative sentences under

Section 2113(d) and Section 924(c) for using a fire-

arm in the commission of a bank robbery; however,

as the Third Circuit concluded in the instant case

(App. 59), Simpson does not address the distinct

question whether a defendant may be sentenced, in

the discretion of the government, either under Section

924(c)(1) or under the enhanced predicate felony,

provided that sentence is not imposed under both.”

* Petitioner LaRocca emphasizes (78-6029 Br. 9-10, App.

la-2a) that on remand the court of appeals in Simpson vacated

the sentence under Section 924(c). Although petitioners in

Simpson had expressly asked this Court to vacate the Section

924(c) judgments (76-5761 and 76-5796 Br. 8), the Court did

not order any specific relief but simply “reversed and re-

manded to the Court of Appeals for proceedings consistent

with this opinion” (435 U.S. at 16). Moreover, since the more

severe sentences in Simpson were imposed on the Section 2113

counts rather than on the Section 924(c) counts (435 U.S. at

9), the court of appeals’ decision on remand in that case is,

as a practical matter, the same as the decision of the courts of

appeals in this case to allow the government to elect to pro-

ceed under either Section 924(c) or the enhancement pro-

vision of the predicate felony.

20In addition to the Third Circuit, the Ninth Circuit has

held that Simpson does not preclude the government from pro-

ceeding under either Section 2113(d) or Section 924(c). See

United States v. Brown, 602 F.2d 909 (9th Cir. 1979). The

Fifth Circuit is divided on the issue. Compare United States

Vv. Shillingford, 586 F.2d 372, 375-376 & n.7 (5th Cir. 1978),

with United States v. Roach, 590 F.2d 181, 184 (5th Cir.

1979) ; United States v. Stewart, 585 F.2d 799, 800 (5th Cir.

1978), cert. denied, No. 78-6007 (Apr. 30, 1979); United

States v. Stewart, 579 F.2d 356, 358 (5th Cir.), cert. denied,

As we have already discussed (pages 24-37,

supra), the legislative history relied on by the Court

in Simpson does not aid petitioners here. It seems

clear that the Congress, and especially Congressman

Poff, never intended to exempt from the stringent

penalties of Section 924(c) those defendants who, like

petitioner LaRocca, used a firearm in the commission

of one of the federal felonies containing an enhance-

ment provision. Furthermore, as noted above (pages’

19-24, supra), the sentencing scheme of. Section

924(c) is fundamentally different from the enhance-

ment provisions of Sections 111 and 2113, and a de-

cision that Section 924(c) does not apply when the

439 U.S. 936 (1978); and United States v. Nelson, 574 F.2d

277, 280-281 (5th Cir.), cert. denied, 489 U.S. 956 (1978).

However, the court in Nelson construed Simpson to have va-

cated the sentence under Section 924(c) ; as discussed in the

text above, this reading of the Simpson holding is incorrect.

The Second Circuit, relying in part on Nelson, has interpreted

Simpson to bar a sentence under Section 924 (c) ( 1) where the

underlying felony provision is Section 2113. See Grimes v.

United States, 607 F.2d 6, 17 (2d Cir. 1979). The Fourth

Circuit has also stated, in a case in which the sentence was

more severe under Section 2113(d) that under Section 924 (c),

that Simpson requires the Section 924(c) sentence to be va-

cated. United States v. Vaughan, 598 F.2d 336, 337 (4th Cir.

1979). The District of Columbia Circuit has observed in dicta

that Simpson prevents the government from using a firearms-

related provision as both the predicate felony for Section 924

v. Dorsey, 591 F.2d 922, 941 (D.C. Cir. 1978). And, in a case

decided prior to Simpson, the Eighth Circuit had held that an

offense that had its own enhancement provision for use of a

firearm could not serve as the predicate felony for Section

924(c) (1). United States v. Eagle, 539 F.2d 1166, 1171-1172

(8th Cir. 1976), cert. denied, 429 U.S. 1110 (1977).

he na ll

ee ee

predicate offense has its own enhanced penalty would

create irrational results and frustrate the deterrence

objectives of the Gun Control Act.

Nor do the maxims of statutory construction in-

voked in Simpson support petitioners. Unlike Simp-

son, petitioner LaRocca cannot on remand be given

cumulative sentences under Section 924(¢) and the

aggravated predicate felony. Thus, this is not a case

“in which the Government is able to prove violations

of two separate criminal statutes with precisely the

same factual showing * * * [which] raise[s] the

prospect of double jeopardy” (435 U.S. at 11), and

there is no need to construe Section 924(c) to avoid

constitutional issues. In addition, “the maxim that

statutes should be construed to avoid constitutional

questions offers no assistance here” because, as dis-

cussed above, the construction of Section 924(c)

urged by petitioners is not “ ‘fairly possible.’ ”

United States v. Batchelder, No. 78-776 (June 4,

1979), slip op. 7-8, quoting Swain v. Pressley, 430

U.S. 372, 378 n.11 (1977).

Moreover, the rule that ambiguity in a criminal

statute should be resolved in favor of lenity, which

was applied in Simpson to prevent the Section 924 (c)

sentence from being “pyramided upon a sentence al-

ready enhanced under § 2113(d)” (435 U.S. at 14),

is not applicable here. The rule of lenity does not

come into play unless there is a “grievous ambiguity

or uncertainty in the language and structure of the

Act” (Huddleston v. United States, 415 U.S. 814, 831

(1974)) such that even “[a]fter [a court has]

‘seiz[ed] everything from which aid can be derived’

* * * [it is still] left with an ambiguous statute.”

United States v. Bass, 404 U.S. 336, 347 (1971),

quoting United States v. Fisher, 6 U.S. (2 Cranch)

358, 386 (1805). Given the language and legislative

history of Section 924(c), “there is no ambiguity to

resolve. *.* * Where, as here, ‘Congress has con-

veyed its purpose clearly, * * * we decline to manu-

facture ambiguity where none exists.’” United

States v. Batchelder, No. 78-776 (June 4, 1979), slip

op. 7, quoting United States v. Culbert, 435 U.S. 371,

379 (1978). See also, e.g., United States v. Naftalin,

No. 78-561 (May 21, 1979), slip op. 10; Scarborough

v. United States, 431 U.S. 563, 577 (1977); Barrett

v. United States, 423 U.S. 212, 217-218 (1976).

