William H. Rehnquist: We'll hear argument first this morning in Number 96-1654, Frank Muscarello v. United States, and Number 96-8837, Donald E. Cleveland and Enrique GraySantana v. United States. Mr. Klonoff.
Robert H. Klonoff: Mr. Chief Justice, and may it please the Court-- This case raises the issue left open in Bailey v. United States, what it means to carry a firearm under 18 U.S.C. 924(c)(1). Petitioner submits that for four principal reasons carries a firearm means, bears a firearm on one's person. First, the plain meaning of the phrase, carries a firearm, directly supports petitioner's position. Dictionaries repeatedly and consistently equate carries a firearm with having a firearm on the person. Second, the Government has not cited a single dictionary that defines the phrase, carries a firearm, to mean transporting or possessing a firearm in a vehicle. Instead, the Government improperly isolates the word carry, rather than looking at the specific context, carries a firearm, but although the term carry has multiple definitions, this Court has made clear in Deal v. United States and elsewhere that when a dictionary offers multiple definitions, all but one of those meanings is ordinarily eliminated by context. Here, the context is carries a firearm. Third, the Government's view would make carries a firearm the same as transporting a firearm, but section 924(b) and numerous other gun provisions use the word transport, showing that Congress knew how to get across the concept of transport when it wanted to.
David H. Souter: Do any of those other provisions speak of transport in relation to a crime of violence, or a drug crime, or is it just transport in the abstract?
Robert H. Klonoff: Well, there are a whole variety of provisions, Justice Souter. I guess one that comes to mind is 18 U.S.C. 926 (a), which talks about transporting, shipping or receiving a firearm or transporting a firearm for any lawful purpose from any place where he may lawfully possess and carry such a firearm. That is the closest analogy.
Antonin Scalia: For an unlawful purpose, you say?
Robert H. Klonoff: No, it does not use that--
Antonin Scalia: For a lawful purpose. For a lawful purpose? It's a crime to transport it for a lawful purpose?
Robert H. Klonoff: --Not... transporting, shipping or receiving for any lawful purpose from where he may legally possess.
Antonin Scalia: But it-- --That's a crime?
Robert H. Klonoff: Yes, Your Honor.
Antonin Scalia: I didn't realize we'd gone that far yet. [Laughter] In any case, I take it the other references to transport as a prohibition did not make the limitation that this prohibition has on carries.
Robert H. Klonoff: Not in that precise terminology, that's correct.
David H. Souter: So that to read it as the Government would read it I think probably would not, therefore, just duplicate, in effect, all of the other prohibitions on transportation, correct?
Robert H. Klonoff: Well, we think that it would. In fact, the Government itself in its--
David H. Souter: Maybe I'm not getting my point across. I thought the reason that it wouldn't was that there's a limitation. There's a restriction here, in relation to a drug crime or crime of violence, and that restriction does not occur in the instances in which transportation is specifically prohibited in other parts of the statute. That's the only point that I'm trying to--
Robert H. Klonoff: --No, I understand, but the during and in relation to is a separate component, but in terms of the meaning of the word carry we think that it is instructive to look at the other statutes.
Antonin Scalia: --I still don't think you're understanding Justice Souter's point. He's saying that just as you say the word firearm must be taken into account in determining the meaning of the word carry because that's part of its context, so also the phrase, in relation to a crime of violence or a drug offense must be taken into account in gathering the meaning of carry, because that is part of its context.
Robert H. Klonoff: Oh, I agree with that point, Your Honor.
Antonin Scalia: Okay. Now, the second question is, are there any other statutes that have similar language?
Robert H. Klonoff: No, there are not.
Antonin Scalia: I can't imagine that there's none that says it's a crime to transport a firearm for an unlawful purpose--
Robert H. Klonoff: There's no--
Antonin Scalia: --from a statute that makes it a crime to carry it for a lawful purpose.
Robert H. Klonoff: --There's no statute precisely like that, Your Honor. That is the answer.
Anthony M. Kennedy: With reference to carry, the definition of firearm includes a missile, a rocket launcher--
Robert H. Klonoff: Yes. There is a broad--
Anthony M. Kennedy: --Do you have to carry the rocket launcher in your vest pocket?
Robert H. Klonoff: --No, and that is correct, Your Honor. There are some types of firearms as defined in 921 that you couldn't physically have on your person, of course.
Speaker: Or a land mine.
Robert H. Klonoff: That's correct. Of course, the definition of firearm in 921 is for the entire Chapter 44, and it's not surprising that there may be situations that don't fit every circumstance, and that would--
Anthony M. Kennedy: So then if you had a land mine in your... in the trunk of your car or in the back of the utility vehicle, that would be carrying it?
Robert H. Klonoff: --It would not be. Our definition of carrying is limited to on the person. There are some kinds of firearms--
Anthony M. Kennedy: So there are some kinds of firearms that cannot be carried and therefore there's no violation of the statute, in your view?
Robert H. Klonoff: --Well, there could be a violation for using in those circumstances, or--
Speaker: Transporting.
Robert H. Klonoff: --Exactly, under other provisions, so there are a number of ways you could get at the same conduct. If Congress wanted to--
Anthony M. Kennedy: But are there any statutes in which Congress has defined something like firearm, punishing its carrying, but then the firearm is so defined that it cannot be carried? I don't understand how that works.
Robert H. Klonoff: --Well, it only... as I said, it only applies to a small number of the firearms contained with the definition of 921(a)(3), and again we don't think it at all surprising that when you have a statute that's applied to the entire firearms chapter, that there may be one or two types of firearms as defined that you could not physically carry on your person. That is a problem for Congress to fix under the proposed legislation, which would expand to include possession. That would be encompassed, and I would submit that's a problem that Congress has to fix. There are some oddities of the statute under any possible interpretation, but we don't think that the mere fact that some conceivable type of firearm could not be carried on the person should inform this Court's interpretation of the words, carries a firearm.
Ruth Bader Ginsburg: What about Judge Trott's view that whatever line is drawn here it would make no sense to say to the savvy criminal, hide the gun and you're home free. Just don't keep it on your person. Keep it where you can get at it when you need it. Would that be a sensible line to attribute to Congress?
Robert H. Klonoff: Judge Trott's analysis is entirely flawed. If the Court looks at his opinion, he talks about the absurdity of a situation where somebody has a gun on his person and then puts it on the car seat and all of a sudden he's scott free. That's not at all the position we're arguing. We're not focusing entirely on the point of arrest, and if the Government can prove to the jury that the individual had the firearm on his person at some point during and in relation to the crime at issue, he would be prosecuted. So in Judge Trott's example, there is adequate evidence under petitioner's definition of carries a firearm to convict that person. Now, let me just respond, though, to Your Honor's question. I submit that Judge Kozinski has it right in terms of what the everyday criminal thinks, and he thinks of carrying a firearm as packing heat, and I would give the Court an example that illustrates the point. Two individuals are in a car. They're on the way to engage in a bank robbery and they're very close to the scene. The gun is under the back seat, or in the trunk, or wherever. One individual says to the other as they're getting ready to pull up, hey, are you carrying the gun? Where the gun is in the trunk or in some other place, no one would say, yes, I'm carrying the gun. He'd say, no, it's in the trunk.
Sandra Day O'Connor: Well, let me ask you this. Suppose the person with the gun physically had it in his hands and put it in the car in order to go and have a drug transaction and in order to have a weapon available to facilitate carrying out the drug transaction. You say the person would have carried the gun when he was putting it in the car.
Robert H. Klonoff: Depending on the crime. For a crime of possession with intent to distribute, that's correct. He had the gun on his person. He would be carrying it. He could have--
Sandra Day O'Connor: Well, I mean, carried it for use at the time the drug sale is made, for example.
Robert H. Klonoff: --Yes, during and in relation to.
Sandra Day O'Connor: So can he be charged with carrying the gun because he carried it to the car, where he then put it where it was not immediately available?
Robert H. Klonoff: Under our view yes if... as long as the Government can also show the during and in relation to, and for example, a possession with intent to distribute situation, where you're putting drugs in the car, you're putting your gun in the car, seems to me there's more than sufficient evidence there, and again, that's why I think Judge Trott's analysis is faulty, because in many of those situations you will have sufficient evidence of carries a firearm on the person.
William H. Rehnquist: In every case, Mr. Klonoff, where you have a drug in the trunk... a gun in the trunk, a gun in the glove... someone carried it and put it there, so under your analysis, much would depend on how we define in relation to. I mean, how far back can you go.
