Dean v. United States

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Authorship: John Dalton

Contents

[edit] Briefs and Documents

Docket: 08-5274

Issue: Whether, under 18 U.S.C.924(c)(1)(A)(iii), the mere discharge of a firearm during a crime of violence or drug trafficking, even if accidental, is subject to a ten-year sentencing enhancement.

Merits Briefs


Amicus briefs

Oral Argument

Transcript

Decision: Affirmed in an opinion by Chief Justice Roberts

[edit] Pre-Argument Articles

[edit] Argument Preview

18 U.S.C. § 924(c)(1)(A)(iii) provides that if an individual possesses a firearm during the commission of a “crime of violence or drug trafficking crime,” and “if the firearm is discharged” then the individual shall “be sentenced to a[n] [additional] term of imprisonment of not less than 10 years.” On March 4, in No. 08-5274, Dean v. United States, the Court will consider whether this sentencing enhancement applies to accidental discharges.

[edit] Background

This case arose from petitioner Christopher Dean’s armed robbery of an AmSouth bank in Georgia in 2004. By his own confession, Dean entered the bank with a mask on and a pistol in his right hand. As he was removing the money from the head teller’s station, the gun discharged in his right hand and shot a hole in the teller partition. When the gun discharged, Dean cursed, as if the discharge was accidental. Immediately after the discharge, Dean fled the scene with a little less than $4000.

Dean and his brother-in-law (as co-conspirator) were arrested for the armed robbery. At trial, the jury convicted both men of conspiring to interfere with interstate commerce and aiding and abetting the other in the discharge of a pistol during the robbery in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Dean received 100 months in prison for the armed robbery, along with the additional mandatory minimum of 120 months under 18 U.S.C. § 924(c)(1)(A)(iii).

Dean appealed to the Eleventh Circuit, challenging – among other things – whether 18 U.S.C. § 924(c)(1)(A)(iii) requires that the individual firing the weapon during the commission of the felony actually intend to fire the weapon. Although the court of appeals acknowledged that, based on the trial record, the discharge was likely accidental, it nonetheless affirmed the district court’s decision imposing the additional 120 months. The court reasoned that because Section 924(c)(1)(A)(iii) is simply a sentencing enhancement, it contains no elements of the offense, and the language of the statute does not require separate proof of intent. The court relied on the plain language of 924(c)(1)(A)(iii) which only requires that an individual “use[] or carr[y]” a firearm, and that “the firearm is discharged” without reference to any intent.

In particular, the court focused on a distinction that it had drawn in an earlier case, United States v. Brantley, in which the relevant statute punished the possession of an illegal firearm. Because the defendant in that case did not know that the gun had been illegally modified and turned into an automatic weapon, the court interpreted the statute as including a mens rea requirement to prevent the imposition of a sentence on an innocent individual. However, the Brantley Court contrasted that statute with Section 924(c), noting that in 924(c) cases the defendant must first be convicted of an underlying offense with its own mens rea requirement.

The court then acknowledged that the Tenth and D.C. Circuits had reached conflicting decisions on this question and adopted the Tenth Circuit position, holding that because Dean had the intent to commit the underlying offense, the “mere discharge of the pistol is controlling.”

[edit] Petition for Certiorari

In his petition for certiorari, Dean advanced four primary reasons for granting certiorari. First, as the Eleventh Circuit acknowledged, the circuits are split over whether 924(c)(1)(A)(iii) contains an intent requirement, with two circuits (D.C. and Ninth) holding that proof of intent is required and two circuits (Tenth and Eleventh) reaching the opposite conclusion.

Second, Dean argued that the Court has created a presumption in favor of requiring proof of a mens rea, unless Congress has explicitly legislated otherwise. These cases point to at the very least, requiring general intent (i.e. no accidental liability).

Third, Dean claimed that construing this statute to apply without regard to intentional conduct violates the rule of lenity, even in the context of punishment, as an individual should not be punished beyond the amount clearly required by law.

Finally, Dean briefly contended that review is warranted because the circuit split creates the potential for vastly disparate sentences for the same offense, thereby creating serious due process and equal protection issues.