While “[a] criminal statute, to be sure, is to be

strictly construed, * * * it is ‘not to be construed so

strictly as to defeat the obvious intention of the

legislature’”. Barrett v. United States, supra, 423

U.S. at 218, quoting American Fur Co. v. United

States, 27 U.S. (2 Pet.) 358, 367 (1829).2" And the

fact that Section 924(c) “provides different penalties

for essentially the same conduct [as the enhancement

*1 The propriety of applying the rule of lenity in the face

of indications that Congress wished to deal severely with per-

sons committing particular offenses is especially questionable

in cases involving the use of firearms. As in Gore v. United

States, 357 U.S. 386 (1958), which rejected the rule of lenity

in considering punishment for narcotics offenses (id. at 391),

the history of Section 924(c) “reveals the determination of

Congress to turn the screw of the criminal machinery—detec-

tion, prosecution, and punishment—tighter” (id. at 390).

provisions of the predicate felonies] is no justifica-

tion for taking liberties with” the clear language and

intent of Congress. United States v. Batchelder,

supra, slip op. 7, citing Barrett v. United States,

supra, 423 U.S. at 217. See also United States v.

Gilliland, 312 U.S. 86, 95 (1941).

In Simpson the Court also referred to the “principle

that gives precedence to the terms of the more specific

statute where a general statute and a specific statute

speak to the same concern, even if the general pro-

vision was enacted later” (435 U.S. at 15). As dis-

cussed above (pages 21, 24-37 & note 7, supra),

given Congress’ thorough and recent consideration of

the firearms problem in the Gun Control Act of

1968, we submit that Section 924(c) rather than

Sections 111 or 2113(d) should be read as the more

specific provision.” In any event, this principle was

applied in Simpson only as “a corollary of the rule

of lenity” (435 U.S. at 15); as we have just dis-

cussed, the rule of lenity has no bearing here.

*2 Contrary to the assertion of petitioner LaRocca (78-6029

Br. 19), the government does not contend that “Section 924 (c)

would govern to the exclusion of Sections 2113(d) and 111

* * *” (emphasis in original). Quite often, as here, more than

one federal statute covers the same criminal conduct, and it is

our position in the present case that Congress has afforded the

government the choice, in the exercise of its prosecutorial dis-

cretion, to proceed either under Section 924(c) or under the

enhancement provision of the predicate felony. See pages 46-

47, infra. We agree with petitioner LaRocca (78-6029 Br. 19

n.19) that Section 924(c) did not impliedly repeal the en-

hancement provisions of Sections 111 or 2118.

Moreover, we doubt that the canon of construction

that gives precedence to the more specific statute is

applicable to the provisions at issue in this case.

“Where one statute deals with a subject in general

terms, and another deals with a part of the same

subject in a more detailed way, the two should be

harmonized if possible; but if there is any conflict,

the latter will prevail, regardless of whether it was

passed prior to the general statute, unless it appears

that the legislature intended to make the general act

controlling.” 2A C. Sands, Statutes and Statutory

Construction §51.05, at 815 (1973) (footnotes

omitted; emphasis added), cited in Simpson, supra,

435 U.S. at 15. Here, there is no “conflict” between

Section 924(c) and the enhancement provision of

Section 111. In contrast to Preiser v. Rodriguez, 411

U.S. 475, 489-490 (1973), cited in Simpson, supra,

435 U.S. at 15,” Sections 924(c) and 111 can co-exist

in the same area, and the government’s invocation

of one rather than the other would not “wholly frus-

trate explicit congressional intent” or “evade [a stat-

utory] requirement by the simple expedient of [de-

fendants’] putting a different label on their plead-

ings.” Preiser v. Rodriguez, supra, 411 U.S. at 489-

490. Indeed, it is not at all uncommon for two federal

statutes, with different penalty provisions, to apply

*%In Preiser v. Rodriguez, the Court held that a state

prisoner who challenges the fact or duration of his confine-

ment and seeks to be released from custody must proceed un-

der the habeas corpus statute and cannot sue under 42 U.S.C.

1983.

to the same criminal conduct. See, e.g., United States

v. Batchelder, supra, slip op. 7, 9; United States v.

Gilliland, supra, 312 U.S. at 95; United States v.

Jones, 607 F.2d 269, 271-273 (9th Cir. 1979) ; United

States v. Hamel, 551 F.2d 107, 113 (6th Cir. 1977) ;

United States v. Gordon, 548 F.2d 743, 744-745 (8th

Cir. 1977); United States v. Melvin, 544 F.2d 767,

775-777 (5th Cir.), cert. denied, 430 U.S. 910 (1977);

United States v. Radetsky, 535 F.2d 556, 568 (10th

Cir.), cert. denied, 429 U.S. 820 (1976); United

States v. Brewer, 528 F.2d 492, 498 (4th Cir. 1975);

United States v. Carter, 526 F.2d 1276, 1278 (5th

Cir. 1976) ; United States v. Smith, 523°F.2d 771, 780

(5th Cir. 1975), cert. denied, 429 U.S. 817 (1976);

United States v. Librach, 520 F.2d 550, 556 (8th Cir.

1975), cert. denied, 429 U.S. 939 (1976); United

States v. Hisenmann, 396 F.2d 565, 567-568 (2d Cir.

1968). See also United States v. Bishop, 412 U.S.

346, 355-356 (1973); Sansone v. United States, 380

U.S. 348, 352-353 (1965); Berra v. United States,

351 U.S. 131, 184 (1956) .**

*4 Petitioner LaRocca, relying on the variety of provisions

prohibiting the use of a dangerous weapon to commit specific

federal felonies, contends (78-6029 Br. 19-21) that “Con-

gress has carefully graded the potential penalties for the use

of a weapon in violation of these provisions according to the

nature of the crime and the threat posed to the interests of

the United States” (footnote omitted). In our view, however,

such a diversity of provisions does not evidence a deliberate

congressional effort to calibrate, on a precise and comparative

basis, the exclusive penalties for using a dangerous weapon in

the commision of a federal felony. As discussed in the text, a

general and a more specific federal statute often provide dif-

In this case, as in Batchelder, the proper resolution

to “harmonize” the statutes is to interpret Section

924 (c) as an alternative to the enhancement provisions

of Section 111 and the other similar laws dealing

with the use of dangerous weapons in the commission

of particular crimes. Such an interpretation reflects

the settled rule that, when two statutes are applicable

to the same criminal conduct, the prosecutor has dis-

cretion to select the proper charge. As the Court

stated in Batchelder, supra, slip op. 9, 10-11 (cita-

tions omitted) :

This Court has long recognized that when an

act violates more than one criminal statute, the

Government may prosecute under either so long

as it does not discriminate against any class of

defendants. * * * Whether to prosecute and

what charge to file or bring before a grand jury

are decisions that generally rest in the prose-

cutor’s discretion.