Robert H. Klonoff: That's correct, Your Honor. That is true. In our case, though, there was a gun in the locked glove compartment. There's no evidence of when it was put there, and the Government couldn't conceivably make the argument that that gun was carried to the--
Anthony M. Kennedy: So it follows from your analysis that the informed drug dealer will have a drug... will have a gun in his car at all times, when he goes shopping, when he goes to church, and when he distributes the drugs.
Robert H. Klonoff: --If he's reading up on the statute that might be correct, but again, that's a problem-- [Laughter] And that goes back to what Judge Trott said. But the point is, is that those oddities, we submit, are for Congress to fix.
Stephen G. Breyer: What are the oddities? That's... I mean, I carry plants in the back of my car in the trunk, I think, haven't I, when I go to the nursery, pick up the plants, put them in the trunk, carry them to my house. I always thought I was carrying the plants.
Robert H. Klonoff: Again, that's contextual--
Speaker: All right.
Robert H. Klonoff: --and I our point is, is when you're talking about the phrase--
Stephen G. Breyer: But what I really want to know is, I'm pointing out I don't find that odd. I do find it odd, as you do, that if there really are things like you see in the movies, you know, big gangsters with huge guns guarding the place, that that wouldn't fall within the statute. We both find that odd. What are the oddities on the Government's interpretation? You said that was odd, and I'm not certain... I want to know--
Robert H. Klonoff: --Well, there are--
Stephen G. Breyer: --I want you to focus on what those are.
Robert H. Klonoff: --There are several. First of all, under the Government's own theory, since movement is required, if an individual was sitting on a couch and the gun's next to him, he's not carrying it, so there's immediate access but the Government says it's not carried. Secondly, it's not clear whether the Government's position--
Antonin Scalia: Or, indeed, even if it's on his person, so long as he hasn't moved it, I suppose.
Robert H. Klonoff: --Exactly, that's right.
Antonin Scalia: If he gets one of his confederates to come and hand him the gun and he puts it-- --So there are oddities of omission, but is there any oddity of... is there any oddity that is produced... if we accept the Government's interpretation, does that produce anything odd?
Robert H. Klonoff: I think it does. For example--
Speaker: What is that?
Robert H. Klonoff: --I don't think the Government's position applies to a passenger. I think it only applies to the person in control, so you'd have an odd situation of the gun sitting next to the passenger who's orchestrating the entire drug transaction. He's not carrying it, but the driver would be. If I could save the balance of my time for rebuttal.
William H. Rehnquist: Very well, Mr. Klonoff. Mr. Zalkind, we'll hear from you.
Norman S. Zalkind: Mr. Chief Justice, may it please the Court-- In deciding Bailey, you have given those of us who labor in the fields of criminal law a clear line definition, and we're asking for the same with the word carry. We're asking for really the ordinary and plain meaning of the word carry in context of firearms, and of all the cases that I've read I haven't heard about rocket launchers used in drug transactions in any of the circuit cases. We're really talking about firearms, portable firearms, and that's bearing on the person.
Sandra Day O'Connor: Well, in days gone by if some rider had a gun in the scabbard on his saddle, as used to be the day when I lived on a ranch, is that person carrying a weapon?
Norman S. Zalkind: If it's right on his--
Sandra Day O'Connor: Right there on the saddle. You know where they put the scabbard on a saddle.
Norman S. Zalkind: --I understand that, Justice O'Connor. I would say, under our definition, that that would not be carried, because it's not on--
Sandra Day O'Connor: Nor would it be if you had it in a wheelbarrow and were moving it from place to place.
Norman S. Zalkind: --No, that would not be carried. If you had... and if you had a locked briefcase, and in the locked briefcase there was cocaine and there was a Mack 20, one of these fierce firearms that was mentioned in Smith, that would be carried.
Stephen G. Breyer: Why do... why when I put the... I mean, this is what... because I so often use the words, I put a flower plant or something for my wife in the trunk, and I feel I'm carrying that to my house, and why, in the plain meaning of the words, if instead of a... I hope I wouldn't do it... instead of a flower plant, it happens to be a case of rifles that we're using to... for the big drug transaction. [Laughter] Why am I not carrying that? I mean, if I'm carrying the plant, why wouldn't I be carrying the case of rifles?
Norman S. Zalkind: Because we're talking about statutory interpretation and we're--
Speaker: That's true, so that's--
Norman S. Zalkind: --talking about a narrow meaning of the word carry, which is bear on the person, and we're--
Antonin Scalia: --I guess you can carry a grudge, you can carry a tune, you can carry a whole lot of things and it has different meanings, depending on-- [Laughter] --what you're carrying, right? That's your point.
Norman S. Zalkind: --Justice Scalia, I totally agree with you.
Stephen G. Breyer: But I'm... my problem, to be specific, and I'm trying to get an answer to this, is whenever I would think of an anomaly, and I've been trying to think of them, is it seems to me the anomalies tend to be taken care of on the Government's interpretation by the words, in relation to a drug transaction, so I really haven't, once I play with those words, found anything odd about the Government's interpretation, and that's why I'm asking you to tell me if I... if I adopt the Government's interpretation and work with those words, in relation to, does it produce any odd result?
Norman S. Zalkind: Yes, because the Government's... Justice Breyer, the Government's interpretation is basically a transportation interpretation, and you're talking about the trunk of a vehicle. What about the ocean liner? What about the double truck, where you have the double caboose? What about the caboose at the end of the railroad line? What about the power boat that is 20 feet, and then it's 40 feet, and then it's 75 feet? What about the... I sail on racing boats. What about the 50-foot racing boat, and it's a trimaran, and you're out on the furthest end of the trimaran, and that's where you could carry firearms.
Sandra Day O'Connor: But under your view you say that putting it in a wheelbarrow and pushing it isn't carrying. How about one of these luggage containers that's on a little strap and wheels? Not carrying, I guess, huh?
Norman S. Zalkind: That's becoming closer, Your Honor, because we're talking about on the person, and once you have that luggage that you're carrying right with you, that's not really a separate... that's right on the... that's very on the person.
Antonin Scalia: A purse would clearly qualify, wouldn't it? If a woman carried a gun in her purse, that would qualify?
Norman S. Zalkind: Justice Scalia, that would qualify.
Antonin Scalia: You make the purse a little bigger and it's a suitcase, and would that qualify?
Norman S. Zalkind: If the person is carrying that suitcase?
Speaker: Yes.
Norman S. Zalkind: Justice Scalia, that would qualify, but if the wheelbarrow... we would say there's a line draw... that's a--
Antonin Scalia: The line is between the suitcase and the wheelbarrow?
Norman S. Zalkind: --No, between the body. [Laughter] Between the body. We would include, for instance, if you had 10 layers of clothes, and there would be a firearm that you... that was in... under the 10 layers, that would be carried, even though you would not have immediate access.
William H. Rehnquist: There are going to be fine lines we have to draw no matter whose version of the statute we interpret.
Norman S. Zalkind: Chief Justice, that's correct, but the version that we're suggesting is the easiest and it has the easiest line to draw. Congress, if they want to make possession a crime, then they... and they're trying to right now. They can add the word possession if they want to, or they can add the word transport, but the line that we're drawing is the easiest, and you did it for us in Bailey. We know--
Ruth Bader Ginsburg: But what about the Government's argument that your client loses in any case, because your client went to a shop, purchased a gun for the specific purpose of having it with him in this drug deal, carried the gun in his hand to the car, so your client, whatever it might be in another case where the gun was just in the car, your client carried the gun to the car.
Norman S. Zalkind: --Justice Ginsburg, I most respectfully disagree with you, because he did carry some firearms to the car, but it wasn't in relation to a drug crime at that time. It hadn't... he... that issue was never raised.
Ruth Bader Ginsburg: So you say that doesn't present a carry problem. It is carried, but not in relation to.
Norman S. Zalkind: Not in my case. I... if a drug connection was really evolving, it... let's say the drug transaction started down in Symphony Hall, and he had some guns hidden in a building near Symphony Hall, and once he made the conversation with the drug dealers they really knew they were going to a motel, and he went over to a building, grabbed his guns, and brought them and threw them in the trunk at that... while the drug transaction was moving, that would be different. But in my case, sometime earl... much earlier in the afternoon, when he didn't know that where there was going to be a meeting, what the quantity was of... what the negotiations were, was he going to get the drugs fronted or was he going to rip the drugs off, there was no specific plan, he was charged with an attempt to commit possession with intent to distribute cocaine. He wasn't... the other charges were dismissed. That's the charge that he made a conditional plea to, so in our case he would be not guilty. There are cases that if it's all within an immediate activity, during the drug transaction, yes, I would agree with you, Justice Ginsburg.
