United States v. Rosenberg

A. LEON HIGGINBOTHAM, Jr., Circuit Judge,

dissenting in part.

Although I join the majority in rejecting the aggregate sentencing, eighth amendment and first amendment claims raised by appellants Rosenberg and Blunk, I respectfully dissent from its treatment of appellants’ convictions and sentences on Counts 2 and 5 for illegally possessing explosives. Because the majority has disregarded central principles of statutory construction in upholding appellants’ convictions and sentences for violating 18 U.S.C. § 844(h)(2) (1982), I write separately to express my views.

I.

In Count 5 of the indictment, appellants Blunk and Rosenberg were charged with violating § 844(h)(2), which makes it a felony to “carr[y] an explosive unlawfully during the commission of any [federal] felo-ny____” At the close of the trial, the district court denied appellants' motion to dismiss Count 5 on the ground that the government had failed to offer any proof of a relationship between the explosives illegally possessed by the appellants and any accompanying federal felony they may have committed. The district court also refused appellants’ subsequent request that the jury be charged that it had to find that “some connection” existed between appellants’ carrying explosives and their possession of unregistered firearms — i.e., that carrying explosives “played some role” in the latter crimes — to convict them under § 844(h)(2).1 After the jury convicted appellants on Count 5, the district court sentenced each of them to a ten year sentence, the maximum term prescribed by § 844(h), such sentences to run consecutively to each appellant’s other sentences. Because the trial court refused to instruct the jury as to what I find to be an essential element of this crime, appellants’ convictions on Count 5 should be vacated. Accordingly, I dissent from the majority’s holding. All criminal defendants, regardless of their ideology or the destructive potential of their crimes, deserve a fair reading of the applicable law.

My analysis begins with the plain language of § 844(h)(2). Unlike the majority, I construe the statute’s phrasing — its prohibition against carrying explosives unlawfully “during the commission of” a federal felony — as explicitly and rather clearly connecting the possession of illegal explosives to the perpetration of some other feloni*1181ous act.2 Appellants have not asked “this court to declare that the crime defined by § 844(h)(2) has more elements than those enumerated on the face of the statute.” Maj. typescript at 24. They have, rather, simply asked this court to give meaning to each of the words that Congress chose to use to define the elements of this crime. In my view, the majority amends a clear statute so as to eliminate an essential element of the crime that the statute expressly describes.

Even though the legislative history of § 844(h)(2) is, as the majority notes, otherwise “unilluminating,” id. at 21, the sparse history available to us supports my reading of the statute. The House Report for what became § 844(h)(2) refers us to 18 U.S.C. § 924(c)(2) (1982), the gun control statute that served as a model for § 844(h),3 and the legislative history of § 924(c)(2), as viewed by the Ninth Circuit in United States v. Stewart, 779 F.2d 538 (9th Cir.1985), corroborates appellants’ position. I respectfully submit that the Ninth Circuit’s construction is correct.

Stewart determined that “the evident purpose” of the original § 924(c)(2), which is identical in structure to the current § 844(h)(2),4 “was to impose more severe sanctions where firearms facilitated, or had the potential of facilitating, the commission of a felony.” Id. at 540. Mr. Stewart was convicted of violating § 924(c)(2) at a time when its prohibition still mirrored the language of § 844(h)(2).5 Between the time of Stewart’s crime and his appeal to the Ninth Circuit, however, Congress amended § 924(c)(2), replacing the word “during” with the phrase “during and in relation to.”6 In Stewart, the court thus ascertained the meaning of § 924(c)(2) in light of the 1984 amendments thereto. The Ninth Circuit read the legislative history of the amendments to § 924(c) as indicating that “the ‘in relation to’ language was not intended to create an element of the crime that did not previously exist, but rather was intended to make clear a condition already implicit in the statute.” Id. at 539. Here, the majority rejects that conclusion, “findpng] that the legislative history fails to explain why the ‘in relation to’ phrase was added to the statute.” Maj. at 1178. This position ignores the logical explanation offered in Stewart: “because the amendment [also] eliminated the requirement that the firearm be carried unlawfully, the ‘in relation to’ language was added *1182to allay explicitly the concern that a person could be prosecuted under section 924(c) for committing an entirely unrelated crime while in possession of a firearm.” 779 F.2d at 539. The majority has, in other words, failed to note that § 924(c) was amended in two interrelated ways; by disregarding one of the two amendments, the majority misconstrues what the amendment process as a whole tells us about the original intention underlying § 924(c)(2).7 Stewart’s reading of the legislative intent behind § 924(c)(2), and its conclusion that Congress meant to require some proof that the firearm facilitated the underlying felony, convinces me that Congress included a similar relational element in the crime defined by § 844(h)(2).