* * * * *

* * * [T]here is no appreciable difference be-

tween the discretion a prosecutor exercises when

fering penalties for the same criminal conduct without either

statute preempting the other. We submit that Congress, in

enacting Section 924(c), intended to allow federal prosecutors

the flexibility in each case to bring an appropriate charge

under either Section 924(c) or the enhancement provision

of the predicate felony (see pages 46-47, infra). Moreover,

there is no reason to believe that Congress, having specifically

studied the firearm problem in passing the Gun Control Act

of 1968, intended to treat more leniently criminals who used

firearms to assault a federal officer or rob a bank than those

who used such weapons to commit myriad other federal

offenses (see pages 21, 43 & n.7, supra).

ON a A init ili he I eat et i Sl in tte sank Slants a

deciding whether to charge under one of two

statutes with different elements and the discretion

he exercises when choosing one of two statutes

with identical elements. In the former situation,

once he determines that the proof will support

conviction under either statute, his decision is in-

distinguishable from the one he faces in the latter

context. The prosecutor may be influenced by

the penalties available upon conviction, but this

fact standing alone does not give rise to a viola-

tion of the Equal Protection or Due Process

Clauses. * * * Just as a defendant has no con-

stitutional right to elect which of two applicable

federal statutes shall be the basis of his indict-

ment and prosecution, neither is he entitled to

choose the penalty scheme under which he will

be sentenced.

See also United States v. Brown, 602 F.2d 909, 912

(9th Cir. 1979).

*5 Petitioner LaRocca hypothesizes (78-6029 Br. 21 n.21)

that “the government’s theory would create anomalies that

Congress could not have intended between the penalties avail-

able to punish the use of a firearm and those available to

punish the use of another type of dangerous weapon.” As dis-

cussed above (pages 21-24, supra), however, the position ad-

vanced by petitioners entails a series of illogical results that

seriously undermine their argument. In any event, the hypo-

thetical difficulties posed by petitioner LaRocca can be re-

solved, as in a great many other areas of the law, through the

exercise of sound prosecutorial discretion to bring an appro-

priate charge in each case either under Section 924(c) or

under the enhancement provision of the predicate felony.

Ee ee ieee

II. A DEFENDANT MAY BE CONSECUTIVELY SEN-

TENCED FOR AIDING AND ABETTING AN AS-

SAULT WITH A FIREARM UPON A FEDERAL

OFFICER, IN VIOLATION OF 18 U.S.C. 2 AND 111,

AND FOR CARRYING A SECOND FIREARM DUR-

ING THE COMMISSION OF THAT ASSAULT, IN

VIOLATION OF 18 U.S.C. 924(c)(2)

Petitioner Busic was charged (Counts 6 and 7)

with aiding and abetting petitioner LaRocea in as-

saulting federal officers by means of a firearm, in

violation of 18 U.S.C. 2 and 111; * on these counts

6 In addition to being present and armed during LaRocca’s

attack on the federal agents, Busic also appears to have

originally purchased the pistol used by LaRocca (App. 29).

The district court’s principal instructions to the jury on

the charges against Busic of aiding and abetting LaRocca’s

assault were as follows:

The Government contends, of course, as I understand it,

that Busic was aware of the plan to rob Harvey and that

he was there to assist LaRocca in all of the activities

there and the fact that he did not fire merely indicates

that he thought it better not to do so.

As I have explained, one who aids and abets another

to commit an offense is as guilty of the offense as if he

had committed it himself. Accordingly, you may find

Busic guilty of the offenses of assault upon federal offi-

cers if you find beyond a reasonable doubt that he was

LaRocca’s aider and abettor or counselor when they went

to the shopping center. The question is did he associate

himself with the venture, did he plan to help it succeed.

This is, of course, for you to decide. If he had actually

gone to the center to end the matter and if he did not aid

and abet LaRocca, he would, of course, not be guilty of

the assaults on the federal officers. [Tr. 604]

* * * * *

THE COURT: Let the record show we are in open

court. I have received a question from the jury which

eT —

Busic received a sentence of five years’ imprisonment

(two years of which were perforce under the enhance-

ment provision of Section 111). Busiec was also

charged (Count 18) with unlawfully carrying a sec-

ond firearm during the commission of a federal

felony, in violation of 18 U.S.C. 924(c) (2). On this

count Busic was sentenced to a consecutive term of

20 years’ imprisonment.

reads as follows: “Count Six. Even though Mr. Busic

did not actively participate in the assault did his partici-

pation in the conspiracy make him guilty of the assault.”

Ladies and gentlemen, the answer to your question

is yes unless you find that Busic withdrew from the con-

spiracy before the assault began or unless you find that

as he claimed he went there merely for the purpose of

telling Harvey that the deals were off. If he had with-

drawn from the conspiracy before the assault began, he

would not be guilty of the assault as an aider and abettor.

If he was still a part of the conspiracy and intended to

aid and abet LaRocca in the robbery in the event you find

that the purpose in going to the shopping center was the

robbery, then he would be guilty of the assault. This

. issue, of course, requires that you determine his mental

state, that is, what he intended. [Tr. 629-631]

The district court denied Busic’s post-trial motion for judg-

ment of acquittal as to Counts 6 and 7 on the ground that

LaRocca’s armed assault on the federal officers was in further-

ance of the original narcotics conspiracy and that therefore,

under Pinkerton v. United States, 828 U.S. 640 (1946), Busic

was liable for LaRocca’s acts (App. 30-32). The court of

appeals affirmed, finding that “the evidence overwhelmingly

supports his conviction under both a conspiracy and an aiding

and abetting theory. See Nye & Nis [sen] v. United States,

336 U.S. 618 (1949); Pinkerton v. United States, 328 U.S.

640 (1946).” (App. 53 n.12). Busic does not in this Court

challenge his convictions for aiding and abetting.

Busic asserts as his “princip[al] contention” that

Section 924(c)(2), which prohibits the unlawful

carrying of a firearm during the commission of a

federal felony, “does not apply where the underlying

offense already contains a sentencing enhancement

provision for use of a firearm” (78-6020 Br. 8). As

we have shown above in Part I, however, Section

924(c) is fully applicable even though the predicate

felony contains its own enhancement provision, so

long as the defendant is not doubly punished for the

same firearm element. Moreover, even if Section

924(c) (1) were inapplicable to such a felony, so that

a defendant (like LaRocca) who uses a firearm to

assault a federal officer could be punished only under

Section 111, we submit that a defendant (like Busic)

who unlawfully carries (but does not use) a firearm

during the commission of that felony can properly

be sentenced under Section 924(c) (2). The federal

enhancement statutes (including Sections 111 and

2113) proscribe only the use of a dangerous weapon

to commit the offense, and they contain no provision

punishing the unlawful carrying of such a weapon.