David H. Souter: You seem to be taking the view that the inrelationto has to be specific to the transaction as it finally turned out. Why should that be? Why can't in relation to simply refer to the general subject matter? If he put the guns in the trunk for whatever use they would turn out to be to him in whatever drug transaction he succeeded in engaging in, why isn't that enough for in relation to?
Norman S. Zalkind: It isn't because there's no... he could have been arrested at the... when he carried the guns to the car and charged with the specific crime of attempting to possess with intent to distribute cocaine at that time. He could have been arrested by the State of Massachusetts for possession of firearms, but he couldn't have been arrested for during a drug crime, because the drug crime wasn't--
David H. Souter: I didn't say anything about during. I said... I was asking you why it is not sufficient for the inrelationto prong to prove that he put them in the car for whatever use they might turn out to be in whatever drug transaction he succeeded in engaging in. He didn't know, on my hypothesis, what that transaction would be exactly, but he did know that he intended to engage in a drug transaction. Why, under those circumstances, is not the inrelationto prong satisfied?
Norman S. Zalkind: --Well, every single drug transaction where there are firearms at some point, and I think it was mentioned by one of the justices before, somebody would be bringing the guns to the car, and they're just not committing a crime at that time. Just because--
Sandra Day O'Connor: Well, what's-- --Well, that's... that's-- --the language of the statute? At 924(c) it says whoever during and-- --And.
Norman S. Zalkind: --In relation--
Sandra Day O'Connor: --in relation to any crime of violence or drugtrafficking crime uses or carries a firearm. They have to go together, do they, during and in relation to? It has to be both.
Norman S. Zalkind: --Justice O'Connor, I agree with that.
David H. Souter: Yes, but isn't--
Norman S. Zalkind: During and in relation--
David H. Souter: --the point that he is committing and that he has taken the substantial step so that he has committed the crime of attempt when he starts loading the guns in the car?
Norman S. Zalkind: --Justice Souter, not if he doesn't place them at or near the scene of the crime. When he placed the firearms in the car, that was not... that would not be considered--
David H. Souter: Well, I don't have to be near the scene of the consummated crime to engage in an attempt, if I take a substantial step somewhere else.
Norman S. Zalkind: --Most respectfully, we would disagree with you, Justice Souter. You would have to take a... the substantial step would be if the instruments of the crime were placed there at or near the scene of the crime that he's attempting. If you get burglarious instruments and you don't go to the place, you just have, you know, hammers and tongs, you're not going to be committing that crime. If you decide in your mind you're going to murder someone and you get the firearm and you put it in your car and you're going to go looking for this person, at that point you're not committing an attempted murder. It's only when--
David H. Souter: You haven't taken the substantial step at that point?
Norman S. Zalkind: --You have not. Even though you... but you are guilty of the possession of the firearm, but that's a separate... that's a State statute, or it could be a Federal statute, but it's not this case, 924(c), or I gave... given hypotheticals relating to other kinds of crimes.
Anthony M. Kennedy: If we had just the word, in relation to, I should think that the modifying phrase has something more than a temporal aspect to it, that it's pragmatic as well if it... it's accessible if it facilitates the drug offense. During does seem to be mostly a temporal term.
Norman S. Zalkind: Justice Kennedy, I would... if I understand the word temporal, because I don't want to say something that I don't totally understand, but as I understand what you're saying I would agree with you that it's an active... it's an active word, and it does... we would prevail under that definition, as we would prevail under immediate accessibility, but we think immediate accessibility is another transport excuse. To carry, you don't have to move the firearm. You can carry a firearm by just having it inside your pocket. As the examples were made both in... both in Bailey and Smith as to what carry would be, and although that's not totally instructive to us, it is saying something.
William H. Rehnquist: You say, are you carrying any money to somebody, and even though they're standing still they would say, yes, I am carrying money.
Norman S. Zalkind: Chief Justice Rehnquist, I agree. If you have the money in your pocket you are carrying money. If you have even an unloaded firearm in your pocket, you are carrying a firearm, and the... what the transport theory does is, it might convict someone that has an unloaded derringer in the trunk, but it won't convict the big drug dealer that has an automatic machine gun in the next room that's sitting there, so... I mean, not that that has... we have to draw a line somewhere, but I just want to point out our thinking about this. Again, there's no linguistic reason to define carry as an auto... as transporting, and pure transport has enormous problems, as I think we've pointed out to you.
Stephen G. Breyer: Suppose you define carry as transport but omit the meaning of transport that means ship. In other words, transport some... it's transport, but not arrange for transport.
Norman S. Zalkind: Well, Justice Breyer, then you... you're adding to the interpretive problems even further. You're getting into ambiguity with that, and if you're getting into ambiguity we start to think about the Rule of Lenity, because we're talking about very serious crimes. In the Cleveland and Gray case, they got 10 years to begin with. Forget about the firearm. They start off with 10 years of their lives, and now we have this enormous minimum mandatory 5 years that's going to be added, and if they're not convicted of that the judge could have... in that case he could have used the guidelines, bump it up two more levels anyway. So it isn't that the trial judges don't have power to penalize bad behavior, but we're talking about carrying firearms, a sort of narrow class of separate minimum mandatory crimes for people that are being severely punished, so--
Ruth Bader Ginsburg: Do you accept the Kozinski line that it's not... doesn't have to be on the defendant's body, but if it's right next to him where it's within handsreach--
Norman S. Zalkind: --Justice Ginsburg, no, we don't accept that line, although if you accept that line, then we would prevail. But again, that's another transport exception, because there is that movement that Justice Kozinski eloquently states in his en banc decision, and we're saying that no, that that would not be carry. That would be the line that's drawn, would be at that point. Even though it was within immediate access, that would not be carry, and I think that's consistent with the Bailey decision. And again, once those lines are drawn--
Ruth Bader Ginsburg: --So if a defendant starts out with the gun in his pocket, and in the course of the ride to the scene of the deal puts it on the seat, then the statute doesn't apply?
Norman S. Zalkind: --Justice Ginsburg, if there was, for instance, somebody in the back seat, and that person ended up cooperating with the Government and said, look, we're driving along in the car and he sees the police and he flips the gun beside him, he's be... he'd be guilty of carrying, because his is during, in relation to a drug crime. But if it just so happens he puts the gun on the seat, he might be guilty of use, because if somebody comes over and they see that gun and says, now--
William H. Rehnquist: I think you've answered the question, Mr. Zalkind. Thank you.
Norman S. Zalkind: --Thank you.
William H. Rehnquist: Mr. Feldman, we'll hear from you. Mr. Feldman, do you know if criminals still talk about packing heat, or has Judge Kozinski been watching too many Bogey movies? I-- [Laughter]
James A. Feldman: I haven't... I'm not aware of the continued use of that phrase, no. The Government's position is that Congress used the term, carries a firearm in section 924(c) in its ordinary sense, to refer to all of the means by which a firearm would ordinarily be said to be carried. Now, it is--
William H. Rehnquist: I think the Government has some problem just in the colloquial sense of the word. You ask a person, are you carrying a gun, you know, and the person I think ordinarily thinks that means on your person.
James A. Feldman: --I... Mr. Chief Justice, I think a lot depends on when it's asked. If you imagine a case where a policeman stops a motorist and says... walks up to the motorist and says, are you carrying a firearm, I don't think the motorist would have to stop to think if he wanted to answer honestly, is it on my person, did I put it on the seat, is it in the trunk or in the glove compartment, did I lock the glove compartment.
William H. Rehnquist: I'm not sure I agree with you.
James A. Feldman: You don't think... I... well--
William H. Rehnquist: Maybe my eight colleagues do, but I'm not sure that I do.
James A. Feldman: --At least our feeling, and it's consistent with standard dictionary definitions, that if you ask someone if they're carrying a gun in their car they would say either yes, or no, depending on whether the gun was in the car.
William H. Rehnquist: If you ask them if they're carrying your gun in the car, yes. But what if you ask them just, are you carrying a gun?
James A. Feldman: No, I think the same answer would... I think the same answer would be true even if you said if you're carrying a gun, in a circumstance where you're talking about where that seems the reasonable reference. If you're talking... going up to someone walking on the street, they'll likely interpret that to mean on the person.
Sandra Day O'Connor: Most dictionaries seem to... which I'm sure we've all been looking at since this case arose, they seem to say two different things. They say carry means to convey or transport as in a cart or a car, and also they say, to have or bear about one's person, as a watch or a weapon, locomotion not being essential. I mean, they seem to have both concepts in there, so which one do we look to, and do you think movement is required?
