Busic v United States Petition and Briefs

    The Supreme Court 
of the United States

Michael Busic and 
Anthony LaRocca, Jr.
versus

United States 
of America

Petition and Briefs

Law Reprints
Criminal Law Series
V olum e 11, no. 35 
197911980 Term



IN THE

Supreme Court of tty* toiteii States
October Term , 1978

No. 78-6020

Michael M. Busic,

V.
Petitioner,

United States of America.
Respondent.

On Writ Of Certiorari To The United States Court 
Of Appeals For The Third Circuit

BRIEF FOR THE PETITIONER

Samuel J. Reich , Esq. 
J ay H. Spiegel, Esq. 
Gefsky Reich and Reich 
1321 Frick Building 
Pittsburgh, PA 15219

Attorneys for Petitioner



TABLE OF CONTENTS
Page

Opinion Below ..................................................  l
J u risd ictio n .....................................................  2
Question Presented ........................................ 2
Constitutional Provision And Statutes 

Involved .....................................................  2
Statement Of The Ca s e .................................. 4
Argument...........................................................  7

Introduction. ..................................................  7
I. THE LEGISLATIVE HISTORY OF

§924(c) ESTABLISHES THAT CON­
GRESS DID NOT INTEND THE 
STATUTE TO APPLY WHEN THE 
UNDERLYING FEDERAL OFFENSE 
PROVIDES ENHANCED PUNISH­
MENT FOR USE OF A FIREARM___ 9

II. IN THE ABSENCE OF CLEAR
LEGISLATIVE HISTORY PERMIT­
TING MULTIPLE PROSECUTIONS 
AND PUNISHMENTS FOR A 
SINGLE ACT, SUCH MULTIPLE 
PROSECUTIONS AND PUNISH­
MENTS ARE PROHIBITED.............. 14

III. THE SAME LEGISLATIVE HIS­
TORY WHICH PRECLUDES MULTI-



11

Page
PLE PUNISHMENT UNDER §924(c) 
ALSO BARS PROSECUTION.............. 17

Conclusion.........................................................  18

CITATIONS
Page

Cases:
Simpson v. United States, 435 U.S. 6 (1978). . passim
United States v. Eagle, 539 F.2d 1166 (8th Cir.

1976) ................................................................ 9
United States v. Crew, 538 F.2d 575 (4th Cir. 

1976)...............................................................  9
Perkins v. United States, 526 F.2d 688 (5th Cir. 

1976)...............................................................  9
Brown v. Ohio, 432 U.S. 161 (1977)........................  14
Jeffers v. United States, 432 U.S. 138 (1977)........  14
Iannelli v. United States, 420 U.S. 770 (1975). . . .  14
Gore v. United States, 357 U.S. 386 (1958).......... 14
Blockburger v. United States, 285 U.S. 299 

(1932)...............      14
Callanan v. United States, 364 U.S. 587 .............. 16
United States v. Bass, 404 U.S. 336 (1971).............  17
Rewis v. United States, 401 U.S. 808 (1971) . . . . .  17



Ill

Page
CONSTITUTION

United States Constitution, Fifth Amend­
ment ...............................................................  2

STATUTES

28 U.S.C. §1254(1).................................................  2
18U.S.C. §924(c)...................................................  2
18 U.S.C. §111.......................................................  3
18 U.S.C. §1153.....................................................  9

MISCELLANEOUS

“Toward a Theory of Double Jeopardy” by Peter 
Westen and Richard Drubel
Supreme Court Review (1978)........................ 15



IN  T H E

Supreme Court of tt|e lEniteb ^tateo
October Term , 1978

No. 78-6020

Michael M. Busic,
Petitioner,

v.
United States of America.

Respondent.

On Writ Of Certiorari To The United States Court 
Of Appeals For The Third Circuit

BRIEF FOR THE PETITIONER

OPINION BELOW

The opinion of the Court of Appeals and its Supple­
mental Opinion Sur Rehearing are reported at 587 
F.2d 577 and may be found in the joint Appendix (A. 
36, 57). The opinion of the Distict Court is unreported 
and may be found in the joint Appendix (A. 21).



2

JURISDICTION
The judgment of the Court of Appeals was entered 

on January 5, 1978; thereafter, the Government’s pe­
tition for rehearing was granted, and the judgment 
on rehearing was entered on December 12, 1978. The 
petitions for writ of certiorari and motion to proceed 
in forma pauperis were filed on February 2, 1979 and 
granted on June 4, 1979. The jurisdiction of this Court 
is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED
Did Congress authorize prosecution under 18 U.S.C. 

924(c) (use or carrying of a firearm during the com­
mission of a federal felony) when an underlying vio­
lation with firearms of 18 U.S.C. §111 (assault on 
federal officers with firearms) was already subject to 
an enhanced penalty.

CONSTITUTIONAL PROVISION AND 
STATUTES INVOLVED

1. The United States Constitution, Fifth Amend­
ment

“No person . . . shall be subject for the same of­
fense to be twice put in jeopardy of life or limb; 
. . . nor be deprived of life, liberty, or property, 
without due process of law; . . . ”

2. 18 U.S.C. §924(c)
“(c) Whoever

(1) uses a firearm to commit any felony for 
which he may be prosecuted in a court of the 
United States, or

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3

(2) carries a firearm unlawfully during the com­
mission of any felony for which he may be pros­
ecuted in a court of the United States, shall, in 
addition to the punishment provided for the com­
mission of such felony, be sentenced to a term of 
imprisonment for not less than one year nor more 
than ten years. In the case of his second or sub­
sequent conviction under this subsection, such 
person shall be sentenced to a term of imprison­
ment for not less than two nor more than twenty- 
five years and, notwithstanding any other provi­
sion of law, the court shall not suspend the sen­
tence in the case of a second or subsequent 
conviction of such person or give him a proba­
tionary sentence, nor shall the term of impris­
onment imposed under this subsection run 
concurrently with any term of imprisonment im­
posed for the commission of such felony.

3. 18 U.S.C. §111
“Whoever forcibly assaults, resists, opposes, 
impedes, intimidates, or interferes with any per­
son designated in section 1114 of this title while 
engaged in or on account of the performance of 
his official duties, shall be fined not more than 
$5,000 or imprisoned not more than three years, 
or both
Whoever, in the commission of any such acts uses 
a deadly or dangerous weapon, shall be fined not 
more than $10,000 or imprisoned not more than 
ten years, or both.”

3



4

STATEMENT OF THE CASE

For simplicity, petitioner incorporates the summary 
of evidence contained in the Opinion of the United 
States Court of Appeals for the Third Circuit (A. 36). 
Those portions of the Opinion discussing matters not 
material to the issues raised herein are omitted.

“Michael Busic and Anthony La Rocca were 
involved in a conspiracy to distribute drugs which 
turned into an attempt to rob ‘front money’ from 
an undercover agent. This attempted robbery 
culminated in a shootout with federal agents.

* * *

“Charles D. Harvey, an agent of the Drug En­
forcement Administration, first met Busic and La 
Rocca on May 7, 1976 at the home of Richard 
Hervaux, a government informant. At this time, 
defendants agreed with Harvey that Harvey 
would go to Florida to purchase drugs from one 
of the defendants’ suppliers for re-distribution in 
the Pittsburgh area. (Tr. 21-22). Several days lat­
er, Harvey again met with the defendants and 
received samples of the marijuana and cocaine 
which he was to purchase from defendants’ Flor­
ida source. (Tr. 29-30). The next day, after Harvey 
had arranged for his trip to Florida, La Rocca 
called him and insisted on seeing some ‘front 
money’. A meeting was arranged for the following 
day in the parking lot of the Miracle Mile Shop­
ping Center in Monroeville, Pennsylvania. (Tr. 32- 
33).

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5

“As agreed, but having arranged for surveil­
lance, Harvey went to the shopping center with 
$30,000 in cash. (Tr. 34-35). There he saw Busic 
and La Rocca in La Rocca’s car. (Tr. 36). La Rocca 
entered Harvey’s car, and the two drove to the 
other side of the parking lot. (Tr. 39). As Harvey 
removed the money from the trunk, La Rocca 
reached for his gun. Harvey ran, but La Rocca 
caught him and pointed his gun at Harvey’s 
chest. Harvey then gave a pre-arranged signal to 
the surveillance agents. As the agents began to 
converge on the scene, La Rocca fired at Harvey, 
and missed. La Rocca then fired two shots at the 
vehicle containing agents William Alfree and Wil­
liam Petraitis, and two shots at the vehicle con­
taining agent John Macready. (Tr. 40). He was 
immedately arrested and disarmed.

“Busic, who had been leaning on a nearby car 
during the shootout, was also arrested and dis­
armed, at which time he exclaimed, “Just remem­
ber that I didn’t shoot at anybody and I didn’t 
draw my gun.’’ He was searched and a pistol was 
found in his belt; a search of La Rocca’s car un­
covered an attache case containing another pistol 
and a plastic box contining ammunition. (Tr. 41). 
When the car was further searched the following 
day, government agents found yet another pistol 
under the driver’s seat and another box of am­
munition in the glove compartment.

* * *

“The jury convicted defendants of conspiring 
to distribute drugs, unlawfully distributing nar­
cotics, assaulting federal officers with a danger­
ous weapon, and receiving firearms while being

5



6

convicted felons. In addition, each was convicted 
under a different subsection of 18 U.S.C. §924: 
La Rocca for having used (emphasis in the origi­
nal) a firearm to commit the drug conspiracy and 
assaults on federal officers in violation of 
§924(c)(l); Busic for having carried (emphasis in 
the original) a firearm unlawfully during the com­
mission of these felonies, in violation of 18 U.S.C. 
§924(c)(2). The sentencing judge imposed a five- 
year sentence on each defendant on the narcotics 
counts, five years on the assault with a dangerous 
weapon counts, and twenty years under the §924 
counts—all to run consecutively to each other— 
for a total of 30 years for each defendant.”

In its Supplemental Opinion Sur Rehearing (A. 57), 
the Third Circuit Court of Appeals rejected petitioner 
Busic’s contention that as a matter of statuatory con­
struction and in view of this Court’s decision in the 
case of Simpson v. United States, 435 U.S. 6 (1978) 
18 U.S.C. §924(c) does not apply in those cases where 
the penalty for an underlying felony (here 18 U.S.C. 
§111) was already enhanced for the use of a dangerous 
weapon. The lower court held in petitioner Busic’s 
case, that Simpson does not proscribe the imposition 
of consecutive sentences under §§111 and 924(c)(2). In 
so holding, it made a technical distinction between 
the two subsections of §924. However, it also recog­
nized that Simpson had no occasion to differentiate 
between the two subsections of §924(c). The judgment 
of sentence as to petitioner Busic was affirmed.

As to petitioner LaRocca, the lower court, on the 
basis of this Court’s decision in Simpson remanded

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7

for resentencing. On remand, the Government may 
elect to proceed under either §924(c)(l) or §111, but 
not both. In its original opinion, the Third Circuit 
Court of Appeals reached the same result in La- 
Rocca’s case on the basis of Double Jeopardy.

ARGUMENT
Introduction

Petitioner Busic (hereinafter “Busic”) contends 
that the Supplemental Opinion Sur Rehearing of the 
Third Circuit Court of Appeals misinterprets and mis­
applies this Court’s decision and rationale in Simpson 
v. United States, 435 U.S. 6 (1978) (hereinafter “Simp­
son”). Both Busic and the Government urge this 
Court to clarify Simpson. Busic contends that the 
Simpson holding and rationale precludes not only the 
imposition of an additional consecutive sentence, but 
also the initial prosection under §924(c) when a de­
fendant has committed an underlying federal felony 
which already permits the sentencing court to impose 
an enhanced penalty for the use of a firearm. In op­
position, the Government urges this Court to express­
ly state that prosecutors have the discretion to 
charge, and the Courts have the power to sentence, 
under either the enhancement provisions of the un­
derlying felony or the provisions of §924(c). (PET. 
U.S. 7).1

1 PET. U.S. refers to the Government's response to appellant’s 
Petition for Writ of Certiorari. The document submitted by the 
Government is entitled Brief for the United States.

7



8

Preliminarily, reference is made to the difference in 
treatment accorded to Busic and petitioner LaRocca 
(hereinafter “LaRocca”) in the Third Circuit. La­
Rocca’s case is remanded for resentencing under 
either §§111 or 924(c). Busic's conviction and sentence 
is affirmed on the ground that his conviction was for 
§924(c)(2), the “carrying” subsection, as opposed to 
the “using” subsection of §924(c)(l), under which 
LaRocca was convicted and sentenced.

Obviously, “using” a firearm normally includes and 
encompasses “carrying” a firearm. It is hard to con­
ceive of different circumstances in a “using” and a 
“carrying” violation. If permitted to stand, this dis­
tinction would lead to unique and inequitable results. 
A “user” may receive only one conviction and sen­
tence; a “carrier” may receive multiple convictions 
and consecutive sentences. As to Busic who did not 
draw or use his weapon, this is the impact on the 
instant case. This interpretation would be an invita­
tion to prosecutors to seek multiple convictions and 
consecutive sentences in avoidance of Simpson by in­
dicting for the underlying felony and for violation of 
§924(c)(2) (carrying).

At the very least, Busic seems entitled to the same 
treatment as LaRocca. However, the factual distinc­
tions between the subsections has only limited impact 
in this case. Busic’s principle contention is that 
§924(c) does not apply where the underlying offense 
already contains a sentencing enhancement provision 
for use of a firearm. This is true not only in the sent­

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9

encing context of Simpson, but in the use of the stat­
ute for prosecution.

I .

The Legislative History of §924(c) Establishes that 
Congrss Did Not Intend the Statute to Apply When 
the Underlying Federal Offense Provides Enhanced 

Punishment for Use of a Firearm.
This Court considered Simpson to resolve apparent 

conflicts between the decisions among the circuits. 
See also United States v. Eagle, 539 F.2d 1166 (8th 
Cir. 1976), United States v. Crew, 538 F.2d 575 (4th 
Cir. 1976), and Perkins v. United States, 526 F.2d 688 
(5th Cir. 1976). The Eighth Circuit’s decision in Eagle 
involved the interplay between §924(c) and 18 U.S.C. 
§1153 (assaulting an Indian on a reservation) which 
carries an enhanced penalty for using a firearm. Based 
on the legislative history of §924(c), the Eagle court 
stated:

“The sections of Title 18 enumerated by Repre­
sentative Poff (except Chapter 44) have this in 
common: all impose a higher penalty for the fe­
lony specified if that is committed with a ‘dan­
gerous’ or ‘deadly’ weapon. Representative Poff’s 
remarks evidence a clear congressional intention 
that the new statute not be applicable in cases 
involving statutes of this type.
This intention accords with the deterrence ration- 
able of §924(c)(l). I t is not necessary to deterrence 
to impose an increased penalty for use of a fire­
arm by separate statute, when the substantive

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10

statute itself does so .. . The existing statutes, 
by providing federal sanctions only if firearms 
are used, perform the function of deterrence. 
Application of §924(c)(l) to the crime is not nec­
essary, and apparently was not intended by Con­
gress.
We thus conclude that a crime of the type charge 
in count I, i.e., one for which the penalty is en­
hanced by the use of a dangerous weapon, can­
not form the basis of a prosecution under 
§924(c)(l). ” Eagle, 539 F.2d at 1171, 1172. (em­
phasis added)

A reasonable reading of Simpson indicates that this 
Court adopted the Eagle rational in evaluating the 
legislative history of §924(c). Ambiguity arises be­
cause the Simpson Court remanded the case for fur­
ther consistent proceedings without expressly 
vacating the the conviction under §924(c). It should 
be noted that the Simpson petitioners did not ask to 
have the firearms conviction vacated because such 
contention would not have been in their best interests. 
The larger sentences had been imposed for the under­
lying bank robbery. It remains to evaluate this 
Court’s interpretation of the legislative history of 
§924(c) to determine whether there is any basis for 
the Third Circuit’s conclusion (and the Government’s 
contention) that the prosecutors and the courts have 
any “option” to use §924(c).

It is respectfully submitted that nothing could be 
plainer than what this Court said about the legislative 
history of §924(c) in Simpson. The best vehicle for

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expressing this is to set forth this Court's exact lan­
guage regarding legislative history, omitting only por­
tions relating to other aspects:

“First is the legislative history of §924(c). That 
provision, which was enacted as part of the Gun 
Control Act of 1968, was not included in the orig­
inal Gun Control bill, but was offered as an 
amendment on the House floor by Representative 
Poff. 114 cong. Rec. 22231 (1968).7 In his state­
ment immediately following his introduction of 
the amendment, Representative Poff observed: 

‘For the sake of legislative history, it should 
be noted that my substitute is not intended to 
apply to title 18, sections 111, 112, or 113 which 
already define the penalties for the use of a 
firearm in assaulting officials, with sections 
2113 or 2114 concerning armed robberies of the 
mail or banks, with section 2231 concerning 
armed assaults upon process servers or with 
chapter 44 which defines other firearm felon­
ies.’ Id., at 22232.

This statement is clearly probative of a legislative 
judgment that the purpose of §924(c) is already 
served whenever the substantive federal offense 
provides enhanced punishment for use of a dan­
gerous weapon.8 Although these remarks are of

7 Because the provision was passed on the same day it 
was introduced on the House floor, it is the subject of no 
legislative hearings or committee reports.

"Title 18 U.S.C. §§111/112, and 2231 provide for an in­
creased maximum penalty where a ‘deadly or dangerous 
weapon’ is used to commit the substantive offense. Title 18 
U.S.C. §§ 113(c) and 2114 enhance the punishment available 
for commission of the substantive offense when the defend­
ant employs a ‘dangerous weapon.’

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course not dispositive of the issue of §924(c)’s 
reach, they are certainly entitled to weight, com­
ing as they do from the provision’s sponsor. This 
is especially so because Representative Poff’s ex­
planation of the scope of his amendment is in 
complete accord with, and gives full play to, the 
deterrence rationale of §924(c). United States v. 
Eagle, 539 F.2d, at 1172. Subsequent events in 
the Senate and the Conference Commmittee per­
taining to the statute buttress our conclusion 
that Congress’ view of the proper scope of §924(e) 
was that expressed by Representative Poff. 
Shortly after the House adopted the Poff amend­
ment, the Senate passed an amendment to the 
Gun Control Act, introduced by Senator Domin­
ick, that also provided for increased punishment 
whenever a firearm was used to commit a federal 
offense. 114 Cong. Rec. 27142 (1968). According 
to the analysis of its sponsor, the Senate amend­
ment, contrary to Mr. Poff’s view of §924(c), 
would have permitted the imposition of an en­
hanced sentence for the use of a firearm, in the 
commission of any federal crime, even where al­
lowance was already made in the provisions of 
the substantive offense for augmented punish­
ment where a dangerous weapon is used. Id., at 
27143. A Conference Committee, with minor 
changes, subsequently adopted the Poff version 
of §924(c) in preference to the Dominick amend­
ment. H. R. Conf, Rep. No. 1956, 90th Cong., 2d 
Sess., 31-32 (1968) . . .
The legislative history of §924(c) is of course 
sparse, yet what there is—particularly Repre­
sentative Poff’s statement and the Committee re­
jection of the Dominick amendment—points in

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13

the direction of a congressional view that the sec­
tion was intended to be unavailable in prosecu­
tions for violations of §2113(d). Even where the 
relevant legislative history was not nearly so fa­
vorable to the defendant as this, this Court has 
steadfastly insisted that ‘doubt will be resolved 
against turning a single transaction into multiple 
offenses.’ Bell v. United States, 349 U.S. 81, 84 
(1955); Ladner v. United States, 358 U.S. 169 
(1958). See Prince v. United States, 352 U.S. 322 
(1957). As we said in Ladner. ‘This policy of lenity 
means that the Court will not interpret a federal 
criminal statute so as to increase the penalty that 
it places on an individual when such an interpret­
ation can be based on no more than a guess as to 
what Congress intended.’ 358 U.S., at 178. If we 
have something ‘more than a guess’ in this case, 
that something—Representative Poff’s commen­
tary and the Conference Committee’s rejection of 
the Dominick amendment—is incremental knowl­
edge that redounds to petitioners’ benefit, not the 
Government’s.
. . . Indeed, at one time, the Government was not 
insensitive to these concerns respecting the avail­
ability of the additional penalty under §924(c). In 
1971, the Department of Justice found the in­
terpretive preference for specific criminal stat­
utes over general criminal statutes of itself 
sufficient reason to advise all United States At­
torneys not to prosecute a defendant under 
§924(c)(l) where the substantive statute the de­
fendant was charged with violating already ‘pro­
vided) for increased penalties where a firearm is 
used in the penalties where a firearm is used in

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14

the commission of the offense.’ 19 U.S. Attys. 
Bull. 63 (U.S. Dept, of Justice, 1971).