Opposing certiorari, the government spent much of its brief arguing that review was not warranted because the decision below was correct on the merits. The government pointed to the plain language of the statute – which, in its view, is not ambiguous and contains no intent requirement – as well as the structure and legislative history of the statute.

Second, the government argued that the Court’s precedent on the presumption in favor of mens rea applies only to the elements of the substantive offense, rather than to penalty enhancements.

Third, the government contended that the rule of lenity does not apply here because the statute, as discussed above, is unambiguous on its face.

Finally, the government disputed the scope of the circuit split, arguing that the Ninth Circuit decision did not directly address whether 924(c)(1)(A)(iii) contained a mens rea requirement, but instead addressed only whether the statute required specific intent; in a footnote, the court indicated that only general intent to discharge the weapon was required. Because the court’s rejection of the specific intent claim resolved the question, the statement in a footnote was only dicta.

In his reply brief, Dean began by noting that the government’s brief was devoted mostly to contesting the merits of his claim, rather than questioning its worthiness for certiorari. Dean disputed the government’s claim that the Ninth Circuit’s holding was merely dicta, explaining that because the court expressly held that general intent was required, the 2-2 split does exist and is entrenched. Countering the government’s claim that mens rea requirements do not apply to enhancements, Dean cited cases such as Apprendi that have rejected distinctions between elements and enhancements in other contexts. Finally, Dean noted that the government’s emphasis on the merits arguments actually favors certiorari because it shows the need for the Court to consider whether a new exception to the mens rea presumption is warranted.

[edit] Merits Briefing

In his merits brief, Dean advances five primary arguments. He begins by emphasizing that the plain statutory language requires that an offender have the intent to discharge the firearm. The ten-year mandatory sentence is only implicated if the discharge occurs “during and in relation to” the crime. In Smith v. United States, the Court held that the phrase “in relation to” means that the firearm’s use “cannot be the result of [an] accident” but must actually “facilitate” the crime. Finally, the “in relation to” phrase applies not only to the “use or carry” penalty, but also to the extra penalty given for “brandish[ing]” and “discharg[ing]” the weapon, because the “in relation to” clause is a modifier, which then modifies the full series of verbs that follows it. Otherwise, the clause imposing a penalty when “the firearm is discharged” would have no temporal limitation.

Second, the structure of 924(c)(1)(A) reflects increasing penalties for more culpable behavior. Section 924(c)(1)(A)(i) imposes a mandatory five-year penalty for using a firearm, Section 924(c)(1)(A)(ii) imposes a mandatory seven-year penalty for brandishing the firearm, and then Section 924(c)(1)(A)(iii), at issue in this case, imposes a ten-year penalty for discharging the firearm. Because the purpose of this provision is to increase the penalty with increased culpability, and both (i) (“us[ing]”) and (ii) (“brandish[ing]”) require some intent, then (iii) ( “discharg[ing]”) should also require some intent.

Third, this reading of the statute is also supported by legislative history, which demonstrates that Congress only intended 924(c)(1)(A)(iii) to apply when the firearm was knowingly discharged. This requirement of mens rea has existed in this statute since its initial enactment and is now embodied in the requirement that the discharging occur “during and in relation to” the felony.

Fourth, the Court’s prior precedent and the common law create a presumption that criminal statutes contain at the very least general-intent requirements unless Congress explicitly states otherwise; because Congress made no such statement in this case, that presumption covers this statute. It does not matter that this case involves a sentencing enhancement, because the Court has never limited the presumption in favor of a mens rea to strict “elements” of the offense. Also, the government’s claim that the conduct here was not innocent, and thus not deserving of protection, lacks merit: even if the defendant was guilty of some crime, he should not be held guilty for separate conduct that he did not have the mens rea to commit; otherwise, defendants who were accidentally “[us]ing or carry[ing]” a firearm would also be subject to a sentencing enhancement, even though every court to have considered the question has read an intent element into that provision.

Finally, Dean briefly contends that if the Court still doubts his reading of the statute, at the very least, the statute is ambiguous and thus, the rule of lenity requires the Court to interpret the statute in the way most favorable to the defendant.