James A. Feldman: Our position is that Congress intended it to refer to both, and that movement is--
Sandra Day O'Connor: So someone with a gun in a pocket who's sitting in a chair and not moving is covered under your definition?
James A. Feldman: --Yes, and I'll tell you why. Ordinarily the word carry, with its etymological roots and its many common usages, refers to locomotion, but because common experience tells us that people move a lot, unlike vehicles, which sit parked in garages or at the curb for long periods of time, I think the concept that you have to have movement at a particular moment with a person has kind of dropped out or become vestigial. And as a result when it's talking about carrying it on a person, although in point of fact if movement were required it wouldn't make any difference, because people do move, and the inference that someone has moved, if they have one on their person, would be very, very strong, but--
Sandra Day O'Connor: Well, if the weapon is in the car, in the Government's view is movement required?
James A. Feldman: --Yes, and my only qualification I would give for that, if the defendant is just storing a gun in the car in his garage, for example, I don't think that he's carrying it. If the car is in the process of moving from one place to another and stops at a red light for a minute, or is in the... a process of movement--
Sandra Day O'Connor: Well, the car stops, so the drug transaction can be carried out. There's no movement at the time, during the drug transaction. The car is parked.
James A. Feldman: --Right. At that time I would say he's still carrying it. If there's a course of movement that's going on and this is part of it I think the defendant is still carrying it at that time.
William H. Rehnquist: And what about-- --But if he-- --the overlap between carry and transport?
James A. Feldman: I... carry and transport, as the dictionaries, as every dictionary I think recognizes, there is a lot of overlap between the terms, but there's a couple of features that clearly... I think three things that clearly distinguish them. First, carry requires that the person who's carrying it accompany the item that's carried. I don't think transport requires that. Second, carrying is more commonly used, and this may be just a question of connotations, but where the person who's doing the carrying also intends to use it, it's much more common to say that it's carried than used, and an example I'd give simply would be, if you're talking about a flashlight that maybe in the glove compartment of a car, it would be unusual for somebody to say, I transport a flashlight in the glove compartment of my car. I don't think it would be unusual to say, I carry a glove... a flashlight in the glove compartment.
Sandra Day O'Connor: Well, what do you do about two people in a vehicle in the Government's definition? There's a driver and there's a passenger and there's a gun in the glove compartment. Who's carrying the weapon?
James A. Feldman: I think it's usually... those cases are resolved in terms of who has dominion and control over the gun. It may be one or the other, or both.
Sandra Day O'Connor: Well, who has it, in the Government's view, driver, passenger, weapon in glove compartment?
James A. Feldman: I... you know, I don't... ordinarily it would be the driver, but it could easily be the passenger too, or instead of. It depends on whose gun it was, whether the passenger knew the gun was in the glove compartment, a number of factors. In other words, in order--
Speaker: It could be both?
James A. Feldman: --It could be both, also. Generally speaking possession, I think, is necessary for either use or carrying, and that would be... you have to look and see who's exercising dominion and control, but they're both responsible for the movement of the car and the movement of the gun.
Antonin Scalia: What about the examples of being in a catamaran, or being in the caboose of a long train? Is it still being carried?
James A. Feldman: Our position is that it's still being carried. It's still being carried because if the gun... it may or may not be in relation to a drugtrafficking offense, but if the gun is being moved from one place to another so that it can be of use and available in a drugtrafficking crime, then it is being carried.
Antonin Scalia: It's very strange for Congress to convey those two quite different meanings. Number 1, I'm worried about somebody carrying a gun on his person, so that even if he's sitting there stock still, I want this statute to cover him, but I'm also worried about that gun in the caboose, and--
James A. Feldman: I don't--
Antonin Scalia: --to use the same word to cover both of those things, I find that extraordinary.
James A. Feldman: --I think... let me approach that in two ways. One is, the case with the caboose, I do think that would be a carry, but the term, the fact that the term carry, when you get a vehicle that's sufficiently large, the Queen Elizabeth, or something like that, whether... the defendant is in one place, the gun is in another, whether the term carry has some fuzziness in that kind of a case I don't think should affect the fact that in a case like these, which is where you have it in a vehicle and where I think it would ordinarily be said that the gun is carried--
Antonin Scalia: Those cases just make the point more vivid, and the point is, it seems strange... sure, the word can bear each of those meanings, but it seems strange for Congress to pick that word without using an additional word to cover both of them.
James A. Feldman: --I... yes. Your Honor, I don't think it is strange, for two reasons. One is, I do think what Congress was getting at was the act of taking that gun to the scene of a drug transaction, just as the defendants were doing here, and it was not material to Congress whether defendants did that in a suitcase, on their... in a pocket, in the car, in the trunk, or on the seat. They--
William H. Rehnquist: Well, your definition is really... adds very little to the word... makes carry very little different from possess.
James A. Feldman: --No, I don't think that's true, Your Honor.
William H. Rehnquist: The movement is the only thing that makes it different, isn't it?
James A. Feldman: Right, and I think that that's crucial, because what Congress... as this Court I think recognized in Bailey, what Congress was concerned about was not just criminalizing their possession of someone who keeps a gun in their house and who then... they were worried that that, the fact that someone keeps a gun in their house should not be a predicate liability here if it has no other relationship to the crime or if it's just a matter of intent. But where someone takes the intentional act of taking the gun and taking it with that person, as these defendants did, so it would be at the scene of the crime... in fact, in the case of Cleveland and Gray, it would be essential to commit that crime because they were intending to rob drugs from another, a dealer, then I think that is the crime that Congress was trying to get at. It was trying to get at the conduct that's preparatory to the use--
Anthony M. Kennedy: Under your view, can you give me an example of where you are not carrying a firearm but you are using it, so that we can give each of the terms in the statute an independent force?
James A. Feldman: --Yes. I would point out... I can. An example would be where you refer to it, where you display it, perhaps in some circumstances where you trade somebody for it--
Anthony M. Kennedy: Well, how can you do that if it's not in your car or on your person?
James A. Feldman: --No, well, for example, if it's sitting on a table in your house and sitting out there on the table while you're doing the drug transaction, or not in your house, or some other location, I think that you might be referring to it or displaying it, but I don't think you would be carrying it. But I would also point out that I think that the same view would hold true if you adopt petitioner's view of the statute.
Antonin Scalia: Excuse me. You're saying that when we say using a firearm included displaying it, it means displaying it up on the wall? I thought it meant, you know, hands up.
James A. Feldman: No, Your--
Antonin Scalia: You know, you're not shooting at anybody, but you're brandishing the firearm. You think if you have it displayed on the wall, that... you're displaying a firearm, you're using a firearm.
James A. Feldman: --Your Honor, I was... I answered... I meant to refer to, if it's sitting on a table, for example, and the drugs--
Antonin Scalia: You think that's displaying it. I don't think that's displaying it.
James A. Feldman: --Well, we would take the position that it is if the... if you imagine a case where the drugs are being dealt right there, the gun is sitting on the table, it's a very powerful message to whoever's on the other side of the table--
William H. Rehnquist: Well, you wouldn't have it on the table so... when either person can grab it. [Laughter]
James A. Feldman: --Well, grab... again... you're right, the circumstances could vary, but perhaps somewhere where it's available. It's quite clear out there in the open where the dealer can deal with it and not the adversary.
Stephen G. Breyer: The two things I don't see about your definition. The first thing I don't see... these may or may not be relevant, but I don't see why you say the train, why he's carrying it in the train, unless he happens to be Sidney... who was the person, Averell Harriman or someone, who owned the train and was also the engineer at the time. Then I guess he's carrying it, but otherwise I would think he's arranging to have it carried. I don't understand that part, and I also don't understand this last part where you say having it on the person is carry within this, because I would have thought on your theory that's what Kozinski was talking about, packing a gun. That is, I thought that the second definition in there, in the dictionary, was referring to the instance where there is no physical movement but you say, are you carrying a gun, and the answer to that question is yes, even if the person has never moved an inch, because sometimes carry means packing, and I don't see why you bring either of those two things within your definition.
James A. Feldman: I think the train, perhaps you're right, it may be it would only be an extraordinary circumstance where a train had a case like that where it would be said to be carried. I'm really not sure. As far as on the person, I do think that Congress intended to use the term in all of--
Stephen G. Breyer: Well, they put use. That's why use is there. I mean, certainly it's an odd... I mean, it's in the dictionary. You go ahead, because I want your answer.
