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[Note: This html version of the cert. petition contains various formatting changes from the original document. In particular, page numbers are completely different. Also, the section symbol has been replaced by '. The footnotes have been deleted.]No. 96- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 JAIME CASTILLO, Petitioner v. UNITED STATES OF AMERICA, Respondent ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI STEPHEN P. HALBROOK* 10560 Main Street, Suite 404 Fairfax, Virginia 22030 (703) 352-7276 Counsel for Petitioner *Counsel of Record QUESTIONS PRESENTED 1. Whether, under 18 U.S.C. ' 924(c), consistent with the Fifth and Sixth Amendments, where a defendant is indicted for and found guilty by the jury of carrying a "firearm" in relation to a crime of violence, which is punishable by 5 years imprisonment, the sentencing judge may find by a preponderance of evidence that defendant carried a "machinegun" and impose 30 years imprisonment, under the theory that the latter is a sentencing enhancement and not an element of the offense. 2. Whether, by remanding for the sentencing judge to determine by a preponderence of evidence whether defendant (or a co-conspirator) carried or used a machinegun, the Fifth Circuit decision is in conflict with Bailey v. United States, 116 S.Ct. 501 (1995), which bases liability under ' 924(c) on the charges in the indictment and the jury verdict. 3. Whether acquittal of the predicate crime charged precludes conviction under ' 924(c) for carrying a firearm in relation to the predicate crime. PARTIES TO PROCEEDING The parties to the proceedings in the Court of Appeals were the United States and the following individuals: Brad Eugene Branch, Kevin Whitecliff, Jaime Castillo, Renos Lenny Avraam, Paul Fatta, and Graeme Leonard Craddock. There are no parent companies or nonwholly owned subsidiaries to be listed. TABLE OF CONTENTS Page QUESTIONS PRESENTED i PARTIES TO PROCEEDING ii TABLE OF AUTHORITIES vii OPINIONS BELOW 1 JURISDICTION 1 CONSTITUTIONAL PROVISIONS AND STATUTES 1 STATEMENT OF THE CASE 1 (i) Proceedings in the Courts Below 1 (ii) Statement of Facts 3 SUMMARY OF ARGUMENT 4 ARGUMENT 5 THE WRIT SHOULD BE GRANTED BECAUSE THE FIFTH CIRCUIT DECISION CONFLICTS WITH DECISIONS OF OTHER CIRCUITS AND THIS COURT ON WHETHER, UNDER 18 U.S.C. ' 924(C), CONSISTENT WITH THE FIFTH AND SIXTH AMENDMENTS, THE INDICTMENT MUST ALLEGE AND THE JURY MUST FIND USE OF AN ENHANCED WEAPON 5
I. A PERSON MAY NOT BE SENTENCED UNDER '924(C)(1) FOR A "MACHINEGUN" WHERE THE INDICTMENT ALLEGES AND THE JURY FINDS ONLY A "FIREARM" 5
A. The Statutory Text Makes Clear that "Machinegun" is an Element of the Offense 6
B. The Enactment of the Machinegun Element 11
C. The Fifth Circuit is in Conflict with the First, Sixth, and Ninth Circuits 14
D. The Fifth Circuit Decision is in Conflict with Bailey v. United States, 116 S.Ct. 501 (1995) 20
II. THIS COURT SHOULD RESOLVE WHETHER ACQUITTAL OF THE PREDICATE OFFENSE PRECLUDES CONVICTION UNDER ' 924(C) 24
III. THIS COURT SHOULD CLARIFY THE CONSTRUCTION OF ' 924(C) TO AVOID FIFTH AND SIXTH AMENDMENT VIOLATIONS 25
A. ' 924(C) Should be Construed Consistently with Fifth and Sixth Amendments Rights Concerning Indictments and Jury Trial 25
B. Any Ambiguity in ' 924(c) Must be Resolved According to the Rule of Lenity 28
CONCLUSION 30
APPENDIX (separate volume) Opinion of the U.S. Court of Appeals for the Fifth Circuit dated August 2, 1996 1a
Order of the U.S. Court of Appeals for the Fifth Circuit Denying the Petition for Rehearing and Suggestion for Rehearing En Banc filed September 25, 1996 117a
Sentencing Findings and Opinion of the U.S. District Court filed on June 21, 1994 119a
Amended Judgment of the U.S. District Court filed on June 23, 1994 142a
Constitutional Provisions and Statutes:
U.S. Const., Amend. V 152a U.S. Const., Amend VI 152a 18 U.S.C. ' 924(c)(1) 152a
TABLE OF AUTHORITIES CASES Page Bailey v. United States, --- U.S. ---, 116 S.Ct. 501, 133 L. Ed. 2d 472 (1995) 4, 20 Busic v. United States, 446 U.S. 398 (1980) 30 Deal v. United States, 508 U.S. 129 (1993) 10 Duncan v. Louisiana, 391 U.S. 145 (1968) 28 McMillan v. Pennsylvania, 477 U.S. 79 (1986) 8 New York v. United States, 505 U.S. 144 (1992) 26 Pinkerton v. United States, 328 U.S. 640 (1946) 22 Russell v. United States, 369 U.S. 749 (1962) 27 Simpson v. United States, 435 U.S. 6 (1978) 11, 30 Smith v. United States, 508 U.S. 223 (1993) 19 Sullivan v. Louisiana, 508 U.S. 275 (1993) 28 United States v. Alerta, 96 F.3d 1230 (9th Cir. 1996) 18, 19 United States v. Bass, 404 U.S. 336 (1971) 29 United States v. Branch, 91 F.3d 699 (5th Cir. 1996) 1 United States v. Correa-Ventura, 6 F.3d 1070 (5th Cir. 1993) 15 United States v. Dean, 59 F.3d 1479 (5th Cir. 1995), cert. denied, 116 S.Ct. 748 (1996) 22 United States v. Farris, 77 F.3d 391 (11th Cir. 1996) 22 United States v. Gaudin, 115 S.Ct. 2310 (1995) 26, 27 United States v. Garcia, 77 F.3d 274 (9th Cir. 1996) 22 United States v. Harris, 959 F.2d 246 (D.C.Cir.), cert. denied, 506 U.S. 932 (1992) 17 United States v. Hooker, 997 F.2d 67 (5th Cir. 1993) 11 United States v. Lombard, 72 F.3d 170 (1st Cir. 1995) 9 United States v. Lucien, 61 F.3d 366 (5th Cir. 1995) 25 United States v. Martinez, 7 F.3d 146 (9th Cir. 1993) 16, 18 United States v. Melvin, 27 F.3d 710 (1st Cir. 1994) 16, 17 United States v. Rodriguez, 841 F. Supp. 79 (E.D.N.Y. 1994), aff'd, 53 F.3d 545 (2d Cir. 1995) cert. denied, 133 L. Ed. 2d 170 (1995) 17 United States v. Santos, 84 F.3 43 (2nd Cir. 1996) 22 United States v. Sims, 975 F.2d 1225 (6th Cir. 1992), cert. denied, 507 U.S. 932 (1993) 14 ,15, 16 United States v. Thompson, 82 F.3d 849 (9th Cir. 1996) 22 United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992) 29 Witte v. United States, 115 S. Ct. 2199 (1995) 8 CONSTITUTION U.S. Const., Art. III, ' 2 25 U.S. Const., Amendment V 5, 15, 25, 26, 27, 28 U.S. Const. Amendment VI 5, 25, 26, 28 STATUTES 18 U.S.C. ' 921(a)(3)(A) 7 18 U.S.C. ' 921(a)(23) 7 18 U.S.C. ' 922 7 18 U.S.C. ' 922(a)(4) 7 18 U.S.C. ' 922 (b)(4) 7 18 U.S.C. ' 922(c) 7 18 U.S.C. ' 922(o) 7 18 U.S.C. ' 924 7 18 U.S.C. ' 924(a)(1)(B) 7 18 U.S.C. ' 924(a)(1)(D) 7 18 U.S.C. ' 924(a)(2) 7 18 U.S.C. ' 924(c) passim 18 U.S.C. ' 