United States v. Robertson, 706 F.2d 253 (8th Cir.1983) (per curiam), which my colleagues dismiss as “inapposite,” maj. at 1178, is indeed additional authority for appellants’ position. While the Robertson decision did, as the majority observes, focus upon the meaning of the word “carries” in § 924(c)(2),8 its analysis and holding also had much to say about the statute’s use of the words “during the commission of”:

The Government produced no evidence that Robertson ever carried the weapon or that the weapon played any role in Robertson’s seeking collection of the unlawful debt. Without some evidence showing that Robertson carried the weapon at some time in connection with the commission of the offenses charged, the Government’s case on this count must fall.

706 F.2d at 256 (emphases added). As I read Robertson, there is simply no basis to conclude, as the majority does, that the court did not reverse the § 924(c)(2) conviction “because the government failed to prove a connection between the firearm and the felony,” maj. at 1178; even if the government had established that Mr. Robertson was carrying a gun on his person, it seems that a failure also to prove some connection between the firearm and felony would have moved that court to invalidate the conviction.

The very most one could claim, after reading the statutory language and reviewing the legislative history, is that the relational element of § 844(h)(2) is ambiguous. While I obviously dispute such a claim, even it should not defeat appellants’ attacks on their Count 5 convictions. A “time-honored tenet of statutory construction [declares] that ambiguous laws are to be strictly construed against the Government.” United States v. Margiotta, 688 F.2d 108, 120 (2d Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983). Accord Dowling v. United States, 473 U.S. 207, 105 S.Ct. 3127, 3132, 87 L.Ed.2d 152 (1985) (“Due respect for the prerogatives of Congress in defining federal crimes prompts restraint in this area, where we typically find a ‘narrow interpretation’ appropriate.”) (quoting Williams v. United States, 458 U.S. 279, 290, 102 S.Ct. 3088, 3094, 73 L.Ed.2d 767 (1982)); Busic v. United States, 446 U.S. 398, 406, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980) (interpreting 18 U.S.C. § 924(c)); Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955) (“when Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity”); United States v. Cotoia, 785 F.2d 497, 502 (4th Cir.1986) (same); Castaldi v. United States, 783 F.2d 119, 121 (8th Cir.1986) (applying the “ ‘rule of lenity[ ]’ established in the Bell case”); United States v. Diaz, 778 F.2d 86, 88 & n. 2 (2d Cir.1985) (per curiam) (apply*1183ing Margiotta to the interpretation of § 924(c)); United States v. Waechter, 771 F.2d 974, 978 (6th Cir.1985) (“we are mindful of the thoroughly established principal [sic] that the conduct prohibited by a criminal statute is to be narrowly construed”); United States v. Anzalone, 766 F.2d 676, 680-81 (1st Cir.1985) (applying “the proposition ... that criminal laws are to be strictly construed”); United States v. Bushey, 617 F.Supp. 292, 298-99 (D.Vt.1985) (rejecting the government’s broad reading of § 924(c)). Cf Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 105 S.Ct. 3275, 3283 n. 10, 87 L.Ed.2d 346 (1985) (rejecting the lower court’s “rather convoluted” application of this “strict construction principle”). This “well-known” tenet is, as Chief Justice Marshall noted long ago, “perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle, that the power of punishment is vested in the legislative, not the judicial department.”9 United States v. Wiltherger, 18 U.S. (5 Wheal.) 76, 95, 5 L.Ed. 37 (1820). Though the majority notes the precept of lenity, see maj. at 1177-1178, it fails to apply the teaching of this tenet. The majority appears to reason as follows: Since § 844(h)(2) makes it a crime to carry explosives illegally in furtherance of a federal felony, it might as well make it a crime to carry explosives unlawfully even when they have nothing to do with any other federal felony one may be committing. As the majority sees things, in other words, a coürt must ignore any ambiguity in § 844(h)(2) and read the felony it defines as broadly as possible until Congress sees fit to declare explicitly otherwise. Because this approach usurps the legislative function at the same time it abandons the judicial duty to interpret ambiguous criminal statutes with lenity, I dissent from this portion of the panel’s holding.