James A. Feldman: --I was going to say, I think Congress... our basic submission is that Congress intended to use the term in all of the ways in which the term would ordinarily be used to talk about carrying and when it's on the person, if the Court were to hold that there had to be movement, it really wouldn't make very much difference. I guess... I think that because of common... under common experience people do move very frequently, the word no longer requires much in the way of movement at a particular moment when it's on the person, but if the Court were to hold otherwise that would be satisfactory with us.
Antonin Scalia: You know, words are not normally used in those... in every sense that they can have. They're usually used in a... you know, there's some line by... I think it's an Ogden Nash line. He... she made out his purpose up his mind, up her mind and a dash for the door. I mean, you know, made has all of those meanings. She made out his purpose up her mind and a dash for the door. But you don't use words with all three meanings, and I find it strange to think that Congress is going to use the word carry with those two quite different meanings.
James A. Feldman: I think... I guess I think Congress did, and I'd like to point out that in the numerous authorization statutes that we cite Congress plainly intended to use the word carry to refer to all of those things. There are numerous statutes that authorize Federal officers to carry firearms. But equally important, State law consistently recognizes that carry can be used to mean all of those things in a wide range of different contexts and statutes, and--
Ruth Bader Ginsburg: But this is carry during and in relation to, and--
James A. Feldman: --That's right, and that is... that is certainly a separate qualification, and things like immediate... not immediate accessibility, maybe, but a degree of accessibility may be relevant for whether it's in relation to a drugtrafficking crime.
Ruth Bader Ginsburg: --That was the one part of your brief that stymied me was the, and you said, well, as far as Cleveland is concerned, he's out because he carried the gun from the shop to the car, and I thought, trying to fathom what line a sensible Congress would draw, it wouldn't make a distinction based on whether it's the shop clerk that carries the gun and puts it on the seat, or the defendant purchased the gun and carried it out himself.
James A. Feldman: In our view, both cases... I mean, our primary submission here is that both cases would plainly be carrying, because when he drives off in that vehicle he's carrying the car, the gun in his car. But I'd like to make one other point about--
Antonin Scalia: Before you get off the example you gave about these other statutes, I think it seems to me that the petitioners have an adequate response to that, and that is that when you talk about permissive statutes authorizing Federal agents to carry guns you can apply the principle that the authorization of the greater is implicitly an authorization of the lesser.
James A. Feldman: --I agree with--
Antonin Scalia: So that if you author them to carry a gun in the sense of bear it on their person, you obviously authorize them to take it from place to place whether it's in the trunk of the car or on the seat, but you cannot use the greater includes the lesser for criminal punishments.
James A. Feldman: --But Your Honor, I don't believe that we are trying to use the greater to include the lesser here. I think you could construe those statutes that way, but you also could look at those dozens of statutes and say that Congress used the natural word there, carry, to refer to a whole variety of things that they were referring--
William H. Rehnquist: If there is this amount of different possibilities in the meaning of ambiguities, then surely the Rule of Lenity comes into play somewhere.
James A. Feldman: --Your Honor, I would think it would, but not in this case, because I don't think there is any ambiguity, any substantial ambiguity in the question of whether you can be said to carry something in a vehicle. I think that that's clarified by all of the ordinary canons of statutory interpretation. I'd like to make one point related to the State laws, which is petitioners argue that Congress was unaware of all these numerous State laws and therefore we shouldn't pay any attention to them in construing section 924(c). Well, when Congress enacted section 924(c) in 1968 it said the statute provided for prohibition of carrying unlawfully during a predicate offense. When they said carry unlawfully, they were exactly intending to pick up, and they knew that they were intending to pick up State law on carrying. An unlawful carry was a carry that was primarily in violation of State law. There were very few Federal laws that governed carrying at the time. Now, there's no denying that in 1968 there were numerous State statutes that prohibited carrying in a vehicle, and when Congress removed that--
John Paul Stevens: But there were also State statutes that were limited to carrying on the person.
James A. Feldman: --That's right, and it was only the ones they were... they were referring to State law which plainly recognizes that carrying can... some States it could refer to a vehicle, some States it couldn't, but the term... the ones that we've heard of person say, carry on a person, and the ones that require immediate accessibility say, carry about a person.
Antonin Scalia: Oh, I don't know, it seems to me if I'm a person reading... isn't that the test? If I'm a person reading a statute, would I be given adequate notice that that's what it's about? It's a statute making it unlawful to carry a firearm, and you think I'm put on adequate notice that it's if I have it in the trunk of my car I'm carrying--
James A. Feldman: I think there would be ample notice. As I said, I think--
Antonin Scalia: --I don't care about State statutes or anything else. You could have dozens of them, but if the language doesn't give fair notice to whoever's going to be... going to get this mandatory minimum--
James A. Feldman: --I think if someone were to read this statute and take... and say to his confederate in crime, say, well, you know, let's make sure that we have the gun on the seat of the car and not in your pocket, because if it's in your pocket you're going to be carrying it when we're driving to the drug deal, I think that would be a pretty improbable event, that most likely someone would read the statute and say, there's a severe penalty that Congress has imposed for this, and we should make sure that we're not carrying it, and we can't carry it in the car, we can't carry it on our persons, we can't carry it in any way. I just want to add, though, about State law that when Congress removed the requirement of unlawfully in 1984 they were plainly intending to broaden the reach of the statute, and so it's really just a little question that from the time the statute was enacted in 1968 until the present, it's referred to carrying in a vehicle as well as carrying on a person.
John Paul Stevens: --May I just... I just want to clear up one very small point that I was unclear about your answer to Justice Kennedy. You don't take the position, do you, that the two... the term use and the term carry are mutually exclusive?
James A. Feldman: No.
John Paul Stevens: So you could do one thing that would violate both.
James A. Feldman: You certainly could.
Speaker: Yes.
James A. Feldman: Petitioners have argued that we should... that the Court should construe the term carry narrowly because the Court adopted a narrow construction of the term use in Bailey, but I think that would be turning the reasoning of Bailey on its head. One of the reasons why the Court in Bailey construed the term use a little bit narrowly was to still leave some room for carrying. That principle shouldn't be applied here to construe the term carrying narrowly and therefore leave a complete gap in the statute for things that people--
Sandra Day O'Connor: Well, there are separate offenses for transporting firearms.
James A. Feldman: --That's correct, but the... but nonetheless, when you're... it's true that there are, and those offenses cover somewhat different conduct. They cover people who give somebody... who consign something to be transported, and also people don't... people don't accompany the item, and also that--
Antonin Scalia: Well, they cover this, too, don't they?
James A. Feldman: --They'd cover... I think they'd probably cover most of this, that's correct, but--
Sandra Day O'Connor: The transport statutes would cover what happened here, do you think? I mean, could the Government have charged either of these petitioners with one of the transportation offenses?
James A. Feldman: --The transportation statute, 924(b), which is the one that's been referred to earlier today, requires that the crime be committed therewith. You're transporting it with intent that the crime be committed therewith, and I'm not sure whether it would cover these cases or not. It would depend on whether the crime was actually being committed with the gun, or whether the gun was... it was... whether the gun was being carried in relation to the crime.
William H. Rehnquist: Well, you don't need a gun to commit the basic offense--
James A. Feldman: Right.
Speaker: --do you?
James A. Feldman: That's correct, and that's why I'm not sure as... it may depend on the facts of the case. I'm not sure whether the... whether those... what occurs here and what occurs in the majority of 924(c) cases would be covered by the other... by 924(b).
Antonin Scalia: Well, it also says, or with knowledge or reasonable cause to believe that an offense is to be committed therewith.
James A. Feldman: Right. Right, but it's the point... the offense has to be committed with the gun, and that is not the formulation that Congress used in 924(c), where it said during and in relation to. The gun has to be carried during and in relation to. But I think most significantly 924(b) is a broader statute because transport is a broader statute and as I said, where... what Congress had in mind was that the defendant him or herself is going to be the one who not only has the gun in the car, but then... with the idea that it will be used at some later date, I think it's much more natural to use the word carry than transport, which refers just to the bare movement from one place to another for some purpose or for somebody else to use it or for all... for all kinds of other possible reasons.
Anthony M. Kennedy: May I go back to the provision, for transportation with intent that the crime be committed therewith. Would that intent element be satisfied if they transported knowing that they might need to use the gun, but hoping that they might in fact be able to commit, their crime without it? Would the intent element be satisfied with that state of mind?