Thus, if Section 924(c) (2) were inapplicable, a de-

fendant who unlawfully carries a firearm would re-

ceive no enhanced sentence and would be subject only

to the same penalty as one who commits the offense

without carrying a firearm—a result directly con-

trary to the language and legislative history of Sec-

tion 924(c) (2), which unmistakably demonstrate that

Congress intended to punish as a separate offense the

PA A i tach Rat lt ap a bn om ~

Ran bn Ce Rte a i rc Ot

+ oe cee - -

unlawful carrying of a firearm in the commission of

a federal felony. See note 8, supra.

Busic also contends that this Court’s decision in

Simpson v. United States, swpra, precludes the im-

position of an additional penalty under Section

924(c)(2) for unlawfully carrying a firearm during

the commission of an assault for which he received

an enhanced sentence under Section 111.

If we are correct in the preceding argument (pages

17-47, supra) that a defendant may be sentenced

either under Section 924(c) or under the enhance-

ment provision of Section 111, then it is unnecessary

for the Court to consider whether Busic was properly

sentenced under both statutes. Since Busic’s five-year

sentence under Section 111 is concurrent with seven

other five-year terms of imprisonment that are un-

challenged, only his sentence under Section 924 (c) (2)

will actually affect his incarceration. See, e.g., Barnes

v. United States, 412 U.S. 837, 848 n.16 (1978) ;

compare Benton v. Maryland, 395 U.S. 784 (1969) .”

In any event, in the circumstances of this case,

petitioner Busic’s consecutive sentences under Section

924(c) (2) and the enhancement provision of Section

111 were fully proper. Unlike the situation in Simp-

son, where the government was “able to prove vio-

lations of two separate criminal statutes with pre-

*7 We also note that, even if Busic were correct that con-

secutive sentences are barred for the aggravated assault

and the firearm offense, this would at most affect his Section

111 sentence and would leave intact the Section 924(c)

sentence.

Oe a

cisely the same factual showing” (435 U.S. at 11)

and “relied on the same proofs to support the con-

victions under both statutes” (435 U.S. at 12),

Busic’s two convictions did not rest on identical evi-

dence. Two separate firearms were involved in peti-

tioners’ shootout with federal officers. One firearm

was used by petitioner LaRocea to assault BATF

agents Alfree and Petraitis and DEA agent Mac-

ready. For his part in aiding and abetting LaRocca,

Busic was sentenced to five years’ imprisonment un-

der 18 U.S.C. 2 and 111; the enhancement provisions

of Section 111 were applicable because LaRocca had

used a firearm and thus committed an aggravated

assault. The second firearm was unlawfully carried

(but not used) by Busie (a previously convicted

felon) during LaRocca’s armed assault; for this dis-

tinct offense, Busic received a consecutive sentence

of 20 years’ imprisonment under Section 924(c) (2)

for unlawfully carrying a firearm during the com-

mission of a federal felony. Since each of his con-

victions was based on a different firearm that was

used or carried by a different person, Busic was prop-

erly sentenced to consecutive terms under Section

924(c) (2) and the enhancement provision of Section

Li.”

** This is not a case that presents a question concerning

“(w]hat Congress has made the allowable unit of prosecu-

tion.” United States v. Universal C.I.T. Credit Corp., 344

U.S. 218, 221 (1952). See, e.g., Ladner v. United States, 358

U.S. 169 (1958) (Congress did not intend that injuring two

federal officers with one shot be punished as two separate of-

fenses) ; Gore v. United States, 357 U.S. 386 (1958) (consecu-

Se ha

a ee ee

Nor, for the same reasons, do Busic’s consecutive

sentences under Section 924(c) (2) and the enhance-

ment provision of Section 111 violate the Double

Jeopardy Clause. For present purposes we may as-

sume that the Double Jeopardy Clause forbids the

imposition of cumulative penalties for convictions at

a single trial of two crimes, one of which is a lesser

tive sentences allowable for multiple offenses arising out of a

single narcotics transaction) ; Bell v. United States, 349 U.S.

81 (1955) (Congress did not intend that illegally carrying

two women across state lines in one vehicle be punished as

two separate crimes) ; Blockburger v. United States, 284 U.S.

299 (1932) (consecutive prison terms permissible for two

crimes committed by a single sale of narcotics) ; Ebeling v.

Morgan, 237 U.S. 625 (1915) (consecutive sentences upheld

for cutting several mail bags in one transaction). See also

Sanabria v. United States, 437 U.S. 54, 70 n.24 (1978). Such

a question would be presented, for example, if a single de-

fendant who used two firearms to assault a federal officer,

or who fired two bullets from one gun at a federal officer,

were prosecuted for two violations of the same statute. In

this case, however, Busic was guilty both of aiding and

abetting LaRocca’s armed assault and of carrying his own

firearm; these clearly presented distinct risks to the public

good and constituted separate violations of different statutes.

Similarly, this is also not an appropriate case to consider

whether Simpson would ever bar the government from pro-

ceeding under Section 924(c) (2) and the enhancement pro-

vision of Section 111. That issue would be posed, for in-

stance, if a defendant who unlawfully carried and used a

single firearm to assault a federal officer were prosecuted

under Section 924(c) (2) for carrying the weapon and under

the enhancement provision of Section 111 (but not under

Section 924(c)(1)) for using the same firearm to commit

the assault.

included offense of the other.” The usual standard

for determining whether offenses are sufficiently dis-

tinct to permit cumulative punishment was set forth

in Blockburger v. United States, 284 U.S. 299, 304

(1932): “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.” “This test emphasizes the

elements of the two crimes. ‘If each requires proof

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

is satisfied, notwithstanding a substantial overlap in

the proof offered to establish the crimes.’” Brown v.

Ohio, 432 U.S. 161, 166 (1977), quoting Jannelli v.

United States, 420 U.S. 770, 785 n.17 (1975). See

also Harris v. United States, 359 U.S. 19 (1959).

The Blockburger test is plainly satisfied in this

case. The offense of aiding and abetting an aggra-

vated assault, in violation of 18 U.S.C. 2 and the

2° It is our position, however, as we argue in our brief in

Whalen v. United States, No. 78-5471, that the legislature

may constitutionally authorize consecutive punishments even

where the two statutory violations are not sufficiently dis-

tinguishable to constitute separate offenses under the Block-

burger test. Since the Blockburger test is plainly satisfied in

the instant case, the Whalen argument need not be pursued

here.