In its brief on the merits, the government provides five primary reasons why accidental discharges of firearms are indeed included in Section 924(c)(1)(A)(iii). The government begins by arguing that the plain text of the statute contains no intent requirement because it requires only that the firearm “is discharged.” The opening clause in Section 924(c)(1)(A) sets forth the elements of the offense, while clause (iii) is merely a sentencing factor that is invoked if certain facts exist (“the firearm is discharged”), regardless of mens rea. Congress’s use of passive voice shows that it was only concerned about the firearm being discharged, not about who caused the discharge. And in Harris v. United States, the Court made clear that the “in relation to” phrase is part of the introductory paragraph that sets forth the elements of the offense, and the sentencing factors are not part of the actus reus of the offense. Furthermore, the “in relation to” clause is separated from the “is discharged” clause by a long provision discussing penalties for possessing a weapon in furtherance of a crime.

Second, the structure and purpose of the “is discharged” clause make clear that no intent element is included. The three-tiered structure includes no specific mens rea for any of the three enhancement clauses. Congress explicitly provided an extra mens rea requirement for brandishing in the definition of brandish, but this only shows that Congress knew how to craft such a mens rea requirement and chose not to do so with regard to clause (iii). Also, the purpose of the enhancement is not only to punish those with increased culpability, but also to punish defendants for increasing the risk of harm, which occurs whether the discharge is accidental or intended.

Third, the legislative history shows that although previous versions of the statute included the “in relation to” language immediately before the “is discharged” clause, this language was eliminated, and the present form of the statute was adopted. Also, Congress changed the tense from “discharges” to “a firearm is discharged,” which shows that the weapon being “discharged” is not a part of the actus reus of the offense, and that the mental state of the person discharging the weapon is irrelevant.

Fourth, the presumption in favor of mens rea does not apply in the context of sentencing factors. Judges at common law relied on background facts to increase sentences, and the Court has never extended the presumption in favor of mens rea to sentencing factors. The purpose of the mens rea presumption was to separate innocent and wrongful conduct, but there is no need for the presumption here because the sentencing enhancement is only applied if the individual has discharged a firearm while committing a violent felony, with its own set of mens rea requirements. Furthermore, the presumption of mens rea can be rebutted in this instance because Congress intentionally omitted a mens rea requirement from the discharge provision by rejecting language that would have created a mens rea in the discharge provision and writing in the passive voice.

Finally, the rule of lenity is not applicable here because the statute is unambiguous.

Argument is scheduled for March 4, 2009, but many of these same issues will likely arise on February 25, when the Court hears arguments in Flores-Figueroa v. United States, another case dealing with the application of mens rea to sentencing provisions.

[edit] Oral Argument Recap

Forster began by contending that – based on the text and legislative history of the statute – Section 924(c) must contain an intent requirement. As has been a recent trend, the Court began delving into the depths of grammar. Chief Justice Roberts began an exchange with what he believed to be the strongest point for the other side, that the language of the statute was in passive voice (i.e., the firearm is discharged) rather than active (i.e., the defendant discharged the firearm). Mr. Forster responded that even the passive tense has some object and thus, the mens rea requirements that the Court has created are still applicable. After some back and forth on this point, Justice Ginsburg posited that under the Government’s reading, the statute would allow the defendant to be charged with extra time if the security guard in the bank were to apprehend him, take away the gun, and then the gun discharged while under the security guard’s control.

Justice Scalia then pushed the hypothetical further and asked whether, under the Government’s view, the defendant could be deemed to have “brandished” the gun if the security guard grabbed the gun and waved it around. Justice Souter then noted that the brandish provision of the statute required a purpose to intimidate, which leads to a larger problem because the definition of brandish shows that Congress knows how to create a specific intent element if it chooses. Mr. Forster responded by arguing that Congress must affirmatively remove a mens rea element; in his view, Congress’s inclusion of a specific definition of brandish does not mean that Congress intended to make the discharge provision strict liability. Justice Souter was unmoved by this argument, claimed that it would not be improper at all, and noted other case law in which the presumption against mens rea does not apply – such as vehicular manslaughter, in which the rationale for the lack of a mens rea requirement is that the person acts in a way that creates risk. Mr. Forster attempted to answer the question by saying that the statute was focused on the conduct of an individual, rather than the issue of punishing negligence.

