No. 96-8280 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 ROBERT LEE WILLIS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General VICKI S. MARANI Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514 - 2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether petitioner was properly convicted, under 18 U.S.C. 2113 (b) and (d), of using a dangerous weapon or device while attempting to commit bank larceny, in view of the fact that Section 2113 (b) does not prohibit simple attempts to commit that crime. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8280 ROBERT LEE WILLIS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A7) is reported at 102 F.3d 1078. JURISDICTION The judgment of the court of appeals was entered on Decem- ber 17, 1996. The petition for a writ of certiorari was filed on March 17, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). STATEMENT After a jury trial in the United States District Court for the District of Kansas, petitioner was convicted on one count of conspiring to commit bank larceny, in violation of 18 U.S.C. 371, --------------------------------------- Page Break ---------------------------------------- 2 and one count of assaulting two people and putting their lives in jeopardy, by the use of a dangerous weapon, while attempting to commit bank larceny, in violation of 18 U.S.C. 2113 (b) and (d). Petitioner was sentenced to 60 months' imprisonment on the conspiracy count, to be followed by five years of supervised release, and to a concurrent term of life imprisonment on the dangerous weapon count, under the enhancement provisions of 18 U.S.C. 3559 (c). The court of appeals affirmed. 1. Petitioner and three co-conspirators attempted to remove an automated teller machine from a shopping center. Disguised as maintenance workers, the men entered the mall through unlocked doors. When mall employees approached them, however, the men ran out of the mall towards their van. The last to leave pulled a gun from his jacket and fired shots through the glass doors into the mall. No one was injured. Petitioner did not escape in the van, and police arrested him shortly thereafter. Pet. App. A2-A3. 2. Petitioner was charged in a two-count superseding indictment. The first count charged him with conspiring, in violation of 18 U.S.C. 371, to commit bank larceny in violation of 18 U.S.C. 2113 (b), which prohibits "tak[ing] and carr[ying] away, with intent to steal or purloin, any property or money or any other thing of value exceeding 1,000 belonging to, or in the care, custody, control, management, or possession of any bank." Pet. App. A3 n.1. -------------------------------------------- Page Break ---------------------------------------- 3 The second count of the indictment charged that petitioner, while attempting to commit bank larceny, an offense defined in Title 18, United States Code, Section 2113 (b), and in furtherance, of the conspiracy as alleged in Count 1 of this indictment, did unlawfully assault David Veh and John Veh and put in jeopardy the life of David Veh and John Veh by the use of a dangerous weapon, that is, a firearm, in violation of Title 18, United States Code, Section 2113 (b) and (d). Pet. App. A3 n.1. Subsection (d) of Section 2113 prohibits "assault[ing] any person, or put[ting] in jeopardy the life of any person by the use of a dangerous weapon or device," while "committing, or * * * attempting to commit, any offense defined in subsections (a) and (b)." Section 2113 (a) prohibits actual and attempted bank robbery (among other things), while Section 2113 (b) prohibits actual, but not attempted, bank larceny. At trial, petitioner contested only his identification as one of the culprits. The jury convicted petitioner on both counts. Pet. App. A4. 3. The court of appeals affirmed. Pet. App. A1-A7. With respect to the questions presented by the petition, the court first noted that petitioner did not raise before trial his challenge to the charge under Section 2113 (b) and (d). 1. Because petitioner's challenge was untimely, the court held that it would not review the sufficiency of the charge de novo, but would "liberally construe [the] indictment in favor of validity." Id. at A5. ___________________(footnotes) 1 Petitioner raised a variety of other challenges to his convictions and sentence. See Pet. App. A2. The court of appeals rejected all of those arguments (id. at A4-A5, A8-A17), and petitioner does not renew them in this Court. ---------------------------------------- Page Break ---------------------------------------- 4 In the court of appeals, petitioner argued (see Pet. App. A5- A8) that the count of the indictment that alleged a violation of Section 2113 (b) and (d) "fail[ed] to charge an offense," because (i) Section 2113 (b) does not criminalize unsuccessful attempts, and (ii) Section 2113 (d), which by its terms applies to anyone who jeopardizes a life by using a dangerous weapon while "attempting to commit [ ] any offense defined in subsection [ ] * * * (b)," is