Obviously, the Government has since changed 
its view of the relationship between §§924(c) and 
2113(d). We think its original view was the better 
view of the congressional understanding as to the 
proper interaction between the two statutes. Ac­
cordingly, we hold that in a prosecution growing 
out of a single transaction of bank robbery with 
firearms, a defendant may not be sentenced under 
both §2113(d) and §924(c). The cases are therefore 
reversed and remanded to the Court of Appeals 
for proceedings consistent with this opinion.” 
Simpson, 435 U.S. at 13-16. (emphasis added).

II.

In the Absence of Clear Legislative History 
Permitting Multiple Prosecutions and Punishments 
for a Single Act, Such Multiple Prosecutions and 

Punishments Are Prohibited.

As in Simpson, this type of case raises substantial 
Double Jeopardy issues. See Brown v. Ohio, 432 U.S. 
161 (1977); Jeffers v. United States, 432 U.S. 138 
(1977); Iannelli v. United States, 420 U.S. 770 (1975); 
Gore v. United States, 357 U.S. 386 (1958); Block- 
burger v. United States, 285 U.S. 299 (1932) There is 
a possible need to evaluate the statutes in the light of 
Blockburger and subsequent cases.

However, as in Simpson, such analysis seems un­
necessary in view of the consistent practice of this 
Court to avoid Double Jeopardy decisions (or other

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15

Constitutional decisions) where possible by determin­
ing whether Congress intended to subject a defendant 
to multiple convictions and penalties for a single crim­
inal transaction. Simpson did not reach the Consti­
tutional issues because of the Court’s conclusions as 
to legislative intent. The Court stated three grounds: 
1) The legislative history reflects the judgment that 
the purposes of §924(c) are already served when the 
substantive federal offense provides enhanced punish­
ment for use of a dangerous weapon; 2) Any ambigu­
ity concerning the ambit of a criminal statutes should 
be resolved in favor of lenity; 3) Precedence is given 
to the terms of a more specific statute where general 
and specific statutes speak to the same concern.

All three considerations apply to this case and ap­
ply not only to bar multiple sentences but prosecution 
as well. In cases involving Double Jeopardy issues, 
this Court normally requires a strong and persuasive 
showing of legislative intent. It is unclear whether 
this practice of construction arises from the nature of 
the Double Jeopardy clause, or as a matter of policy 
pertaining to the function of the Court in the judicial 
process.2 In Simpson and in other cases, the Court 
has characterized this as a rule of lenity. See also

2 See “Toward a General Theory of Double Jeopardy" by Peter 
Westen and Richard Drubel, Supreme Court Review (1978). The 
authors suggest this practice arises from the Double Jeopardy 
clause itself rather than a matter of policy. This article contains 
a comprehensive review of all facets of Double Jeopardy law with 
suggestions for future development.

15



16

Gore v. United States; Supra; Callanan v. United 
States, 364 U.S. 587, 596. This process requires a 
clear showing of congressional intent and such intent 
will not be discerned when there is nothing more to 
support it than a “guess”. Ladner v. United States, 
358 U.S. 169 (1958). See also Bell v. United States, 
349 U.S. 81, 84.

The case of Jeffers v. United States, 432 U.S. 137 
(1977) and Iannelli v. United States, 420 U.S. 770 
(1975) are instructive. In Jeffers, the defendant was 
tried and convicted on charges of conspiracy to dis­
tribute drugs and with distributing drugs in concert 
with five or more persons. After conviction, the de­
fendant was given multiple sentences which exceeded 
the maximum for the greater offense. A plurality of 
this Court set aside the conviction because of the 
absence of legislative intent to permit separate pun­
ishments. The plurality termed the legislative history 
“inconclusive”. See Jeffers v. United States, 432 U.S. 
137 (1977).

In Iannelli, this Court permitted multiple punish­
ments for conspiracy to commit gambling violations 
and for the substantive violations of engaging in gam­
bling enterprise with five or more persons. This was 
contrary to Wharton’s Rule which appeared to bar 
conspiracy conviction where the substantive crime re­
quires the participation of two or more persons. This 
Court found a “clear and unmistakable” legislative 
intent that the conspiracies and substantive viola­
tions could be punished as multiple offenses. 420 U.S.

16



17

at 785, 786. For the most part, the above discussion 
relates to multiple sentences. However, it is clear that 
the rule of lenity applies to the scope and applicability 
of statutes for prosecution purposes. This Court has 
so held. United States v. Bass, 404 U.S. 336, (1971), 
Rewis v. United States, 401 U.S. 808, 812 (1971).

III.

The Same Legislative History Which Precludes 
Multiple Punishment Under §924(c) Also Bars 

Prosecution.

In this case, it cannot be said that there is any 
showing of a clear intent to permit multiple sentences 
(or even convictions). This Court has established this 
in Simpson. To the contrary, the Simpson court cites 
and relies upon abundant evidence that the congres­
sional intent was to prohibit separate prosecution and 
sentence. Representative Poff made his statement for 
the purpose of legislative history. His statement could 
not have been more explicit. Thus, two conclusions 
must be reached: 1) The Government cannot show 
clear congressional intent to permit multiple prose­
cutions and sentences; 2) The legislative history as 
accepted by this Court establishes exactly the op­
posite and, if applied, bars not only multiple sentences 
but prosectuion.

Of course, Simpson concerns the sentencing context 
and the instant case concerns prosecution itself. Re­
gardless of any differences in context, the legislative 
history goes precisely to the same point. There can be

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18

no showing of congressional intent to permit multiple 
punishments because the legislative history shows the 
express intent that §924 cannot be used to prosecute 
in any case already covered by a statute containing a 
sentencing enhancement provision.

CONCLUSION

For the foregoing reasons, it is hereby requested 
that this Honorable Court vacate petitioner Michael 
M. Busic’s conviction for 18 U.S.C. §924(c)(2).

Respectfully submitted,

Gefsky, Reich and Reich 
By Samuel J. Reich 

Jay H. Spiegel

Attorneys for Petitioner

18



IN THE

Supreme Court of States;
OCTOBER TERM, 1979

No. 78-6029

ANTHONY LaROCCA, JR.,
Petitioner,

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR PETITIONER

GERALD GOLDMAN 
Hughes Hubbard & Reed 
1660 L Street, N.W. 
Washington, D.C. 20036

(Court-appointed Counsel 
for Petitioner)

Of Counsel:
PETER E. SCHEER



1

TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES ............................................................. ii
OPINIONS BELOW .............................................................................1
JURISDICTION ..................................................................................I

STATUTES INVOLVED .................................................................. 2
QUESTION PRESENTED ............................................................... 3

STATEMENT OF THE CASE ..........................................................3
ARGUMENT .......................................................................................6

Introduction ................................................................................. 6

18 U.S.C. § 924(c) DOES NOT APPLY TO 
CONDUCT THAT IS SUBJECT TO THE EN­
HANCED PENALTY OF 18 U.S.C. § 111 ..............................9

A. The Legislative History Demonstrates Con­
gress’s Intent To Exclude Section 111 Viola­
tions From The Scope Of Section 924(c) ....................... 11

B. The Rule Of Lenity Precludes The Imposi­
tion Of An Enhanced Penalty For Armed
Assault Under Section 924(c) ............................................14

C. Section 111 Takes Precedence Over Section 
924(c) Because A Specific Criminal Statute
Governs Over A General One ............................................ 17

CONCLUSION .................................................................................. 22
APPENDIX ........................................................................................la

21



TABLE OF AUTHORITIES

Cases:

BeH v. United States, 349 U.S. 81 (1955) .................................. 15
Broughton v. United States, 594 F.2d 864 (6th Cir.

1979) .......................................................................................... 8
Brown v. Ohio, 432 U.S. 161 (1977) ............................................7
Federal Energy Administration v. Algonquin SNG,

Inc., 426 U.S. 548 (1976) .........................................................7

Flood v. Kuhn, 407 U.S. 258 (1972) ............................................8
Grimes v. United States, ____  F.2d ____ (2d Cir.

No. 79-2007 decided Sept. 6, 1979) ...............................  8,15

DUnois Brick Co. v. Illinois, 431 U.S. 720 (1977) ..................... 8
Jeffers v. United States, 432 U.S. 137 (1977) ........................... 7

Ladner v. United States, 358 U.S. 169 ( 1 9 5 8 ) ..........................  15

North Carolina v. Pearce, 395 U.S. 711 (1969) ..........................7

Prince v. United States, 352 U.S. 322 (1957) ..........................  15

Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976) . . .  19

Rewis v. United States, 401 U.S. 808 (1971) ..........................  14

Runyon v. McCrary, 427 U.S. 160 (1976) ..................................8
Simpson v. United States, 435 U.S. 6 (1978) ................passim

United States v. Bass, 404 U.S. 336 (1971) ............................  14

United States v. Brown, 602 F.2d 909 (9th Cir.
1979)  8

United States v. Busic, 587 F.2d 577 (3d Cir. 1978) . . . passim

United States v. Eagle, 539 F.2d 1166 (8th Cir.
1976), cert, denied, 429 U.S. 1110 (1977)   10

United States v. Girst, _ _  F.2d ____ (D.C. Cir.
No. 77-1604 decided March 28, 1979)  8

United States v. Greene, 489 F.2d 1145 (D.C. Cir.
1973)  7

United States v. Hearst, 466 F. Supp. 1068 (N.D.
Cal. 1978) ........................................................................... 8

ii

22



United States v. Nelson, 574 F.2d 277 (5th Cir.),
cert, denied, 439 U.S. 956 (1978) ......................................... 8

United States v. Reliable Transfer Co., 421 U.S. 397
(1975) .......................................................................................... 7

United States v. Roach, 590 F.2d 181 (5th Cir.
1979)  8

United States v. Shillingford, 586 F.2d 372 (5th
Cir. 1978)   6 ,7 ,8

United States v. Stewart, 585 F.2d 799 (5th Cir.
1978), cert, denied, 440 U.S. 918 (1979)  8

United States v. Stewart, 579 F.2d 356 (5th Cir.
1978) .8

United States v. United Continental Tuna Corp.,
425 U.S. 164 (1976) ..............................................................  19

United States v. Universal C.I.T. Credit Corp., 344
U.S. 218 (1952)   15

United States v. Vaughan, 598 F.2d 336 (4th Cir.
1979) .8

Whalen v. United States, 441 U.S. 904 (1979), 
granting cert, to review, 379 A.2d 1152 (Ct.
App. D.C. 1977) ..........................................................................7

Statutes:

18 U.S.C. §111  passim

18U.S.C. §112 ............................................................................... 12

18U.S.C. §113 ............................................................................... 12
18 U.S.C. §921(a)(3)(D) ................................................................18

18 U.S.C. §921(a)(4)(A) ............................................................... 18
18 U.S.C. §924(c)   passim

18 U.S.C. §2113  passim
18 U.S.C. §2114  12,20,21
18 U.S.C. §2231   12,20
28 U.S.C. §1254(1) .........................................................................2

iii

23



Miscellaneous:

H.R. Conf. Rep. No. 1956, 90th Cong., 2d Sess.
(1968) ........................................................................................ 12

H.R. Rep. No. 1455, 73d Cong., 2d Sess. ( 1 9 3 4 ) .....................18

H.R. Rep. 304, 80th Cong., 1st Sess. ( 1 9 4 7 ) .............................20

S. Rep. No. 535, 73d Cong., 2d Sess. (1934) ..........................  18
114 Cong. Rec. (1968):

p. 22231   11,16
p. 22232   12

p. 27142   13
p. 27143   13

19 U.S. Attorney’s Bulletin 63 (1971) ....................................... 10

iv

24



Supreme Court of tfje (Mniteb States;
OCTOBER TERM, 1979

IN THE

No. 78-6029

ANTHONY LaROCCA, JR.,
Petitioner,

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the Court of Appeals for the Third 
Circuit and its Supplemental Opinion Sur Rehearing (A. 
36-54, 57-60) are reported at 587 F.2d 577 (1978). 
The opinion of the district court (A. 21-34) is not 
reported.

JURISDICTION

The judgment of the court of appeals was entered on 
rehearing on December 12, 1978. The petition for a 
writ of certiorari was filed on January 1 1, 1979. On

25



2

June 4, 1979, the petition, together with a motion for 
leave to proceed in forma pauperis, was granted, and 
the case was consolidated for oral argument with Busic 
v. United States, No. 78-6020. The jurisdiction of this 
Court rests on 28 U.S.C. § 1254(1).

STATUTES INVOLVED

1. 18 U.S.C. §111 states:
“Whoever forcibly assaults,, resists, opposes, im­

pedes, intimidates, or interferes with any person 
designated in section 1114 of this title while 
engaged in or on account of the performance of 
his official duties, shall be fined not more than 
$5,000 or imprisoned not more than three years, 
or both.

“Whoever, in the commission of any such acts 
uses a deadly or dangerous weapon, shall be fined 
not more than $10,000 or imprisoned not more 
than ten years, or both.”

2. 18 U.S.C. § 924(c) states:
“(c) Whoever—

“(1) uses a firearm to commit any felony for 
which he may be prosecuted in a court of the 
United States, or

“(2) carries a firearm unlawfully during the 
commission of any felony for which he may be 
prosecuted in a court of the United States,

shall, in addition to the punishment provided for 
the commission of such felony, be sentenced to a 
term of imprisonment for not less than one year 
nor more than ten years. In the case of his second 
or subsequent conviction under this subsection, 
such person shall be sentenced to a term of

26



3

imprisonment for not less than two nor more than 
twenty-five years and, notwithstanding any other 
provision of law, the court shall not suspend the 
sentence in the case of a second or subsequent 
conviction of such person or give him a proba­
tionary sentence, nor shall the term of imprison­
ment imposed under this subsection run concur­
rently with any term of imprisonment imposed for 
the commission of such felony.”

QUESTION PRESENTED

Whether a prosecution lies under the general “en­
hanced penalty” provisions of 18 U.S.C. § 924(c)(1) for 
the use of a firearm in the commission of a felony 
when the conduct involved is subject to the specific 
“enhanced penalty” of 18 U.S.C. §111.

STATEMENT OF THE CASE 

1

Petitioner Anthony LaRocca, Jr. was tried with 
Michael Busic on a multi-count indictment alleging 
drug, firearm, and assault offenses. According to the 
government’s evidence, these charges grew out of a drug 
conspiracy that turned into an attempt to rob an 
undercover agent. In early May 1976, the evidence 
showed, petitioners arranged with Charles Harvey, a 
policeman on assignment with the Drug Enforcement 
Administration, to buy with Harvey’s funds marijuana 
and cocaine in Florida for distribution in the Pittsburgh 
area. A few days later LaRocca asked to see Harvey’s

27



4

purchase money, and the parties agreed to meet in a 
shopping center parking lot in Monroeville, Pennsyl­
vania, to enable LaRocca to examine it. (See A. 22-23.)

Supported by hidden surveillance units, Harvey 
showed up with $30,000 in cash. When LaRocca 
demanded the money at gunpoint, Harvey gave a pre­
arranged signal to the other agents to close in. LaRocca 
fired several shots without hitting anyone, and was then 
disarmed. Subsequent searches of Busic and of the 
automobile used by LaRocca and Busic turned up other 
weapons. (See A. 23-25.)

Busic testified in defense that a government inform­
ant had suggested the plan for robbing Harvey by 
fabricating a drug deal and then had entrapped Busic 
and LaRocca into participating in the plan. (See A. 25.)

II

On the basis of this evidence the jury returned guilty 
verdicts on almost all counts.1 Of significance to this 
petition, LaRocca was convicted of, inter alia, (a) two 
counts of assaulting federal agents “by means and use 
of a dangerous weapon, that is a semi-automatic pistol,” 
in violation of 18 U.S.C. §111 (Counts 6 and 7) and 
(b) using this firearm in the commission of these same 
assaults assertedly in violation of 18 U.S.C. §924(c)(1) 
(Count 19). (A. 9, 15, 19-20.)2 LaRocca had previously

'Busic was acquitted on Count 17, alleging a separate viola­
tion by him of 18 U.S.C. §924(c).

2 Although Count 19 also alleged that the firearm had been 
used to commit the drug conspiracies charged in Counts 1 and 2, 
the jury was permitted to find LaRocca guilty under Count 19 
for the use of the pistol solely in assaulting the federal officers. 
See 587 F.2d 577, 584 n.5, 588 n.3, A. 47 n.5, 60 n.3.

28



5

been convicted under Section 924(c) in 1973.
The second paragraph of Section 111 provides for an 

increase in the maximum term of imprisonment for 
assaulting a federal officer from three to ten years in 
cases in which a dangerous weapon is used. Similarly, 
Section 924(c) provides a mandatory penalty for the 
use of a firearm in committing a federal felony in 
addition to the sentence provided for the felony alone; 
in the case of a second conviction the statute requires 
imprisonment for not less than two nor more than 25 
years, to be served consecutively to the sentence im­
posed for the felony.

Purporting to exercise authority provided in these 
sections for enhancing LaRocca’s punishment on ac­
count of his use of a pistol in assaulting federal officers, 
the district court sentenced LaRocca to concurrent 
five-year terms on the assault charges, Counts 6 and 7. 
In addition, the court imposed a 20-year term under 
Count 19, to be served consecutively to all other 
sentences. (A. 19-20.) Thus, LaRocca was convicted and 
sentenced under the enhanced penalty provisions of two 
statutes for the identical use of a firearm.3

On appeal the court of appeals initially held that this 
pyramiding of sentences was contrary to the Double 
Jeopardy Clause, 587 F.2d 577, 580-82, A. 40-43, but, 
based on this Court’s intervening decision in Simpson v. 
United States, 435 U.S. 6 (1978), the court granted

3In total, LaRocca was sentenced to 30-years imprisonment. 
In addition to the 20 years imposed under Count 19, he received 
(a) concurrent terms of up to five years on the drug counts with 
a mandatory three-year term of special parole supervision 
(Counts 1-5) and (b) concurrent terms of five years on the 
assault and firearm charges to be served consecutively to the 
sentences on Counts 1 through 5 (Counts 6-13).