924(n) 7 18 U.S.C. ' 1001 26 18 U.S.C. ' 1111(a) 2 18 U.S.C. ' 1114 2 18 U.S.C. ' 1117 2 18 U.S.C. ' 2113(d) 9 18 U.S.C. ' 3742 2 21 U.S.C. ' 841(a) 11 21 U.S.C. ' 841(b) 11 26 U.S.C. ' 5845(a)(6) 8 26 U.S.C. ' 5845(b) 7, 8 26 U.S.C. ' 5861 8 28 U.S.C. ' 1254(l) 1 28 U.S.C. ' 1291 2 P.L. 99-308, 100 Stat. 449 (1986) 11 OTHER AUTHORITIES CONG. REC. 12, 13 Fed. Rules of Evidence, Rule 106 2 H.Rpt. 99-495, 99th Cong., 2d Sess. (1986) 12 Story, J. Commentaries on the Constitution of the United States (4th ed. 1873) 27 OPINIONS BELOW The opinion of the Court of Appeals, United States v. Branch et al., 91 F.3d 699 (5th Cir. 1996), is printed in the Appendix ("App.") at 1a. The unreported Order Denying the Petition for Rehearing and Suggestion for Rehearing En Banc is printed at App. 117a. The unreported Sentencing Findings and Opinion of the District Court is printed at App. 119a. JURISDICTION On August 2, 1996, the Court of Appeals affirmed the convictions on Counts 2 and 3, vacated the sentence on Count 3, and remanded Count 3 for findings and resentencing. (App. 98a) On September 25, 1996, the Court of Appeals denied the suggestion for a rehearing en banc, which it treated as a petition for rehearing and denied. (App. 118a) This Court has jurisdiction under 28 U.S.C. ' 1254(l). CONSTITUTIONAL PROVISIONS AND STATUTES Provisions of the following are in the Appendix: U.S. Const., Amendments V and VI; 18 U.S.C. ' 924(c)(1). STATEMENT OF THE CASE (i) Proceedings in the Courts Below The indictment alleged that Jaime Castillo conspired to murder federal agents, in violation of 18 U.S.C. ' 1117 (Count 1); aided and abetted the murder of federal agents, in violation of 18 U.S.C. '' 1111(a), 1114, and 2 (Count 2); and used or carried a "firearm" during and in relation to a federal crime of violence, i.e., conspiracy to murder federal agents, in violation of 18 U.S.C. ' 924(c)(1) (Count 3). The jury found Castillo not guilty of Count 1; not guilty of Count 2, but guilty of the lesser included offense of aiding and abetting voluntary manslaughter; and guilty of Count 3. (App. 142-43a) The district court sentenced him to 10 years imprisonment on Count 2 and, finding that the "firearm" was a "machinegun," to 30 years imprisonment on Count 3, to be served consecutively, and to pay $1,331,687 in fines and restitution. (App. 144a, 148-50a) Castillo filed a timely notice of appeal on June 24, 1994. The Court of Appeals had jurisdiction pursuant to 18 U.S.C. ' 3742 and 28 U.S.C. ' 1291. On August 2, 1996, in a 2-1 opinion, the Court of Appeals affirmed both convictions but vacated the 30-year sentence for Count 3, remanding it for resentencing. The district court may reimpose the 30-year sentence or may impose a 5-year sentence. (App. 86a) The dissenting opinion of Judge Schwarzer would have reversed both convictions and granted a new trial. (App. 98a) Statement of Facts Mount Carmel, near Waco, Texas, was for 65 years the home of the Branch Davidians, a religious sect originating in Seventh Day Adventism. Vernon Howell, known as David Koresh, was the group's spiritual father. The federal Bureau of Alcohol, Tobacco and Firearms ("BATF") came to suspect that Koresh violated Chapter 53 of the Internal Revenue Code, which requires registration and taxation of certain firearms. BATF agents refused Koresh's invitation to discuss his firearm purchases (Trial Transcript ["TR"] 4861, 4904) and obtained a search warrant. Some 115 men, women, and children resided at Mount Carmel. On February 28, 1993, 75 BATF agents armed with pistols, shotguns, and submachineguns, supported by helicopters and snipers, attempted a "dynamic entry" against the entire premises. (TR 1445-49, 3826-29) BATF made no attempt to serve the warrant peaceably or to arrest Koresh off the premises. (TR 1330, 6714, 6718) Who fired the first shot was disputed. When the agents arrived, according to Castillo, Howell opened the front door and stated, "Wait a minute, there's women and children in here." (TR at 3053) "All of a sudden, shots were fired at the front door," wounding Howell. (TR at 3094.) A prosecution witness who resided at Mount Carmel testified that she did not hear the agents yell "police" before the first shots were fired. (TR 4584) No insignia could be seen on the armed men outside, who were dressed in black or dark blue. (TR 4600) Bullets came from the outside through the walls into the house. (TR 4603) Several residents and four BATF agents were tragically killed during the raid. Castillo carried a firearm, but no evidence existed that he fired a shot or carried a machinegun. When a truce was called, he exposed himself in a doorway and allowed agents to retrieve their wounded. The FBI's final assault on April 19, 1993, resulted in an inferno consuming the entire building complex, leaving some 75 babies, children, men, and women dead. Castillo was one of the nine persons who escaped death. SUMMARY OF ARGUMENT 18 U.S.C. ' 924(c) imposes a 5-year sentence for use of a "firearm" in a federal crime of violence, and 30 years for use of a "machinegun." Defendant was indicted for and found guilty of carrying or using a firearm, not a machinegun. The Court of Appeals erred in holding that the district court may sentence him to 30 years imprisonment. The statutory text and legislative history treat a "firearm" and a "machinegun" as elements of the offense in pari materia. The Fifth Circuit is in conflict with the First, Sixth, and Ninth Circuits, which have held that, to impose 30 years, the jury must find use of a machinegun. This Court should resolve the conflict. Bailey v. United States, 116 S.Ct. 501 (1995) bases appellate review of a conviction for a ' 924(c) offense on the charges in an indictment and the verdict of a jury, not on a trial court's sentencing findings. By remanding for the sentencing judge to determine by a preponderence of evidence whether defendant (or a co-conspirator) carried or used a machinegun, the Fifth Circuit decision is in conflict with Bailey and its appellate progeny. The text of ' 924(c) twice refers to the conviction on the predicate offense. This Court should resolve the important question of whether an acquittal on the predicate offense bars a ' 924(c) conviction. ' 924(c) must be interpreted so as not to violate the Fifth Amendment right to have charges set forth in an indictment found by a grand jury, and the Sixth Amendment rights to be informed of the nature and cause of the accusation and to jury trial. If ' 924(c) permits two readings, the rule of lenity requires that it be interpreted against the government and in favor of the defendant.