* Indeed, the present case is not at all the type of situation

that Blockburger was designed to address, since it is clear

that Busic received consecutive sentences for two distinct

acts rather than for “the same act.” Such a case indisputably

does not violate the Double Jeopardy Clause.

enhancement provision of 18 U.S.C. 111, requires

proof, ¢nter alia, that a dangerous weapon was in

fact used to assault a federal officer and that the

defendant aided and abetted that assault; for this

offense, it is not necessary to prove that a firearm

(rather than some other dangerous weapon, such as

a knife) was used, that the defendant either carried

or used the dangerous weapon, or that, if the de-

fendant did carry the weapon, it was unlawful for

him to do so. In contrast, a conviction under Section

924(c)(2) requires, inter alia, a showing that any

federal felony (not necessarily assault on a federal

officer) was committed, that the defendant actually

carried a firearm (not any other type of dangerous

weapon) during the commission of that felony, and

that it was unlawful, under applicable federal, state

or local law, for the defendant to carry the firearm.”

31 The act of carrying the firearm must be independently

unlawful under applicable federal, state or local law; un-

lawfulness based simply upon the fact that the firearm was

carried in furtkerance of the underlying felony is insufficient.

See, e.g., United States v. Risi, 603 F.2d 1198 (5th Cir. 1979) ;

United States v. Dorsey, 591 F.2d 922 (D.C. Cir. 1978) ;

United States v. Garcia, 555 F.2d 708 (9th Cir. 1977) ; United

States v. Akers, 542 F.2d 770 (9th Cir. 1976), cert. denied,

430 U.S. 908 (1977) ; United States v. Crew, 588 F.2d 575

(4th Cir.), cert. denied, 429 U.S. 852 (1976); Perkins v.

United States, 526 F.2d 688 (5th Cir. 1976); United States

vV. Howard, 504 F.2d 1281 (8th Cir. 1974); United States v.

Ramirez, 482 F.2d 807 (2d Cir.), cert. denied, 414 U.S. 1070

(1973) ; United States v. Sudduth, 457 F.2d 1198 (10th Cir.

1972). During the House debates on the Casey amendment,

several congressmen expressed concern that the proposal, as

originally introduced, might impose stiff penalties upon police-

Thus, it is evident that the elements of the offenses

are sufficiently distinct to meet the Blockburger test.

See Wayne County Prosecutor v. Recorder’s Court

Judge, 280 N.W.2d 793 (Mich. 1979), appeal dis-

missed for want of a substantial federal question

sub nom. Brintley v. Michigan, No. 79-5506 (Nov.

13, 1979); West v. United States, No. 78-5252 (6th

Cir. Nov. 14, 1979), slip op. 3-4; Kowalski v. Parratt,

533 F.2d 1071 (8th Cir.), cert. denied, 429 U.S. 844

(1969).

Furthermore, because two separate guns were in-

volved in this case, the prosecution was required to

prove, and the jury was required to find, independent

facts as to each offense. As the Court noted in Brown

v. Ohio, supra, 432 U.S. at 167 n.6, strict application

of the Blockburger test would permit imposition of

consecutive sentences in these circumstances because

separate convictions for aiding and abetting an as-

sault with one firearm and for unlawfully carrying

a second firearm require proof in each count that

a different firearm was involved. See also Ebeling v.

Morgan, supra, 237 U.S. at 631. Hence, under this

analysis as well, it is again apparent that Busic’s

consecutive sentences pursuant to Sections 924(c) (2)

men or other licensed gun carriers who were later found to

have committed federal felonies while lawfully carrying their

firearms. See, e.g., 114 Cong. Rec. 21788-21789, 21792, 22231

(1968). In order to avoid this result, the Poff amendment

included the requirement that the firearms be carried “unlaw-

fully” (id. at 22231), and the House rejected an amendment

that would have deleted the word “unlawfully” from the Poff

proposal (id. at 22236, 22237, 22245).

and 111 are not barred by the Double Jeopardy

Clause.

Ii. IN THE EVENT THE COURT VACATES PETI-

TIONERS SECTION 924(c) SENTENCE, THE AP-

PROPRIATE DISPOSITION OF THE CASE WOULD

BE TO REMAND TO THE DISTRICT COURT FOR

RE-SENTENCING ON THE SECTION 111 COUNTS

In the event the Court disagrees with our principal

contention that petitioners were properly sentenced

under Section 924(c), the question remains what dis-

position of the case would be “just under the circum-

stances” (28 U.S.C. 2106). We submit that the ap-

propriate course in this case would be to vacate

petitioners’ sentence on the Section 111 counts and to

remand for re-sentencing on those counts, subject to

(1) the maximum statutory penalty authorized by

Section 111, and (2) the limitation that the new

sentence cannot exceed that previously imposed for

the armed assault offenses under Sections 924(c) and

1”

Petitioners Busic and LaRocca were respectively

found guilty in this case on 16 and 14 felony counts,

including, as relevant here, two armed assaults on

federal officers. Prior to this Court’s decision in

Simpson v. United States, supra,™ petitioners were

82 The disposition we suggest would be equally applicable

if the Court holds that petitioner Busic’s sentence under

Sections 924(c) and 111 was inconsistent with Simpson V.

United States, supra, or violated the Double J eopardy Clause.

8 Petitioners were sentenced on March 11, 1977 (App. 17-

20), almost a year before this Court’s decison in Simpson V.

United States, supra.

each sentenced for their armed assaults to 25 years’

imprisonment (five years of which were made con-

current with other terms of imprisonment not at

issue here).** If they prevail in this Court and have

their sentence under Section 924(c) vacated, peti-

tioners will be subject to only a five-year term of

imprisonment for the armed assault offenses.

Such an unanticipated and undeserved windfall to

petitioners should not be countenanced. Whether their

criminal conduct is denominated as a violation of

Section 924(c), or of Section 111, or both, petitioners

engaged in criminal activities calling for severe con-

demnation and punishment. The district court im-

** Petitioners were sentenced to a term of five years’ im-

prisonment under Section 111 (Counts 6 and 7) and to a

consecutive term of 20 years’ imprisonment under Section

924(c) (Count 18 for petitioner Busic, and Count 19 for

petitioner LaRocca). Petitioners’ sentence under Section 111

was concurrent with their sentence of five years’ imprison-

ment for firearms offenses other than Section 924(c). In

addition, petitioners were sentenced to a consecutive term of

five years’ imprisonment for various narcotics offenses. In

total, each petitioner received a sentence of 30 years’ im-

prisonment. See page 5, supra.