29



6

rehearing and vacated that portion of its earlier opinion. 
On the basis of Simpson the court then held, as a 
matter of statutory interpretation, that LaRocca could 
not be sentenced pursuant to both the enhancement 
paragraph of Section 111 and Section 924(c). However, 
the court also concluded that LaRocca could be prose­
cuted separately under Section 924(c). 587 F.2d at 
587-88, A. 58-60. Accordingly, the case was remanded 
“for resentencing, at which time the government may 
elect to proceed under either section 924(c)(1) or 
section 111, but not both.” Id. at 589, A. 60.

ARGUMENT

Introduction

The government concedes that this Court’s recent 
decision in Simpson “unquestionably” prohibits a 
doubly enhanced sentence of the kind imposed on 
LaRocca by the district court. U.S. PET. at 7.4 Al­
though Simpson itself addressed only the interaction 
between Section 924(c) and the bank robbery section 
of Title 18, 18 U.S.C. §2113, no distinction can be 
drawn between the enhanced penalty provision of Sec­
tion 2113 and that of Section 111. As a result, the 
court of appeals below was plainly correct in ruling that 
LaRocca could not be punished under the enhancement 
paragraph of Section 111 and under Section 924(c). 
587 F.2d at 588, A. 59-60. Accord, United States v.

4 “U.S. PET.” refers to the government’s brief filed on May 
11, 1979, in response to the petitions for a writ of certiorari.

30



7

Shillingford, 586 F.2d 372, 376 (5th Cir. 1978).5
The narrow, but important, question presented here 

instead is this: Can LaRocca be prosecuted even sepa­
rately under Section 924(c)? The government maintains 
that Congress “intended to allow the prosecutor the 
discretion to charge and the court to sentence under 
either the enhancement provisions included in Section 
2113 and 111, or the enhancement provision in Section 
924(c).” U.S. PET. at 7 (emphasis in original). Most 
judges who have addressed this contention since Simp-

5 Unlike the case in United States v. Shillingford, supra, 586 
F.2d at 376 & n.7, there also is no issue here of the govern­
ment’s power to prosecute simultaneously under the first para­
graph of Section 111 for simple assault and under Section 924(c) 
for the use of a firearm in committing the assault. As suggested 
in Simpson itself (435 U.S. at 11-12), such a combination of 
charges would raise a serious Double Jeopardy issue. See, e.g., 
Brown v. Ohio, 432 U.S. 161 (1977); Jeffers v. United States, 
432 U.S. 137 (1977); North Carolina v. Pearce, 395 U.S. 711, 
717 (1969); United States v. Greene, 489 F.2d 1145, 1158 (D.C. 
Cir. 1973). See also Whalen v. United States, 441 U.S. 904 
(1979), granting cert, to review 379 A.2d 1152 (Ct. App. D.C. 
1977) (convictions for rape and felony-murder challenged under 
the Double Jeopardy Clause). Appropriately, the court of appeals 
specifically directed the government on resentencing to proceed 
under either Section 111 or Section 924(c).

Perhaps because of LaRocca’s concurrent sentences on counts 
6 through 13 (see note 3, supra), the government has not sought 
review of this aspect of the judgment below. The question, 
therefore, is not before the Court in this case. See, e.g., Federal 
Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548, 
560 n .l l  (1976); United States v. Reliable Transfer Co., 421 
U.S. 397, 401 n.2 (1975).

31



8

son was handed down have properly rejected it.6 Simpson 
itself unequivocally and convincingly holds that Section 
924(c) is not available for the prosecution of firearm use 
that is punishable under one of the specific enhancement 
provisions of the criminal code, like Section 2113 or 
Section 111. Indeed, the govenment’s position in this 
case is so totally at odds with Simpson that it should be 
rejected out of hand. See Illinois Brick Co. v. Illinois, 
431 U.S. 720, 732 (1977) (“considerations of stare de­
cisis weigh heavily in the area of statutory construction, 
where Congress is free to change this Court’s interpreta­
tion of its legislation”).7

6As of this time, at least 16 federal judges have rejected the
government’s position. See Grimes v. United States, ------ F.2d
____(2d Cir. No. 79-2007 decided Sept. 6, 1979); United States
v. Vaughan, 598 F.2d 336 (4th Cir. 1979); United States v. 
Roach, 590 F.2d 181 (5th Cir. 1979); United States v. Shilling- 
ford, supra, 586 F.2d at 376 (dissenting opinion); United States 
v. Stewart, 585 F.2d 799 (5th Cir. 1978), cert, denied, 440 U.S. 
910 (1979); United States v. Stewart, 579 F.2d 356 (5th Cir. 
1978); United States v. Nelson, 574 F.2d 277 (5th Cir. 1978), 
cert, denied, 439 U.S. 956 (1978); United States v. Hearst, 466 
F. Supp. 1068, 1072 n.3 (N.D. Cal. 1978). See also United
States v. Girst, ____ F.2d _____ (D.C. Cir. No. 77-1604 decided
March 28, 1979), Slip Op. at 9 (dictum); Broughton v. United 
States, 594 F.2d 864 (6th Cir. 1979) (unreported opinion).

To our knowledge, only three members of the Ninth Circuit 
and two of the Fifth have agreed with the panel below, see 
United Slates v. Brown, 602 F.2d 909 (9th Cir. 1979); United 
States v. Shillingford, supra, and at least one of these (Judge 
Coleman) appears to have changed his mind. See United States v. 
Roach, supra.

7Accord, e.g., Runyon v. McCrary, 427 U.S. 160, 175 (1976). 
See also Flood v. Kuhn, 407 U.S. 258 (1972).



9

18 U.S.C. § 924(c) DOES NOT APPLY TO 
CONDUCT THAT IS SUBJECT TO THE EN­
HANCED PENALTY OF 18 U.S.C. §111.

The government candidly admits that “there is lang­
uage in the Court’s opinion in Simpson that lends 
considerable credence to petitioner’s contention that 
Section 111 violations can never supply the predicate 
for a conviction under Section 924(c)(1) . . . .” U.S. 
PET. at 7 (emphasis added). The government, nonethe­
less, claims that the reach of Section 924(c) was not 
actually resolved in Simpson. In a similar vein, the 
court of appeals below read Simpson as permitting 
prosecution of LaRocca under Section 924(c) by seizing 
on the statement in the Court’s opinion (435 U.S. at 
16) that “in a prosecution growing out of a single 
transaction of bank robbery with firearms, a defendant 
may not be sentenced under both §2113(d) and 
§924(c).” 587 F.2d at 588, A. 59. Yet the govern­
ment’s reconstruction of Simpson, accepted by the 
court below, is patently incorrect.

The quotation relied on by the court of appeals, read 
in context, was only another way of saying that 
Simpson could not be prosecuted at all under Section 
924(c). The Court in Simpson reasoned that the defend­
ant’s pyramided sentence was invalid precisely because, 
as Simpson argued,8 no conviction can be obtained 
under Section 924(c) when the enhanced penalty provi­
sions of other sections of Title 18 apply. The actual

8 See Br. for Petitioners, Nos. 76-5761 and 76-5796, filed June 
13, 1977, at 4: “ [W]here the statute charging the substantive 
crime includes a provision which provides a higher penalty for 
use of a dangerous weapon or firearm, §924(c) is not applica­
ble.”

33



10

disposition in Simpson was to remand for proceedings 
consistent with the opinion, 435 U.S. at 16, and the 
opinion specifically reaches:

"‘the conclusion that Congress cannot be said to 
have authorized the imposition of the additional 
penalty of § 924(c) for commission of bank rob­
bery with firearms already subject to enhanced 
punishment under §2113(d).” Id. at 12-13 (em­
phasis added).
Moreover, the opinion is replete with statements to 

the effect that Section 924(c) is simply “unavailable” 
for prosecution of firearm use addressed in the en­
hanced penalty provisions of other sections. Id. at 15. 
Pointedly, the opinion closes by expressly endorsing the 
original views of the Justice Department on the scope 
of Section 924(c). As described by the Court, those 
views called upon:

“all United States Attorneys not to prosecute a 
defendant under §924(c)(l) where the substantive 
statute the defendant was charged with violating 
already ‘provid[ed] for increased penalties where a 
firearm is used in the commission of the offense.’
19 US Attys Bui 63 (U.S. Dept, of Justice 1971).”
Id. at 16 (emphasis added).9

Consistently with the Court’s opinion, Simpson’s Sec­
tion 924(c) sentences, in fact, were vacated on re­
mand.10

9The Simpson opinion (435 U.S. at 9, 14) also endorses 
United States v. Eagle, 539 F.2d 1166 (8th Cir. 1976), cert, 
denied, 429 U.S. 110 (1977), which holds that a crime “for 
which the penalty is enhanced by use of a dangerous weapon, 
cannot form the basis o f  a prosecution under § 9 2 4 ( c ) ( l I d .  at 
1172 (emphasis added).

10A copy of the court of appeals’order on remand is set forth 
in the Appendix to this brief.

34



Thus, the government engages in understatement 
when it confesses that the language of Simpson lends 
“considerable credence” to this petition. The language 
of that decision provides overwhelming support for 
petitioner’s position, and is hopelessly at odds with the 
government’s views. But it is not merely the language of 
Simpson that dictates the proper result here. The 
Court’s reasoning there sharply limits the reach of 
Section 924(c). As we show below, the “tools of 
statutory construction” relied on in Simpson (435 U.S. 
at 12) all demonstrate the inapplicability of Section 
924(c) to a case such as this.

A. The Legislative History Demonstrates Con­
gress’s Intent To Exclude Section 111 Viola­
tions From The Scope Of Section 924(c).

Simpson leaves no room for doubt about the import 
of the legislative history of Section 924(c). As the 
Court observed there (435 U.S. at 13), Section 924(c) 
stems from an amendment to the Gun Control Act of 
1968 proposed by Representative Poff on the House 
floor. 114 Cong. Rec. 22231 (1968). In a statement 
that must be regarded as the most definitive explana­
tion of this amendment,11 Representative Poff noted 
“ [f]or the sake of legislative history” :

"Because the amendment was passed on the same day it was 
introduced, there is no explanatory statement other than Repre­
sentative Poffs remarks to elucidate its scope. Thus, the only 
source to which the members of Congress could have looked in 
considering this provision for enactment was the statement of its 
author upon introducing it.



12

“[M]y substitute is not intended to apply to title 
18, sections 111, 112, or 113 which already define 
the penalties for the use o f a firearm in assaulting 
officials, with section 2113 or 2114 concerning 
armed robberies of the mail or banks, with section 
2231 concerning armed assaults upon process ser­
vers or with chapter 44 which defines other fire­
arm felonies.” Id. at 22232 (emphasis added).
The sponsor of Section 924(c) could hardly have 

made it plainer that the provision does not authorize 
the prosecution of Section 111 violations. In the words 
of Simpson (435 U.S. at 13), Representative Poff’s 
“statement is clearly probative of the legislative judg­
ment that the purpose of § 924(c) is already served 
whenever the substantive federal offense provides en­
hanced punishment for use of a dangerous weapon.” 
Significantly, when the Justice Department first anal­
yzed Section 924(c), it concluded as much by expressly 
adopting Representative Poffs statement as official 
policy.12

But this is not all that the legislative history of 
Section 924(c) shows. The Court also relied in Simpson 
{id. at 14) on the fact that the Poff proposal was 
adopted in Conference Committee in preference to an 
amendment that Senator Dominick had offered on the 
Senate floor. See H.R. Conf. Rep. No. 1956, 90th 
Cong., 2d Sess. 31-32 (1968). Under that amendment 
the government would have been permitted to proceed

n See Letter dated January 13, 1972, from Carl W. Belcher, 
Chief, General Crimes Section, Criminal Division, to George 
Beall, United States Attorney, Baltimore, Maryland, reprinted in 
the appendix to the Supplemental Memorandum for the United 
States, Simpson v. United States, Nos. 76-5761 and 76-5796, 
filed on Nov. 22, 1977, at 2a.

36



13

under Section 924(c) even where the use of a firearm 
was already subject to augmented punishment pursuant 
to the provisions of the underlying offense. See 114 
Cong. Rec. 27142 (1968). As Senator Dominick ex­
plained, his amendment would not “detract” from 
Section 2113 or Section 1 11, but “would be available if 
the prosecutor and the court desired, for the purpose of 
stronger penalties in those cases where firearms were 
involved." Id. at 27143. The rejection of this proposal, 
especially when coupled with Representative Poffs af­
firmative statement of the scope of Section 924(c), 
points unmistakably to the conclusion that this provi­
sion was meant to be unavailable where existing sec­
tions of Title 18 already serve to deter the use of 
firearms.

If Congress had truly intended, as the government 
urges, to vest in the prosecution discretion to charge 
armed robbery or assault under Section 924(c) in place 
of Section 2113 or Section 111, then surely Congress 
would have left some evidence of this when it spe­
cifically addressed the interplay of these provisions. Yet 
not one word in the debate on this subject suggests that 
Congress intended any such result. On the contrary, not 
only did the author of Section 924(c) state in haec 
verbae that the provision would not apply to Section 
2113 or 111 violations, but, in enacting Section 924(c), 
Congress specifically rejected an alternative that would 
have conferred the very authority now sought by the 
government. As Simpson itself cogently shows, the 
legislative record thus forecloses the government’s argu­
ment in this case.

37



14

B. The Rule Of Lenity Precludes The Imposition 
Of An Enhanced Penalty For Armed Assault 
Under Section 924(c).

The Court’s reliance in Simpson on the rule of lenity 
also compels the conclusion that Simpson is controlling 
here. There is simply no way that the government’s 
theory that Section 924(c) permits an election of 
offenses can be squared with the rule of lenity, as 
invoked in Simpson.

The rule of lenity is, in the words of Simpson, an 
“established rule of construction that ‘ambiguity con­
cerning the ambit of criminal statutes should be re­
solved in favor o f  ” the defendant. 435 U.S. at 14, 
quoting United States v. Bass, 404 U.S. 336, 347 
(1971); Rewis v. United States, 401 U.S. 808 (1971). 
The rule is “an outgrowth of our reluctance to increase 
or multiply punishments absent a clear and definite 
legislative directive.” 435 U.S. at 15-16.

In Simpson there never was any question about the 
reach of Section 2113; Simpson was unquestionably 
suoject to both subsections (a) and (d) of that statute, 
prescribing sentences for bank robbery and the use of a 
dangerous weapon, respectively. The only doubt was 
whether, in light of the legislative history reviewed 
above, Section 924(c) also applied. See 435 U.S. at 
13-15. The Court answered “no,” because:

“ [e]ven where the relevant legislative history was 
not nearly so favorable to the defendant as [here], 
this Court has steadfastly insisted that ‘doubt will 
be resolved against turning a single transaction into 
multiple offenses.'” Id. at 15 (emphasis added),

38



15

quoting Bell v. United States, 349 U.S. 81, 84 
(1955).13

As followed in Simpson, the rule of lenity thus rein­
forced the conclusion to which the legislative history 
pointed: Simpson could not be convicted of punished 
under Section 924(c), since that section does not apply 
to a felony that already is subject to an enhanced 
penalty if committed with a firearm. The same conclu­
sion must be reached with respect to LaRocca, lor the 
basic ambiguity, to be resolved under the rule of lenity, 
is exactly the same in this case as in Simpson.

Indeed, the government’s position here would require 
the Court to conclude that Congress has authorized mul­
tiple convictions and punishments for a single criminal 
transaction, even though the government now acknowl­
edges that prosecutions under both the enhancement 
provisions of Section 2113 or Section 111 and Section 
924(c) are impermissible. Under the government’s theory 
nothing in the statutes would stand in the way of pro­
secuting an armed assault by combining a Section 924(c) 
charge with a Section 111 count for simple assault. 
As is the case for convictions under Section 2113(a) 
and (d),14a conviction for simple assault under the first 
paragraph of Section 111 would merge as a lesser in­
cluded offense into a conviction for assault with a danger­
ous weapon under the enhancement paragraph of that 
provision. But convictions under the first paragraph of 
Section 111 and under Section 924(c) would stand in­
dependently, since Section 924(c) on its face contem­
plates a separate sentence for the underlying felony.15

13See also, e.g., Ladner v. Untited States, 358 U.S. 169 
(1958); Prince v. United States, 352 U.S. 322 (1957); United 
States v. Universal C.I.T. Credit Corp., 344 U.S. 218 (1952).

14S'ee, e.g., Grimes v. United States, supra, Slip Op. at 
4642-50, and cases cited therein.

39



16

Thus, if the government’s views are followed, it would be 
free to obtain two convictions in the case of armed as­
sault by invoking Sections 111 and 924(c), when prosecu­
tion under Section 111 alone could result at most in one.15 16 
It would require utter disregard of significant portions 
of the Congressional Record to conclude that Congress 
has issued, in the words of Simpson (435 U.S. at 15), a 
“clear and definite” directive authorizing this result.

Analysis of the severity of the sentencing provisions 
of these sections points in the same direction. Not only 
would application of Section 924(c) to an armed assault 
of a federal officer establish a mandatory minimum 
sentence of one or two years imprisonment where 
previously there had been none. It would also enlarge 
the maximum total sentence from ten to as much as 13 
or 28 years.17

15See also, e.g., 114 Cong. Rec. 22231 (1968) (remarks of 
Representative Poff): “My substitute makes it a separate Federal 
crime to use a firearm in the commission of another Federal 
crime and invokes separate and supplemental penalties.”

l6This is not to say that a combination of Section 111 and 
Section 924(c) charges would pass muster under the Double 
Jeopardy Clause (see note 5, supra), only that the government’s 
position requires the conclusion that Congress intended, in 
adopting Section 924(c), to make what had previously been one 
crime under Section 111 into two.

17The use of a gun in assaulting a federal officer increases the 
maximum term of imprisonment under Section 111 from three 
to ten years. Section 924(c) by its terms exposes a first offender 
to a one-to-ten year sentence and a recividist to a two-to-25 year 
sentence, on top of the sentence for the underlying felony.

Even if the Double Jeopardy Clause bars simultaneous prose­
cution under Sections 111 and 924(c), application of Section 
924(c) alone to armed assault, of course, would more than 
double the maximum potential sentence from ten to 25 years in 
the case of a second offender.

40



17

In short, the government’s position would increase as 
well as multiply punishments by resolving ambiguity 
regarding the application of Section 924(c) against the 
defendant. As in Simpson, the rule of lenity precludes 
this result.

C. Section 111 Takes Precedence Over Section 
924(c) Because A Specific Criminal Statute 
Governs Over A General One.

The last “tool of statutory construction” relied on in 
Simpson also shows that Section 924(c) does not apply 
to any Section i 11 violations. The Court in Simpson 
expressly invoked “the principle that gives precedence 
to the terms of the more specific statute where a 
general statute and a specific statute speak to the same 
concern, even if the general provision was enacted 
later.” 435 U.S. at 15. Because this doctrine calls for 
application of the specific statute in place o f  the 
general one, its mere invocation in Simpson completely 
undermines the government’s present position. The prin­
ciple dictates that armed robbery or assault be prosecuted 
pursuant to the specific terms of Section 21 13 or Section 
111 and not the general ones of Section 924(c).

