Argument Preview: Dean v. US
Stanford Law School student John Dalton previews one of the cases to be heard by the Court next week.
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.
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."
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.
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.