nonetheless "merely a sentence enhancement [provision] which does not create a [separate] substantive offense" (Pet. App. A6). See Pet. C.A. Br. 21, 28-29. The court rejected that argument. Pet. App. A5-A8. The court acknowledged that "[t]here are a number of cases in the Supreme Court and [the Tenth Circuit] to the effect that convictions under subsections (a) and (d) merge and only one sentence is permissible," and it expressed confidence that the same result would follow with respect to separate conviction under subsections (b) and (d). Pet. App. A7-A8. The court observed, however, that the present case is novel because subsection (d) on its face applies even if the defendant has only "attempt[ed] to commit an [ ] offense defined in subsection [ ] * * * (b)," while subsection (b) itself does not punish unsuccessful attempts. Pet. App. A8. Faced with an issue "which has not been considered previously by an appellate court," the court held that "the plain language of subsection (d) creates a substantive crime in the narrow circumstances" of this case. Id. at A8. ---------------------------------------- Page Break ---------------------------------------- 5 ARGUMENT Petitioner contends (e.g., Pet. 6-9) that 18 U.S.C. 2113 (d) does not define any substantive offense, but rather "is merely a sentence enhancement provision for aggravated commission of the offenses set out in subsections (a) and (b)" of Section 2113. Pet. 10. Therefore, petitioner argues (e.g., Pet. 10), he cannot be punished under subsection (d) for using a gun while "attempting to commit" the bank larceny offense defined in subsection (b), because subsection (b) does not itself prohibit attempts. Petitioner's argument confuses two separate types of statutory analysis. The statement that a particular provision of the criminal law involves only "sentence enhancement" normally reflects a conclusion that Congress intended the provision to add nothing to the elements of an underlying offense, but merely to direct what degree of punishment for that offense is appropriate under specified circumstance. See, e.g., Almendarez-Torres v. United States, No. 96-6839, cert. granted, 117 S. Ct. 1333 (Mar. 31, 1997) (8 U.S.C. 1326 (b)); United States v. Vasquez-Olvera, 999 F.2d 943 (5th Cir. 1993), cert. denied, 510 U.S. 1076 (1994) (same); compare McMillan v. Pennsylvania, 477 U.S. 79, 84-91 (1986). That conclusion normally has the consequence that the government need not allege the elements necessary to justify an enhanced sentence in the indictment, or prove them beyond a reasonable doubt at trial. E.g., Vasquez-Olvera, supra; United States v. Cole, 32 F.3d 16, 18-19 (2d Cir.), cert. denied, 513 U.S. 993 (1994). Petitioner does not appear to suggest such an interpretation of the ---------------------------------------- Page Break ---------------------------------------- 6 "assaults," "puts in jeopardy," and "use of a dangerous weapon" elements of the offense defined by Section 2113 (d), and that has not been the government's traditional interpretation of the provision. In any event, the issue is not presented in this case, because each of the elements specified in Section 2113 (d) was alleged in the indictment and proved at petitioner's trial. Pet. App. A3-A4 & n.1. 2 The cases petitioner cites (Pet. 6-9, 14-15, 17-19) stand for the quite different proposition that Congress did not intend a defendant to be subject to two sentences if he engages in conduct that violates both subsection (d) and either or both of the other subsections to which subsection (d) refers. That is a point the government has long conceded. See, e.g., Green v. United States, 365 U.S. 301, 305 (1961); Holiday v. Johnston, 313 U.S. 342, 349 (1941). 3. The conclusion is often expressed by saying that the "lesser included offense[s]" defined in subsections (a) and (b) "merge" into the more serious offense defined in subsection (d). United States v. Gaddis, 424 U.S. 544, 547-548, 549 n.12 (1976); see also Prince v. United States, 352 U.S. 322, 324 (1957) (crime ___________________(footnotes) 2 For that reason, and because the cases involve entirely different criminal provisions, there is no reason to hold this case pending the argument and decision of Almendarez-Torres. 3 See U.S. Br. at 25, Holiday v. Johnston, No. 14 (Original), O.T. 1940 (filed Apr., 1941): "As a matter of statutory construction, * * * we agree that Congress did not intend to [punish putting lives in jeopardy as a separate crime]; that subsection [(d)] of the statute defines an aggravated form of the crime defined by subsection (a); and that the sentence of five to twenty-five years authorized by subsection [(d)] is an alternative rather than an addition to that of not more than twenty years authorized by subsection (a)." ---------------------------------------- Page Break ---------------------------------------- 7 of entry with intent to rob under Section 2113 (a) "is merged with the crime of robbery when the latter is consummated"). Whether a particular court "call[s] it a merger of the lesser into the greater offense or * * * say[s] that subsection [(d)] simply provide[s] a heavier punishment for the same offense" (Durrett v. United States, 107 F.2d 438, 439 (5th Cir. 1939)), however, the conclusion of all petitioner's cases is the same: that "the act is so drawn as to indicate an intention of the Congress to punish only for the greater offense where the identical testimony necessary to prove it is also necessary to prove the lesser." Ibid. 4 Nothing in the cited cases suggests, however, that Section 2113 (d) does not define an "offense" for purposes of a single conviction and punishment. On the contrary, when, as in those cases, the question is one of single or double punishment for the simultaneous violation of two provisions, the fact that the provisions create "distinct" offenses "is the beginning and not the end of the analysis." Simpson v. United States, 435 U.S. 6, 10 (1978) (Section 2113 (d) and 18 U.S.C. 924 (c)); see also, e.g., ___________________(footnotes) 4 See, e.g., Grimes v. United States, 607 F.2d 6, 12-15 & n.8 (2d Cir. 1979); United States v. Faleafine, 492 F.2d 18, 23- 24 (9th Cir. 1974) (en banc) (dictum; summarizing cases); O'Clair v. United States, 470 F.2d 1199, 1204 (1st Cir. 1972) (government may indict for both simple and aggravated bank robbery, and jury may convict for most serious offense it finds proven), cert. denied, 421 U.S. 921 (1973); trial court should instruct the jury "as to the lesser included offense of simple bank robbery if the indictment contains only a single count charging aggravated bank robbery under 2113 (d)"); United States v. McKenzie, 414 F.2d 808, 811 (3d Cir. 1969) ("for sentencing purposes, offenses under sections (a) and (b) * * * become merged with the more aggravated offense under section (d)"), cert. denied, 396 U.S. 1019 (1970); see also United States v. Ray, 21 F.2d 1134, 1136, 1142 (D.C. Cir. 1994). ---------------------------------------- Page Break ---------------------------------------- 8 Rutlege v. United States, 116 S. Ct. 1241 (1996); Blockburger v. United States, 284 U.S. 299 (1932). And when only one conviction or sentence under subsection (a) or (b) and (d) may stand, it is the conviction under subsection (d) that survives. See, e.g., United States v. Gaddis, 424 U.S. at 549 n. 12; Grimes v. United States, 607 F.2d 6, 15 & n.8 (2d Cir. 1979). That result is not consistent with petitioner's argument that Section 2113 (d) does not define an "offense." This case, however, presents no issue involving simultaneous violation of different provisions. Instead, the court of appeals was faced with a novel situation in which petitioner's conduct constituted an offense under a plain reading of subsection (d) - - because he used a gun to assault and jeopardize life "in attempting to commit [ ] an [ ] offense defined in subsection [ ] * * * (b)" - - but did not constitute an offense under subsection (b), because subsection (b) does not itself criminalize unsuccessful attempts. The court concluded that, under those unusual circumstances, subsection (d) should be applied in accordance with its terms. Pet. App. A8. That conclusion is based on a straightforward reading of the text of Section 2113 (d). The result is not anomalous: It would be perfectly sensible for Congress to punish attempts to commit the more serious offense of armed-and -dangerous bank larceny, even though it has chosen not to punish unsuccessful attempts to commit larceny when the attempt does not involve armed assault or the creation of a risk to human life. In any event, the court of ---------------------------------------- Page Break ---------------------------------------- 9 appeals' reading of the statute demonstrates, at a minimum, that the district court did not commit "plain error" when it proceeded to trial on the dangerous weapon count of the indictment. In the absence of a timely objection or "plain error," petitioner was not entitled to reversal from the court of appeals; nor would he be entitled to judgment from this Court. See Fed. R. Crim. P. 52 (b); United States v. Olano, 507 U.S. 725, 734 (1993); cf. S. Ct. R. 24.1(a). The decision below does not conflict with any decision of this Court, or of any court of appeals. As we have explained, the cases petitioner cites address whether or not Congress intended to allow multiple punishments when the same conduct violates more than one criminal prohibition, while the question in this case is whether conduct that does not amount to a violation of one criminal provision may nonetheless violate a second attempt provision that incorporates by reference the elements of the first. That question "has not been considered previously by an appellate court" (Pet. App. A8), and there is no reason for this Court to consider it at this time. ---------------------------------------- Page Break ---------------------------------------- 10 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General VICKI S. MARANI Attorney MAY 1997