As noted in Simpson, the Justice Department origi­
nally “found the interpretative preference for specific 
criminal statutes over general criminal statutes o f itself 
sufficient reason to advise all United States Attorneys 
not to prosecute a defendant under §924(c)(1)” in the 
case of a Section 2113 or Section 111 violation. 435 
U.S. at 16 (emphasis added). In an about-face the 
Department now suggests that this preference “argu­
ably” calls for application of Section 924(c) rather than

41



18

Section 2113 or Section 111, because the former 
assertedly focuses more specifically on the use of 
firearms, U.S. PET. at 9 n.6. The diffidence with which 
this argument is advanced is appropriate because the 
argument is fundamentally misconceived.

To begin with, there is no substance to the govern­
ment’s suggestion that Section 924(c) speaks more 
specifically than Section 2113 or Section 111 to the 
use of guns as opposed to other weapons. As explained 
in Simpson (435 U.S. at 10 n.4), although Section 
924(c) focuses on combating the use of guns, the 
provision applies more broadly to the use of “any 
destructive device,” including bombs, grenades, and 
similar devices. See 18 U.S.C. § §921(a)(3)(D) and 4(A) 
(defining “firearm” and “destructive device,” respec­
tively). Moreover, Congress undoubtedly considered the 
use of guns the principal evil when it provided en­
hanced penalties for the use of a deadly or dangerous 
weapon in assaulting a federal officer or robbing a 
bank.18

Furthermore, even if the government’s description of 
Section 924(c) were persuasive, that would not support 
its contention that this section contemplates an election 
of punishments in cases where the enhancement provi­
sions of other sections apply. If the government were

lsSee 435 U.S. at 10 n.4 (reviewing the legislative history of 
Section 2113); Letter dated Jan. 3, 1934, from the Attorney 
General to the Chairman of the House and Senate Committees 
on the Judiciary, reprinted in H.R. Rep. No. 1455, 73d Cong., 
2d Sess. 2 (1934), and S. Rep. No. 535, 73d Cong., 2d Sess. 1-2 
(1934) (sponsoring the predecessor of Section 111 based on the 
“shooting” and “serious wounding” of the warden of the Federal 
Penitentiary at Leavenworth).

42



19

correct, Section 924(c) would govern to the exclusion 
o f  Sections 2113(d) and 111 — a result patently at adds 
not only with Simpson, but with the government’s own 
position and common sense. No one, including the 
government, has ever suggested that the enhancement 
provisions of Section 2113(d) and 111 do not apply 
according to their terms.19 Thus, no matter how the 
doctrine is applied, the Court’s reliance in Simpson on 
the interpretative preference for specific statutes simply 
forecloses the government’s theory of a prosecutorial 
election.

Finally, this principle of construction looks func­
tionally to the pertinent legislative objectives and di­
rects that the provisions most attuned to those objec­
tives be given precedence. The more specific statute 
controls even over a later enacted one because it is 
presumed to strike more precisely the balance intended 
by Congress among competing goals. Here the legislative 
purposes are the appropriate deterrence and punishment 
of the use of weapons, and Simpson soundly holds that 
the provisions most in harmony with these objectives 
are the sections of the criminal code cited by Repre­
sentative Poff, not Section 924(c).

19These specific enhancement provisions would not apply if 
they have been impliedly repealed by the enactment of Section 
924(c). Yet it is “a cardinal principle of statutory construction 
that repeals by implication are not favored,” especially “when we 
are urged to find that a specific statute has been repealed by a 
more general one.” United States v. United Continental Tuna 
Corp., 425 U.S. 164, 168 (1976). See also, e.g., Radzanower v. 
Touche Ross & Co., 426 U.S. 148, 154 (1976). In this case the 
legislative history of Section 924(c) affirmatively disproves any 
such repeal.

43



20

Section 924(c), after all, applies generally to the use 
of firearms in the commission of any federal felony. As 
the scope of sentencing discretion thereunder illustrates 
(one-to-ten years imprisonment for a first offender, or 
two-to-25 for a recidivist), Congress could not in a 
statute so broad prescribe exact punishments appropri­
ate for each violation that might arise. In contrast, the 
provisions cited by Representative Poff focus more 
narrowly on the use of weapons in the context of 
specific crimes. This added variable enabled Congress to 
tailor sentencing discretion more precisely to the con­
duct to be deterred and punished than was the case 
with Section 924(c).

For example, 18 U.S.C. §§111, 112, and 2231 
provide a maximum ten-year prison sentence for armed 
assault of federal officers, foreign diplomatic personnel, 
and officers executing search warrants, respectively. 
Section 113 of Title 18, however, which addresses the 
somewhat less serious problem of assaults within the 
maritime and territorial jurisdiction of the United 
States, authorizes a maximum prison term of only five 
years for assault with a dangerous weapon. On the 
other hand, 18 U.S.C. §2113 provides for up to 25 
years imprisonment for armed bank robbery, while 18 
U.S.C. §2114 imposes a mandatory 25-year sentence 
for armed robbery of a postal employee. Obviously, 
Congress has carefully graded the potential penalties for 
the use of a weapon in violation of these provisions 
according to the nature of the crime and the threat 
posed to the interests of the United States.20 To allow

20Significantly, all of these sections antedate the codification 
of Title 18 in 1948, so that all of them were reviewed for 
“disparities in punishments” at that time. H.R. Rep. 304, 80th 
Cong., 1st Sess. 7 (1947).

44



21

sentencing power under Section 924(c) to displace these 
provisions would enable the government to alter the 
maximum penalties that Congress clearly meant to 
govern when it focused specifically on the use of 
weapons in the context of these specific crimes.21

In sum, like the legislative history of Section 924(c) 
and the rule of lenity, the interpretative preference for 
specific criminal statutes demonstrates that the path of 
decision in this case has already been charted. The 
Court’s decision in Simpson is dispositive here not only 
in the language, but in the reasoning that it employs. 
The government’s efforts now to obtain a change in this 
decision are more appropriately directed to the Con­
gress than to this Court.

21Moreover, the government’s theory would create anomalies 
that Congress could not have intended between the penalties 
available to punish the use of a firearm and those available to 
punish the use of another type of dangerous weapon. For 
example, a person using a knife to rob a postal employee would 
face a mandatory 25-year sentence under Section 2114, while his 
counterpart with a pistol could be let off with a mere one- to 
two-year sentence if prosecuted pursuant to Sections 2114 and 
924(c).

Similarly, a first offender using a knife to commit grand 
larceny in a bank could be sentenced up to 25 years under 
Section 2113(d), but would face at most a 20-year sentence if he 
used a gun and was charged under Sections 2113(b) and 924(c). 
Indeed, if the Double Jeopardy Clause prohibits simultaneous 
prosecution under these provisions {see note 5, supra), applica­
tion of Section 924(c) would effectively reduce the maximum 
penalty in this example even further to merely ten years 
imprisonment.

45



22

CONCLUSION

For the foregoing reasons, the judgment on rehearing 
of the court of appeals should be reversed, and the case 
remanded with instructions to vacate the conviction and 
sentence against petitioner under Count 19.

Respectfully submitted,

GERALD GOLDMAN 
Hughes Hubbard & Reed

Court-appointed Counsel 
for Petitioner

Of Counsel:
PETER E. SCHEER

46



In  tip &upratt? (Emtrt of tip Mnitrii States
October Term, 1979

Michael M. Busic, petitioner

v.
United States of America

Anthony LaRqcca, J r,, petitioner

v.
United States of America

ON W R IT S  O F C E R T IO R A R I TO T H E  
U N IT E D  S T A T E S  CO URT O F A P P E A L S  

FO R  T H E  T H IR D  C IR C U IT

BRIEF FOR THE UNITED STATES

W a d e  H . M c C r e e , J r .
Solicitor General

P h i l i p  B . H e y m a n n  
Assistant Attorney General

A n d r e w  L . F r e y  
Deputy Solicitor General

M a r k  I .  L e v y

Assistant to the Solicitor General
C a r o l y n  L . G a in e s

Attorney
Department of Justice 
Washington, D.C. 20530





I N D E X
Page

Opinions below .........................     1
Jurisdiction ........       2
Questions presented............................................. 2
Constitutional and statutory provisions in­

volved ..........  3

Statement.........  4

Summary of argument ....................................  9
Argument:

I. A defendant who uses a firearm to com­
mit an assault upon a federal officer 
may be sentenced, at the government’s 
election, under either the aggravated 
assault provision of 18 U.S.C. I l l  or
the felony-firearm provision of 18 
U.S.C. 924(c) (1) ........ .......................... 17
A. Section 924(c) by its terms applies 

to felonies that provide an enhanced 
penalty for the use of a dangerous 
weapon............................................... 17

B. The sentencing provisions of Sec­
tion 924(c) demonstrate Congress’ 
intent that punishment be imposed 
in accordance with the terms of that 
statute notwithstanding that the 
predicate felony contains an en­
hanced penalty for the use of a dan­
gerous weapon ................................  19

49



II

Argument—Continued Page
C. The legislative history of Section 

924(c) confirms that the sentencing 
provisions of that statute are appli­
cable even though the underlying 
felony provides an enhanced penalty
for the use of a dangerous weapon.. 24

D. The decision in Simpson v. United
States is not dispositive of the issue 
presented in this case ........ ............  37

II. A defendant may be consecutively sen­
tenced for aiding and abetting an as­
sault with a firearm upon a federal offi­
cer, in violation of 18 U.S.C. 2 and 111, 
and for carrying a second firearm dur­
ing the commission of that assault, in 
violation of 18 U.S.C. 924(c)(2) .... . 48

III. In the event the Court vacates petition­
ers Section 924(c) sentence, the appro­
priate disposition of the case would be 
to remand to the district court for re­
sentencing on the Section 111 counts.— 57 

Conclusion..........................................................  71

CITATIONS
Cases:

American Fur Co. v. United States, 27
U.S. (2 Pet.) 358 .............. ..... ...... .....  42

Andrus v. Allard, No. 78-740 (Nov. 27,
1979)______ ____ ________________ 17

Barnes v. United States, 412 U.S. 837.— 51
Barrett v. United States, 423 U.S. 212-.. 42, 43 
Bell v. United States, 349 U.S. 81 ...........  53

50



Benton v. Maryland, 395 U.S. 784 .........  51
Berra v. United States, 351 U.S. 131.....  45
Blackledge v. Perry, 417 U.S. 21 .............  63
Blockburger v. United States, 284 U.S.

299........................ ...................... ....... 15, 53, 54
Board of Education of the City of New 

York v. Harris, No. 78-873 (Nov. 28,
1979)__________ __.._______ ______  10

Bordenkircher v. Hayes, 434 U.S. 357.....  63
Borum v. United States, 409 F.2d 433,

cert, denied, 395 U.S. 916 .............—  66
Bozza v. United States, 330 U.S. 160.......  16, 64
Bradley, In re, 318 U.S. 50 ....................  68
Brown v. Ohio, 432 U.S. 161 .... ...15, 54, 56, 69
Chaffin v. Stynchcombe, 412 U.S. 17.......  63
Chandler v. United States, 468 F.2d 834.. 66
Ebeling v. Morgan, 237 U.S. 625 ...........  53, 56
Ernst & Ernst v. Hochfelder, 425 U.S.

185 ............... ........ ..... .........................  18
Gore v. United States, 357 U.S. 386.......  42, 52
Government of the Virgin Islands v.

Henry, 533 F.2d 876 ............. ............. . 66
Greyhound Corp. v. Mi. Hood Stages, Inc.,

437 U.S. 322 ................. .........................  18
Grimes v. United States, 607 F.2d 6.......  40
Harris v. United States, 359 U.S. 1 9 .......  54
Haynes v. United States, 390 U.S. 85....... 70
Huddleston v. United States, 415 U.S.

814........... .............. ........................ .......  41
Iannelli v. United States, 420 U.S. 770.... 54
Kennedy v. United States, 330 F.2d 26.... 66
Kowalski v. Parratt, 533 F.2d 1071, cert, 

denied, 429 U.S. 844 ..... ....... ..... .........  56

Ill

Cases— Continued Page

51



XV

Ladner v. United States, 358 U.S. 169.....  52
Lange, Ex parte, 85 U.S. (18 Wall.) 163.. 68
Murphy v. Massachusetts, 177 U.S. 155.— 64
North Carolina v. Pearce, 395 U.S. 711...16,17,

61, 63, 66, 68
Owensby v. United States, 385 F.2d 58— 66
Pennsylvania v. Ashe, 302 U.S. 51 .........  65
Perkins v. United States, 526 F.2d 688— 55
Perrin v. United States, No. 78-959 (Nov.

27, 1979) ........     17
Pollard v. United States, 352 U.S. 354— 64
Preiser v. Rodriguez, 411 U.S. 475 ....—  44
Reiter v. Sonotone Corp., No. 78-690

(June 11, 1979) ..... ......... ...................  18
Sanabria v. United States, 437 U.S. 54.... 53
Sansone v. United States, 380 U.S. 343.— 45
Santa Fe Industries, Inc. v. Green, 430

U.S. 462 ..................................................  18
Scarborough v. United States, 431 U.S.

563......   18,42
Simpson v. United States, 435 U.S. 6.......passim
Southeastern Community College v. Davis,

No. 78-711 (June 11, 1979) ............   18
Swain v. Pressley, 430 U.S. 372 .............  41
Touche Ross & Co. v. Redington, No. 78-

309 (June 18, 1979) .. .................    17-18
United States v. Adams, 362 F.2d 210.....  66
United States v. Addonizio, No. 78-156

(June 4, 1979) ....... ......... .......... ...... . 60
United States v. Akers, 542 F.2d 770, cert.

denied, 430 U.S. 908 ..................  55
United States v. Bass, 404 U.S. 336 .... . 42

Cases—Continued Page

52



United States v. Batchelder, No. 78-776
(June 4, 1979) .................14, 41, 42, 43, 45, 46

United States v. Benedetto, 558 F.2d 171.. 66
United States v. Benz, 282 XJ.S. 304 ...... . 68
United States v. Best, 571 F.2d 484 .......  66
United States v. Bishop, 412 U.S. 346.....  45
United States v. Brewer, 528 F.2d 492.... 45
Un ited States v. Brown, 602 F.2d 909-20, 39, 47
United States v. Bynoe, 562 F.2d 126.....  66
United States v. Carter, 526 F.2d 1276.... 45
United States v. Crew, 538 F.2d 575,

cert, denied, 429 U.S. 852 ....................  55
United States v. Corson, 449 F.2d 544.....  66
United States v. Culbert, 435 U.S. 371.... 14, 42 
United States v. Dorsey, 591 F.2d 922.... 40, 55 
United States v. Durbin, 542 F.2d 486.... 66
United States v. Eagle, 539 F.2d 1166,

cert, denied, 429 U.S. 1110 ....................  40
United States v. Edick, 603 F.2d 772.......  66
United States v. Eisenmann, 396 U.S.

565 .......       45
United States v. Fisher, 6 U.S. (2 Cranch)

358..............      42
United States v. Frady, 607 F.2d 383.....  66
United States v. Fredenburgh, 602 F.2d

1143 ...... ............. ................. ....... ..... .....  66, 67
United States v. Garcia, 555 F.2d 708.....  55
United. States v. Gilliland, 312 U.S. 86.... 43, 45 
United States v. Gordon, 548 F.2d 743— 45
United States v. Hamel, 551 F.2d 107__  45
United States v. Howard, 504 F.2d 1281.. 55
United States v. Jones, 607 F.2d 269....... 45
United States v. Librach, 520 F.2d 550, 

cert, denied, 429 U.S. 939 ..................... 45

V

Cases—Continued Page

53



VI

United States v. Melvin, 544 F.2d 767,
cert, denied, 430 U.S. 910 .... ................  45

United States v. Naftalin, No. 78-561
(May 21, 1979) ....................................  42

United States v. Nelson, 574 F.2d 277,
cert, denied, 439 U.S. 956 ..... .............  40

United States v. Radetsky, 535 F.2d 556,
cert, denied, 429 U.S. 820 ..................... 45

United States v. Ramirez, 482 F.2d 807,
cert, denied, 414 U.S. 1070 ............ ......  55

United States v. Risi, 603 F.2d 1193.......  55
United States v. Roach, 590 F.2d 181__  39
United States v. Sacco, 367 F.2d 368.......  66
United States v. Scott, 437 U.S. 82 .....17, 62, 65
United States v. Shillingford, 586 F.2d

372 ........ ....... ............ ..............................  39
United States v. Smith, 523 F.2d 771,

cert, denied, 429 U.S. 817 ..................... 45
United States v. Stewart, 579 F.2d 356,

cert, denied, 439 U.S. 936 ................... 39-40
United States v. Stewart, 585 F.2d 799, 

cert, denied, No. 78-6007 (Apr. 30,
1979).......................................................  39, 63

United States v. Sudduth, 457 F.2d 1198.. 55
United States v. Tateo, 377 U.S. 463....16, 64-65
United States v. Turner, 518 F.2d 14.....  66
United States v. Universal C.l.T. Credit

Corp., 344 U.S. 218 ..... ......... ..... .........  52
United States v. Vaughan, 598 F.2d 336.. 40
United States v. Welty, 426 F.2d 615.......  66
United States v. Wilson, 420 U.S. 332.... 65, 67 
United States v. Wiltberger, 18 U.S. (5 

Wheat.) 76 ............................................  18

Cases— Continued Page

54



VII

Wayne County Prosecutor v. Recorder's 
Court Judge, 280 N.W. 2d 793, appeal 
dismissed sub nom. Brintley v. Michi­
gan, No. 79-5506 (Nov. 13, 1979)......  56

West v. United States, No. 78-5252 (6th
Cir., Nov. 14, 1979) ............................  56

Whaley v. North Carolina, 379 F.2d 221.. 66

Constitution and statutes:
United States Constitution:

Fifth Amendment (Double Jeopardy
Clause) ....................................... ;passim

(Due Process Clause) ....................... 63, 69
Gun Control Act of 1968:

Pub. L. No. 90-618, 82 Stat. 1213..24, 26, 43
Omnibus Crime Control and Safe Streets 

Act of 1968, Pub. L. No. 90-351, 82
Stat. 197 ................................................  25

Omnibus Crime Control Act of 1970, Title
II, Pub. L. No. 91-644, 84 Stat. 1889.... 34

18U.S.C. 1(1) ..........................................  18
18 U.S.C. 2 ........................ 2, 5,14,15, 48, 52, 54
18 U.S.C. I l l  ............................  passim
18 U.S.C. 659 ..............................    22
18 U.S.C. 922 ...........................................  26
18 U.S.C. 922(h) .....................................  4
18 U.S.C. 924(a) .....................................  4
18 U.S.C. 924(c) ...................................... passim
18 U.S.C. 924(c)(1) .........   passim
18 U.S.C. 924(c)(2) ......................  passim
18 U.S.C. 1202(a)(1) ............................  4

Cases—Continued Page

55



VIII

Constitution and statutes—Continued Page
18 U.S.C. 2113 .......
18 U.S.C. 2113(d) ..
18 U.S.C. 2115 .......
21 U.S.C. 841(a)(1) 
21 U.S.C. 843(b) ....
21 U.S.C. 846 .........
26 U.S.C. 5861(c) .. 
26 U.S.C. 5861(d) ..
26 U.S.C. 5871 .......
28 U.S.C. 2106 .......
28 U.S.C. 2255 .......
42 U.S.C. 1983 .......