Because the maximum penalty that could be imposed under

Section 111 for two counts of armed assault is 20 years’ im-

prisonment (two consecutive 10-year terms), petitioners’

re-sentence on remand would in fact be less than the 25 years’

imprisonment (five years of which were concurrent with the

sentences on other counts) they originally received for the

armed assaults under Sections 924(c) and 111. Nevertheless,

such a 20-year sentence, if made consecutive to the sentences

on the other charges of which petitioners were convicted,

would result in a total term of 30 years’ imprisonment, the

same cumulative sentence that was initially imposed.

it iD —

posed substantial terms of imprisonment commensu-

rate with the gravity of petitioners’ acts, and it is

of no practical consequence that petitioners’ sentence

for the armed assaults was apportioned between the

counts under Section 924(c) and those under Section

111. Petitioners now seek to have their armed assault

sentence reduced from 25 years’ imprisonment to five

years’ imprisonment because of this Court’s inter-

vening decision in Simpson v. United States, supra

—a decision that the district court could not have

taken into account in structuring petitioners’ sen-

tence. It is, we think, inconceivable that the district

judge, who elected a total sentence of 25 years for

the assaults and chose Section 924(c) as the primary

vehicle for that result, would have sentenced peti-

tioners to only five years for their conduct had he

known that Section 111 was the sole provision under

which the armed assaults could be punished.** Indeed,

since petitioners’ sentence on the Section 111 counts

is concurrent with other sentences they received,

vacation of the Section 924(c) sentence would mean

that petitioners would in effect be subject to no

augmented punishment for their armed assaults. In

these circumstances, we submit that the appropriate

disposition of this case (assuming the Court con-

85 Since the legal issue petitioners raise concerns purely

formal and technical aspects of the sentencing and is wholly

unrelated to the choice of a just punishment for their criminal

conduct, it seems especially unlikely that the district court

would have imposed a sentence of only five years for the

armed assaults if it had understood the law to be as peti-

tioners now contend.

cludes that petitioners’ Section 924(c) sentence was

unauthorized) is to remand to the district court for

re-sentencing on the Section 111 counts subject only

to (1) the maximum penalties prescribed by Congress

in that statute, and (2) the restriction that the new

sentence imposed on each petitioner for the armed

assault offenses not exceed the original total sentence

he received for those offenses.*®

36 United States v. Addonizio, No. 78-156 (June 4, 1979),

is not to the contrary. In Addonizio, the Court held that

Section 2255 relief was not available to a prisoner who claimed

that a change in the policies of the United States Parole Com-

mission had frustrated the sentencing judge’s subjective in-

tent concerning the expected term of actual imprisonment.

Unlike Addonizio, the instant case does not involve the “settled

law that * * * narrowly limit[s] the grounds for collateral

attack on final judgments” (slip op. 6). Moreover, our con-

tention does not turn on “the subjective intent of the sentenc-

ing judge” (slip op. 9) or on the judge’s “expectations with

respect to the actual release of a sentenced defendant short

of his statutory term” (slip op. 11). Rather, our position

depends solely on the objective fact that the district judge

sentenced petitioners to 25 years’ imprisonment for their

armed assaults on federal officers—a decision that unques-

tionably was “his to make” (slip op. 11) and was not com-

mitted to any other institution of government.

Of course, the district court on remand is not obligated to

impose a sentence equivalent to that originally ordered. If,

for example, the initial sentence was influenced by the fact

that petitioners violated both Section 924(c) and Section 111,

then the re-sentence on the Section 111 counts alone might be

appreciably less than the earlier sentence. On the other hand,

if, as we believe likely, the initial sentence reflected the dis-

trict court’s view that petitioners’ armed assaults on federal

officers, in light of their prior criminal records and prospects

for rehabilitation, warranted a sentence of 25 years’ imprison-

ment and that the apportionment of this sentence between

We acknowledge the double jeopardy implications

of the disposition we propose, but we believe that such

concerns cannot withstand analysis.

The Double Jeopardy Clause “has been said to con-

sist of three separate constitutional protections. It

protects against a second prosecution for the same

offense after acquittal. It protects against a second

prosecution for the same offense after conviction.

And it protects against multiple punishments for the

same offense.” North Carolina v. Pearce, 395 U.S.

711, 717 (1969) (footnotes omitted). Only the last

of these three protections is involved here.

In our view, the course we advocate cannot be

said in any meaningful sense to constitute “multiple

punishments for the same offense.” As the Court held

in Pearce, supra, the Double Jeopardy Clause does

not “impose[] an absolute bar to a more severe sen-

tence upon reconviction” (395 U.S. at 723).

[A]t least since 1919, when Stroud v. United

States, 251 U.S. 15, was decided, it has been

settled that a corollary of the power to retry a

defendant is the power, upon the defendant’s

reconviction, to impose whatever sentence may

be legally authorized, whether or not it is greater

than the sentence imposed after the first convic-

tion. * * *

the two statutes was immaterial, then the re-sentence would,

to the extent possible, parallel the earlier punishment. The

critical point here is whether anything in the Double Jeopardy

Clause precludes a remand to the district court for such re-

sentencing, which this Court is statutorily empowered to

order under 28 U.S.C. 2106.

Although the rationale for this ‘“well-estab-

lished part of our constitutional jurisprudence”

has been variously verbalized, it rests ultimately

upon the premise that the original conviction

has, at the defendant’s behest, been wholly nulli-

fied and the slate wiped clean. * * * [If a new

trial] does result in a conviction, we cannot say

that the constitutional guarantee against double

jeopardy of its own weight restricts the imposi-

tion of an otherwise lawful single punishment

for the offense in question. [395 U.S. at 720-721;

footnotes omitted].

Although petitioners in the instant case have not

challenged their conviction or sentence under Section

111, we submit that the Double Jeopardy Clause does

not forbid the district court to re-sentence them on

the Section 111 counts if their sentence under Sec-

tion 924(c) is upset at their behest. As in Pearce,

petitioners initiated the appellate proceedings that

give rise to the need for re-sentencing. Cf. United

States v. Scott, 437 U.S. 82, 93, 98-99 (1978). Thus,

this is not a case in which the government instituted

steps to increase a defendant’s punishment on a given

count, and there is no “act of governmental oppres-

sion of the sort against which the Double Jeopardy

Clause was intended to protect.” United States v.

Scott, supra, 437 U.S. at 91. In addition, the sen-

tences under Section 924(c) and Section 111 derive

from the same armed assaults on federal officers.

Since petitioners would not on remand be subject to

any greater sentence for the armed assaults than the

end i tt eo

Ree ens

25 years’ imprisonment they initially received (in-

cluding credit for time already served, see North

Carolina v. Pearce, supra, 395 U.S. at 717-719), they

would suffer no enhanced or multiple punishment for

those offenses.*’

%7 Since, under this analysis, petitioners’ sentences would

not be increased by re-sentencing, the due process protections

against vindictiveness recognized in North Carolina v. Pearce,

supra, are inapplicable here. Moreover, “the possibility that

a defendant might be deterred [by this result] from the exer-

cise of a legal right [to appeal]” does not violate the Due

Process or Double Jeopardy Clauses. Bordenkircher v. Hayes,

434 U.S. 357, 363 (1978). See also Blackledge v. Perry, 417

U.S. 21, 27 (1974) ; Chaffin v. Stynchcombe, 412 U.S. 17, 29

(1978) ; North Carolina v. Pearce, supra, 395 U.S. at 719-

721. Indeed, since the appeal could not result in a higher

sentence than that originally imposed, there could be no de-

terrent to an appeal.

