In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REPLY BRIEF FOR THE UNITED STATES
PAUL D. CLEMENT
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
REPLY BRIEF FOR THE UNITED STATES
In this case, the Ninth Circuit added to the offense of "carr[ying] an explosive during the commission of any [federal] felony," 18 U.S.C. 844(h)(2), a non-textual re quirement that the government must establish that the explosives were carried "in relation to" the underlying felony. Pet. App. 2a. Respondent concedes that this decision conflicts with the holding of another circuit, but seeks to minimize the conflict's importance, while de fending the Ninth Circuit's decision on the merits and urging that the interlocutory posture of this case makes certiorari inappropriate. None of those contentions has merit. As the government explained in its petition for a writ of certiorari, the court of appeals' decision squarely conflicts with published decisions from two other courts of appeals. The decision also conflicts with basic princi ples of statutory construction. And if it is allowed to stand, the Ninth Circuit's decision could significantly diminish Section 844(h)(2)'s usefulness as a tool in com bating certain terrorism-related offenses, including the one at issue here, in the Nation's largest circuit. Ac cordingly, this Court's review is warranted.
A. The Conflict Among The Courts Of Appeals Merits This Court's Review
Respondent concedes (Br. in Opp. 10 n.5) that the Ninth Circuit's decision in this case conflicts with the Third Circuit's decision in United States v. Rosenberg, 806 F.2d 1169 (1986), cert. denied, 481 U.S. 1070 (1987). Respondent asserts (Br. in Opp. 10 n.5) that the Fifth Circuit's express rejection of a relational element in United States v. Ivy, 929 F.2d 147, cert. denied, 502 U.S. 883 (1991), "was not essential to the holding in Ivy." Respondent offers no response, however, to the petition's explanation (Pet. 11-12) of why the Ivy court's conclu sion that "Section 844(h)(2) * * * does not include the relation element Ivy urges," 929 F.2d at 151, was essen tial to the Fifth Circuit's judgment in that case.
Respondent contends (Br. in Opp. 10) that this ac knowledged conflict is not "important" because it "took over twenty years to arise." But the fact that it took decades for any court of appeals to construe Section 844(h)(2) in a way that directly conflicts with its plain language says more about the incorrectness of the Ninth Circuit's decision than the importance of the issue going forward. That is particularly true in light of the court of appeals decisions in cases in which it appears that the relational element would not have been satisfied, but an objection does not appear even to have been raised. See, e.g., cases cited, p. 4, infra. And given the Ninth Cir cuit's size and location, as well as the presence of numer ous major cities and ports of entry within its borders, a square conflict between it and two other courts of appeal over the proper interpretation of an important terror ism-related statute clearly merits this Court's attention.
Respondent asserts (Br. in Opp. 7-8) that the Ninth Circuit's ruling in this case would not have interfered with the prosecution of other terrorism cases. Under the court of appeals' decision, however, the one indict ment that respondent quotes was at least arguably de fective, because alleging that explosives were carried "in connection with" another felony (id. at 8 (citation omit ted)) is not the same thing as saying that the explosives "facilitated" (Pet. App. 12a (citation omitted)) or "aided the commission of" that felony (id. at 13a). See ibid. (concluding that "[i]t is not enough for the government to prove that [respondent] lied because he was smug gling explosives in the trunk of his car"). Nor did the charging documents in the other two cases respondent cites allege that the explosives were carried "in relation to" the underlying felony. See Superseding Indictment at 16, United States v. Al-Timini, No. 1-04-cr-00385- LMB (E.D. Va. filed Feb. 3, 2005) (charging defendant with "the carrying of explosives * * * during the com mission of felonies which may be prosecuted in a court of the United States, including the conspiracy alleged in Count 1 of this indictment"); Criminal Information at 2, United States v. Royer, No. 1:03-cr-00296-LMB-1 (E.D. Va. filed Jan. 16, 2004) (charging defendant with "the carrying of an explosive * * * during the commission of a felony which may be prosecuted in a court of the United States, to wit, the conspiracy charged in Count One of the Indictment against the defendant in Criminal No. 03-296-A"); see also Information at 1, United States v. Lindh, 227 F. Supp. 2d 565 (E.D. Va. 2002) (No. 1:02- cr-00037-TSE) (charging that the defendant "did know ingly carry an explosive during the commission of a fel ony which may be prosecuted in a court of the United States, namely, Supplying Services to the Taliban"). Although respondent asserts (Br. in Opp. 7) that "in ev ery one of these cases there was a relationship between the carrying of explosives and the alleged predicate fel ony," it is one thing for respondent to concede that fact and quite another for the government to establish such a relationship beyond a reasonable doubt where the de fendant on trial in the particular case contests it. In any event, the possibility of proving the Ninth Circuit's "re lational" element does not detract from the proposition (Pet. 21) that the government's burden should be limited to proving the elements specified by Congress.