..............passim
9, 20, 39, 40, 43 
................ 22

..............  4
4

..............  4
4
4

______  4
.3,15, 57, 61, 70
.............. 60

44

Miscellaneous:
114 Cong. Rec. (1968):

p p . 21788-21789 .... . 56
p. 21792 ..................... 56
p. 22229 - ___ _____ 27
p . 22231 ....... ......... . .........24, 26, 28, 32, 56
p p . 22232-22235 ....... 28
p. 22232 .......... ........ . -------12, 24, 28, 29, 30
p. 22233 ..................... .28, 29, 32
p. 22234 ..................... 33
p. 22236 ........ ............ 56
p . 22237 ..................... 33
p . 22243 .................... ....  32,33
p . 22245 ..... .......... . 56
p p . 22247-22248 ___ 33
p . 22247 ..................... ....  31, 33
p . 22248 ___ ______ .... 33-34
p . 23094 ..................... 34
p p . 27142-27144 ....... 37
p. 30183 .................... 34

56



IX

Miscellaneous—Continued Page
p. 30579 ..............................................  34
p. 30580 ..............................................  34
pp. 30581-30582 ................ ....... .......  35
p. 30581 ..............................................  35
p. 30583 ....................    35
p. 30584 ..............................................  34, 35
p. 30586 ........     35
p. 30587 ........................................  34

Anti-Crime Program: Hearings on H.R.
5037, H.R. 5038, H.R. 538If, H.R. 5385 
and H.R. 5386 Before Subcomm. No. 5 
of the House Comm, on the Judiciary,
90th Cong., 1st Sess. 213 (1968) ......... 25

H.R. Conf. Rep. No. 1956, 90th Cong., 2d
Sess. (1968) ..........................................  34

H.R. Rep. No. 1577, 90th Cong., 2d Sess.
(1968).............        25

Report by the President’s Commission on 
Law Enforcement and Administration 
of Justice, The Challenge of Crime In
A Free Society (Feb. 1967) .................  25

2A C. Sands, Statutes and Statutory Con­
struction (3 ed. 1973) ...........    44

S. Rep. No. 1097, 90th Cong., 2d Sess.
(1968)........................      25

S. Rep. No. 1501, 90th Cong., 2d Sess.
(1968)...........       25

Stern, When to Cross-Appeal or Cross- 
Petition— Certainty or Confusion?, 87 
Harv. L. Rev. 763 (1974) ....... ...........  71

57



3u th? Brtjircmp (Emirt nf tlu> Hmteft States
October Term, 1979

No. 78-6020
Michael M. Busic, petitioner 

v.
United States of America

No. 78-6029
Anthony LaRocca, J r., petitioner

v.
United States of America

ON W R IT S  O F C E R T IO R A R I TO T H E  
U N IT E D  S T A T E S  CO URT O F A P P E A L S  

FO R  T H E  T H IR D  C IR C U IT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinions of the court of appeals (App. 36-54, 
57-60) are reported at 587 F.2d 577. The opinion of 
the district court (App. 21-34) is not reported.

(1)

59



2

JURISDICTION

The judgment of the court of appeals (App. 55-56) 
was entered on January 5, 1978; thereafter, the gov­
ernment’s petition for rehearing was granted, and the 
judgment on rehearing (App. 61) was entered on 
December 12, 1978. The petition for a writ of cer­
tiorari in No. 78-6020 was filed on January 10, 1979, 
and the petition for a writ of certiorari in No. 78- 
6029 was filed on January 11, 1979. The petitions 
were granted and the cases consolidated on June 4, 
1979 (App. 62, 63). The jurisdiction of this Court 
rests on 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether sentence may be imposed under 18 
U.S.C. 924(c) where the statute creating the predi­
cate felony permits an enhanced penalty for use of 
a dangerous weapon, but the enhancement provision 
is not invoked and thus the defendant’s punishment 
is not doubly enhanced because of his use of a fire­
arm (No. 78-6029).

2. Whether, in the circumstances of this case, con­
secutive sentences may be imposed for aiding and 
abetting a co-conspirator’s assault with a deadly 
weapon (a firearm) upon a federal officer, in viola­
tion of 18 U.S.C. 2 and 111, and for unlawfully carry­
ing a second firearm during the commission of that 
assault, in violation of 18 U.S.C. 924(c) (2) (No. 78- 
6020).

3. Whether, in the event the Court vacates peti­
tioners’ Section 924(c) sentences, the disposition of

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3

the case that would be “just under the circumstances” 
(28 U.S.C. 2106) would be to remand to the district 
court for re-sentencing on the Section 111 counts, 
subject to the restriction that the re-sentence not 
exceed the sentence petitioners originally received for 
the armed assault offenses under Sections 924(c) and 
111.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

1. The Fifth Amendment to the United States 
Constitution provides in pertinent part:

* * * [N]or shall any person be subject for the 
same offense to be twice put in jeopardy of life 
or limb * * *.

2. 18 U.S.C. 924(c) provides:
Whoever—

(1) uses a firearm to commit any felony for 
which he may be prosecuted in a court of the 
United States, or
(2) carries a firearm unlawfully during the 
commission of any felony for which he may 
be prosecuted in a court of the United 
States [,]

shall, in addition to the punishment provided for 
the commission of such felony, be sentenced to 
a term of imprisonment for not less than one 
year nor more than ten years. In the case of his 
second or subsequent conviction under this sub­
section, such person shall be sentenced to a term 
of imprisonment for not less than two nor more 
than twenty-five years and, notwithstanding any

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4

other provision of law, the court shall not 
suspend the sentence in the case of a second or 
subsequent conviction of such person or give him 
a probationary sentence, nor shall the term of 
imprisonment imposed under this subsection run 
concurrently with any term of imprisonment im­
posed for the commission of such felony.

3. 18 U.S.C. I l l  provides:
Whoever forcibly assaults, resists, opposes, im­

pedes, intimidates, or interferes with any person 
designated in section 1114 of this title while en­
gaged in or on account of the performance of his 
official duties, shall be fined not more than $5,000 
or imprisoned not more than three years, or both.

Whoever, in the commission of any such acts 
uses a deadly or dangerous weapon, shall be fined 
not more than $10,000 or imprisoned not more 
than ten years, or both.

S T A T E M E N T

Following a jury trial in the United States Dis­
trict Court for the Western District of Pennsylvania, 
petitioners were convicted on five counts of narcotics 
offenses, in violation of 21 U.S.C. 841(a) (1), 843(b), 
and 846 (Counts 1-5), and on six counts of unlawful 
possession of firearms, in violation of 26 U.S.C. 5861 
(c) and (d), 5871, and 18 U.S.C. 922(h) and 924
(a) (Counts 8-13)d Petitioners were also convicted

1 P e tit io n e r  B usic w as n o t charged  in  C oun t 12. B usic was 
a lso  convicted on th re e  ad d itio n a l counts of un law fu l posses­
sion of firearm s, in  v io la tion  of 18 U .S.C. 1 2 0 2 (a ) (1) (Counts 
14-16). B o th  B usic an d  L aR occa h a d  p rev iously  been con­
vic ted  o f firearm  and  a ssa u lt felonies (A pp. 11-14).

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5

on two counts of armed assault on federal officers, in 
violation of 18 U.S.C. 2 and 111 (Counts 6 and 7). 
In addition, petitioner Busic was convicted of unlaw­
fully carrying a firearm in the commission of a fed­
eral felony, in violation of 18 U.S.C. 924(c)(2) 
(Count 18), and petitioner LaRocea was convicted 
of using a firearm in the commission of a federal 
felony, in violation of 18 U.S.C. 924(c)(1) (Count 
19).

Petitioners were each sentenced to a total of 30 
years’ imprisonment, apportioned as follows: concur­
rent terms of five years’ imprisonment on Counts 1 
through 4, with special parole terms on each count 
ranging from two to three years, and of four years’ 
imprisonment on Count 5; five years’ imprisonment on 
Counts 6 through 13, to be served concurrently with 
each other but consecutively to the sentences on 
Counts 1 through 5; petitioner Busic was also sen­
tenced to terms of two years’ imprisonment on Counts 
14 through 16, to be served concurrently with each 
other and with the sentences imposed on Counts 6 
through 13, and to 20 years’ imprisonment on Count 
18, to be served consecutively to all other terms; pe­
titioner LaRocea was sentenced to 20 years’ imprison­
ment on Count 19, to be served consecutively to all 
other terms.

The evidence at trial showed that Charles D. Har­
vey, an undercover agent of the Drug Enforcement 
Administration, first met petitioners on May 7, 1976, 
at the home of Richard Hervaux, a government in­
formant. At that time petitioners agreed with Har­

63



6

vey that he would accompany them to Florida to pur­
chase drugs from one of their suppliers for re-dis­
tribution in the Pittsburgh area. Several days later, 
Harvey again met with petitioners and received sam­
ples of the marijuana and cocaine that he was to 
purchase from their Florida source. The next day, 
after Harvey had arranged for his trip to Florida, 
LaRocca called him and insisted on seeing some 
“front money.” A meeting was set for the following 
day in the parking lot of a shopping center in Mon­
roeville, Pennsylvania (App. 38).

After he arranged for surveillance, Harvey went 
to the shopping center with $30,000 in cash, as agreed. 
Petitioners were already there in LaRocca’s car. La­
Rocca entered Harvey’s car, and the two drove to the 
other side of the parking lot. As Harvey withdrew 
the money from the trunk, LaRocca reached for his 
gun. Harvey ran, but LaRocca caught him and 
pointed his gun at Harvey’s chest. At that point 
Harvey gave a pre-arranged signal to the surveil­
lance agents; as the agents began to converge on the 
scene, LaRocca fired at Harvey and missed. LaRocca 
then fired two shots at the vehicle containing agents 
Alfree and Petraitis of the Bureau of Alcohol, To­
bacco, and Firearms, and two shots at the vehicle 
containing agent Macready of the DEA. LaRocca was 
immediately arrested and disarmed (App. 38-39).

The officers also arrested Busic, who had been 
leaning on a nearby car during the shootout. Upon 
his arrest, Busic exclaimed, “Remember, I didn’t shoot 
at anybody and I didn’t pull my gun” (Tr. 41).

64



7

Busic was thereupon searched, and a pistol was 
found in his belt. A search of LaRocca’s car un­
covered an attache case containing another pistol and 
a plastic box containing ammunition. An inventory 
search of the car conducted the following day dis­
closed yet another pistol under the driver’s seat and 
another box of ammunition in the glove compartment 
(App. 39).

In an opinion issued prior to the decision of this 
Court in Simpson v. United States, 435 U.S. 6 (1978), 
the court of appeals held that 18 U.S.C. 924(c) (1) is 
applicable to a defendant who is also charged with 
aggravated assault of a federal officer under 18 
U.S.C. I l l  (App. 41-43). It further held, however, 
that when the deadly weapon used in the Section 111 
assault is a firearm and the felony charged under 
Section 924(c) (1) is the assault that forms the basis 
of the charge under Section 111, sentencing the de­
fendant on both counts would violate the Double 
Jeopardy Clause (id. at 43-47). Accordingly, the 
court of appeals remanded petitioner LaRoeca’s case 
to the district court for resentencing under either 
Section 111 or Section 924(c)(1), at the govern­
ment’s election, but not both (App. 47). In contrast, 
the court affirmed petitioner Busic’s convictions be­
cause it concluded that a prosecution for unlawfully 
carrying a weapon during the commission of a felony 
under 18 U.S.C. 924(c) (2) requires proof of an ele­
ment-—the unlawful possession of a firearm—that is 
not an element of the offense under Section 111 (App. 
47-48).

65



8

Following this Court’s decision in Simpson, the 
court of appeals granted a petition for rehearing, 
vacated the portion of its first opinion dealing with 
the Double Jeopardy Clause, and reached the same 
disposition of the case by applying the rationale of 
this Court’s opinion in Simpson (App. 57-60). The 
court of appeals concluded (id. at 59-60) that Simp­
son prohibits sentencing a defendant under both 
Section 111 and Section 924(c) (1), but that the gov­
ernment has the option of proceeding under either 
section; accordingly, it remanded LaRocca’s case for 
resentencing, in the discretion of the government, 
under either Section 111 or Section 924(c) ( l ) .2 The 
court found the rationale of Simpson inapplicable to 
Busic’s conviction under Section 924(c)(2) for un­
lawfully carrying a firearm during the commission 
of a felony, and it affirmed that conviction (id. at 
60 ) .  * 47

2 T he c o u rt o f appeals, b o th  in  its  o rig in a l opinion (A pp.
47 n .5 ) an d  ag a in  on re h e a r in g  (A pp. 60 n .3 ) , re jec ted  the 
g o v e rn m en t’s a lte rn a tiv e  a rg u m e n t th a t  L aR occa’s conviction 
u n d e r S ection  92 4 (c ) could be upheld  on th e  g ro u n d  th a t  
p e tit io n e rs ’ firea rm s w ere  c a rr ie d  an d  used n o t only in  the  
com m ission of th e  a s sa u lt  offense, b u t also in  th e  com m ission 
of th e  n a rco tics  consp iracy  o f w hich  th e  ju r y  h ad  convicted 
th em . T he c o u rt concluded th a t  “ [i] t  is a  f a i r  in fe ren ce  from  
th e  reco rd  th a t  th e  consp iracy  to  d is tr ib u te  d ru g s te rm in a te d  
a s  o f th e  tim e  th a t  [p e titio n e rs ]  decided to  rob H a rv e y ” and 
th a t  “th e  ju r y  w as en titled  to  convict [p e titio n e rs] on these 
[consp iracy ] counts even if  i t  found  th a t  th e  consp iracy  was 
s h o r te r  in  d u ra tio n  th a n  w as charged  in  th e  in d ic tm en t” 
(A pp. 47 n .5 ) . W e do n o t p re ss  th a t  a rg u m e n t in  th is  C ourt, 
an d  th u s  i t  can  be assum ed  th a t  th e  p re d ic a te  fe lony  fo r 
p e titio n e rs ’ convictions u n d e r  Section  92 4 (c ) w as th e  assau lt 
on fed e ra l officers.

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9

SU M M A RY  O F A R G U M E N T

In Simpson v. United States, 435 U.S. 6 (1978), 
this Court held that in a prosecution for a bank 
robbery committed with firearms “where the Gov­
ernment relied on the same proofs to support the 
convictions under [18 U.S.C. 924(c) and 18 U.S.C. 
2113(d)]” (435 U.S. at 12), Congress did not in­
tend “to authorize, * * * not only the imposition of 
the increased penalty under § 2113(d), but also the 
imposition of an additional consecutive penalty under 
§ 924(c)” (435 U.S. at 8). The Court found that 
the legislative history of Section 924(c), although 
“sparse” (435 U.S. at 15), “points in the direction 
of a congressional view” (ibid.) that cumulative 
penalties under Section 924(c) were not to be im­
posed when the defendant had already received an 
enhanced sentence under Section 2113(d) for the same 
conduct. The Court also concluded that “to construe 
the statute to allow the additional sentence authorized 
by § 924(c) to be pyramided upon a sentence already 
enhanced under § 2113(d) would violate the estab­
lished rule of construction that ‘ambiguity concern­
ing the ambit of criminal statutes should be resolved 
in favor of lenity’ ” (435 U.S. at 14; citation 
omitted).

In No. 78-6029, petitioner LaRocca presents the 
question whether a defendant who uses a firearm to 
assault a federal officer may be sentenced, at the 
discretion of the government, either under 18 U.S.C. 
924(c)(1) or under the enhancement provision of 
18 U.S.C. 111. While we acknowledge that the hold­

67



10

ing in Simpson would bar an enhanced sentence un­
der Section 111 for armed assault and an additional, 
cumulative sentence under Section 924(c) (1) for use 
of the same firearm, Simpson does not resolve the 
distinct question whether sentence may be imposed 
under Section 924(c)(1) when the defendant is not 
sentenced to the enhanced penalty provided in Section
111. In our view, “ [t]he overall structure of the Act, 
Congress’ statements of purpose and policy, the legis­
lative history, and the text” (Board of Education of 
the City of New York v. Harris, No. 78-873 (Nov. 
28, 1979), slip op. 10) of Section 924(c) all support 
the court of appeals’ decision that a defendant can 
be sentenced, at the government’s election, either un­
der Section 924(c) or under the enhancement pro­
vision of the predicate felony.

The language of Section 924(c) unambiguously 
states that it applies to all federal felonies, and 
no exception is made for felonies that have their 
own enhancement provision for using a dangerous 
weapon. In addition, the penalties provided in 
Section 924(c) were specially designed to deter 
firearm violations and are qualitatively and quan­
titatively different from those contained in Section 
111. Under Section 924(c), the sentence imposed for 
the firearm offense cannot be concurrent to the sen­
tence for the predicate felony and, in cases of repeat 
offenders, the defendant cannot receive probation or 
a suspended sentence. None of these restrictions is 
applicable to a sentence under Section 111. Likewise, 
Section 924(c) provides a minimum mandatory sen­

68



11

tence of one year’s imprisonment, and a maximum of 
10 years’ imprisonment, for a defendant convicted 
of his first firearm offense; for repeat offenders, the 
mandatory minimum term of imprisonment is two 
years, with a maximum of 25 years. Section 111, on 
the other hand, provides a sentence of no more than 
10 years’ imprisonment for an armed assault of a 
federal officer (an enhanced penalty of only seven 
years above the maximum term of three years for 
simple assault), requires no mandatory minimum sen­
tence, and makes no provision for increased sentences 
for recidivists. Given these differences in the penalty 
structures, it is highly unlikely that Congress in­
tended that a defendant who used a firearm to assault 
a federal officer would be completely exempt from 
sentence under Section 924(c) and would be subject 
only to the lesser punishment provided in Section 
111. A contrary conclusion in this case, unlike in 
Simpson, would not “give[] full play to [] the de­
terrence rationale of § 924(c)” (435 U.S. at 14). 
Moreover, acceptance of petitioners’ construction of 
Section 924(c) would lead to the improbable results, 
again not likely to have been intended by Congress, 
of punishing more leniently (a) the use of a firearm 
to assault a federal officer than the use of the same 
firearm to commit virtually any other federal felony, 
and (b) the actual use of the firearm to commit an 
assault than unlawfully carrying (but not using) the 
firearm during the commission of an assault. 3

3 P r io r  to  en ac tm en t of Section 9 2 4 (c ) , th e  offenses of bank  
robbery and  a ssa u lt on a  fed e ra l officer w ere singled^ o u t fro m  
the en tire  panoply  of fed e ra l offenses as  ones req u irin g  spe­

69



12

The legislative history of Section 924(c) further 
supports the view that Congress intended defend­
ants who use firearms to assault federal officers 
would be subject to the stiff penalties specified in that 
provision. The Gun Control Act of 1968 in general, 
and Section 924(c) in particular, were enacted to in­
crease both the deterrence and the punishment of 
firearm offenses. These objectives were forcefully ad­
vanced by Congressman Poff, who introduced the floor 
amendment that was substantially enacted as Section 
924(c), and his proposal was specifically designed to 
increase both the certainty and the length of im­
prisonment for firearm offenders. While Congress­
man Poff did state, in a passage heavily relied on in 
Simpson, that his amendment “is not intended to 
apply to title 18, section[] 111 * * * which already 
define [s] the penalties for the use of a firearm in 
assaulting officials” (114 Cong. Rec. 22232 (1968)), 
it is inconceivable that he intended by this statement 
that defendants who used firearms to assault federal 
officers would be exempt altogether from the specific 
and strict penalty scheme of Section 924 (c).