II.

I also dissent from the majority’s treatment of appellants’ cumulative sentencing claims. On their convictions under Count 2, appellants each received ten year sentences for possession of explosives in violation of 26 U.S.C. § 5861(d) (1982).10 On their convictions under Count 5, appellants each received sentences of ten additional years for carrying explosives in the course of possessing firearms, a violation11 of § 844(h)(2).12 Appellants thus argue that, pursuant to their convictions under an indictment that was “designed to maximize the number of offenses which could be charged from [a] single event,” Brief for Appellants at 52, they have been impermissibly sentenced to consecutive terms for the same act: illegally possessing explosives. With his customary thoughtfulness, Judge Lacey recognized that the imposition of consecutive sentences as to Counts 2 and 5 was not without difficulty.13 I find the *1184resolution of this issue more difficult than has the majority.

Analysis of this argument is guided by the well-established rule of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See, e.g., Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 1672, 84 L.Ed.2d 740 (1985) (The Supreme “Court has consistently relied on the [Blockburger ] test of statutory construction”). As the Second Circuit recently noted,

[t]he Blockburger rule is a principle of statutory construction used to determine whether Congress has provided that two statutory offenses may be punished separately. Whalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432, 1437, 63 L.Ed.2d 715 (1980), cited in Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981).14 The rule provides that
‘where the same act or transaction constitutes a violation of two distinct 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.’
Blockburger, 284 U.S. at 304, 52 S.Ct. at 182 [emphasis added].

United States v. Langella, 776 F.2d 1078, 1081-82 (2d Cir.1985). “If so, it is appropriate to conclude that the possibility of cumulative punishment was intended. If not and if no other evidence of an intention to create separate offenses is found, it will be presumed that cumulative punishment was not intended.” Lovgren v. Byrne, 787 F.2d 857, 863 (3d Cir.1986).

Under Blockburger, appellants have clearly received separate sentences for the same criminal offense, for, in establishing a violation of § 844(h)(2), the government has also, by definition, proven every fact necessary to show a violation of 26 U.S.C. § 5861(d).15 The facts of this case — appellants’ convictions under both statutes for one act of possessing a cache of explosives in their warehouse bay — demonstrate a textbook example of a Blockburger violation, cf. Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977) (“the prosecutor who has established auto theft necessarily has established joyriding as well”); at the very least, it is not, to quote (now Chief) Justice Rehnquist’s articulation, for a unanimous Court, of the showing required to pass the Blockburger test, “beyond peradventure” that conviction under each of these statutes requires proof of a fact that conviction under the other does not. Albernaz, 450 U.S. at 339, 101 S.Ct. at 1142.