ARGUMENT THE WRIT SHOULD BE GRANTED BECAUSE THE FIFTH CIRCUIT DECISION CONFLICTS WITH DECISIONS OF OTHER CIRCUITS AND THIS COURT ON WHETHER, UNDER 18 U.S.C. ' 924(C), CONSISTENT WITH THE FIFTH AND SIXTH AMENDMENTS, THE INDICTMENT MUST ALLEGE AND THE JURY MUST FIND USE OF AN ENHANCED WEAPON I. A PERSON MAY NOT BE SENTENCED UNDER ' 924(C)(1) FOR A "MACHINEGUN" WHERE THE INDICTMENT ALLEGES AND THE JURY FINDS ONLY A "FIREARM" The indictment alleged, and the jury found, that defendant was guilty of carrying or using a "firearm" in violation of 18 U.S.C. ' 924(c)(1). To sentence a defendant to 30 years for use of a "machinegun" in a crime of violence, the indictment must allege, and the jury must find, that the defendant used a "machinegun," not just a "firearm." However, the district court decided that "firearm" is an element of the offense, but "machinegun" is an "enhancement provision" to be found by the judge at sentencing based on a preponderance of the evidence. (App. 122a, 127a) The court sentenced defendant to 30 years for carrying or using a "machinegun" rather than to 5 years, the sentence for use of a "firearm." The Court of Appeals held that the trial court may sentence defendant to 30 years if it (rather than the jury) finds that "members of the conspiracy actively employed machineguns." (App. 85-86a) A. The Statutory Text Makes Clear that "Machinegun" is an Element of the Offense Regarding whether the "machinegun provision creates a separate, independent offense or is a sentence-enhancement," the panel here allows that "the text of ' 924(c) forecloses neither of these two competing readings of the statute." (App. 81a) Unfortunately, it includes no analysis of the text of the statute, and fails to explain its assertion that the "statute's structure" supports its conclusion. (App. 85a) The first sentence of ' 924(c)(1) provides: Whoever, during and in relation to any crime of violence or drug trafficking crime . . . for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall . . . be sentenced to imprisonment for five years, . . . and if the firearm is a machinegun, . . . to imprisonment for thirty years. Plainly, to convict one of "firearm" use, the indictment must make that allegation and the jury must make that finding. It is textually inconsistent to interpret the finding of a "machinegun" as not being required to be alleged in the indictment and found by the jury. "Firearm" in pertinent part means "any weapon . . . which will or is designed to or may readily be converted to expel a projectile by the action of an explosive." 18 U.S.C. ' 921(a)(3)(A). "Machinegun" is defined in a very detailed and meticulous fashion. ' 921(a)(23), incorporating 26 U.S.C. ' 5845(b). Some of the definitions of "machinegun" coincide with that of "firearm," but other definitions of "machinegun" do not. In every provision of Titles I and II of the Gun Control Act, whether an item is a "machinegun" is an element of the offense. Most Title I offenses concern "firearms." See 18 U.S.C. '' 922, 924. Besides ' 924(c), possession of or conduct with a "machinegun" is made unlawful in the following places: '' 922(a)(4), 924(a)(1)(B) (knowingly transport machinegun in commerce); '' 922(b)(4), 924(a)(1)(D) (willful transfer by licensee of machinegun); '' 922(o), 924(a)(2) (knowing possession or transfer of machinegun); ' 924(n) (conspiracy to violate ' 922(c)). In addition, Title II of the Gun Control Act, 26 U.S.C. '' 5801 et seq., meticulously defines and comprehensively restricts machineguns. 26 U.S.C. ' 5845(a)(6), (b) (definition), ' 5861 (prohibited acts). In every instance, the finding of a "machinegun" is an element of the offense, and in no instance did Congress trust this finding to the discretion of a judge at sentencing based on a mere preponderance of the evidence. The sentencing consequences of the finding of a "firearm" or a "machinegun" vary dramatically: here, it is 5 years or 30 years. Congress would not have required the indictment to allege and the jury to find the use of a "firearm" beyond a reasonable doubt when only 5 years is at stake, but would have trusted the finding of a "machinegun" to the discretion of a judge at sentencing based on a preponderance of the evidence when 30 years is at stake. ' 924(c) starkly contrasts with the penalty-enhancement statute found in McMillan v. Pennsylvania, 477 U.S. 79 (1986). That law explicitly provided that, where a person is convicted of certain violent offenses, an additional 5 years is added to the sentence if the judge finds, by a preponderance of the evidence, that the person visibly possessed a firearm during the offense. Id. at 81. The law stated that visible firearm possession "shall not be an element of the crime." Id. at 81 n. 1, 83. This Court observed that the 5-year enhancement is far smaller than the 20 and 10 year sentences imposed for the actual offenses, and thus "the statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense." Id. at 88. The tail wags the dog if ' 924(c) is interpreted such that the substantive offense is only 5 years and the purported "enhancement" is 30 years. The tail wagged the dog in United States v. Lombard, 72 F.3d 170, 177 (1st Cir. 1995), where harsh punishment was imposed "not for conduct charged and convicted but for other conduct as to which there was, at sentencing, at best a shadow of the usual procedural protections, such as the requirement of proof beyond a reasonable doubt." The firearms charge required proof beyond a reasonable doubt, but the enhancement was really the gravamen of the offense and was far more severe. Id. at 177-78. The court sentenced defendant "not for the convicted offense as enhanced by relevant conduct, but directly for conduct as to which the defendant has not been charged, tried by a jury, nor convicted on proof beyond a reasonable doubt." Id. at 186. The above pertains to the textual meaning of the first sentence of ' 924(c)(1). The second and third sentences of ' 924(c)(1) provide: In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years, and if the firearm is a machinegun, . . . to life imprisonment without release. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection . . . . (Emphasis added.) Thus, the statutory text clarifies that one must be "convicted" of use of a firearm or "convicted" of use of a machinegun. Deal v. United States, 508 U.S. 129, 131 (1993) noted that "the word 'conviction' can mean either the finding of guilt or the entry of a final judgment on that finding." Deal found the former and not the latter meaning to apply: "In the context of ' 924(c)(1), we think it unambiguous that 'conviction' refers to the finding of guilt by a judge or jury that necessarily precedes the entry of a final judgment of conviction." Id. at 132. Thus, when ' 924(c)(1) refers to being "convicted" under "this subsection," which includes the use of a machinegun, it refers to the finding of guilt made by the jury, and not to findings by the court at sentencing, when the final judgment of conviction is entered. The panel here stated that the following factors suggest that a provision is a sentence enhancement rather than an element of an offense, although it attempted no analysis thereof: (1) punishment is predicated upon conviction under another section; (2) the statute multiplies the penalty received under another section; (3) the statute provides guidelines for sentencing hearings; and (4) the statute is titled as a sentencing provision. (App. 80a) The panel conceded that the first factor was not met here, because it held that punishment need not be predicated upon conviction for the predicate offense. Id. It ignored the second factor, which is not met here because penalties for "firearm" and "machinegun" use are set forth in the same sentence of the same subsection. It disregarded the third factor, that the statute provides guidelines for sentencing hearings, which ' 924(c) does not. As to the fourth factor, while ' 924 is labelled "Penalties," it is filled with elements of offenses and independent offenses, which ' 924(c)'s proscription on use of a "firearm" concededly is. In sum, the statutory text makes clear that "machinegun" is an element of the offense just as much as is a "firearm" when so charged. The Court of Appeals simply provided no analysis of the statute. B. The Enactment of the Machinegun Element Before 1986, ' 924(c) punished use of a "firearm," but not other weapon types, in federal felonies. This Court held that the pre-1986 version of ' 924(c) "creates an offense distinct from the underlying federal felony." Simpson v. United States, 435 U.S. 6, 10 (1978). See id. at 13-14 (adoption of ' 924(c) in Gun Control Act of 1968). The machinegun element was added by the Firearms Owners' Protection Act (FOPA), P.L. 99-308, 100 Stat. 449, 457 (1986). The panel appeals to FOPA's legislative history, but that history did not distinguish a "firearm" from a "machinegun" as an element of the offense versus a sentencing factor. (App. 82a) The House Judiciary Committee report on H.R. 4227 treated a firearm in an identical manner as a machinegun. H.Rpt. 99-495, 99th Cong., 2d Sess., 2 (1986). The report explicitly stated: "Although the provision, section 924(c) of title 18, is frequently referred to as a penalty enhancement provision it is in reality a separate offense . . . ." Id. at 10. Rep. Hughes noted that his bill, H.R. 4227, "strengthens the mandatory prison sentences for firearms used in the commission of crime--violent crime, drug trafficking crime or if a machinegun is used in the commission of a violent offense or a drug trafficking offense." 132 CONG.REC. H1646 (Apr. 9, 1986). He characterized the Volkmer substitute, which would become FOPA, as also "creating a new extra mandatory prison term for carrying a machinegun . . . ." Id. at H1647. Rep. Volkmer stated that his bill "includes stiff mandatory sentences for the use of firearms, including machineguns and silencers, in relation to violent or drug trafficking crimes . . . ." Id. at H1652. He did not distinguish a "firearm" from a "machinegun" as being an element of the offense. Rep. Moore added: The Volkmer substitute strikes at criminals by strengthening criminal penalties as it: First, provides a 5-year mandatory prison term for drug traffickers who use or carry a firearm in a drug trafficking crime; Second, provides a mandatory 10-year prison term for using or carrying a machinegun or silencer in the commission of a violent crime or drug trafficking offense . . . . Id. at H1659. Both bills would have amended the existing language mentioning only a "firearm" to include the clause, "and if the firearm is a machinegun [,or is equipped with a firearm silencer or firearm muffler], to imprisonment for 10 years." Id. at H1674 (H.R. 4227), H1677 (Volkmer substitute, which contained the silencer language). The Volkmer substitute passed. Id. at H1752-53. When the House version was debated in the Senate, Senator Hatch inserted a comparison of existing and proposed legislation. 132 CONG.REC. S5351 (May 6, 1986). "Existing law" included: "Mandatory penalties for carrying or using firearms . . . in the commission of Federal Crimes: Prohibits the carrying or use of a firearm during and in relation to a Federal crime of violence. Imposes mandatory sentences of 5 years imprisonment . . . ." Id. at S5353. The "House version" was described as: "Provides mandatory penalties of 10 years for first offenders . . . if the firearm carried or used in violation of section 924(c) is a machinegun." Id. Senator McClure, FOPA's chief Senate sponsor, explained that the bill would: Require mandatory penalties for the use of a firearm during a Federal crime. Our colleagues in the House have added additional mandatory penalties for the use of a firearm in a drug trafficking crime, and for the use of a machinegun or silencer in a violent Federal felony. Id. at S5363. The Senate concurred in the House amendments. Id. at S5366. In sum, the legislative history makes clear that "firearm" and "machinegun" were intended to be treated equally. If "firearm" was intended to be an element of the offense, then so too was "machinegun." C. The Fifth