James A. Feldman: You know, I'm not really aware of exactly how that's been interpreted in a case like... I guess... if I can be permitted I'd guess at it, but I'm not sure it's going to be borne out by whatever cases have come up, which is in Muscarello's case it may be difficult to show that it was transported, that the crime would be committed with the gun, because the gun was there to provide him protection during the crime. In Cleveland and Gray's case I think probably it would be, because they were going to use the gun in order to rob the dealer and... to steal drugs from another drug dealer, and I think--
Anthony M. Kennedy: Well, that does argue, then, for a comparatively narrow reason, narrow reading of carry.
James A. Feldman: --I don't believe--
Anthony M. Kennedy: Because you don't need... you don't need the broad reading of carry to get the kind of instance which, as a matter of fact, most of our hypotheticals have been describing.
James A. Feldman: --I don't know... I don't know... it may be that there's an overlap and there's other statutes in title 18 that would cover the conduct of these defendants, and there's a very broad range of different kinds of cases that come up under 924(c), but I think the important point is that the term carry is naturally used to carrying it in a vehicle. It's been used that way since 1968. There's... no court has ever said that it's not used that way, and I think that's a reflection of the way that term would ordinarily be used and ordinarily understood by Congress at that time and at each of the times that it's amended the statute since then. And for that reason I don't... I think that Congress was very concerned with seeing to it that the conduct that leads up to the possible use of a gun, this was... the carrying offense is really meant to kind of take care of the preparation for use, and for Congress it was of no moment whether someone takes a gun, puts it in an attache case, locks it, and carries it--
William H. Rehnquist: You say preparation, but the statute says during and in relation. You say during any crime. Surely the during has a different connotation than preparation.
James A. Feldman: --That's correct, but for instance, if the offense is possession with intent to distribute, that's a crime that can be... that can--
William H. Rehnquist: Oh, you're talking not just a carry--
James A. Feldman: --I'm talking about in preparation for the use. I'm really not talking about, here, in preparation for the crime, and I think what Congress was trying to get at was that if someone takes a gun in preparation to commit a drug offense and puts it in a suitcase... Cleveland and Gray, for example, in this case had taken... they took... they planned to rob the other dealers. They put the gun in a bag. They put it in the trunk of their car and waited for the call to determine the rendezvous point where they would meet them. Now, if they had instead... and it happened it was far enough away they needed to take the car, so they got in the car and drove there.
William H. Rehnquist: --But robbery is a separate offense.
James A. Feldman: That's correct.
William H. Rehnquist: That isn't the drug crime.
James A. Feldman: That's correct, but their drug crime was attempted possession with intent to distribute. It was going to be their attempt to get the drugs. But if they had carried... the rendezvous point had been a couple of blocks from where they were and they had carried the bag in their hands rather than in the trunk of the car, it would have made no difference from what Congress was trying to get at in this statute. What they were concerned was getting that... people taking that gun to the scene of the crime and especially as this Court has interpreted use, I think they didn't want to have to wait until someone actually pulls it out and starts using it in a very active sense in order to say that that... we want to keep that gun away from that drug offense, and whether they take it there in their car, or take it there in a bag I don't think was of great significance, nor should be in interpreting the statute.
Antonin Scalia: Is carrying... the half of carrying that doesn't consist of on the person, is that always transportation?
James A. Feldman: Yes. I think... is it always transportation?
Antonin Scalia: Let me tell you why you should say no. [Laughter]
James A. Feldman: No, it's not always--
Antonin Scalia: I don't want to lead you into the hole.
James A. Feldman: --Yes.
Antonin Scalia: But I am sort of bemused by section 925, which says the provisions of this chapter, except for a few sections which are not the one we're talking about here, shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm or ammunition imported for, sold, or shipped to or issued for the use of the United States or any department or agency thereof, or any State. Now, I suppose that that... you know, if transportation includes carry, I guess that would let the... or if carry is always transportation, the carry section wouldn't apply if you're using a... I don't know, a gun that's been taken from a Federal agent, which wouldn't make much sense.
James A. Feldman: That may be true. I'm--
Antonin Scalia: So your answer is no.
James A. Feldman: --My answer is no. My answer is no for another reason as well, which is, as I said, I think transportation doesn't require that the defendant accompany the gun, and I think carrying does require that the defendant accompany the gun. And again, that points out why the... the seriousness of this offense and the reason why Congress wanted to get at carrying, which is, they were concerned with the defendant taking the gun along so that it would be there and available for use at the time when the defendant is prepared to commit a drug deal to possess the drugs, to rip off another dealer, to sell the drugs, whatever it is the defendant--
Stephen G. Breyer: Your answer isn't really no.
James A. Feldman: --I beg your pardon?
Stephen G. Breyer: Your answer wasn't really no, was it?
James A. Feldman: Yes, it was.
Stephen G. Breyer: Then I am confused. You mean that carry is not... does not include trans--
James A. Feldman: Because I don't think it requires that you accompany the item that's being transported, unless I'm misunderstanding your... in other words, I think--
Speaker: --I'm sorry--
James A. Feldman: --carrying usually involves transporting it, but transporting it does not always involve carrying it. I don't... does that help?
Stephen G. Breyer: --I thought carrying, at its heart, from Middle English on, was having somebody in a cart, or a car, and we often use the word transportation for that.
James A. Feldman: That's correct, and I think... I didn't... there's certainly a great overlap between the two words, but there are some different uses. For example, where you take a gun to have it... to transport it to somebody else in another State, but you're not going to accompany it, I don't think you'd say that you're carrying it in that case. So there are differences between the two statutes, and there's reasons why Congress would have chosen to treat them differently. I also think, though, that where it's ultimately intended that the person who's doing the carrying is going to be the one who's doing the using also, it's much more natural to refer to carry rather than use, as, for example, you carry... as I said before, you carry a pen in your pocket, you carry a flashlight in your glove compartment. You could say you're transporting the flashlight, but I think it's much more natural to say that you're carrying it. Thank you very much.
William H. Rehnquist: Thank you, Mr. Feldman. Mr. Klonoff, you have 3 minutes remaining.
Robert H. Klonoff: Thank you. The Government's argument in answer to Justice Breyer's question about where are the anomalies in the Government's position, the Government really couldn't answer what happens when a car is stopped, and if it does apply, then the whole theory of transportation makes no sense. The Government couldn't answer the train hypothetical. These are going to create enormous linedrawing problems for the, for future courts. The Government really couldn't explain the passenger situation. Where does this rule get them if the only person that can be charged under that theory is the driver, so we would submit that the Government--
Anthony M. Kennedy: Well, it seems to me in the great runofthemind cases the gun is in the glove compartment, or in the... in a bag under a newspaper on the passenger seat within easy reach, or even in the trunk. We don't have too many cases... just like we don't have too many cases with missiles, we don't have too many cases with guns in cabooses, and--
Robert H. Klonoff: --There are cases of guns in ships and trains, and there are many, many cases of guns in the back seat between the passengers, and the Government's position is anomalous there. Now, in response to Justice--
Antonin Scalia: --Guns in the suitcase on the train. I mean, if you get on a train, you chuck your suitcase up on the rack or in the back of the car.
Robert H. Klonoff: --Exactly. In response to Justice O'Connor's question... this points up Justice Souter's point about the reason for construing carry narrowly... the Government does prosecute transport in precisely these circumstances. We cite in our reply brief United States v. Albaron, the Fourth Circuit case, exactly the same situation, gun in a glove compartment on the way to a drug transaction, so there are statutes to get at precisely this situation. In terms of the State statutes, we would disagree with the Government's position. The Congress was not incorporating the whole sweep of State statutes. It would be--
John Paul Stevens: No, but on the State statutes let me ask you this question. There are several State statutes that say carry on the person.
Robert H. Klonoff: --There are a few. Most of the--
John Paul Stevens: Would you not agree that if you're correct the words, on the person in those statutes are redundant?
Robert H. Klonoff: --Those few statutes. There are many statutes that say--
John Paul Stevens: So at least some States thought carry was broader than on a person.
Robert H. Klonoff: --Well, most of the States say on or about, and many of them, 22 of them, and they're cited in the Cleveland brief, say on or about, or including broadly, in the vehicle. Now, those 22 States would be surplusage under the Government's position. You wouldn't need to say in the vehicle. So the overwhelming weight of the State statutes, we submit, supports our position and not the Government's, and at most, as was pointed out in the questioning I think by the Chief Justice, all you get from looking at the State statutes ultimately is an application of the Rule of Lenity. There is no way that you come to the conclusion that the Government's position is unambiguous, so we submit that that whole exercise simply demonstrates why the petitioner should prevail.
John Paul Stevens: May I ask you to comment on one other thing that's kind of puzzled me? In our opinion in Bailey we said that a person puts a gun next to him during the transaction, it just sits there, that's not use, and one reason why it's not use was, that would leave no room for carry to cover that situation. Do you think that situation is covered either by carry or use?