We do not believe that Congressman Poff was ad­
dressing himself to the question (which was not 
raised in the debates) whether Section 924(c) could 
be invoked in lieu of the enhancement provisions in

cial d e te rre n ts , in  th e  fo rm  of increased  p enalties, to  th e  use 
of firea rm s in  th e ir  com m ission. I t  defies reason  to  suppose 
th a t  in  1968, w hen Section  9 2 4 (c ) w as enacted , Congress 
com pletely reversed  its  field and  concluded th a t  th e  offenses 
fo r  w hich m ore severe  pen a ltie s  h ad  p rev iously  been applied 
should th e re a f te r  be  tre a te d  w ith  special leniency.

70



13

existing law for using dangerous weapons. It is one 
thing to conclude on the basis of this statement, as 
the Court did in Simpson, that Congress did not in­
tend to permit the double enhancement of sentences 
where a defendant is charged and convicted under 
both Section 924(c) and the aggravated offense pro­
visions of Sections 111 or 2113; it is quite a differ­
ent matter, however, to determine that Congress 
meant to foreclose the prosecutor from charging, and 
the court from sentencing, under the penalty pro­
visions of Section 924 (c) at all.

Moreover, Congressman Poff expressly recognized 
that existing law was inadequate to deter and punish 
crimes involving the use of firearms. Indeed, Con­
gressman Poff voted against the Conference Report, 
even though it adopted his amendment in large meas­
ure, because it modified his proposal by deleting the 
prohibition on concurrent sentences and limiting to 
repeat offenders the ban on probation and suspended 
sentences. In light of his clear and strongly held posi­
tion on the need for more severe penalties for firearm 
offenses and his vote against the Conference Report 
because it weakened certain sentencing provisions in 
his amendment, we submit it is highly unlikely that 
Congressman Poff intended that armed assaults on 
federal officers be punished solely under the existing 
enhancement provision of Section 111—a provision 
that not only has lesser terms of incarceration than 
Section 924(c), but also contains no restrictions 
against suspended or concurrent sentences or proba­
tion. The legislative history contains no suggestion

71



14

that Congressman Poff did not fully expect that de­
fendants who used firearms to assault federal officers 
would be subject to the stringent penalties under 
Section 924(c) that were specifically enacted to curb 
firearm offenses.

Since the text and legislative history of Section 
924(c) clearly show that its penalty provisions were 
intended to be applicable here, there is no occasion 
to resort to the rule of lenity. “ [I]n the instant case 
there is no ambiguity to resolve. * * * Where, as 
here, ‘Congress has conveyed its purpose clearly, * * * 
we decline to manufacture ambiguity where none 
exists/ ” United States v. Batchelder, No. 78-776 
(June 4, 1979), slip op. 7, quoting United States v. 
Culbert, 435 U.S. 371, 379 (1978).

II

In No. 78-6020, petitioner Busic contends that 
Simpson prohibits the imposition of consecutive sen­
tences for an armed assault on a federal officer, in­
violation of the enhancement provision of 18 U.S.C. 
111, and for unlawfully carrying a firearm during 
the commission of that assault, in violation of 18 
U.S.C. 924(c) (2). In the circumstances of the pres­
ent case, this contention is without merit. Petitioner 
Busic was convicted and sentenced under 18 U.S.C. 
2 and 111 for aiding and abetting LaRocca’s use of 
a firearm to assault federal officers; Busic was sen­
tenced to an enhanced penalty under Section 111 be­
cause LaRocca, aided and abetted by Busic, had 
used a firearm. In addition, Busic was also convicted 
and sentenced under Section 924(c)(2) for unlaw­
fully carrying (but not using) a second firearm dur-

72



15

ing the commission of that assault. Busie’s two con­
secutive sentences on these convictions are thus based 
on two separate firearms; Busic is directly liable 
for unlawfully carrying his own gun and is vicar­
iously liable as an aider and abettor for LaRocca’s 
use of a firearm. Nothing in Simpso7i remotely pre­
cludes this result.

Nor do these consecutive sentences violate the 
Double Jeopardy Clause. Under Blockbwrger v. 
United States, 284 U.S. 299, 304 (1932), each of the 
offenses under 18 U.S.C. 2 and 111 and 18 U.S.C. 
924(c)(2) plainly “requires proof of a fact whfch 
the other does not.” Furthermore, since the two of­
fenses in this case related to separate firearms, the 
government was required to prove as independent 
facts that a different firearm was involved in each 
count; proof regarding the firearm in one offense did 
not serve to satisfy any of the elements of the other 
offense. See Brown v. Ohio, 432 U.S. 161, 167 n.6 
(1977). Accordingly, the Double Jeopardy Clause 
does not bar Busic’s consecutive sentences.

Ill

In the event the Court disagrees with our principal 
contention and vacates petitioners’ sentences under 
Section 924(c), we submit that the disposition of the 
case that would be “just under the circumstances” 
(28 U.S.C. 2106) would be to remand for re-sentenc­
ing on the Section 111 counts, subject to the restric­
tion that the re-sentence could not exceed the sen­
tences petitioners originally received for the armed 
assault offenses under Sections 924(c) and 111.

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16

Petitioners were each convicted on more than a 
dozen felony counts, including, as relevant here, two 
armed assaults on federal officers. Prior to the de­
cision in Simpson v. United States, petitioners were 
sentenced to 25 years’ imprisonment for these armed 
assaults—20 years’ imprisonment under Section 924 
(c), and five years’ imprisonment under Section 111 
(concurrent with other terms of incarceration that 
are unaffected by this appeal). Petitioners’ armed 
assaults on federal officers—whether denominated as 
violations of Section 924(c), or of Section 111, or 
both—plainly warrant the severe condemnation and 
punishment ordered by the district court. However, 
if this Court overturns petitioners’ Section 924(c) 
sentence but does not remand for re-sentencing on 
the Section 111 counts, only a five-year term of im­
prisonment would be imposed for the armed assault 
offenses. Such an unforeseen and undeserved wind­
fall to petitioners should not be countenanced.

The Double Jeopardy Clause does not bar such re­
sentencing. As this court has recognized in North 
Carolina v. Pearce, 395 U.S. 711 (1969), and Bozza 
v. United States, 330 U.S. 160 (1947), the Double 
Jeopardy Clause does not in all situations protect a 
defendant from receiving a greater sentence than was 
initially imposed. In particular, we submit that the 
Double Jeopardy Clause does not require the Court 
to ignore the important “societal interest in punish­
ing one whose guilt is clear” ( United States v. Tateo, 
377 U.S. 463, 466 (1964)) and in ensuring that such 
punishment is commensurate with the character of

74



17

the defendant and the nature and severity of his 
criminal conduct. In the instant case, petitioners’ 
original sentences under Section 924(c) and Section 
111 derive from the same armed assaults on federal 
officers, petitioners have initiated the appellate pro­
ceedings that give rise to the need for re-sentencing, 
and the re-sentencing we advocate would not exceed 
the sentence for the armed assault offenses that pe­
titioners initially received. In these circumstances, it 
cannot be said in any meaningful sense that re-sen- 
tencing would be “an act of governmental oppression 
of the sort against which the Double Jeopardy Clause 
was intended to protect” {United, States v. Scott, 437 
U.S. 82, 91 (1978)) or would subject petitioners to 
“multiple punishments for the same offense” (North 
Carolina v. Pearce, supra, 395 U.S. at 717).

A R G U M E N T

I. A D E F E N D A N T  W HO U S E S  A F IR E A R M  TO  COM­
M IT  AN A S S A U L T  U PO N  A F E D E R A L  O F F IC E R  
M AY B E  S E N T E N C E D , A T  T H E  G O V E R N M E N T ’S 
E L E C T IO N , U N D E R  E IT H E R  T H E  A G G R A V A TED  
A S S A U L T  P R O V IS IO N  O F 18 U.S.C. I l l  OR T H E  
F E L O N Y -F IR E A R M  P R O V IS IO N  O F 18 U.S.C. 924 
(c )(1 )
A. S ection  924(c) By I t s  T e rm s  A pplies To F e lo n ies  

T h a t P ro v id e  A n E n h an ced  P e n a lty  F o r  T he U se 
Of A D an g e ro u s  W eapon.

This Court has repeatedly recognized that the pri­
mary guide to the meaning of a statute is its text. 
See, e.g., Perrin v. United States, No. 78-959 (Nov. 
27, 1979), slip op. 5; Andrus v. Allard,, No. 78-740 
(Nov. 27, 1979), slip op. 4; Touche Ross & Co. v.

75



18

Redington, No. 78-309 (June 18, 1979), slip op. 7-8; 
Southeastern Community College v. Davis, No. 78- 
711 (June 11, 1979), slip op. 6; Reiter v. Sonotone 
Corp., No. 78-690 (June 11, 1979), slip op. 3-4; 
Greyhound Co'rp. v. Mt. Hood Stages, Inc., 437 U.S. 
322, 330 (1978); Scarborough v. United States, 431 
U.S. 563, 569 (1977); Santa Fe Industries, Inc. v. 
Green, 430 U.S. 462, 472 (1977); Ernst & Ernst 
v. Hochfelder, 425 U.S. 185, 200-201 (1976); United 
States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95-96 
(1820). Here, the language defining the offense in 
Section 924(c) clearly supports our position that a 
defendant may be sentenced under that provision not­
withstanding that the predicate felony provides, as 
an alternative to Section 924(c)(1), an enhanced 
penalty for using a dangerous weapon. Section 924 
(c) on its face states plainly that it applies to any­
one who “uses a firearm to commit any felony for 
which he may be prosecuted in a court of the United 
States” and that such a person “shall, in addition to 
the punishment provided for the commission of such 
felony, be sentenced to a term of imprisonment for not 
less than one year nor more than ten years” (em­
phasis added).4 A felony for such purposes is defined 
by 18 U.S.C. 1(1) as “ [a]ny offense punishable by 
death or imprisonment for a term exceeding one 
year,” a definition that clearly includes assaulting a

4 M ore severe  sanctions a re  im posed upon a  second o r  sub­
sequen t offender, w ho faces a  sen tence  of a t  le a s t tw o and 
as  m any  as 25 y e a rs ’ im prisonm en t.

76



19

federal officer in violation of 18 U.S.C. 111. Thus, 
while it does not speak to the double enhancement 
issue presented in Simpson, Section 924(c) by its 
terms does authorize sentencing pursuant to its pro­
visions for the commission of a federal felony with a 
firearm regardless of whether the predicate felony 
contains an enhancement provision for the use of a 
firearm or other dangerous weapon.

B. T he S en ten c in g  P ro v is io n s  O f S ection  924(c) Dem­
o n s tra te  C ongress’ In te n t  T h a t  P u n ish m e n t Be 
Im posed  In  A ccordance  W ith  T h e  T e rm s Of That 
S ta tu te  N o tw ith s ta n d in g  T h a t T he  P re d ic a te  Fel­
ony C o n ta in s  A n E n h an ced  P e n a lty  F o r  The Use 
Of A  D an g e ro u s  W eapon.

This construction—that sentence may be imposed 
under Section 924(c) even where the underlying 
felony provides an enhanced penalty for the use of a 
dangerous weapon—is supported by the sentencing 
provisions of Section 924(c). Instead of merely au­
thorizing imposition of longer terms of incarceration 
than can be imposed under the various enhancement 
statutes, Section 924(c) establishes mandatory mini­
mum sentences, requires increasingly severe sentences 
for recidivists (without possibility of suspension or 
probation), and prohibits concurrent sentencing. 
Thus, a first offender under Section 924(e) must re­
ceive at least a one-year consecutive sentence and may 
receive a 10-year consecutive sentence, while a repeat 
offender must serve (without suspension or proba­
tion) a minimum two-year consecutive sentence and 
may receive (without suspension or probation) a

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2 0

consecutive 25-year sentence.3 By contrast, neither 
Section 111 nor Section 2113(d) prescribes manda­
tory minimum sentences or prohibits concurrent sen­
tences, suspended sentences or probation. Moreover, 
the maximum sentence of 10 years’ imprisonment un­
der the enhancement provision of Section 111 is only 
seven years greater than the maximum sentence for 
simple assault, and no increased penalty is provided 
for second or subsequent offenders.5 6

In our view, it is most unlikely that Congress in­
tended to subject persons who commit armed assaults 
on federal officers to lesser penalties, and thus to a 
lesser deterrent, than all other gun-wielding felons. 
Having specifically studied the firearm problem, Con­
gress responded by enacting the strict, and unique, 
sentencing provisions of Section 924(c) in order to 
deter and punish more severely the incidence of fire­
arm offenses. No reason suggests itself why Congress 
conceivably would have exempted from this specific

5 A s w e discuss below  (pages 24-37, infra ) , these  com pre­
hensive  pen a ltie s  reflect C ongress’ d e te rm in a tio n  to  cu rb  the  
p a r tic u la r ly  le th a l r isk s  c rea ted  by  th e  use of a  firea rm  in 
th e  com m ission o f a  fe lony— risk s  th a t  C ongress could leg iti­
m ate ly  have  concluded a re  m ore serious th a n  th e  risk s  a tte n d ­
in g  th e  use o f a n y  o th e r  d an g ero u s w eapon, w h ich  would be 
sufficient to  t r ig g e r  th e  en hancem en t p rov ision  o f Section 111.

6 S im ilarly , th e  m ax im um  sen tence fo r  a g g ra v a te d  bank 
ro b b ery  u n d e r Section 2 1 1 3 (d ) is only five y ea rs  g re a te r  th an  
th e  m ax im um  fo r  sim ple  b ank  robbery , w h e th e r  o r  n o t the  
ro b b e r is a  rec id iv ist. In  c o n tra s t, u n d e r Section 9 2 4 (c ) , the  
use of a  gun  in  th e  com m ission of th e  ro b b ery  w ould sub ject 
th e  d e fen d an t to  a n  ad d itio n a l sen tence o f up to  10 y ea rs  fo r  
a  f irs t offense and  up  to  25 y e a rs  fo r  a  second offense. See 
United States V. Brown, 602 F .2d  909, 912 & n.2 (9 th  Cir. 
1979).

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21

firearm legislation those defendants who use such 
firearms to commit federal felonies that have their 
own enhancement provisions for the use of dangerous 
weapons.7 Petitioners’ construction of Section 924(c) 
has the perverse consequence of rendering the stiff 
penalty provisions that Congress enacted to deter the 
increasing use of firearms inapplicable to the very 
class of offenses—including assault on a federal of­
ficer and bank robbery-—where Congress had already 
found that enhanced penalties were needed to deter 
and punish those who used dangerous weapons. Un­
like in Simpson, where the Court found that double 
enhancement of punishments 'was not necessary to 
promote the statutory objectives, it cannot be con­
cluded in the present case that petitioners’ argument 
“is in complete accord with, and gives full play to, 
the deterrence rationale of § 924(c)” (435 U.S. at 
14).

Nor is it possible fairly to conclude that Congress 
intended (or that the language of the statute should 
be ignored in order to bring about) the irrational re-

7 Indeed, th e  p rin c ip le  o f g iv ing  “precedence to  th e  te rm s  
of the  m ore specific s ta tu te  w here  a g en era l s ta tu te  an d  a 
specific s ta tu te  speak  to  th e  sam e concern”— on w hich th e  
Court re lied  in  Simpson (435 U .S. a t  1 5 )— suggests th a t  in 
a case w h ere  a  f irea rm  is em ployed in  th e  com m ission of a  
bank robbery  o r  an  a ssa u lt on a fed era l officer, th e  m ore spe­
cific firearm  prov ision  in  Section 92 4 (c ) should be given 
precedence over a  m ore  g en era l enhancem en t p rov ision  fo r  
dangerous w eapons. M oreover, Section 9 2 4 (c ) , w hich w as 
enacted in  1968, long  a f te r  th e  enhancem en t p rov isions of 
Section 111 o r  Section 2113, m ore fa ir ly  reflects th e  contem ­
porary  congressional view  o f the  g ra v ity  of th e  use  of firea rm s 
in the  com m ission of fed e ra l felonies. See pag e  43; infra.

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2 2

suits that would follow from petitioners’ construction 
of Section 924(c), some of which may be illustrated 
by the following examples:

(a) John Doe assaults a federal officer, threaten­
ing him with a knife; Richard Roe assaults a federal 
officer with a firearm, shooting him and wounding 
him severely. Both are subject only to the penalties 
provided by Section 111, which allows seven years’ 
enhancement for the use of any dangerous weapon. 
This result does not square with the intent of Con­
gress in enacting Section 924(c) to punish with 
special severity the criminal use of firearms.

(b) John Doe burglarizes a post office (18 U.S.C. 
2115), using a firearm to shoot the lock off the door; 
Richard Roe robs a bank with a firearm, firing a 
number of shots at patrons and employees of the 
bank, seriously wounding several. Doe is subject to 
ten years’ imprisonment under Section 924(c), Roe 
only to an enhanced penalty of five years’ under Sec­
tion 2113(d). Congress could not rationally have 
intended such a discrepancy simply because Roe used 
his firearm to rob a bank.

(c) Continuing their criminal careers, Doe and Roe 
together use firearms to hijack an interstate shipment 
(18 U.S.C. 659). As a second offender under Sec­
tion 924(c), Doe is subject to an additional penalty 
of a minimum of two years and as much as 25 years’ 
punishment, which may not be suspended or mat ■ 
concurrent with the sentence for the theft. Roe, on 
the other hand, although having committed twTo prior 
crimes of violence employing firearms (as compared

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23

to one firearm crime involving no danger to individ­
uals by Doe), must be treated as a first offender un­
der Section 924(c), subject to a maximum term of 
10 years’ imprisonment, 15 years less than that ap­
plicable to Doe, and eligible for a concurrent sentence 
or probation on the firearm charge. Again, it is im­
possible to square the more lenient treatment of Roe, 
who has a more serious history of firearms abuse, 
with the manifest congressional goal of punishing 
such abuse severely.

(d) Doe robs a bank, unlawfully carrying but not 
using a firearm; Roe robs a bank, using a firearm. 
If we are correct that Section 924(c) is applicable 
to one who unlawfully carries (but does not use) a 
firearm during the commission of a felony that pro­
vides an enhanced penalty for using a dangerous 
weapon,8 Doe is subject to the more severe penalties * 9

8 T aken  lite ra lly , p e titio n e r  B usic’s con ten tion  th a t  Section  
924(c) does n o t app ly  w hen  th e  u n d erly in g  fe lony  p rov ides 
enhanced p u n ish m en t fo r  th e  use of a f irea rm  (78-6020 B r.
9) would m ean  th a t  a  d e fen d an t could n o t be  p u n ish ed  u n d e r 
Section 924 (c) (2) f o r  un law fu lly  c a rry in g  a  firearm  d u rin g  
a bank  robbery  o r  a n  a ssa u lt  on a  fed e ra l officer. H ow ever, 
since th e  enhan cem en t p rov isions o f th o se  offenses do n o t 
penalize c a rry in g , b u t  n o t using , a dangerous w eapon, th e  end 
resu lt w ould be th a t  a d e fen d an t who un law fu lly  ca rr ie s  a 
firearm  w ould receive no enhanced  sen tence an d  w ould be 
subject to  th e  sam e p u n ish m en t as a  d e fen d an t w ho com­
m itted th e  offense w ith o u t c a rry in g  a  firearm . Such an  un- 
supportable re su lt  w ould be d irec tly  c o n tra ry  to  C ongress’ 
estab lishm ent o f a  se p a ra te  offense in  Section  92 4 (c ) (2) fo r  
unlaw fully  c a rry in g  a  firea rm  d u rin g  th e  com m ission of a 
federal felony, an d  w ould ig n o re  th e  express congressional 
purpose in  ad d in g  Section 92 4 (c ) to  th e  Gun C ontro l A ct “ to

81



24

of Section 924(c) and Roe, whose offense is plainly 
more serious, is not. This inconsistency again flies 
in the face of the clear legislative purpose of Congress 
in enacting Section 924 (c).