Chief Justice Roberts then chimed in, arguing that Dean’s reading of the statute would allow criminals to always claim that they accidentally fired the gun – a claim that is difficult to disprove. Mr. Forster countered that under the Court’s decision in Harris, such a claim would be evaluated by the judge as a sentencing enhancement rather than an element of the offense. Justice Ginsburg then asked whether the legislative history of the bill included an earlier version with an explicit intent requirement for discharge. Mr. Forster conceded that such a provision had existed, but he argued that based on the “during and in relation to” language, an intent requirement still existed. Justice Breyer appeared unconvinced by this rationale or any rationale relying solely on the language, and he noted that sometimes accidental shootings are more dangerous. In his response, Mr. Forster again relied on Smith to support his argument that that the “in relation to” requirement clarifies that the discharge cannot be accidental.

Justice Scalia responded by noting that the “in relation to” clause is only in the prologue applying to the use or carrying of a firearm, not the discharge. Mr. Forster countered that because such a reading would lead to absurd results (e.g., the gun being discharged years after the crime), it must extend to that clause. Justice Ginsburg refuted the absurd results claim by noting that the “in relation to” clause certainly applies to using and carrying the firearm in relation to the bank robbery, and now the only question left is whether the gun was discharged, during that same robbery. She later reiterated that Congress included an intent requirement for use and for brandish, so it seems like it could have given an intent requirement to discharge if it had desired.

Arguing for the United States, Assistant to the Solicitor General Deanne Maynard began by emphasizing that the text of the statute has no mens rea requirement, but instead merely requires that a fact occur (i.e. the firearm be discharged) during the commission of a felony. Justice Scalia asked whether the statute would cover a discharge that occurs during a bank robbery because the robber sees someone he doesn’t like. Ms. Maynard responded affirmatively, stating that the “during and in relation” to language applies only to the offense and not the sentencing factors.

Justice Scalia then asked whether the identity of the brandisher or discharger was relevant. Ms. Maynard stated that the identity was irrelevant as Congress was concerned solely with the gun being brandished or discharged, not with who was doing it. Chief Justice Roberts then posed a hypothetical in which the police officer takes away the weapon and later discharges it accidentally. Ms. Maynard maintained that the statute would cover these third-party discharges, but she also added that if the Court were uncomfortable with such a result, it could hold that those actions were not part of the manner in which the defendant committed the offense and thus fell outside of the scope of the enhancement. Justice Scalia interjected to remind the Court that none of this need be decided in the present case as the current felon was the one who discharged the weapon.

Justice Stevens then began a line of questioning on Dean’s argument that Congress must make clear when it does not intend a mens rea requirement to apply. Ms. Maynard first emphasized the element/sentencing enhancement dichotomy. Justice Stevens pushed on this distinction and asked whether this was crucial to the Government, or if the Government would hold that there was no presumption of mens rea with elements of the offense either. Ms. Maynard claimed that in reality that distinction was not even necessary, as for this crime, there is still underlying wrongful conduct (i.e. the robbery) and so whether the discharge of the firearm was an element or not, is irrelevant. In response, Chief Justice Roberts noted that two individuals who committed the exact same crime could be given different sentences based entirely on the fortuity that one individual’s firearm was accidentally discharged while the other one’s did not. Ms. Maynard responded by pointing out that criminals are often subject to extra penalties due to the unintended consequences of their acts.

In response to a question by Justice Breyer about whether the rule of lenity should apply in cases – such as this one – involving mandatory minimum sentencing, Ms. Maynard emphasized the drafting history of the statute, noting that the House’s version clearly had an intent requirement, but the mandatory minimum was also higher – 20 years – while the Senate version removed the intent requirement and dropped the minimum sentence. She then argued that “in relation to” modifies only the use or carry provision and does not even extend to possession, much less the enhancement factors. Justice Stevens responded to this argument by asking why, if the “during and in relation to” clause doesn’t extend to the sentencing factors, the discharge even has to occur during the crime. Ms. Maynard responded that the present tense of the clause (i.e. “is discharged”) shows that the discharge must occur while one is using or possessing the firearm during the commission of the felony. Continuing this exchange, Ms. Maynard repeatedly emphasized that the elements contained in the first paragraph of the statute set forth whether the crime was committed and the only question remaining is the sentence, which is determined by the “is discharged” provision.