Circuit is in Conflict with the First, Sixth, and Ninth Circuits The Fifth Circuit decision conflicts with decisions of the First, Sixth, and Ninth Circuits, and that of a district court in the Second Circuit. This Court should resolve the conflict. United States v. Sims, 975 F.2d 1225, 1231 (6th Cir. 1992), cert. denied, 507 U.S. 932 (1993), involved one count alleging a machinegun, and three alleging firearms. To avoid double jeopardy, one may not be sentenced for more than one ' 924(c) offense under the same predicate offense. Id. at 1233. Since only one predicate drug trafficking offense was involved, multiple ' 924(c) counts must be consolidated into one count: This may be accomplished prior to trial by consolidating those counts into a single section 924(c) count and submitting special interrogatories or a special verdict form to the jury, requiring that if the jury returns a guilty verdict on the gun charge, it must specify which category or categories of weapons it unanimously has found the defendant was using or carrying. Or, it may be accomplished by submitting the separate gun counts to the jury and, should there be more than one conviction, merging those convictions after trial. Id. at 1235. Thus, Sims held that the jury must determine whether the defendant used a "firearm" or a "machinegun." If the jury convicts the defendant of using both a firearm and a machinegun, the court should merge the counts and sentence the defendant for use of a machinegun. Id. at 1236. Relying on Sims, the Fifth Circuit reached an opposite conclusion as the panel here, which disregards Sims' holding that the jury must find the weapon type. (App. 83-84a) United States v. Correa-Ventura, 6 F.3d 1070, 1083 (5th Cir. 1993) held that ' 924(c) defines a separate crime and is not merely an enhancement provision. Noting that "verdict specificity may be required for some violations of 18 U.S.C. ' 924(c)," id. at 1087, the court explained: We do note (without deciding) that a different situation may be presented when the evidence tends to prove the use of more than one weapon, and the firearms proven fall within different classes of Section 924(c)'s proscribed weapons. For example, if a firearm violation is asserted, and evidence is introduced as to both shotguns and rifles (with a mandatory 5-year imprisonment penalty) and revolvers with silencing equipment (resulting in a 30-year imprisonment), the jury may well be required to agree on which type of weapon was used in order for the court to assess the appropriate penalty. In that instance, a unanimity instruction as to the class of weapon may be necessary, since the legislature, in amending Section 924(c) to provide varying penalties for certain classified firearms, appears to have indicated its intent that a unanimous verdict be reached with respect to the given class of firearms. Id. at 1087 n. 35. Sims was followed in United States v. Martinez, 7 F.3d 146, 148 n. 1 (9th Cir. 1993), which held: Where the defendant is charged for using different types of weapons under section 924(c)(1), the district court should either (1) submit separate counts under section 924(c)(1) to the jury, and, if there is more than one conviction, merge those convictions after the trial, or (2) submit one section 924(c)(1) charge to the jury to specify which weapon or weapons the defendant used or carried. The Martinez jury convicted defendant of one predicate count, one machinegun count, and one firearm count. Id. at 147. Since "the jury found that Martinez used or carried both weapons," the counts must be merged and defendant sentenced only for the machinegun. Id. at 149. Similarly, in United States v. Melvin, 27 F.3d 710, 711 (1st Cir. 1994) "all parties concede that the jury mistakenly was not asked to identify which of the six firearms at issue in this case--ranging from machine guns to handguns--underlay its guilty verdict . . . ." Agreeing with petitioner here: The government acknowledges that a defendant found guilty of violating '924(c) may be sentenced to a thirty-year term only if the jury specifically identifies a machine gun or silencer as the firearm supporting the conviction. . . . It also is undisputed that the jury in this case mistakenly was not asked to specify the weapon or weapons underlying its verdict. Id. at 714. Yet the government argued that the jury "implicitly" found use of machineguns. Id. The district court found based on a preponderance of the evidence that machineguns were used, but decided that, because it had not submitted the issue to the jury, it could impose only a 5-year sentence. Id. The government sought to appeal the sentence because "the record" showed use of a machinegun. Id. at 712. Melvin decided that "we may not exclude beyond a reasonable doubt the possibility that the jury rendered a guilty verdict . . . based on a determination that the defendants possessed only a handgun . . . ." Id. at 715. The verdict did not establish that defendants used "weapons subject to a term of imprisonment greater than five years." Id. Thus, the court affirmed the five year sentence. Id. The attempt of the Fifth Circuit here to distinguish Melvin (App. 84-85a) disregards that this holding would be irrelevant if the finding of a "machinegun" is not for the jury. United States v. Rodriguez, 841 F.Supp. 79, 81 (E.D.N.Y. 1994), aff'd 53 F.3d 545 (2d Cir. 1995) cert. denied, 133 L.Ed.2d 170 (1995), rejected the government's argument that "the enhanced penalty for use of a firearm equipped with a silencer is not a matter for the jury in determining whether guilt has been proved, but only for the court in sentencing." The government sought to rely on United States v. Harris, 959 F.2d 246 (D.C.Cir.), cert. denied 506 U.S. 932 (1992), but Rodriguez, 841 F.Supp. at 81-82, responded: The Harris jury was asked to decide (1) whether the defendant knowingly possessed and used a firearm, and (2) whether that firearm was, in fact, a machinegun. Id. at 258-59. So too in this case, the jury will have to find, inter alia, that the defendant knowingly used a firearm in relation to a drug trafficking crime, and that the firearm at issue was equipped with a silencer. United States v. Alerta, 96 F.3d 1230, 1232 (9th Cir. 1996) reversed a 30-year sentence under ' 924(c) because "the jury did not expressly find that Alerta carried or used a machine gun." The jury instruction charged him with use of "pistols" and "machineguns." Id. at 1234. The jury found him guilty but did not specify whether a pistol (which is a "firearm") or a machinegun was used. Id. Alerta held: It is therefore possible that the jury found only that Alerta used one or more of the weapons that were not machine guns, in which case the requisite consecutive sentence for Count 5 would be 5 years, not the 30-year sentence that Alerta received. . . . Because of the immense consequences that follow a determination whether a firearm used in violation of section 924(c)(1) is an ordinary firearm or, at the other extreme, a machine gun, we have stated that a jury finding on that issue is required. Id. at 1234-35, citing Martinez, supra. Alerta explained that, where both "firearms" and "machineguns" are alleged, either separate counts or special interrogatories should be submitted to the jury. Rejecting the government's argument that the character of the weapon is not an element of the offense, the court continued: We reject the government's contention, as applied to instances where the government seeks more than the minimum 5-year consecutive sentence. The entire purpose of our requiring a special verdict or separate charges in Martinez was that the jury find beyond a reasonable doubt that the defendant used a machine gun. If the 30-year consecutive sentence is to be imposed under section 924(c)(1), the fully automatic character of the firearm must be found by the jury; that is to say, it is an element of the crime. Id. at 1235. The jury may well have found only that a "firearm" was involved, the consequence of which Alerta stated to be as follows: Thus, for all we can know, Alerta may have been sentenced to 30 years without a finding by the jury that he used or carried a machine gun. That we cannot permit, despite the very strong evidence that Alerta used or carried a machinegun. "'[T]he question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials.'" Id. at 1236, quoting Carella v. California, 491 U.S. 263 (1989) (Scalia, J., concurring). Smith v. United States, 508 U.S. 223, 228 (1993) notes that ' 924(c) requires proof "that the defendant 'use[d] or carrie[d] a firearm'" which was "'during and in relation to' a 'crime of violence or drug trafficking crime.'" The district court here inferred from this that the weapon type is not an element of the offense. (App. 129-30a) Yet, as the district court conceded (App. 130a n. 1), the Smith indictment alleged and the jury found that the defendant "knowingly used the MAC-10 and its silencer." Id. at 226. In sum, the circuits are in conflict on whether, to sentence one to 30 years for use of a machinegun in a crime of violence under ' 924(c), the jury must be instructed and must find that the defendant used a machinegun, not just a firearm. This Court should resolve the conflict. D. The Fifth Circuit Decision is in Conflict with Bailey v. United States, 116 S.Ct. 501 (1995) The district court found at sentencing that defendants, based on a conspiracy theory, actually or constructively possessed machineguns. (App. 85a) The Court of Appeals found (App. 86a): ' 924(c) requires more than "mere possession" of a firearm by the defendant. Bailey v. United States, --- U.S. ---, ---, 116 S.Ct. 501, 506, 509, 133 L.Ed.2d 472 (1995). The Government must show "active employment" of the firearm. Id. The district court . . . found only that each defendant had actual or constructive possession of an enhanced weapon. This finding does not meet the statutory requirement as read by Bailey. The panel added that "there is evidence from which it could be found that machineguns and other enhancing weapons were used by one or more members of the conspiracy in the firefight of February 28. The jury was not required to do so . . . ." Id. The panel continued: With Bailey the district court must take another look and enter its findings regarding Aactive employment.@ Should the district court find on remand that members of the conspiracy actively employed machineguns, it is free to reimpose the 30-year sentence. We vacate the defendants' sentences on Count 3 and remand for resentencing on that count. We note that, on remand, the district court should consider whether the defendants actively employed a weapon during and in relation to the conspiracy to murder federal agents. (App. 86a) While the jury did not find that any defendant used a machinegun or other enhanced weapon, the panel concludes that the district court could sentence the defendants as if the jury had so found, and that each defendant was responsible for a co-conspirator's use of an enhanced weapon. Yet Bailey bases liability on the charges in the indictment and the jury verdict, not on the trial court's sentencing findings. Bailey held that "' 924(c)(1) requires evidence sufficient to show"--to the jury--"an active employment of the firearm." 116 S.Ct. at 505. "The question we face today [is] what evidence is required to permit a jury to find that a firearm had been used at all." Id. at 508 (emphasis added). Bailey presupposes that a person must be charged in an indictment with the appropriate language under ' 924(c) before being convicted and sentenced. Thus, "a defendant cannot be charged under ' 924(c)(1) merely for storing a weapon near drugs or drug proceeds." Id. "To sustain a conviction"--not merely to uphold sentencing findings--"the Government must show that the defendant actively employed the firearm." Id. at 509. Bailey held that "the evidence was insufficient to support either [defendants] conviction for 'use' under ' 924(c)(1)." Id. However, since the defendants "were each charged under both the 'use' and 'carry' prongs of" the provision, this Court remanded to consider whether a basis to uphold the convictions existed for "liability under the 'carry' prong." Id. Thus, a conviction could be upheld only for what had been charged in the indictment. The Fifth Circuit remand, which allows the sentencing judge to make Bailey findings never charged in the indictment or considered by the jury, conflicts with the disposition by other circuits of post-Bailey cases under ' 924(c). The