The conflict is significant outside the terrorism con text as well. As Judge O'Scannlain observed in dissent ing from the denial of rehearing en banc, the Ninth Cir cuit's decision in this case directly conflicts with an un published Sixth Circuit decision from 2005. Pet. App. 29a (citing United States v. Jenkins, 229 Fed. Appx. 362, 365-367 (2005), cert. denied, 126 S. Ct. 2022 (2006)). In Jenkins, the Sixth Circuit stated that "the plain lan guage of [Section 844(h)(2)] does not require a relational element" and that the Third Circuit's decision in Rosen berg "correctly interpret[s] the statute." 229 Fed. Appx. at 367. The underlying felony charged in Jenkins was interstate transport of a stolen motor vehicle, see id. at 365, and it is far from clear that the carrying of explo sives "facilitate[d]" (Pet. App. 2a) the commission of that felony. The same is true of two other recent Section 844(h)(2) cases that were brought in the First and Eighth Circuits. See United States v. Colón Osorio, 360 F.3d 48, 50 (1st Cir. 2004) (underlying felonies were pos session of a firearm after having been convicted of a fel ony and possession of a firearm with an obliterated se rial number); United States v. King, No. 99-3449, 2000 WL 1277815, at *1 (8th Cir. Sept. 11, 2000) (per curiam) (underlying felony was possession of a firearm with an obliterated serial number), cert denied, 531 U.S. 1101 (2001).
B. The Court Of Appeals' Decision Incorrectly Constricts The Scope Of 18 U.S.C. 844(h)(2)
Respondent is correct (Br. in Opp. 12-13) that statu tory construction requires consideration of the full stat utory context. But respondent offers no answer to the petition's explanation of how the "context" provided by the contrast between Section 844(h)(1) and (2) (Pet. 14- 15), and the presence of an express relational require ment in 18 U.S.C. 924(c)(1)(A) (Pet. 17-19), only under scores what is apparent from the text of Section 844(h)(2) itself (Pet. 14-15): namely, that Congress did not intend for Section 844(h)(2) to contain an unstated relational element. In fact, respondent offers no theory whatsoever for how the court of appeals' decision is con sistent with any of the pertinent statutory text or con text.
Respondent also repeats the Ninth Circuit's claim that "the legislative history supports the conclusion that Section 844(h)(2) includes a relational element." Br. in Opp. 15 (citing Pet. App. 9a-11a). Respondent makes no effort, however, to rebut the petition's showing (Pet. 17- 18) that the manner in which Sections 844(h)(2) and 924(c) have evolved confirms that the omission of a rela tional element from Section 844(h)(2) reflects a deliber ate congressional choice.
Respondent suggests (Br. in Opp. 13) that imposing "an identically harsh penalty" in cases involving actual use of explosives and those involving "coincidental carry ing" of them "makes no sense." But it is Congress that "has primary responsibility for making the difficult pol icy choices that underlie any criminal sentencing scheme," and courts "do not sit as a 'superlegislature' to second-guess these policy choices." Ewing v. Califor nia, 538 U.S. 11, 28 (2003) (opinion of O'Connor, J.). Congress's decision to omit a relational element in Sec tion 844(h)(2) may reflect only a desire not to saddle the government with an additional element of proof once it has shown the carrying of explosives concomitant with the commission of a federal felony. Nor is it clear that the punishments for use and carrying offenses will in variably be the same. While a first offense under Sec tion 844(h)(2) for carrying an explosive requires a ten- year sentence, a person who uses or attempts to use an explosive to "damage or destroy" federal property, 18 U.S.C. 844(f)(1) (Supp. V. 2005), or any real or personal property "used in * * * any activity affecting inter state or foreign commerce," 18 U.S.C. 844(i), is subject to at least five and up to 20 years of imprisonment, with the ranges being increased to seven to 40 years of im prisonment if a person is injured, and to 20 years to life imprisonment or the death penalty if a person is killed.
