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Argument preview: US v. Ressam

Argument Preview

18 U.S.C. § 844(h)(2) prescribes a mandatory minimum sentence of ten years for any person who “carries an explosive during the commission of any felony which may be prosecuted in a court of the United States.” The question before the court is whether this provision requires that the explosive be carried “during and in relation to” the underlying felony.


This case stems from respondent Ahmed Ressam’s attempt to set off explosives at Los Angeles International Airport in the days leading up to the millennium in late 1999. Ressam was born in Algeria, later moved to France, and eventually landed in Canada. It was there that he first encountered an Al Qaeda agent in 1998. In March of that year, Ressam left for Pakistan under the assumed name of Benni Norris to train with Al Qaeda. After undergoing extensive training in firearms, explosives, and methods for attacking major infrastructure, Ressam and other Al Qaeda members concocted a plan to set off explosives at LAX just prior to the new millennium. After returning to Canada in February 1999, Ressam continued his preparation for the LAX attack. On November 17, 1999, he traveled with a compatriot, Abdelmajid Dahoumane, to Vancouver, British Columbia. One month later, the two loaded their rental car with a number of bomb-making materials and left for Tswassen, British Columbia, where Ressam alone boarded the ferry for Port Angeles, Washington.

Although it was late in the day, Customs Inspector Diana Dean decided to stop Ressam for inspection as he drove his vehicle off the ferry into Washington. Observing Ressam’s nervous and agitated responses to her questions, Dean asked Ressam to complete a customs declaration, which he signed as Benni Norris. Further inspection of the vehicle led to the discovery of extensive bomb-making material. Ressam was indicted and later convicted on nine counts related to his attempt to execute the LAX attack. Count 5 charged that Ressam had made a false statement to a United States customs official (signing the customs declaration as Benni Norris), in violation of 18 U.S.C. § 1001. Count 9 was based on 18 U.S.C. § 844(h)(2), alleging that Ressam had carried an explosive during the commission of a felony (the false statement offense in count 5).

Ressam initially provided assistance to the government in exchange for leniency, but later stopped cooperating. He was eventually sentenced to twenty-two years of imprisonment, well below the sixty-five years to life suggested by the Sentencing Guidelines. The government appealed the sentence, while Ressam cross-appealed the sufficiency of the evidence on Count 9.

On appeal, the Ninth Circuit suggested that the crux of the issue was whether section 844(h)(2) contained an implicit relational element that required the government to prove that the explosives “facilitated or played a role in the crime” of lying on the customs declaration. The court began its analysis by acknowledging that the Third and Fifth Circuits had already concluded that section 844(h)(2) did not include an implicit relational requirement. Unlike the courts in those circuits, however, the panel believed that it was not “writing on a clean slate.”

The court found that its understanding of section 844(h)(2) was constrained by its 1985 decision (written by then-Judge Anthony Kennedy) interpreting a closely related statutory provision, 18 U.S.C. § 924(c). As originally enacted, section 924(c)(1)(A) required a mandatory minimum sentence when a person “carrie[d] a firearm unlawfully during the commission of any felony. . . .” In 1984 Congress amended section 924(c)(1)(A) to remove the word “unlawfully” and to include a requirement that the firearm be carried “during and in relation to” the underlying felony. Relying on the legislative history to the 1984 amendment, the court in Stewart concluded that the new language did not add a new element to 924(c)(1)(a), but rather made “explicit what had been implicit before.”

The similarity of the two provisions, the court concluded, called for application of the canon in pari materia, which provides that similar statutory provisions should be interpreted similarly. Because it had concluded in Stewart that the addition of the language “and in relation to” did not change the scope of 924(c), it was “hard-pressed . . . to say that its absence changes the scope of § 844(h)(2).” Thus, both statutory provisions, with or without an explicit relational element, required the government to prove that the firearm or explosive was carried to facilitate or further commission of the crime. This made the case easy. Because the government had made no effort to establish such a relationship, “there [was] no real dispute that Ressam’s conviction on Count 9 [could not] stand.” The court remanded to the district court for re-sentencing, and the government filed a petition for certiorari to the United States Supreme Court. The petition was granted on December 7, 2007.