In addition, there is no “clearly expressed legislative intent” favoring cumu*1185lative sentences for this single criminal act.16 Section 844(h)(2) is designed to add a punishment for possessing explosives to the punishment prescribed for the federal crime that those explosives were used to further. But there is no indication, that Congress, by passing § 844(h)(2), meant to impose an additional punishment on those who had already violated federal explosives laws. “Nothing ... in the legislative history [that] has been brought to our attention discloses an intent contrary to the presumption [that] should be accorded to these statutes after application of the Blockburger test. In fact, the legislative history is silent....” Albernaz, 450 U.S. at 340,101 S.Ct. at 1143. Since “[t]he assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes,” Ball, 105 S.Ct. at 1672, I am convinced by this absence of legislative intent to the contrary that the double sentences of each appellant may not stand.17

. Appellants proposed the following jury charge: in order to find appellants guilty on Count 5, the jury must "first determine that they are guilty of one or more” of the other federal felonies charged and, "further,” "that there is some connection between the carrying of explosives” and those other felonies. Jt.App. at A63. "That is, you must determine that the carrying of explosives played some role in the alleged possession of unregistered firearms ... If you do not find that the carrying of explosives played such a role, you may not find the defendants guilty ...” Id. The district court denied this request.

. By offering dictionary definitions of the word “during," see maj. at 1178, the majority by implication offers an alternative construction of the statute — one that reads the phrase “during the commission of” to mean only "during.” The only way to give some independent meaning to the words "the commission of’ — i.e., to all the words employed by Congress — is to construe § 844(h)(2) as containing the relational element the majority has read out of the statute. I choose such a construction because, “ ‘[i]n construing a statute[,j we are obliged to give effect, if possible, to every word Congress used.'” United States v. DiSantillo, 615 F.2d 128, 135 (3d Cir.1980) (Aldisert, J., joined by Hunter and Van Dusen, JJ.) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979)). Accord Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237, 105 S.Ct. 2587, 2595, 86 L.Ed.2d 168 (1985); Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596 (1979); Bell v. United States, 754 F.2d 490, 498-99 (3d Cir.1985).

. See H.Rep. No. 1549, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Admin. News 4007, 4046 ("Section 844(h) carries over to the explosives area the stringent provisions of the Gun Control Act of 1968 relating to the use of firearms and the unlawful carrying of firearms to commit, or during the commission of a Federal felony.").

. Section § 924(c)(2) originally provided that whoever "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.” 18 U.S.C. § 924(c)(2) (1982). Section 844(h)(2) provides that whoever "carries an explosive unlawfully during the commission of any felony which may be prosecuted in a court of the United States, shall be sentenced to a term of imprisonment for not less than one year nor more than ten years.” 18 U.S.C. § 844(h)(2) (1982).

. See supra note 4.

. For the original and amended text of § 924(c), see supra maj. at 1178 n. 11.

. The majority offers this fallback justification for its interpretation: "even if the Stewart court was correct in its analysis of why Congress [added the phrase “in relation to” to] § 924(c), Congress has not seen fit to modify § 844(h) in the same manner.” Maj. at 1178. To my mind, it is inappropriate to delete an element of a statutory crime simply because "Congress has not seen fit” to restate emphatically that statute’s meaning.

. In Robertson, there was "no evidence” that the defendant displayed a gun while committing his federal extortion crimes, or, indeed, that the defendant had ever carried the gun in question. 706 F.2d at 256. The Eighth Circuit accordingly vacated Mr. Robertson’s § 924(c)(2) conviction. See id.

. For a further, contemporary discussion of the rationales underlying this principle of construction, see United States v. Bass, 404 U.S. 336, 347-49, 92 S.Ct. 515, 522-23, 30 L.Ed.2d 488 (1971) (identifying the policies of fair warning and separated powers).

. Section 5861(d) makes it "unlawful for any person—

to receive or possess a firearm which is not registered to him [or her] in the National Firearms Registration and Transfer Record[.]”

26 U.S.C. § 5861(d) (1982). A "firearm,” for purposes of both this provision and "the extensive dealer registration and gun control provisions of the same title (for which it was obviously primarily designed),” Parker v. United States, 801 F.2d 1382, 1383 (D.C.Cir.1986) (Scalia, J.), includes any "destructive device.” 26 U.S.C. § 5845(a) (1982). A subsection of this provision defines the term "destructive device” as including "any explosive [or] incendiary ... (A) bomb, (B) grenade, ... or (F) similar device," as well as "any combination of parts either designed or intended for use in converting any device into a destructive device ... and from which a destructive device may be readily assembled." 26 U.S.C. § 5845(f) (1982).