Respondent also invokes the prospect (Br. in Opp. 13- 15) of a police officer being prosecuted under Section 844(h)(2) for accepting a bribe while carrying his loaded service revolver, or a licensed explosives dealer being prosecuted for possessing explosives during an entirely unrelated customs offense. Such examples are obviously far afield from respondent's own conduct, and it is tell ing that respondent is unable to identify any actual pros ecution that resembles the hypothetical ones he posits.1
Finally, respondent's reliance (Br. in Opp. 15) on the rule of lenity is misplaced. The rule is a "maxim of stat utory construction," Taylor v. United States, 495 U.S. 575, 596 (1990), and it applies only if there is such a "grievous ambiguity" in a statute that, "after seizing everything from which aid can be derived, [the Court] can make no more than a guess as to what Congress in tended." Muscarello v. United States, 524 U.S. 125, 138- 139 (1998) (internal quotation marks and citations omit ted). There is no ambiguity here, and supplying an ele ment that Congress itself omitted goes well beyond the doctrine's limited role.
C. This Court's Review Is Warranted
Respondent identifies three case-specific reasons for denying review. None has merit.
1. Respondent asserts (Br. in Opp. 3-4) that this Court should deny certiorari because the court of ap peals remanded for resentencing. While many criminal cases in an interlocutory posture ordinarily do not war rant this Court's review, this case exemplifies the situa tion in which review at this time is justified. The need for a remand was created by the reversal of respon dent's conviction on Count 9, see Pet. App. 13a, the very issue on which the government seeks review.2 The Court has in other cases granted the government's peti tion for a writ of certiorari in federal criminal cases where a court of appeals has remanded for further pro ceedings, but where a controlling legal issue that will govern further proceedings warrants the Court's atten tion. See, e.g., United States v. Gonzalez-Lopez, 399 F.3d 924, 935 (8th Cir. 2005) (remanding for new trial), cert. granted, No. 05-352 (Jan. 6, 2006), aff'd, 126 S. Ct. 2557 (2006); United States v. Grubbs, 377 F.3d 1072, 1080 (9th Cir. 2004) (remanding to permit withdrawal of conditional guilty plea), cert. granted, No. 04-1414 (Sept. 27, 2005), rev'd, 547 U.S. 90 (2006); United States v. Booker, 375 F.3d 508, 514 (7th Cir. 2004) (remand- ing for resentencing), cert. granted, No. 04-104 (Aug. 2, 2004), aff'd, 543 U.S. 220 (2005); United States v. Putra, 78 F.3d 1386, 1390 (9th Cir. 1996) (same), cert. granted and rev'd sub nom. United States v. Watts, 519 U.S. 148 (1997) (per curiam); United States v. Gonzales, 65 F.3d 814, 823 (10th Cir. 1995) (same), cert. granted, No. 95-1605 (June 17, 1996), vacated, 520 U.S. 1 (1997). The Court has also at times granted certiorari over the government's opposition in cases in a similar pos ture. See United States v. Begay, 470 F.3d 964 (10th Cir. 2006) (remanding for resentencing under Booker while affirming applicability of Armed Career Criminal Act), cert. granted, No. 06-11543 (Sept. 25, 2007); United States v. Jones, 993 F.2d 1131 (4th Cir. 1993) (remanding with directions to reinstate indictment), cert. granted, No. 93-445 (Nov. 15, 1993), aff'd sub nom. Beechum v. United States, 511 U.S. 368 (1994).
Here, the proper disposition of the Section 844(h)(2) count will have an independent impact on respondent's sentence and that impact will not be affected by further proceedings on remand. See pp. 8-9, infra. Accord ingly, the question presented is "fundamental to the fur ther conduct of the case," United States v. General Mo tors Corp., 323 U.S. 373, 377 (1945), and this Court's review is warranted at this time.