Petition for Certiorari

The government articulates three justifications for granting certiorari. First, the Ninth Circuit’s decision places it on the lonely side of a 2-1 divide among circuit courts. Both the Third and Fifth Circuits had previously concluded that section 844(h)(2) did not include an implicit relational element.

Second, the government contended that the Ninth Circuit’s construction of section 844(h)(2) was simply “incorrect.” Beginning with an analysis of the “plain language of the statute,” the government asserts that the most natural reading of the word “during” is “at the same time,” which does not imply, let alone require, any kind of relational element. Moreover, the fact that section 844(h)(1), the companion provision to section 844(h)(2), explicitly requires that the fire or explosives be used to commit the underlying felony, provides further support for the notion that section 844(h)(2) contains no such requirement. The government continues its analysis with a direct response to the Ninth Circuit’s reliance on section 924(c)(1)(A). It points out that while Congress amended section 924(c)(1)(A) in 1984 to include an “in relation to” element, it did not similarly change section 844(h)(2) when it amended that provision in 1988. While the legislative history does not make clear why the relational element was omitted, the “best explanation is that Congress . . . chose not to incorporate . . . the relational element that it had recently added to section 924(c)(1)(A).” The government concludes by explaining why the Ninth Circuit’s reliance on Stewart was, in any event, inapt.

Third, the government emphasizes the importance of deciding the issue because the use of explosives to further terrorist efforts is likely to continue. Although section 844(h)(2) is not “frequently used,” it is “likely to be particularly significant in terrorism cases” in which a defendant is detained before implementing his plan. The Ninth Circuit’s decision, the government contends, would weaken the government’s ability to use section 844(h)(2) as a “tool for combating terrorist-related activity.”

Opposing certiorari, Ressam advances three basic arguments. First, he asserts that the issue is of little practical importance because reducing the maximum possible sentence from sixty-five years to fifty-five years in this particular case (after subtracting the mandatory minimum sentence of ten years from section 844(h)(2)) is unlikely to affect either the government’s recommended sentence of thirty-five years or the district court’s actual sentence of twenty-two years. In addition, this case is a poor vehicle because the issue could have been entirely avoided had the government decided to attach count 1 (conspiracy to commit acts of terrorism) to section 844(h)(2) rather than Count 5 (lying to a customs official) because it is undisputed that carrying explosives “related to” Ressam’s conspiracy to commit acts of terrorism. Finally, Ressam argues that the government’s assertion that requiring a relationship under section 844(h)(2) is necessary to prevent the impairment of terrorism prosecutions is unpersuasive. According to Ressam, of the 288 terrorism cases prosecuted from September 11, 2001 to August 31, 2006, there was not one in which the carrying of explosives was not “related to” the underlying felony.

Second, Ressam contends that the conflict among circuits is overblown. The rarity of section 844(h)(2)’s application makes clear why it took twenty years for any semblance of a disagreement to emerge. The statute’s infrequent application belies any urgency to hear the case now.

Finally, Ressam defends the Ninth Circuit’s reasoning. Reading the statute as a whole, rather than focusing on isolated words or sentences, compels the conclusion that section 844(h)(2) includes a relational element. To adopt the government’s proposed interpretation, according to Ressam, would lead to absurd results. For example, if a police officer accepts a bribe unrelated to his possession of a handgun while lawfully carrying a loaded handgun, he would be subject to a mandatory additional sentence of ten years under the government’s reading of the statute. Congress could not have intended such an absurd result. Ressam also believes that the rule of lenity should apply. When the statute is ambiguous, the court should interpret it so as to lighten the sentence, not increase it.

Merits Briefing

In its merits brief, the United States presents six arguments in support of its contention that section 844(h)(2) does not include a relational requirement. It begins, as it did in the petition, with an analysis of the statute’s text. But rather than moving directly to a discussion of the language, it starts by emphasizing that courts are traditionally reticent to read elements into a statute, particularly one involving federal crimes. It is not long, however, before the dictionaries come out. The government relies on Black’s, American Heritage, Webster’s Third, and Random House, each one explaining that the word “during” merely suggests “in the course of” and nothing more.

Second, the government again compares section 844(h)(2) with its “predecessor,” section 924(c)(1)(A). Noting the presence of an “in relation to” element in section 924(c)(1)(A) and its corresponding absence in section 844(h)(2), the government contends that the “presence of certain language in one [statute] indicates that the absence of such language [in another statute] reflects deliberate congressional choice.” “The most natural inference from a side-by-side comparison of the two provisions is that Congress deliberately omitted” the language from section 844(h)(2) because it did not intend that it would contain any relational element.