. I, of course, dispute the statutory validity of appellants’ convictions on Count 5. See supra p. 1-9.

. For the language of § 844(h)(2), see supra note 4.

. At sentencing, Judge Lacey made these remarks:

“I indicated in connection with Count 5 that I would have more to say about it. It’s argua*1184ble that a separate sentence should not be imposed on each of Counts 2 and 5. This is based on the argument that establishing every element of an offense under 18 U.S.C. Section 844(h)(2), carrying explosives while committing a felony, which is the subject of Count 5, will also establish a violation of 18 [sic] U.S.C. Section 5861(d), the subject of Count 2. If on appeal the Court of Appeals decides that this argument is valid, I state now that my sentence covering those two counts, 2 and 5, would be a term of imprisonment for 10 years, consecutive to the sentences imposed on all other counts.”

Transcript of Proceedings (Sentence) (May 20, 1985) at 52.

. In Albernaz, the Supreme Court employed the Blockburger test to evaluate the propriety of consecutive sentences for the crimes of conspiracy to import marijuana and conspiracy to distribute marijuana. Because the two statutes at issue "specif[ied] different ends as the proscribed object of the conspiracy — distribution as opposed to importation— ... it [wa]s beyond peradventure that ‘each provision require[d] proof of a fact [that] the other [di]d not.’" 450 U.S. at 339, 101 S.Ct. at 1142 (quoting Blockburger). The unanimous Court thus made "the unequivocal determination" that the statutes prescribed separate offenses, "violations of which c[ould] result in the imposition of consecutive sentences." Id.

. A violation of § 844(h)(2) is proven by showing the following facts: (1) carrying (2) an explosive (3) unlawfully (4) during the commission of a felony. A violation of § 5861(d) is proven by showing these facts: (1) receiving or possessing (2) an explosive (3) that is not registered. As these appeals demonstrate, the former list of facts includes each element of the latter.

. The Supreme Court has consistently decreed that, under Blockburger, cumulative sentences for the same criminal offense are invalid unless Congress has "specially authorized” such sentences. Whalen, 445 U.S. at 693, 100 S.Ct. at 1438. See, e.g., Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425 (1984) ("the question under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intent”); Missouri v. Hunter, 459 U.S. 359, 367, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983) ("the result in Whalen [invalidating cumulative sentences for the crimes of rape and killing the same victim in the perpetration of the rape] turned on the fact that the Court saw no ‘clear indication of contrary legislative intent’") (quoting Whalen, 445 U.S. at 692, 100 S.Ct. at 1438). Perhaps the majority’s conclusion is explained by the fact that it applies this rule backwards. See maj. at 1177 ("Congress ... [did not] express[ ] an intention in the legislative history that § 844(h)(2)’s scope would not extend to such felonies.’’) (emphasis added).

. If this court were vacating appellants’ convictions on Count 5, this cumulative sentencing problem would, at least temporarily, leave the case. Were the government then to decide to reprosecute on that count and, after proving a relationship between the possession of explosives and an underlying federal felony, obtain a proper conviction under § 844(h)(2), however, the sentencing judge would again confront the problem now before us. To prevent the relit-igation of this question at some later date, I would hold now as a matter of law that an accused already sentenced under § 5861(d) may not also be sentenced under § 844(h)(2) — and vice versa — for the same incident of illegally possessing the same explosives.

Because this court has affirmed appellants' convictions on both Counts 2 and 5, however, the Blockburger violation I find is actual, not hypothetical. In this Circuit, the remedy for such an injury is to vacate the cumulative sentences and to remand the case to the district court with instructions to impose a general sentence that does not exceed the maximum possible under the statute prescribing the greater punishment. See Gov't of the Virgin Islands v. Brathwaite, 782 F.2d 399, 408 & n. 9 (3d Cir.1986) (Hunter, J., for the court).