Robert H. Klonoff: Well, I don't believe that the Court was referring to the situation where the gun was just laying there in terms of carry. The examples of carry--
John Paul Stevens: Well, he puts... the defendant puts a gun into a place to protect drugs or to embolden himself, were the Court's words, and we all signed on to that.
Robert H. Klonoff: --Right, but the Court was not describing carry there. Every time the Court used--
John Paul Stevens: It was saying the reason that we don't want to read it as use is, that would mean... it would leave no room for carry to cover that situation.
Robert H. Klonoff: --Well, I... respectfully, Justice Stevens, I would submit that the Court was not in any way suggesting that carry cover that situation. The Court's examples of carry in Bailey were always in reference to on the person.
William H. Rehnquist: Thank you, Mr. Klonoff.
Robert H. Klonoff: Thank you.
William H. Rehnquist: The case is submitted.


Warren E. Burger: We’ll hear arguments in number 10, Dutton against Evans. Mr. Evans you may proceed whenever you’re ready.
Alfred L. Evans, Jr.: Mr. Chief Justice Burger and may it please the Court. This case presents problems which stand from the relationship between the hearsay rule and the Confrontation Clause of the Sixth Amendment. The issues arose during the trial of the -- here appellee, Alex Evans for murder in connection with slaying of three police officers in Gwinnett County, Georgia. Evans was convicted primarily by the testimony of one Wade Truett, an accomplice who turned state’s evidence. Truett was an eyewitness to all the material details of the client --
Warren E. Burger: When did these events occur, Mr. Evans? Do you recall?
Alfred L. Evans, Jr.: Yes, sir. The murder was on the evening about April 17, 1964. The trial was approximately a little over a year later in October 1965. In any event as I was saying Truett testified as to all material details of the triple slaying. Truett’s testimony is not here in question and shan’t go into it in great detail. However, I do think it might be appropriate to summarize a few of the highlights so as to put the issues which I will come to discuss in their proper factual context. According to Truett, he, Evans, and Venson Eugene Williams have been engaged in a plan in concert of action to steal automobiles. The basic nature of the plan was as follows: they would first purchase a vehicle which had been wrecked beyond the point where it could be commercially repaired. By this, I mean to commercially repair a wrecked vehicle entails the purchase of spare automotive parts. They would first purchase a vehicle which was so badly repaired that the purchase of the automotive parts would cost more and they could recover on the subsequent resale of the vehicle. That was the first step of their operation. The second step was to steal an identical vehicle. By doing this, they could pirate the required parts from the stolen vehicle, put them on direct vehicle and sell it at very a substantial profit. In addition, they could use the spare parts of the stolen vehicle for resale and make a profit on these parts as well. In pursuing this plan, it’s important to note that cars were stolen before at the time of and after the slaying of the three police officers. The slaying itself grew out of the theft of an automobile. The car in question was an Oldsmobile. It was stolen during the early morning hours of April 17, 1964 following their ordinary course of operations; they drove the automobile to a rural location in nearby Gwinnett County, Georgia for the purpose of as quickly as possible changing the ignition and also the license plates on the car. While they were doing this, a person in the vicinity saw the lights and it was a little bit unusual in this particular area of Gwinnett County, so he called the police. The police dispatched three officers in a car to investigate. The police officers arrived and apprehended the three criminals. Then unfortunately, the youngest police officer made a bad mistake which was to cause him and the two other officers of their lives. He bent over in the front seat of the automobile to examine the Ignition switch. As he was doing this, he apparently was a little bit careless about where Evans was. Evans was standing near him as he was bending over; Evans managed to grab his revolver, his police revolver. He ordered all of the officers to put their hands up which they did. The officers were promptly disarmed and manacled with their own handcuffs. At this point, either Evans or Williams told Truett to get the police car off the road. Truett backed the police car off the road into a field. As he returned to where the officers were, he heard what sound to him like a pack of firecrackers going off. He arrived. He saw the three police officers still manacled with their own handcuffs on the ground. One -- two were quiet, one was making the rather peculiar rasping noise. Truett testified that he then saw Williams bend over and shoot the officer making the noise two or three times more while Evans, the petitioner in this case here the appellee, held a flashlight for him. After this was done, the three car thieves turned murderers sped off into the night. Now, Truett’s testimony was corroborated by an abundance of physical evidence such as location of the automobile, the location of the pistols which were later found as well as a testimony of various other witnesses. As I stated earlier, none of the testimony which I have related to this point is it all an issue in this case. The testimony which is an issue is a testimony given by one of the corroborating witnesses. This testimony is a testimony given by one Lynwood Shaw. Shaw was fellow inmate in the Federal Penitentiary some approximately year after the crime at the time Venson Eugene Williams was arraigned in connection with the triple slaying. On the day following his arraignment when he was back in the federal prison, his fellow inmate Shaw asked Williams, “How did you make out?” The reply was, “If it hadn’t been for that dirty SOB Alex Evans, we wouldn’t be in this now.” This testimony was subjected to by Evans during his trial on the ground that violated both the hearsay rule and his rights under the Confrontation Clause of the Sixth Amendment. The trial court admitted the evidence on the ground that there had clearly been of showing of a car theft conspiracy and that the statement had been made during the continuance of the conspiracy, therefore, being admissible under Georgia statutory exception to the rule.
Byron R. White: Mr. Evans, why (Inaudible)?
Alfred L. Evans, Jr.: It’s solely is corroborating the testimony. There was an eyewitness under Georgia law testimony of an accomplice must be corroborated by other evidence. There were several witnesses which were corroborating witnesses. One, with M.C. Perry, I couldn’t name the others or several. This was one corroborating witness.
Byron R. White: And you’re asked to mention what they’re insufficient corroboration about this particular testimony of Shaw?
Alfred L. Evans, Jr.: Yes sir, I don’t there’s any questions to that. In fact it was much weaker corroborating testimony than the testimony of one M.C. Perry as an example. Yes, it was merely cumulative, corroborating testimony.
Warren E. Burger: What was the testimony of Perry to which you’ve just referred if you’ll highlight that again? Which you said in response to Justice Blackmun was stronger?
Alfred L. Evans, Jr.: Yes, sir. Well, Perry testified the he had been conversing with both Evans and Williams about stealing an Oldsmobile right before the Oldsmobile was stolen. He testified that actually they almost went in with them, but he didn’t mainly because they had it at overprice what he would get for helping them. He also testified that shortly after the crime in a conversation with Evans he indicated to Evans that I think along the line I can’t quote it exactly of course, but he talked to Evans indicating that he had some idea of who was responsible for the murders which of course had hit the newspapers by that time. Evans grabbed him, punched him in the chest and in effect told them he thought he knew anything he better keep quiet about it and this is of course in addition to the physical evidence as to the crime itself which of course did not directly tie evidence to the crime. We would have to concede that. It did tend to verify Truett’s testimony generally the location of the pistols. Truett testified that pistols have been thrown out of the window of the car as they sped along toward the expressway. This is where the pistols were found.
Byron R. White: What I’m trying to get out though is, is your attitude as to whether conceivably this was harmless error, are you taking the position it was harmless error in any event?
Alfred L. Evans, Jr.: Yes, sir. We think that this evidence in light of the overwhelming evidence produced in this case. We think that this particular testimony beyond all reasonable doubt could not have possibly affected the verdict. That is our view.
Byron R. White: Did the Georgia Court itself on the direct appeal address itself to the harmless error aspect?
Alfred L. Evans, Jr.: No, sir.
Byron R. White: The dissenting judge refers to it however did he not?
Alfred L. Evans, Jr.: I am not certain, sir. I have to answer that way.
Byron R. White: But you are taking the position that in any event this is harmless error?
Alfred L. Evans, Jr.: Most definitely, sir. In any event, Evans appealed this ruling to the Supreme Court of Georgia. The Supreme Court of Georgia affirmed under the longstanding Georgia Rule that the pendency of a conspiracy encompasses the period of concealment after the accomplishment of the unlawful objective. Although, I point out here that we say unlawful objective the conspiracy we know extended beyond the actual time of the murder because there is testimony that cars were stolen after the time the murder have been completed. Evans --
Speaker: They must rest the harmless error aspect at all. It’s purely on matter of the rule.