Third, the government argues that although unambiguous statutory text makes resort to legislative history unnecessary, that history also supports the government’s position. According to the government, a committee report accompanying the enactment of section 844(h)(2) confirmed that it was modeled after the very similar firearms provision housed in 924(c)(1)(A) enacted just two years earlier. In addition, section 924(c)(1)(A) was amended in 1984 to include an explicit “in relation to” element. When section 844(h)(2) was amended just four years later, no analogous relational provision was added. “The sequence and manner in which the two statutes were enacted and amended,” the government concluded, “confirm that the absence of a relational element in section 844(h)(2) reflects a deliberate congressional choice.”

Fourth, the government turns its attention to what it regards as the Ninth Circuit’s misplaced reliance on its opinion in Stewart. The government finds it “equally plausible” that Stewart actually “undermines the court of appeals’ decision,” reasoning that because the court in Stewart considered it relevant that Congress had amended section 924(c)(1)(A) to include a relational element, Congress’s “failure to add those very same words” to section 844(h)(2) must also be important. The government goes on to fault the Stewart court’s reliance on the “legislative history of an amendment to determine the scope of the pre-amendment statute.” Not only is the use of such history questionable, but that history is also, according to the government, more ambiguous than the Stewart court lets on.

The government concludes its brief by rebutting Ressam’s claim that the canon against absurdities and the rule of lenity should apply. The canon against absurdities shouldn’t apply for two main reasons. First, there is nothing absurd, according to the government, about “requir[ing] an additional ten years of punishment for any person who commits a federal felony while simultaneously carrying an explosive.” Second, the canon should only be used when application of the statute to the defendant’s particular situation is absurd, not when the defendant is only able to “attack the statute based on absurd hypotheticals.”

Similarly, because the rule of lenity should only apply when there is “grievous ambiguity” in the text, it has no application to this case, where the language of the statute is patently unambiguous.

Ressam ‘s brief in opposition advances three chief arguments. Like the government, Ressam begins with an examination of the text. Rather than focusing exclusively on the specific language, however, Respondent emphasizes the statute as a whole, its history, and purposes. His initial proposition is that the terms “explosive,” “felony,” and “carries” are so broad that a relational element is necessary to constrain their reach. Without such an element, individuals “lawfully carrying explosives [such as fertilizer, dynamite, or even gunpowder]” to further legitimate objectives will be captured in the same wide web if they commit an unrelated felony as those seeking to undertake terrorist activity or other serious crimes. Respondent derives further support from section 844(h)(1), which—unlike (h)(2)—punishes the successful use of explosives in the commission of a felony. But like (h)(2), it carries a mandatory minimum sentence of ten years. Respondent argues that Congress could not have intended to punish someone who actually uses explosives for the purpose of committing a felony with the same length of imprisonment as someone who happens to carry explosives “while committing any unrelated felony.”

Second, Ressam refers to the legislative history of the 1984 amendment to section 924(c)(1)(A). Although he concedes that the history of the original provision was “thin,” Ressam contends that the history of the 1984 amendment indicates that the addition of the “in relation to” element did not alter the scope of the statute. It was with this understanding that Congress enacted the analogous 844(h)(2) provision just two years later.

Third, Respondent asserts that the government’s interpretation does not “comport with a common sense reading of the statute.” Instead of trusting prosecutorial discretion to constrain the overly expansive reach of the statute, the Supreme Court should give the provision its more natural reading, which is to require a connection between the intended use of the explosives and the underlying felony. In response to the government’s heavy reliance on the fact that section 924(c)(1)(A) was amended to include a relational element while section 844(h)(2) was not, Respondent contends that “there is little to be learned from Congressional inaction.” Respondent concludes with a final appeal to the rule of lenity. Instead of allowing for an expansive reading of the statute that may offend principles of equal protection and due process, the Court should resolve an ambiguous statutory provision “in favor or Respondent.”

The case is set for oral argument on March 25. For the first time since Janet Reno argued before the Court in 1996, the Attorney General, Michael Mukasey, will argue for the government.

Cases: US v. Ressam