Rather than attributing such untenable results to 
the Congress, we believe that Section 924(c) should 
be interpreted, in accord with its clear language, to 
allow sentences to be imposed under its provisions 
even though the predicate felony contains an en­
hanced penalty for the use of a dangerous weapon.

C. The Legislative History Of Section 924(c) Confirms 
That The Sentencing Provisions Of That Statute 
Are Applicable Even Though The Underlying Fel­
ony Provides An Enhanced Penalty For The Use 
Of A Dangerous Weapon.

The Gun Control Act of 1968 (Pub. L. No. 90-618, 
82 Stat. 1213), of which Section 924(c) is a part, 
was enacted largely in response to a single concern:

p e rsu ad e  th e  m an  w ho is tem p ted  to  com m it a  F ed e ra l felony 
to  leave h is  gun  a t  hom e.” 114 Cong. Rec. 22231 (1968) (re ­
m ark s  of C ongressm an  P o ff) . E ven  C ongressm an  Poff’s 
s ta te m e n t th a t  Section  9 2 4 (c ) “ is n o t in tended  to  ap p ly ” to  18 
U .S.C . I l l  o r  18 U .S.C . 2113 (114 Cong. Rec. 22232 (1 9 6 8 )), 
upon w hich  th e  C o u rt heav ily  re lied  in  Simpson (435 U .S. a t 
13-14), w as lim ited  to  those  s ta tu te s  th a t  p rov ided  an  en­
hanced  p en a lty  fo r  th e  use o f a firearm . T hus, th e re  is no ba­
sis fo r  im p u tin g  to  C ongress th e  loophole th a t  w ould ex is t if 
th e  p en a ltie s  u n d e r Section  92 4 (c ) (2) f o r  u n law fu lly  c a rry ­
in g  a  firearm  a re  n o t app licab le  to  those  fed e ra l felonies, such 
as  Sections 111 an d  2113, th a t  co n ta in  a n  enhan cem en t p ro ­
v ision  fo r  u sing  a  dangerous w eapon.

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25

the “increasing rate of crime and lawlessness and the 
growing use of firearms in violent crime” (H.R. Rep. 
No. 1577, 90th Cong., 2d Sess. 7 (1968)). The 
worsening crime situation in recent years had aroused 
considerable attention and alarm in Congress. Dur­
ing 1967, Congress held extensive hearings on crime 
control legislation, including proposed gun control 
bills, in which frequent references were made to the 
fact that in 1965 firearms were used in approxi­
mately 5,600 murders, 34,700 aggravated assaults, 
and the vast majority of the 68,400 armed robberies, 
and that guns killed all but 10 of the 278 law en­
forcement officers murdered in the preceding five 
years.1* More recent and even more troubling statistics 
on the use of firearms in violent crime were cited in 
Attorney General Clark’s letter to Congress request­
ing adoption of the Gun Control Act (H.R. Rep. No. 
1577, supra, at 18-20) and in the Senate and House 
Judiciary Committee Reports on the Act (id. at 7-8; 
S. Rep. No. 1501, 90th Cong., 2d Sess. 22 (1968)). 9

9 These figures w ere  se t fo r th  in  th e  R e p o rt by  th e  P re s i­
dent’s C om m ission on L aw  E n fo rcem en t and  A d m in is tra tio n  
of Justice , pub lished  in  F e b ru a ry  1967 as The Challenge of 
Crime In A Free Society 239. See Anti-Crime Program: 
Hearings on H.R. 50S7, H.R. 5038, H.R. 538U, H.R. 5385 and 
H.R. 5386 Before Subcomm. No. 5 of the House Comm, on 
the Judiciary, 90 th  Cong., 1 st Sess. 213, 241, 261 (1967). T he 
Crime C om m ission’s R e p o rt w as also considered  by  th e  S enate  
Jud ic ia ry  C om m ittee in  connection w ith  th e  leg isla tion  even­
tually enacted  as th e  O m nibus C rim e C ontro l an d  S afe  S tree ts  
Act of 1968. S. R ep. No. 1097, 90 th  Cong., 2d Sess. 31 (1968). 
The C om m ittee R ep o rt on th a t  b ill c ited  f u r th e r  s ta tis tic s  on 
the use of firearm s in  th e  com m ission of serious crim es, in ­
dicating sign ifican t increases in 1966 an d  1967 over th e  1965 
figures reflected in  th e  C rim e C om m ission R ep o rt {id. a t  76 ).

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26

Congress confronted the danger revealed by these 
figures with a two-pronged approach. First, it ex­
panded federal control over the sale and shipment of 
firearms across state lines by prohibiting gun sales 
to out-of-state purchasers and to minors and by for­
bidding their purchase through interstate mail or­
ders. See 18 U.S.C. 922. Second, it attacked the 
crime problem directly by punishing the use and 
unlawful carrying of firearms in the commission of 
serious crimes. Section 924(c), introduced and 
adopted on June 19, 1968, was addressed to the second 
objective.10

The language that became Section 924(c) was of­
fered by Congressman Poff as a substitute for a floor 
amendment made by Congressman Casey to the House 
version of the Gun Control Act. 114 Cong. Rec. 
22231 (1968).11 The Casey amendment had pro­

10 B ecause th e  s ta tu te  w as in troduced  on th e  floor o f the 
H ouse an d  app roved  on th e  sam e day, th e re  a re  no leg islative 
h e a rin g s  an d  no com m ittee  re p o rts  concern ing  i t ;  th e  p e r ti­
n e n t leg is la tiv e  h is to ry  is con ta ined  in  a  few  pages o f  the 
C ongressional R ecord  and  consists p rim a rily  o f th e  v iew s of 
su p p o rte rs  of th e  H ouse bill an d  its  S en a te  c o u n te rp a rt. See 
Simpson v. United States, 435 U .S. 6, 13 n.7 (1978).

11 As in troduced , the  Poff am endm en t p ro v id e d :
* * * * *

(c) W hoever—

(1) uses a  firearm  to com m it an y  fe lony  which 
m ay  be p rosecu ted  in  a  c o u rt o f th e  U n ited  S tates, 
o r

(2) c a rr ie s  a f irea rm  un law fu lly  d u r in g  th e  com­
m ission o f an y  felony w hich  m ay  be p rosecu ted  in 
a c o u rt o f th e  U n ited  S ta tes ,

84



27
vided stiff minimum penalties for anyone who, “dur­
ing the commission of any robbery, assault, murder, 
rape, burglary, kidnaping, or homicide (other than 
involuntary manslaughter), uses or carries any fire­
arm which has been transported in interstate or 
foreign commerce” (id. at 22229).112 Supporters of 
the Poff substitute noted that the Casey language 
applied to the use or possession of firearms in state 
as well as federal felonies, and would thereby con­
vert thousands of state offenses into federal viola­
tions. This result was criticized both as an intrusion 12

shall b e  sen tenced  to  a  te rm  o f im p riso n m en t f o r  n o t less 
th a n  one y e a r  n o r m ore th a n  ten  years. In  th e  case of 
h is  second o r  subsequen t conviction u n d e r th is  subsec­
tion , such person  shall be sentenced to  a te rm  of im p ris ­
onm ent fo r  n o t less th a n  five y ears  n o r m ore  th a n  
tw enty-five y ears . T he execution o r  im position  of an y  
te rm  o f im p riso n m en t im posed u n d e r th is  subsection  m ay  
no t be suspended , an d  p ro b a tio n  m ay  n o t be  g ran ted . 
A ny te rm  of im prisonm en t im posed u n d e r th is  subsec­
tion  m ay  n o t be im posed to  ru n  co n cu rren tly  w ith  any  
te rm  of im p riso n m en t im posed fo r  th e  com m ission of 
such felony.

Some m odifications concern ing  th e  p en a lty  p rov isions o f the  
Poff p roposal w ere  subsequently  adopted . See page 34 & 
note 16, infra,.

12 The te x t of th e  Casey am endm ent p ro v id e d :

T h a t w hoever d u rin g  th e  com m ission of any  robbery , 
assau lt, m u rd e r, rap e , b u rg la ry , k idnap ing , o r  hom icide 
(o th er th a n  in v o lu n ta ry  m a n s la u g h te r) , uses o r ca rrie s  
any firearm  w hich  has been tra n sp o rte d  in  in te rs ta te  or 
fo re ign  com m erce shall be im prisoned—

(1) in  th e  case of h is firs t offense, fo r  n o t less th a n  
te n  y e a r s ;

(2) in  th e  case of h is second o r  m ore offense, fo r  not 
less th a n  tw enty-five years.

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28

upon state jurisdiction and as the source of an un­
manageable load of criminal cases in the federal sys­
tem. Id. at 22232-22235. Other Congressmen felt that 
the provision violated principles of due process and 
equal protection or that the burden of proving the ju­
risdictional nexus unacceptably weakened the amend­
ment. Id. at 22231 (remarks of Congressman Poff); 
id. at 22233 (remarks of Congressman Cramer).

The substitute amendment presented by Congress­
man Poff was intended to cure the perceived defects 
in the Casey proposal by making it a separate federal 
offense to use or unlawfully carry a firearm during 
the commission of “any felony which may be prose­
cuted in a court of the United States” (id. at 22231). 
In introducing his substitute, Congressman Poff 
made clear his intention to strengthen, not weaken, 
the Casey proposal (ibid.):

[M]y amendment is a substitute for the Casey 
amendment, but it is not in derogation of the 
Casey amendment. Rather, it retains its central 
thrust and targets upon the criminal rather than 
the gun. In several particulars, the substitute 
strengthens the Casey amendment.

* * * Indeed, the substitute is stronger. The 
substitute provides that the penalties cannot be 
suspended and that probation cannot be granted. 
The Casey amendment contains no such provi­
sion.

My substitute is also stronger in that it com­
pels the court to impose the sentence to run con­
secutively upon the penalty previously imposed 
for the basic crime. The Casey amendment per­
mits the court to make the two penalties run

86



29
concurrently and to suspend any part or all of 
either or both.

In addition, in an ensuing discussion with Congress­
man Cramer, Congressman Poff emphasized that his 
amendment would broaden the range of federal 
felonies to be covered by the statute (id. at 22233):

MR. CRAMER. * * *
Thirdly, and really what bothers me the most, 

is that the Casey amendment does not cover an 
adequate number of crimes, including Federal 
crimes. It does not even cover the large number 
of heinous Federal crimes to which the amend­
ment offered by the gentleman from Virginia 
[Mr. Poff] would apply; is that correct?

MR. POFF. My amendment would apply to 
all Federal felonies including heinous crimes in 
all grades, down to the lowest level of a felony. 

* * * * *
MR. CRAMER. * * *
And in the list of crimes the gentleman re­

ferred to three or four pages there, any number 
of those heinous crimes are not included under 
the Casey amendment; is that correct?

MR. POFF. That is correct.
* * * * *

MR. POFF. Insofar as it is defined in the 
Federal code as a felony itself, it would be in­
cluded [in the Poff amendment].1131 * *****

13 See also 114 Cong. Rec. 22232 (1968) (em phasis added) : 

MR. IC H O R D : * * *
* * * * *

A re you con tem p la ting— th e  gen tlem an  m akes i t  a 
F edera l offense, an o th e r  se p a ra te  F ed e ra l offense to  use

87



30

Despite the breadth of his substitute, however, 
Congressman Poff made an additional statement upon 
which the Court in Simpson chiefly relied (435 U.S. 
at 13-14), and which is again strongly urged by peti­
tioners here. After noting that his amendment did 
not pertain to state offenses, Congressman Poff added 
(id. at 22232);

For the sake of legislative history, it should 
be noted that my substitute is not intended to 
apply to title 18, sections 111, 112, or 113 which 
already define the penalties for the use of a 
firearm in assaulting officials, with sections 2113 
or 2114 concerning armed robberies of the mail 
or banks, with section 2231 concerning armed 
assaults upon process servers or with chapter 44 
which defines other firearm felonies.

No response or other comment was directed at this 
remark, and the debate reverted immediately to the 
issue of excluding state crimes.

Whatever insight this passage might provide into 
the congressional intent concerning the issue pre-

a  firea rm  to commit any felony which may be committed. 
I f  d u r in g  th e  com m ission o f any felony w here in  such 
firea rm  is used th e  p a r ty  m ay  be p rosecu ted  in  an y  court 
of th e  U n ited  S ta te s?  Does th e  gen tlem an  contem plate 
th e  second c rim in a l p roceed ing  o r  can  th is  m an  be tried  
in  th e  o rig in a l p roceeding  w h ere  he  w as  f irs t t r ie d ?

M R. P O F F : * * *
T he a n sw er to  h is question  is in  th e  a ffirm a tiv e ; nam e­

ly, i t  w ould be expected  th a t  th e  p rosecu tion  fo r  th e  basic 
fe lony  and  th e  p rosecu tion  u n d e r m y  su b s titu te  would 
co n stitu te  one proceed ing  o u t o f w hich tw o  sep ara te  
pen a ltie s  m ay  g row .

88



31

sented in Simpson, it does not serve to answer the 
question raised here. We do not believe that Con­
gressman PofFs statement was addressed to the ques­
tion (which was not raised in the debates) whether 
Section 924(c) could be invoked in lieu of the en­
hancement provisions in existing law for using dan­
gerous weapons. It is one thing to conclude on the 
basis of this statement, as the Court did in Simpson, 
that Congress did not intend to permit the double 
enhancement of sentences where a defendant is 
charged and convicted under both Section 924(c) and 
the aggravated offense provision of Sections 111 or 
2113; it is an entirely different proposition, however, 
to determine that Congress meant to preclude the 
government from prosecuting, and the court from 
sentencing, under the penalty provisions of Section 
924(c) at all.

Moreover, viewing Congressman PofFs statements 
in their entirety, the legislative history of Section 
924(c) fails to offer any suggestion that Congress 
did not intend to apply the stringent penalty provi­
sions of that statute to defendants who used firearms 
to commit even those federal felonies that had their 
own enhanced penalty for using a dangerous weapon. 
Indeed, one of the principal purposes of the Poff 
amendment was to increase the deterrent to the use 
of firearms in federal felonies.14 In explaining the

14 As s ta te d  by C ongressm an H orton  (114 Cong. Eec. 22247 
(1968)) :

W hen a  person  com m its a crim e w ith  a firearm, he 
uses h is  w eapon to  te rro r iz e  h is  v ic tim  w ith  the  threat

89



32

minimum mandatory sentence provision in his pro­
posal, Congressman Poff stated (114 Cong. Rec. 
22231 (1968)):

The effect of a minimum mandatory sentence in 
this case is to persuade the man who is tempted 
to commit a Federal felony to leave his gun at 
home. Any such person should understand that 
if he uses his gun and is caught and convicted, 
he is going to jail. He should further under­
stand that if he does so a second time, he is go­
ing to jail for a longer time.

In a later colloquy with Congressman Cramer, Con­
gressman Poff reiterated that his amendment, unlike 
the Casey proposal, required mandatory minimum 
sentences and eliminated concurrent and suspended 
sentences. Id. at 22233. The importance of this 
aspect of the Poff amendment was emphasized by a 
number of congressmen during the debates. As Con­
gressman Railsback remarked (id. at 22243):

th a t ,  w ith  th e  flick o f h is  finger, he can  snuff o u t one or 
m ore  innocen t lives. E ven  w here  th e  c rim e does n o t result 
in  d ea th  o r  in ju ry , th e  use of a  gun  ex tends bo th  its 
p o ten tia l an d  ac tu a l seriousness beyond th a t  o f crimes 
com m itted  w ith o u t deadly  w eapons o r  w ith  w eapons ef­
fec tiv e  only a t  a  v e ry  sh o r t ran g e . T he  “equalizer,” as it 
h a s  been called, is a  tool o f te r ro r ,  d ea th , an d  in ju ry  in 
th e  h an d s of a  c rim ina l. H e w ho stoops to  p o in t i ts  barrel 
a t  an  innocen t v ic tim , fo r  m oney, fo r  revenge, fo r  “kicks,” 
o r  fo r  an y  o th e r  purpose , deserves to  be singled  out by 
th e  law s a s  th e  w o rs t k ind  o f social m enace.

M r. C ha irm an , I  believe th a t  [ th e  Poff] am endm ent, 
w hich adds m ore sev erity  to  th e  p u n ish m en t of such 
offenders, is a  leg isla tive  necessity .

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33

Mr. Chairman, one of the major differences 
between the Casey amendment and the substitute 
amendment offered by the gentleman from Vir­
ginia [MR. POFF], is that in the one case the 
sentence cannot, specifically cannot be suspended, 
nor can probation be granted. And that is why 
many of us feel that the Poff amendment is su­
perior in that important respect. Many of us 
want to support a minimum mandatory penalty 
which is provided in the Poff substitute, and 
which is not provided in the Casey amendment.

Congressman Latta offered a similar view, stressing 
that the Poff amendment would create a significantly 
greater deterrent than was provided by existing law 
(ibid.; emphasis added):

I want the criminal to know before he uses 
a firearm in committing a crime that, when he 
is convicted, just as sure as the sun rises tomor­
row he is going to jail for a certain number of 
years. This is the deterrent that I want to see 
written into this law, and I do not want any 
discretion by any court because that is the buga­
boo in owt present system. He believes that he 
can beat the rap, and he takes the chance. I 
want him to know that he cannot beat the rap 
and that he is going to prison when convicted.1151

The Poff amendment was adopted by the House in 
lieu of the Casey proposal (114 Cong. Rec. 22248 15

15 See also, e.g., 114 Cong. Rec. 22234 (1968) (remarks of 
Cong. Harsha) ; id. at 22237 (remarks of Cong. Rogers) ; 
id. at 22243 (remarks of Cong. Wyman) ; id. at 22247-22248 
(remarks of Cong. Horton).

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34

(1968)), and the Gun Control Act, including the Poff 
amendment, passed the House by a vote of 412 to 11 
(id. at 23094). Following the passage of a different 
bill by the Senate, the Conference Committee accepted 
in large measure the House version of Section 924(c). 
However, the Conference deleted altogether the pro­
hibition on concurrent sentences and made the pro­
vision eliminating probation and suspended sentences 
applicable only to second and subsequent convictions. 
H.R. Conf. Rep. No. 1956, 90th Cong., 2d Sess. 31-32 
(1968).16 These modifications in Conference caused 
great concern in the House, and many congressmen 
objected to the changes and urged that the Confer­
ence Report be rejected. As succinctly summarized 
by Congressman MacGregor (114 Cong. Rec. 30580 
(1968)) :

The conferees * * * have destroyed the effec­
tiveness of the Poff amendment on minimum 
mandatory sentences.