2. Respondent also contends (Br. in Opp. 5) that "Count 9 has no independent significance," because "[t]he sentencing judge's focus was on the total punish ment, not the counts of conviction." Section 844(h), how ever, expressly declares that the mandatory ten-year term of imprisonment may not be "suspend[ed]" or "run concurrently with any other term of imprisonment in cluding that imposed for the felony in which the explo sive was used or carried." 18 U.S.C. 844(h). Because Congress mandated that a sentence on a Section 844(h)(2) count must be served entirely independently of a defendant's sentences on all other counts, a district court may not properly modify the sentences on the other counts simply because a defendant must, as a mat ter of express congressional directive, serve a manda tory ten-year sentence for violating Section 844(h)(2). See United States v. Hatcher, 501 F.3d 931, 933-934 (8th Cir. 2007) (holding that sentences on other counts must be imposed "independently" of the mandatory consecu tive term of imprisonment required for violations of Sec tion 924(c)); United States v. Franklin, 499 F.3d 578, 583 (6th Cir. 2007) (same); United States v. Roberson, 474 F.3d 432, 434 (7th Cir. 2007) (Posner, J.) ("[T]he judge should have picked a sentence for the bank rob bery without regard for the fact that a gun had been used in it, and then tacked on 84 months," i.e., the seven- year term of imprisonment mandated by Section 924(c)(1)(A)(ii).). Accordingly, the validity or invalidity of respondent's conviction for violating Section 844(h)(2) is, as a matter of law, highly significant to the determi nation of the total appropriate punishment in this case; the judge may not simply select what he believes to be the total sentence warranted and then allocate that sen tence over all of the counts if one of those counts arises under Section 844(h)(2).
3. Finally, respondent argues (Br. in Opp. 5-6) that this case involves only "a charging mistake" because the government could have "linked the Section 844 violation with the allegation of a conspiracy to commit an act of terrorism" charged in Count 1. But "what charge[s] to file or bring before a grand jury are decisions that gen erally rest in the prosecutor's discretion." United States v. Batchelder, 442 U.S. 114, 124 (1979); see United States v. Hayward, 6 F.3d 1241, 1247 n.7 (7th Cir. 1993) ("The government has discretion in how it charges peo ple alleged to have committed federal crimes."), cert. denied, 511 U.S. 1004 (1994). Thus, although there was indeed "ample evidence" (Br. in Opp. 6) that respondent carried an explosive during and in relation to a conspir acy to commit an act of international terrorism, the gov ernment is not required to take on the burden of proving more than Congress required in order to obtain a con viction for a factually supported charge. For the same reason, it does not matter (id. at 9) that there are a vari ety of other federal offenses that provide "lengthy penal ties" for "the illegal use or possession of explosives"; Congress provided a mandatory penalty for this one, and it did not require proof of a relational element be fore that penalty may be imposed.
* * * * *
For the foregoing reasons, and those stated in the petition for a writ of certiorari, the petition for a writ of certiorari should be granted.
PAUL D. CLEMENT
1 United States v. Davis, 202 F.3d 212 (4th Cir.), cert. denied, 530 U.S. 1236 (2000) (Br. in Opp. 13), did not involve a prosecution under Section 844(h)(2). Rather, that case involved the calculation of the proper base offense level under the Sentencing Guidelines for a defen dant who had been convicted, inter alia, of maliciously damaging a dwelling within the special maritime or territorial jurisdiction of the United States. See id. at 214, 218-219; 18 U.S.C. 1363. Although the Fourth Circuit referred to the definition of "explosive" contained in Section 844(j), it did so only because the Guidelines themselves con tained no definition of that term. Davis, 202 F.3d at 218.
2 The government also sought resentencing in its appeal, Pet. App. 7a,
but the court of appeals declined to reach the merits of the govern ment's
contention, both because of its reversal on the Section 844(h)(2) count
and because "the law applicable to sentencing is in flux." Id.
at 13a. The court of appeals left it to the district court's discretion
whether to defer sentencing until after this Court or the Ninth Circuit
en banc clarifies the applicable law. Id. at 14a. No proceedings have
occurred in the district court because on June 17, 2007, the Ninth Circuit
granted the government's motion to stay its mandate pending this Court's
disposition of this petition for a writ of certiorari.