On rebuttal, Mr. Forster attempted to reemphasize that silence by Congress was not sufficient to eliminate a mens rea requirement.

[edit] Opinion Analysis

Chief Justice Roberts delivered the opinion of the Court, holding that Section 924(c)(1)(A)(iii) does not require any additional proof of intent; the ten-year mandatory minimum applies whenever the gun is discharged in the course of a felony. Justices Stevens and Breyer filed separate dissenting opinions.

The Court began by emphasizing that the text contains no reference to intent, and that it does not usually read into a statute terms that are not otherwise present. The Court then bolstered this point by noting that the language “is discharged” is in the passive voice, which “focuses on an event that occurs without respect to a specific actor, and therefore without respect to any actor’s intent or culpability.” Moreover, the Court reasoned, the structure of the statute supported this reading: the phrase “is brandished” appears directly before “is discharged,” but “brandish” is defined to include a specific intent requirement in the statute, requiring that an individual must have brandished for a specific purpose, while discharge is not defined to include any such intent. Congress, therefore, must have made this distinction for a reason.

The Court rejected Dean’s claim that the phrase “during and in relation to” – which appears in the opening paragraph of Section 924(c)(1)(A)(iii) – extends to the sentencing enhancements. Instead, the Court explained, “[t]he most natural reading of the statute [] is that ‘in relation to’ modifies only the nearby verbs ‘uses’ and ‘carries,’” and does not extend down to the sentencing enhancements. The next verb after uses and carries, “possesses,” has its own adverbial clause. Also, “is brandished” and “is discharged” are in separate subclauses and are no longer in active voice, as the other verbs in the opening paragraph are. As a result, the Court held, the most natural reading is that “during and in relation to” simply modifies the verbs near it, rather than skipping over the intervening clause to extend to the sentencing enhancement clauses. The Court similarly rejected Dean’s argument that, without an intent requirement, any discharge of a firearm before or after a crime would satisfy the statute as a “[f]anciful hypothetical[].”

Turning to Dean’s argument that silence in the statute “compel[led] a ruling in his favor,” the Court conceded that “[i]t is unusual to impose criminal punishment for the consequences of purely accidental conduct.” However, the Court concluded, “it is not unusual to punish individuals for the unintended consequences of their unlawful acts.” For example, an accidental death during a felony can result in a felony murder conviction. While it is true that if an accident occurs while someone is acting lawfully a penalty does not normally result, the standard is different when an accident occurs during unlawful conduct. When criminals bring a loaded handgun, they assume the risk that it could potentially discharge, and the potential danger that can result when a firearm is discharged justifies the increased penalty for that discharge.

Finally, the Court declined to consider lenity. In its view, Congress did not write in an intent requirement for a reason, and certainly, the statute was not “grievously ambiguous.”

In his dissenting opinion, Justice Stevens began by stressing the gravity of the Court’s holding – viz., that an individual who accidentally takes some action and causes no harm is subject to criminal liability. This, he noted, is very peculiar and is not the way Section 924(c)(1)(A) should be construed for two reasons. First, the structure of the statute suggests that Congress intended to escalate the punishment based on increasing levels of culpability. As a result, punishing an individual more severely for an unintentional discharge than that person would be punished for an intentional brandishing is inconsistent with Congressional purpose. Second, regardless of whether Congress wanted the Section to apply only to intentional discharges, the common-law presumption of intent in criminal statutes counsels towards that result. Because Congress made no affirmative statement that strict liability be imposed, Justice Stevens argued that the Court should presume that a mens rea requirement implicitly exists in the statute.

In his dissenting opinion, Justice Breyer conceded the strength of the majority’s arguments but ultimately believed that “the ‘rule of lenity’ tips the balance against the majority’s position.” Justice Breyer emphasized that an interpretation of this Section which requires intent as an element prevents only the mandatory minimum sentence, but the sentencing judge retained the discretion to either raise the sentence (if, for example, the act was particularly egregious) or, alternatively, lower it if it was clearly accidental and harmless. The mandatory minimum, by contrast, requires the additional ten-year penalty, regardless of the level of culpability or the intent of Congress. As a result, the rule of lenity should control.

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