Alfred L. Evans, Jr.: This was the ruling of the Supreme Court, yes sir. Evans appealed this point after losing the Georgia Supreme Court. He applied for certiorari to this Court the --
Speaker: May I interrupt you once more now. Reading from the dissent, his testimony was hearsay and why the admission of hearsay (Inaudible)? In this instance, it’s obviously to be interpreted (Inaudible)? Why do you think the Georgia Court not respond without intervention if they thought it was harmless error?
Alfred L. Evans, Jr.: I think I did not say that Georgia Supreme Court, I do not believe consider the harmless error issue because the Georgia Supreme Court did not consider it error in the first place. They thought that the majority thought it was properly admitted. So therefore, obviously they did not treat on harmless error because they thought there was no error at all, harmless or otherwise.
Harry A. Blackmun: Well, if they were wrong enough in that respect, would it been helpful if they could’ve concluded it was harmless, couldn’t they?
Alfred L. Evans, Jr.: In retrospect, I would certainly agree.
Harry A. Blackmun: All right.
Alfred L. Evans, Jr.: In any event, this Court denied the petition for writ of certiorari. Unsuccessful in his direct appeals, Evans next turn to the United States District Court where he continued what has lamentably become an integral part of the appellate process. In other words, he filed his petition for a writ of habeas corpus. The District Court denied the writ. It sided with more to the effect that the evidentiary rule in constitutional standard are not the same and that the Confrontation Clause does not go to the scope of testimony which can be given by a witness who is on the stand and available for a cross-examination. Upon appeal however, the Court of Appeals for the Fifth Circuit took a different view. Unlike Wigmore, unlike the District Court and we respectfully submit unlike both of the prior and subsequent decisions of this Court. The Court of Appeals equated hearsay with the Confrontation Clause. I should say, it acquitted the exclusionary aspects of the hearsay rule with the Confrontation Clause. Now, I emphasize this point because the Court of Appeals did not stop where the customary exceptions and of course they are numerous exceptions to the rule begin. To the contrary it said, first, that all state exceptions to the rule must be continually scrutinized and reevaluated by federal courts. And second, they said that state exceptions to the rule would be permitted only where in the light of the facts of the case, the admission of the evidence was supported by “salient and cogent reasons” being of the opinion that the facts and circumstances in this case were not such as to render the admission salient and cogent. The Court held that as applied, Georgia’s hearsay, statutory exception to the hearsay rule was unconstitutional because it violated Evans’ rights under the Confrontation Clause. In our brief, we set forth four reasons why we think the Court of Appeals ought to be reversed. First and foremost, we think the Court of Appeals erred in equating the evidentiary rule with the constitutional standard. Under the traditional or Wigmore view, which we urge to be the appropriate view, there is an important difference between the two. Under Wigmore, the hearsay rule deals with the competency of evidence. Under whatever existing rules of evidence are then in effect, the Confrontation Clause according to Wigmore deals with the procedure by which testimony is presented to the jury and that is that it must be presented by live witnesses who are available for cross-exam and not by ex parte affidavits or the depositions. Unlike a live witness, a piece of paper cannot be cross-examined. In Maddox versus United States, this Court cited with approval a great number of decisions of state courts such as Simmons versus Ohio which clearly pointed out that the Confrontation Clause was not intended to effect the nature or scope of testimony given by a witness who was on the stand and available for cross-examination. Since, I last argued this case of course this Court decided California versus Green which we think goes a considerable way toward upholding our position on this threshold error of the Court of Appeals. That decision appeared to reaffirm the statement in Stein versus New York that the hearsay rule was not to be read in to the Constitution. Surely, it is a rule which is singularly undeserving of constitutional status. The hearsay rule is unknown in most every civilized system of jurisprudence. The continental lawyer throws up his hands and wonders when you try to explain it to him. Within the systems which do have the hearsay rule, it is -- I would say universally criticized by the writers, the law review articles. You find as a rare person that has much good to say about the hearsay rule. I think it would be a great pity if the reformers all -- virtually all of whom are either for a total obligation or drastic revision must now fight the Constitution as well as too many years of inertia. We urge the Court to reiterate and affirm that hearsay rule is not the same as the Confrontation Clause. Moving beyond this threshold error, we would say that perhaps the greatest potential for mischief in the Court of Appeals’ decision is the wholly subjective test it device for federal judges to second guess state judges. According to the Court of Appeals no matter how settled the state exception to the hearsay rule might be. The application of a state evidentiary rule in a state criminal proceeding by a state judge is now to be subject to reversal if a reviewing federal judge perhaps many years later feels that as he sees the facts of the case, the reasons for admission were not sufficiently to cite the words of the Court of Appeals salient or cogent. Now, of course this is no guide at all for the state trial judge who must make a decision during trial. He can’t obviously to have a recess and phone the Court of Appeals or the Federal Court of Appeals or a District Court judge to get agreement as to whether the reasons are salient or cogent. We hope the Court will reverse the Circuit Court on the grounds of the threshold error. However, if the Court should disagree with this, if hearsay to some extent or other is to be equated with the Confrontation Clause, we sincerely hold that this Court will come up with some intelligible objective standards so that a state trial judge will have some idea of what to do when the hearsay question comes up during the trial of the criminal case. Now, of course if we are incorrect in our view that the hearsay rule and Confrontation Clause are different or for that matter, if the overlap is substantial and if the overlap does affect the scope of testimony as well as the use of ex parte affidavits or depositions. We must then deal with the question of the status of both long recognized and for that matter any new state exceptions to the rule. One such exception of longstanding is the exception under which the evidence here was admitted -- the co-conspirator exception to the hearsay rule. In Georgia as elsewhere, the declaration of one conspirator subject to certain restrictions is admissible against other conspirators. One general can restriction is that the statement must be made during the pendency of the conspiracy but at last there is great disagreement as to what the pendency is. In Georgia, as in many and I'm not sure perhaps most States, the conspiracy is viewed as continuing into the period of concealment after the primary unlawful act or objective has been accomplished. This view is supported by Wharton’s Criminal Evidence and is based on what I think is rather a common sense approach that a conspirator has in his mind or he has an interest I should say in accomplishing all objectives of the conspiracy. Now, can one say that the avoidance of detection is any less an objective than committing the crime on the first instance? I think not. We recognized of course that the federal view difference in cases as Krulewitch, this Court has held that in potential criminal proceedings the conspiracy terminates upon completion of the last overt act in its furtherance. But Krulewitch clearly shows that this is but the supervision of this Court over the evidentiary rules in federal criminal proceedings. In fact, Krulewitch referred to Georgia and other states which have a different view. It did not hint that there was anything unconstitutional about Georgia or the other States adhering to this view. In any event, we find it hard to think of any reason why this difference of view should be a Constitutional issue. Surely, it has no bearing upon the trustworthiness justification which is ordinarily used in support of the rules exceptions. We think that statement in question clearly bears all the earmarks of being trustworthy. To start with, it was not a long narrative statement where the error or the danger of error in the retailing would be great. It was a spontaneous and a simple spontaneous exclamation really in the nature of ouch to a specific question which the declarant -- excuse me in answer to a question post to the declarant. I assumed there would have been no objection at all if the witness had testified as to the physical reaction to his question such as, anger, tears or flash face. What logical reason can there be for distinguishing between the auditory and visual perceptions of the witness who was on the stand of the course. Moreover, the statement to the extent that it has any significance at all is obviously a declaration against interest. Most use -- most normally declarations against interests are not made unless they are true. If measured by the trustworthiness criterion, we think that this spontaneous exclamation against interest is at least as trustworthy as the dying declaration exception about which apparently no one disagrees. We think it is far more trustworthy than reputation evidence which is admissible on criminal cases and as the Court is aware, reputation evidence not only can be hearsay, it must be hearsay and can be nothing but hearsay. We think the Georgia’s co-conspirator exception to the rule both on its face and as applied in this case is reasonable, serves a valid purpose of shedding more rather than less light on the question at issue and ought not to be held unconstitutional whether or not the hearsay rule in Confrontation Clause are to be equated. Coming then to harmless error, we think that even if the admission of the declaration should against our contentions be held to be a violation of the Confrontation Clause. We think that it could not conceivably have influenced the verdict or prejudice the accused in anyway. It was a testimony of Wade Truett which convicted Evans. Shaw’s testimony was a wholly corroborative and even as corroborative evidence, it was really so constraint compared with the corroborative evidence of witnesses such as M.C. Perry. This Court has held that where the erroneous submission is merely cumulative and will not affect the result, the error is harmless. We think that Harrington versus California ought to control it on this point. I should like to save my reserve time for rebuttal.
Warren E. Burger: Very well.
Alfred L. Evans, Jr.: I should like to save my remaining time.
Warren E. Burger: Yes, you have five minutes.