For the same reasons, the court of appeals erred in con-

cluding (App. 47) that petitioner LaRocca could not be re-

sentenced to a greater punishment on the Section 924 (c)

count or on the Section 111 counts (whichever the govern-

ment elects for re-sentencing) than he had initially received

for the offense. As discussed in the text, the appropriate

standard for measuring the severity of the re-sentence is the

composite sentence initially imposed on the armed assault

counts under Sections 924(c) and 111. Nor would the dis-

position we propose “allow the government to do indirectly

what * * * it cannot do directly.” United States v. Stewart,

585 F.2d 799, 801 n.5 (5th Cir. 1978), cert. denied, No. 78-

6007 (Apr. 30, 1979). Rather, this procedure will enable the

district court to impose whatever sentence it would have in-

itially ordered for the armed assault offenses if it had been

aware of the legal restrictions on its sentencing power, sub-

ject to the limitation that petitioners cannot be given a

greater punishment than they originally received.

This Court has also recognized that an unlawful

sentence can be corrected without running afoul of

the Double Jeopardy Clause even if the revised sen-

tence exceeds the original one. See Bozza v. United

States, 330 U.S. 160 (1947); Murphy v. Massachu-

setts, 177 U.S. 155 (1900) ; see also Pollard v. United

States, 352 U.S. 354 (1957). “To hold otherwise

would allow the guilty to escape punishment through

a legal accident” (Pollard v. United States, supra,

352 U.S. at 361), for “[i]f this inadvertent error

cannot be corrected * * * no valid and enforceable sen-

tence can be imposed at all” (Bozza v. United States,

supra, 330 U.S. at 166). Analogously to those cases,

petitioners here, if not subject to re-sentencing, would

in a very real sense be allowed,to escape punishment

for the aggravated offense of armed assault. To the

extent that the district court, following reversal of

the Section 924(c) convictions, cannot bring peti-

tioners’ sentence into line with the penalty it origi-

nally intended and imposed for the armed assaults,

petitioners will be allowed through a legal accident

to escape the full and fair measure of their punish-

ment. Indeed, under the existing sentence, petitioners

have received concurrent five-year terms of imprison-

ment on the two Section 111 counts of armed assault,

a lesser penalty than could have been imposed for two

unarmed assaults on federal officers. See also page

59, supra.

It is well settled that “[c]orresponding to the right

of an accused to be given a fair trial is the societal

interest in punishing one whose guilt is clear after

he has obtained such a trial.” United States v. Tateo,

—-s -

= ‘

377 U.S. 463, 466 (1964). See also, e.g., United

States v. Scott, 487 U.S. 82, 92 (1978). Inherent in

this societal interest is the fundamental recognition

that a convicted defendant should receive an appro-

priate sentence that reflects his character and the na-

ture and severity of his criminal conduct. See, ¢.9.,

Pennsylvania v. Ashe, 302 U.S. 51, 55 (1937) (“For

the determination of sentences, justice generally re-

quires * * * that there be taken into account the cir-

cumstances of the offense together with the character

and propensities of the offender.”). As North Caro-

lina v. Pearce and Bozza v. United States illustrate,

the Double Jeopardy Clause does not render nugatory

or illegitimate the societal interest in having just

Sentences meted out to convicted defendants. While

the Double Jeopardy Clause was designed “to pro-

tect the integrity of a final judgment” (United

States v. Scott, 437 U.S. 82, 92 (1978) ) and requires

due regard for “principles of fairness and finality”

(United States v. Wilson, 420 U.S. 332, 343 (1975)),

it cannot be said that to allow petitioners to be re-

sentenced following their successful appeal in this

case would forsake these precepts. Likewise, it is at

best a semantic exercise to conclude that re-sentencing

petitioners to no greater penalty than they originally

received for their armed assaults on federal officers

would be to subject them “to the possibility of further

punishment by being again * * * sentenced for the

same offense” (ibid.). If petitioners’ Section 111

sentences are vacated and the case remanded for

re-sentencing, “we cannot say that the constitutional

guarantee against double jeopardy of its own weight

restricts the imposition of an otherwise lawful single

punishment for the offense in question.” North Caro-

lina v. Pearce, supra, 395 U.S. at 721.

This Court has never considered whether a de-

fendant who succeeds in challenging one of two

related sentences can be subject to re-sentencing on

the unchallenged count. The lower federal courts

have resolved this question against the government.”

In our view, however, these decisions have simply

seized, without further analysis, on the perceived

double-jeopardy rule that in no circumstances can a

valid sentence on an uncontested conviction be in-

38 See United States v. Frady, 607 F.2d 383 (D.C. Cir.

1979) ; Borum v. United States, 409 F.2d 438 (D.C. Cir. 1967),

cert. denied, 395 U.S. 916 (1969); United States v. Bynoe,

562 F.2d 126 (1st Cir. 1977) ; United States v. Sacco, 367 F.2d

368 (2d Cir. 1966) ; United States v. Fredenburgh, 602 F.2d

1143 (3d Cir. 1979); United States v. Benedetto, 558 F.2d

171 (3d Cir. 1977); Government of the Virgin Islands v.

Henry, 533 F.2d 876 (3d Cir. 1976) ; United States v. Corson,

449 F.2d 544 (8d Cir. 1971) (en banc); United States v.

Welty, 426 F.2d 615 (3d Cir. 1970); Whaley v. North Caro-

lina, 379 F.2d 221 (4th Cir. 1967) ; Chandler v. United States,

468 F.2d 834 (5th Cir. 1972); United States v. Adams, 362

F.2d 210 (6th Cir. 1966) ; United States v. Turner, 518 F.2d

14 (7th Cir. 1975); United States v. Durbin, 542 F.2d 486

(8th Cir. 1976) ; United States v. Edick, 603 F.2d 772 (9th

Cir. 1979) ; United States v. Best, 571 F.2d 484 (9th Cir.

1978) ; Kennedy v. United States, 380 F.2d 26 (9th Cir.

1964) ; Owensby v. United States, 385 F.2d 58 (10th Cir.

1967).

_ | As discussed above, however, such a rule

is unfounded.*

** The Third Circuit has endeavored to support this asserted

rule on the theory that “the constitution protects the expecta-

tions created in a defendant when he is properly convicted

and sentenced [on a given count].” United States v. Freden-

burgh, supra, 602 F.2d at 1147-1148. “Perhaps the best expla-

nation for this rule is that a defendant’s initial expectations

as to the maximum sentence he must serve on a valid judg-

ment of conviction should not be defeated * * *.” Jd. at 1148.