other circuits focus on whether sufficient evidence exists for the jury to find beyond a reasonable doubt the use or carrying of a firearm, a machinegun, or other weapon as alleged in the indictment. For instance, United States v. Santos, 84 F.3d 43, 46 & n. 3 (2nd Cir. 1996) found insufficient evidence under Bailey to sustain the jury verdict under an indictment charging use or carrying of "firearms," including a "handgun which was then equipped with a silencer." The court vacated the 30 year sentence. Id. at 46-47. Insufficient evidence of use of a machinegun existed in United States v. Garcia, 77 F.3d 274, 276-77 (9th Cir. 1996) ("prior to Bailey, the jury could have properly inferred that Garcia 'used' the machinegun"). See United States v. Farris, 77 F.3d 391, 395 (11th Cir. 1996) ("the conviction must be affirmed if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt"); United States v. Thompson, 82 F.3d 849, 851-52 (9th Cir. 1996) (jury improperly instructed on "use" of firearm equipped with silencer; conviction vacated). The Fifth Circuit alone entrusts these findings to the sentencing judge. While the panel is silent on the source for its novel doctrine, the district court based it squarely on Pinkerton v. United States, 328 U.S. 640 (1946). (App. 125-26a) Yet Pinkerton involved responsibility for acts of co-conspirators being submitted to the jury. Id. at 645. Since a defendant may be convicted of ' 924(c) under Pinkerton based on a co-conspirator's use of a firearm, it somehow follows that a defendant may be sentenced as if so convicted by the jury. No Pinkerton instruction about use of machineguns by co-conspirators was given here, and the jury made no such finding. (See jury instruction on Count 3 in Castillo Supp. Record on Appeal, vol. 23, at 1232.) Yet the panel held that defendant may be sentenced as if the jury rendered a guilty verdict under a Pinkerton instruction. Judge Schwarzer's dissent demonstrates the perils of allowing the sentencing judge to determine, based on a preponderance of evidence, the use of a machinegun in the alleged conspiracy and then to attribute such use to each defendant. He would have vacated the ' 924(c) convictions based on insufficient evidence even for the jury to find beyond a reasonable doubt use of a "firearm" in a conspiracy by any defendant, much less would he have allowed the district court to go further and find use of a "machinegun" by a co-conspirator and the attribution thereof to each defendant. Judge Schwarzer wrote: There is no evidence that any of them [defendants] entered into an agreement to kill federal officers, much less that any did so with premeditation and malice aforethought. That these defendants were members of the sect led by David Koresh, whose teachings may well have been inflammatory, and that they were present in the compound during the battle and in various ways participants in it, does not support a finding that each of them conspired to murder federal officers. Each defendant is entitled to individual justice by means of a review of the evidence to determine whether the requisite elements of such a conspiracy have been established as to him. Failing that, their conviction of the predicate offense rests on nothing more than guilt by association. (App. 116a) These misgivings about the sufficiency of evidence in support of the jury verdict based on a reasonable doubt instruction, illustrate the fallacy of entrusting the sentencing judge with making the critical findings based on a mere preponderance of evidence. In conclusion, the sentencing judge must not be allowed to punish the defendant for offenses which neither the grand jury alleged nor the petit jury found. The panel decision conflicts with the precedents of other circuits and those of this Court, and should be reviewed by this Court. II. THIS COURT SHOULD RESOLVE WHETHER ACQUITTAL OF THE PREDICATE OFFENSE PRECLUDES CONVICTION UNDER ' 924(C) Castillo was convicted of Count 3 under 18 U.S.C. ' 924(c) of using a firearm in a crime of violence, but was acquitted of Count 1, the predicate crime of violence. This Court should grant this petition for writ of certiorari in order to correct appellate rulings negating the requirement in ' 924(c) of conviction for the predicate offense. ' 924(c)(1) makes two references to the underlying conviction. The first sentence, regarding the additional sentence for use of the firearm, refers to "the punishment provided for such crime of violence or drug trafficking crime." It does not use terms such as "the punishment provided for such crime of violence if the person is convicted of such crime." Moreover, in prohibiting concurrent sentences, the third sentence refers to "any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried." While the terms "any other term of imprisonment" do not refer to another specific conviction, the terms "that imposed for the crime of violence . . . in which the firearm was used" clearly refer to imprisonment actually imposed under a conviction. Since ' 924(c) presumes that the defendant was convicted of the predicate offense, an acquittal of the predicate offense requires that a ' 924(c) conviction be set aside. The Fifth Circuit appealed to the general rule that a jury may render inconsistent verdicts, but failed to consider that the statutory text refers both to "the punishment provided for such" predicate offense and to the term of imprisonment "imposed for the" predicate offense. (App. 32-33a, 65a) The panel held that the existence of a "machinegun" is a sentencing enhancement to be found by the judge and is not an element of the offense. The statutory text and its legislative history make clear that the "firearm" and "machinegun" provisions of ' 924(c) are in pari materia. If ' 924(c) is a mere sentencing enhancement and not a substantive offense, acquittal on the predicate offense leaves no sentence to enhance. Whether the text of ' 924(c) requires conviction of the predicate offense, particularly in light of the Fifth Circuit's decision that part of the subsection is a sentence enhancement, is an important question of federal law that has not been, but should be, settled by this Court. III. THIS COURT SHOULD CLARIFY THE CONSTRUCTION OF ' 924(C) TO AVOID FIFTH AND SIXTH AMENDMENT VIOLATIONS A. ' 924(C) Should be Construed Consistently with Fifth and Sixth Amendments Rights Concerning Indictments and Jury Trial This case presents a question of exceptional importance. ' 924(C) should not be lightly construed to allow imposition of sentences as radically different as 5 years and 30 years based on the sentencing judge's view of the preponderance of the evidence. The Fifth and Sixth Amendment guarantees of indictment, being informed of the nature of the accusation, and trial by jury eschew rewriting an element of the offense to a mere sentencing factor. "Where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." New York v. United States, 505 U.S. 144, 170 (1992). United States v. Gaudin, 115 S.Ct. 2310, 2313 (1995) sets forth the following principles applicable here: The Fifth Amendment to the United States Constitution guarantees that no one will be deprived of liberty without "due process of law"; and the Sixth, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." We have held that these provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Russell v. United States, 369 U.S. 749, 763-64 (1962) held that the sufficiency of an indictment for Fifth Amendment purposes is determined by: first, whether the indictment "contains the elements of the offense intended to be charged, `and sufficiently apprises the defendant of what he must be prepared to meet,'" and, secondly, "`in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.'" The panel decision here is analogous to allowing a judge to amend the indictment to change the word "firearm" to the word "machinegun," a finding not made by the grand jury. Russell condemned the notion that "it lies within the province of a court to change the charging part of an indictment to suit its own notions" as destructive of the role of the grand jury and as a usurpation that would "place the rights of the citizen . . . at the mercy or control of the court." Id. at 770-71. Further, the panel's decision infringes on the right of the petit jury to determine whether the defendant is guilty. Gaudin, 115 S.Ct. at 2312-13, reminds us that "the right to have a jury make the ultimate determination of guilt has an impressive pedigree," explaining: Justice Story wrote that the "trial by jury" guaranteed by the Constitution was "generally understood to mean . . . a trial by a jury of twelve men, impartially selected, who must unanimously concur in guilt of the accused before a legal conviction can be had." 2 J. Story, Commentaries on the Constitution of the United States 541, n. 2 (4th ed. 1873) . . . . This right was designed "to guard against a spirit of oppression and tyranny on the part of rulers," and "was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties." Id., at 540-541. Duncan v. Louisiana, 391 U.S. 145, 156 (1968) is particularly applicable here, because it emphasizes that the right to jury trial was intended to preclude a judge from making critical factual determinations in a trial: Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. . . . Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power Ä a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power . . . found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. In sum, ' 924(c) must not be interpreted in a manner as would suggest its invalidity under the Fifth and Sixth Amendments. A person cannot be sentenced for use by co-conspirators of a machinegun without being indicted and found guilty of such offense. B. Any Ambiguity in ' 924(c) Must be Resolved According to the Rule of Lenity Regarding whether the machinegun provision is a separate offense or a sentence enhancement, the Court of Appeals frankly concedes: "The text of ' 924(c) forecloses neither of these two competing readings of the statute." (App. 81a) ' 924(c) could also be read as either requiring or not requiring conviction for the predicate offense. The rule of lenity provides that where two interpretations are possible, the statute must be construed against the government and in favor of the defendant. United States v. Bass, 404 U.S. 336, 339 (1971), like the case here, involved whether certain language in the Gun Control Act constituted an element of the offense. Repeating the traditional rule that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity," id. at 347, Bass set forth the following classic statement: "When choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." . . . First, "a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear." . . . Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. . . . Thus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant. Id. at 347-48 (citations omitted). Bass concluded that "Congress has not 'plainly and unmistakably' . . . made it a federal crime for a convicted felon simply to possess a gun absent some demonstrated nexus with interstate commerce." Id. at 348-49. Nor has Congress spoken "plainly and unmistakably" here. Bass has been applied by this Court to give limiting constructions to ' 924(c). Busic v. United States, 446 U.S. 398, 406-07 (1980); Simpson v. United States, 435 U.S. 6, 14-15 (1978). The following from Simpson is instructive: "This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended." Id. at 15 (citation omitted). The rule of lenity enjoys equal vitality today. Applying the above tools of construction, conviction under ' 924(c) requires that the indictment allege and the jury find use of a machinegun, and that acquittal on the predicate offense bars a conviction. CONCLUSION This Court should grant this petition for a writ of certiorari to review the judgment of the U.S. Court of Appeals for the Fifth Circuit. STEPHEN P. HALBROOK* 10560 Main Street, Suite 404 Fairfax, Virginia 22030 (703) 352-7276 Counsel for Petitioner *Counsel of Record CERTIFICATE OF SERVICE I hereby certify that I sent two copies of this PETITION FOR A WRIT OF CERTIORARI and one copy of the APPENDIX via first class mail, postage prepaid, this day of December, 1996, the following persons. All parties required to be served have been served. Walter Dellinger, Acting Solicitor General Room 5614 Department of Justice 10th St. and Constitution Ave., N.W. Washington, D.C. 20530
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