It is wholly unrealistic, however, to believe that petitioners’

original sentence created an expectation that they would not

be imprisoned for more than five years on the Section 111

counts. Rather, petitioners knew that they had received an

overall sentence of 30 years’ imprisonment in this case and

& composite sentence of 25 years’ imprisonment (five years

of which were concurrent with other terms of incarceration)

for the armed assault offenses.

In any event, the Double Jeopardy Clause does not require

that considerations other than a defendant’s expectations be

disregarded. Neither North Carolina vy. Pearce nor Bozza V.

United States turned on the existence or predominance of a

defendant’s expectations; rather, they represent the careful

accommodation of the right of the defendant to fair treatment

and the interest of society in the just disposition of criminal

cases. Likewise, the Third Circuit’s view that the Double

Jeopardy Clause vests a defendant with an indefeasible

expectation that his sentence on one of a series of related

counts will not be changed, regardless of the interests of

justice and of society, cannot be squared with the principle

derived from United States v. Wilson, supra, that a defend-

ant’s expectations arising from an acquittal by the trial court

following a jury verdict of guilty are subject to defeasance

when the favorable action is premised upon a legal error

(see 420 U.S. at 845). In the same way, we suggest that the

Double Jeopardy Clause does not make inviolable whatever

expectations petitioners might have in this case or entitle peti-

tioners to a windfall reduction in their sentence by barring

the district court from re-sentencing them on the Section 111

counts up to the penalty previously imposed for the armed as-

sault offenses under Sections 924(c) and 111.

Moreover, these lower federal court decisions are

almost uniformly premised on what we believe is

a superficial and incorrect reading of this Court’s

decision in Ex parte Lange, 85 U.S. (18 Wall.) 163

(1873). In Lange, the trial court sentenced the de-

fendant to imprisonment and a fine even though the

punishment authorized by statute was imprisonment

or a fine. After defendant had paid the fine, the trial

court sought to correct the sentence by imposing only

a term of imprisonment. This Court held that once

the defendant had paid the fine (which had gone into

the Treasury and therefore could not be refunded),

he had satisfied a sentence authorized by statute and

thus could not thereafter be re-sentenced without

being subjected to impermissible double punishment:

If there is anything settled in the jurispru-

dence 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 pro-

tection 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, supra, 85 U.S. (18 Wall.) at 168,

quoted in North Carolina v. Pearce, supra, 395 U.S.

at 717-718. See also In re Bradley, 318 U.S. 50

(1943); United States v. Benz, 282 U.S. 304, 307

(1931).

The imposition of both a fine and imprisonment in

Ex parte Lange was a multiple punishment pro-

hibited by the Double Jeopardy Clause precisely be-

cause Congress had not authorized both penalties; it

had authorized only one or the other.”’ In our view,

Ex parte Lange holds that “the role of the * * *

[Double Jeopardy Clause] is limited to assuring that

the court does not exceed its legislative authorization

by imposing multiple punishments for the same of-

fense.” Brown v. Ohio, 432 U.S. 161, 165 (1977).

Such a rule has no bearing on the question whether a

defendant who successfully attacks certain counts of

his conviction or punishment can be re-sentenced on

the remaining counts that grow out of the same

criminal conduct as the invalidated counts. Notwith-

standing Ex parte Lange, we submit that where an

unlawful act results in a multi-count prosecution

under more than one federal statute, the Double

Jeopardy Clause does not bar a defendant from being

re-sentenced on the outstanding counts if his con-

viction or sentence on the other counts is overturned

on his appeal, provided that the re-sentence complies

with the maximum penalty authorized by statute for

each count and does not exceed the aggregate sen-

tence originally imposed for such criminal conduct.

In the instant case, it is clear that petitioners’

sentences under Section 924(c) and Section 111 de-

* It is not entirely clear why the Court in Ex parte Lange

rested its decision on double jeopardy grounds, since the same

result was compelled by the statute under which the de-

fendant was convicted, wholly without regard to the existence

of the constitutional double jeopardy protection. Moreover,

it would seem indisputable that the Due Process Clause

would preclude the imposition of a sentence depriving a de-

fendant of either liberty or property in a manner or to an

extent not authorized by statute.

t. 70

rive from the same criminal act—the armed assaults

of federal officers. For this criminal conduct, peti-

tioners were each sentenced to consecutive terms of

20 years’ imprisonment on the Section 924(¢c) count

and five years’ imprisonment on the Section 111

counts. If this Court vacates the Section 924 (c)

counts, the fact that petitioners’ sentences were al-

lotted between two statutes should not, as a matter of

constitutional command, entitle petitioners to serve

only a five-year term of incarceration on the Section

111 counts. Instead, the case should be remanded to

the district court to re-sentence petitioners on the

Section 111 counts, subject to the limitation that such

re-sentence cannot exceed either the maximum penalty

allowed by that statute or the total sentence previ-

ously imposed on petitioners under Sections 924 (c)

and 111 for the armed assault offenses of which they

were convicted."

“‘In our view, there is no procedural impediment to the

Court’s consideration of this issue even though the govern-

ment did not file a cross-petition for a writ of certiorari. (We

note that the issue was presented in the government’s brief

in the court of appeals (Brief for Appellee at 19-21, Nos.

77-1375, 77-1376 (3d Cir.)) and in the Brief for the United

States as respondent at the petition stage (page 11 n.10).)

This issue is incident to the Court’s “plenary authority under

28 U.S.C. § 2106 to make such disposition of the case ‘as may

be just under the circumstances.’ ” Haynes v. United States,

390 U.S. 85, 101 (1968). Moreover, we address here only the

question of the proper disposition of the case in the event

the judgment of the court of appeals is reversed—a matter

the Court would be obliged in any event to consider. Since

the government was and is satisfied with the court of appeals’

judgment, and since the disposition we propose would not

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

MARK I. LEVY

Assistant to the Solicitor General

CAROLYN L. GAINES

Attorney

JANUARY 1980

grant the government any greater relief than was afforded

by the court of appeals, there should be no requirement that

a cross-petition be filed. Finally, we note the tremendous

burden that would be imposed on the federal government

and on this Court if the government were obligated to scru-

tinize each of the thousands of cases every Term in which it

is or might be a respondent to determine whether a cross-

petition is necessary to protect, in the event certiorari is

granted, the fruits of a lower court judgment with which it

is content. See Stern, When to Cross-Appeal or Cross-Petition

—Certainty or Confusion?, 87 Harv. L. Rev. 763, 775-776

(1974).

wr us. GOVERNMENT PRINTING OFFICE; 1980 306148 185

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