A similar assessment was offered by Congressman 
Collier (id. at 30584):

1(5 The Conference version of Section 924(c) was ultimately 
accepted by the House (114 Cong. Rec. 30587 (1968)) and the 
Senate (id. at 30183), and the bill was signed by the President 
on October 22,1968.

Title II of the Omnibus Crime Control Act of 1970 (Pub. 
L. No. 91-644, 84 Stat. 1889) amended Section 924(c) by 
reinstating the restriction that no sentence of imprisonment 
thereunder could be served concurrently with any term im­
posed for the underlying felony. The amendment also reduced 
the minimum mandatory sentence of imprisonment for repeat 
offenders from five to two years. See Simpson v. United States, 
supra, 435 U.S. at 14 n.9.

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35
Mr. Speaker, I am deeply disturbed and disap­
pointed that the conferees have seen fit to gut 
one of the most important provisions of the bill 
which passed the House on the Gun Control Act 
of 1968. * * * I believe that removal of the 
mandatory sentence for commission of a crime 
or felony while in possession of a firearm 
eliminates an important aspect of the deterring 
features of the bill, I regret that the conference 
report also provides for the mandatory sentence 
for second offenders to run concurrent with that 
of penalties for other convictions.117 J

Among the most vigorous opponents of the Con­
ference Report was Congressman Poff himself, not­
withstanding that the Conference had adopted much 
of the amendment he had introduced (114 Cong. Rec. 
30583 ( 1968) ; emphasis added):

MR. POFF. * * *
If the real purpose of gun control legislation 

is to control crime, then the central control 
mechanism of this bill has been fractured. As 
the bill passed the House, the central crime con­
trol mechanism was the mandatory jail sentence
amendment. * * ** * * * *

* * * [My amendment] was designed to per­
suade the man who has decided to set forth on 
a criminal venture to leave his gun at home. It 17

17 See also, e.g., 114 Cong. Rec. 30579 (1968) (remarks of 
Cong. Cramer) ; id. at 30581 (remarks of Cong. MacGregor) ; 
id. at 30581-30582 (remarks of Cong. Hunt) ; id. at 30582 
(remarks of Cong. Watson) ; id. at 30584 (remarks of Cong. 
Hansen) ; id. at 30585 (remarks of Cong. Hall) ; ibid, (re­
marks of Cong. Skubitz); id. at 30586 (remarks of Cong. 
Saylor).

93



is not the severity of punishment that deters. 
It is the certainty of punishment that deters.

In the posture which the conference report 
leaves it, the amendment will not promote cer­
tainty of punishment. Rather, with respect to 
the first offense, actual time in jail will be no 
more certain than it is today. The criminal who 
is tempted to use a gun in the commission of his 
crime can still do so with the full knowledge 
that he has at least a 50-50 chance, even after 
being caught, convicted and sentenced, of never 
serving a day in jail. And even if it is his second 
offense, he knows that any jail term he may be 
required to serve may run concurrently with the 
same term that can be imposed under present 
law for the base felony.

With such odds, why should he refrain from 
using a gun?

Because the Conference had thus weakened the sen­
tencing provisions of his amendment, Congressman 
Poff voted against the Conference Report. Given his 
strong views on the need for certainty of punishment 
to deter armed felons, it is impossible to conclude that 
Congressman Poff intended that defendants who use 
firearms to commit a bank robbery or an assault on 
a federal officer would be punished entirely outside 
the strict penalty scheme of Section 924(c) and would 
instead be sentenced under Section 2113 or Section 
111 without any limitation on the minimum term of 
imprisonment, the possibility of probation or a sus­
pended sentence, or the availability of a concurrent 
sentence. Rather, it was the very inadequacy of ex­
isting law that led Congressman Poff to introduce 
his amendment and ultimately to oppose the Confer­
ence Report.

36



In sum, the legislative history shows that Section 
924(c) was enacted precisely because existing law 
was considered inadequate to deter and punish fire­
arm offenses, and there is no indication whatever 
that either the Congress as a whole or Congressman 
Poff intended the penalties specified in Section 924(c) 
to be inapplicable where the predicate felony con­
tains its own enhancement provision for use of a 
dangerous weapon.18

D. The Decision In S im p s o n  v. U n i te d  S t a t e s  Is Not 
Dispositive Of The Issue Presented In This Case.

In light of the language and legislative history of 
Section 924(c), we have argued above that the court 
of appeals correctly held that on remand petitioner

18 The Court in Simpson also relied (435 U.S. at 14) on the 
Conference Committee’s rejection of the Senate version of 
Section 924(c) in favor of the modified Poff amendment. The 
Senate had adopted a floor amendment introduced by Senator 
Dominick that was limited to the use of firearms in certain 
specified federal offenses (including Sections 111 and 2113) 
and that authorized substantial penalties in addition to those 
provided for the underlying felony even where the sentence 
imposed for that predicate felony was already enhanced. See 
114 Cong. Rec. 27142-27144 (1968). In our view, this action 
by the Conference can best be understood as an indication of 
congressional intent that Section 924 (c) be broadly applicable 
to all federal felonies rather than being limited to only certain 
predicate offenses. In any event, while the Court in Simpson 
construed the Conference’s rejection of the Dominick amend­
ment to support its holding that Congress did not intend to 
authorize cumulative sentences under both Section 924(c) and 
the aggravated predicate felony, nothing in the Conference 
action on the Dominick amendment suggests that Congress 
meant to render the stiff penalty provisions of Section 924(c) 
completely inapplicable whenever the underlying felony pro­
vided an enhanced punishment for using a dangerous weapon.

37

95



38

LaRocca could be sentenced under Section 924(c) (1). 
However, petitioners argue that a contrary conclu­
sion is dictated by this Court’s decision in Simpson v. 
United States, 435 U.S. 6 (1978), which they read to 
hold that a defendant may not be sentenced under 
Section 924(c) whenever the statute defining the 
predicate offense provides an enhanced punishment 
for using a dangerous weapon. In our view, this is 
far too broad a reading of Simpson.

The actual holding in Simpson was quite narrow. 
The Court framed the question in Simpson to be 
“whether §§ 2113(d) and 924(c) should be con­
strued as intended by Congress to authorize, in the 
case of a bank robbery committed with firearms, not 
only the imposition of the increased penalty under 
§ 2113(d), but also the imposition of an additional 
consecutive penalty under § 924(c)” (435 U.S. at 8; 
emphasis added). Concluding that Congress had not 
intended “the additional sentence authorized by 
§ 924(c) to be pyramided upon a sentence already 
enhanced under § 2113(d)” (435 U.S. at 14; em­
phasis added), the Court held “that in a prosecution 
growing out of a single transaction of bank robbery 
with firearms, a defendant may not be sentenced 
under both § 2113(d) and § 924(c)” (435 U.S. at 
16; emphasis added). Significantly, the Court did 
not direct that the sentence under Section 924(c) be 
vacated, as petitioners now contend is required by 

' Simpson, but rather only “reversed and remanded to 
the Court of Appeals for proceedings consistent with

96



3 9

this opinion” (435 U.S. at 16).19 Thus, properly read, 
the decision in Simpson holds only that a defendant 
may not be subjected to cumulative sentences under 
Section 2113(d) and Section 924(c) for using a fire­
arm in the commission of a bank robbery; however, 
as the Third Circuit concluded in the instant case 
(App. 59), Simpson does not address the distinct 
question whether a defendant may be sentenced, in 
the discretion of the government, either under Section 
924(c)(1) or under the enhanced predicate felony, 
provided that sentence is not imposed under both.20

19 Petitioner LaRocca emphasizes (78-6029 Br. 9-10, App. 
la-2a) that on remand the court of appeals in Simpson vacated 
the sentence under Section 924(c). Although petitioners in 
Simpson had expressly asked this Court to vacate the Section 
924(c) judgments (76-5761 and 76-5796 Br. 8 ), the Court did 
not order any specific relief but simply “reversed and re­
manded to the Court of Appeals for proceedings consistent 
with this opinion” (435 U.S. at 16). Moreover, since the more 
severe sentences in Simpson were imposed on the Section 2113 
counts rather than on the Section 924(c) counts (435 U.S. at 
9), the court of appeals’ decision on remand in that case is, 
as a practical matter, the same as the decision of the courts of 
appeals in this case to allow the government to elect to pro­
ceed under either Section 924(c) or the enhancement pro­
vision of the predicate felony.

20 In addition to the Third Circuit, the Ninth Circuit has 
held that Simpson does not preclude the government from pro­
ceeding under either Section 2113(d) or Section 924(c). See 
United States v. Brown, 602 F.2d 909 (9th Cir. 1979). The 
Fifth Circuit is divided on the issue. Compare United States 
V. Shillingford, 586 F.2d 372, 375-376 & n.7 (5th Cir. 1978), 
with United States V. Roach, 590 F.2d 181, 184 (5th Cir. 
1979) ; United States V. Steivart, 585 F.2d 799, 800 (5th Cir. 
1978), cert, denied, No. 78-6007 (Apr. 30, 1979) ; United 
States v. Stewart, 579 F.2d 356, 358 (5th Cir.), cert, denied,

97



40

As we have already discussed (pages 24-37, 
supra), the legislative history relied on by the Court 
in Simpson does not aid petitioners here. It seems 
clear that the Congress, and especially Congressman 
Poff, never intended to exempt from the stringent 
penalties of Section 924(c) those defendants who, like 
petitioner LaRocca, used a firearm in the commission 
of one of the federal felonies containing an enhance­
ment provision. Furthermore, as noted above (pages 
19-24, supra), the sentencing scheme of Section 
924(c) is fundamentally different from the enhance­
ment provisions of Sections 111 and 2113, and a de­
cision that Section 924(c) does not apply when the

439 U.S. 936 (1978) ; and United States V. Nelson, 574 F.2d 
277, 280-281 (5th Cir.), cert, denied, 439 U.S. 956 (1978). 
However, the court in Nelson construed Simpson to have va­
cated the sentence under Section 924 (c) ; as discussed in the 
text above, this reading of the Simpson holding is incorrect. 
The Second Circuit, relying in part on Nelson, has interpreted 
Simpson to bar a sentence under Section 924 (c) (1) where the 
underlying felony provision is Section 2113. See Grimes V. 
United States, 607 F.2d 6 , 17 (2d Cir. 1979). The Fourth 
Circuit has also stated, in a case in which the sentence was 
more severe under Section 2113 (d) that under Section 924 (c), 
that Simpson requires the Section 924(c) sentence to be va­
cated. United States V. Vaughan, 598 F.2d 336, 337 (4th Cir. 
1979). The District of Columbia Circuit has observed in dicta 
that Simpson prevents the government from using a firearms- 
related provision as both the predicate felony for Section 924 
(c) and the basis for a separate conviction. See United States 
V. Dorsey, 591 F.2d 922, 941 (D.C. Cir. 1978). And, in a case 
decided prior to Simpson, the Eighth Circuit had held that an 
offense that had its own enhancement provision for use of a 
firearm could not serve as the predicate felony for Section 
924(c) (1). United States V. Eagle, 539 F.2d 1166, 1171-1172 
(8th Cir. 1976), cert, denied, 429 U.S. 1110 (1977).

98



41

predicate offense has its own enhanced penalty would 
create irrational results and frustrate the deterrence 
objectives of the Gun Control Act.

Nor do the maxims of statutory construction in­
voked in Simpson support petitioners. Unlike Simp­
son, petitioner LaRoeca cannot on remand be given 
cumulative sentences under Section 924(c) and the 
aggravated predicate felony. Thus, this is not a case 
“in which the Government is able to prove violations 
of two separate criminal statutes with precisely the 
same factual showing * * * [which] raise[s] the 
prospect of double jeopardy” (435 U.S. at 11), and 
there is no need to construe Section 924(c) to avoid 
constitutional issues. In addition, “the maxim that 
statutes should be construed to avoid constitutional 
questions offers no assistance here” because, as dis­
cussed above, the construction of Section 924(c) 
urged by petitioners is not “ ‘fairly possible.’ ” 
United States v. Batchelder, No. 78-776 (June 4, 
1979), slip op. 7-8, quoting Swain v. Pressley, 430 
U.S. 372, 378 n .ll (1977).

Moreover, the rule that ambiguity in a criminal 
statute should be resolved in favor of lenity, which 
was applied in Simpson to prevent the Section 924(c) 
sentence from being “pyramided upon a sentence al­
ready enhanced under § 2113(d)” (435 U.S. at 14), 
is not applicable here. The rule of lenity does not 
come into play unless there is a “grievous ambiguity 
or uncertainty in the language and structure of the 
Act” (Huddleston v. United States, 415 U.S. 814, 831 
(1974)) such that even “ [a]fter [a court has]

99



42

‘seiz[ed] everything from which aid can be derived’ 
* * * [it is still] left with an ambiguous statute.” 
United States v. Bass, 404 U.S. 336, 347 (1971), 
quoting United States v. Fisher, 6 U.S. (2 Cranch) 
358, 386 (1805). Given the language and legislative 
history of Section 924(c), “there is no ambiguity to 
resolve. * * * Where, as here, ‘Congress has con­
veyed its purpose clearly, * * * we decline to manu­
facture ambiguity where none exists.’ ” United 
States v. Batchelder, No. 78-776 (June 4, 1979), slip 
op. 7, quoting United States v. Culbert, 435 U.S. 371, 
379 (1978). See also, e.g., United States v. Naftalin, 
No. 78-561 (May 21, 1979), slip op. 10; Scarborough 
v. United States, 431 U.S. 563, 577 (1977); B a m tt  
v. United States, 423 U.S. 212, 217-218 (1976). 
While “ [a] criminal statute, to be sure, is to be 
strictly construed, * * * it is ‘not to be construed so 
strictly as to defeat the obvious intention of the 
legislature’ ”. Barrett v. United States, supra, 423 
U.S. at 218, quoting American Fur Co. v. United 
States, 27 U.S. (2 Pet.) 358, 367 (1829).21 And the 
fact that Section 924(c) “provides different penalties 
for essentially the same conduct [as the enhancement

21 The propriety of applying the rule of lenity in the face 
of indications that Congress wished to deal severely with per­
sons committing particular offenses is especially questionable 
in cases involving the use of firearms. As in Gore V. United 
States, 357 U.S. 386 (1958), which rejected the rule of lenity 
in considering punishment for narcotics offenses (id. at 391), 
the history of Section 924(c) “reveals the determination of 
Congress to turn the screw of the criminal machinery—detec­
tion, prosecution, and punishment—tighter” (id. at 390).

100



43

provisions of the predicate felonies] is no justifica­
tion for taking liberties with” the clear language and 
intent of Congress. United States v. Batchelder, 
supra, slip op. 7, citing Barrett v. United States, 
supra, 423 U.S. at 217. See also United States v. 
Gilliland, 312 U.S. 86, 95 (1941).

In Simpson the Court also referred to the “principle 
that gives precedence to the terms of the more specific 
statute where a general statute and a specific statute 
speak to the same concern, even if the general pro­
vision was enacted later” (435 U.S. at 15). As dis­
cussed above (pages 21, 24-37 & note 7, supra), 
given Congress’ thorough and recent consideration of 
the firearms problem in the Gun Control Act of 
1968, we submit that Section 924(c) rather than 
Sections 111 or 2113(d) should be read as the more 
specific provision.22 In any event, this principle was 
applied in Simpson only as “a corollary of the rule 
of lenity” (435 U.S. at 15); as we have just dis­
cussed, the rule of lenity has no bearing here.

22 Contrary to the assertion of petitioner LaRocca (78-6029 
Br. 19), the government does not contend that “Section 924 (c) 
would govern to the exclusion of Sections 2113(d) and 111
* * * *” (emphasis in original). Quite often, as here, more than 
one federal statute covers the same criminal conduct, and it is 
our position in the present case that Congress has afforded the 
government the choice, in the exercise of its prosecutorial dis­
cretion, to proceed either under Section 924(c) or under the 
enhancement provision of the predicate felony. See pages 46- 
47, infra. We agree with petitioner LaRocca (78-6029 Br. 19 
n.19) that Section 924(c) did not impliedly repeal the en­
hancement provisions of Sections 111 or 2113.

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44

Moreover, we doubt that the canon of construction 
that gives precedence to the more specific statute is 
applicable to the provisions at issue in this case. 
“Where one statute deals with a subject in general 
terms, and another deals with a part of the same 
subject in a more detailed way, the two should be 
harmonized if possible; but i f  there is any conflict, 
the latter will prevail, regardless of whether it was 
passed prior to the general statute, unless it appears 
that the legislature intended to make the general act 
controlling.” 2A C. Sands, Statutes and Statutory 
Construction § 51.05, at 315 (1973) (footnotes
omitted; emphasis added), cited in Simpson, supra, 
435 U.S. at 15. Here, there is no “conflict” between 
Section 924(c) and the enhancement provision of 
Section 111. In contrast to Preiser v. Rodriguez, 411 
U.S. 475, 489-490 (1973), cited in Simpson, supra, 
435 U.S. at 15,23 Sections 924(c) and 111 can co-exist 
in the same area, and the government’s invocation 
of one rather than the other would not “wholly frus­
trate explicit congressional intent” or “evade [a stat­
utory] requirement by the simple expedient of [de­
fendants’] putting a different label on their plead­
ings.” Preiser v. Rodriguez, supra, 411 U.S. at 489- 
490. Indeed, it is not at all uncommon for two federal 
statutes, with different penalty provisions, to apply

23 jn p reiser y. Rodriguez, the Court held that a state 
prisoner who challenges the fact or duration of his confine­
ment and seeks to be released from custody must proceed un­
der the habeas corpus statute and cannot sue under 42 U.S.C. 
1983.

102



45

to the same criminal conduct. See, e.g., United States 
v. Batchelder, supra, slip op. 7, 9; United States v. 
Gilliland, supra, 312 U.S. at 95; United, Stales v. 
Jones, 607 F.2d 269, 271-273 (9th Cir. 1979); United 
States v. Hamel, 551 F.2d 107, 113 (6th Cir. 1977); 
United States v. Gordon, 548 F.2d 743, 744-745 (8th 
Cir. 1977); United States v. Melvin, 544 F.2d 767, 
775-777 (5th Cir.), cert, denied, 430 U.S. 910 (1977); 
United States v. Radetsky, 535 F.2d 556, 568 (10th 
Cir.), cert, denied, 429 U.S. 820 (1976); United 
States v. Brewer, 528 F.2d 492, 498 (4th Cir. 1975); 
United States v. Carter, 526 F.2d 1276, 1278 (5th 
Cir. 1976); United States v. Smith, 523 F.2d 771, 780 
(5th Cir. 1975), cert, denied, 429 U.S. 817 (1976); 
United States v. Librach, 520 F.2d 550, 556 (8th Cir. 
1975), cert, denied, 429 U.S. 939 (1976); United 
States v. Eisenmann, 396 F.2d 565, 567-568 (2d Cir. 
1968). See also United States v. Bishop, 412 U.S. 
346, 355-356 (1973); Sansone v. United States, 380 
U.S. 343, 352-353 (1965); Berra v. United States, 
351 U.S. 131, 134 (1956).24

24 Petitioner LaRocca, relying on the variety of provisions 
prohibiting the use of a dangerous weapon to commit specific 
federal felonies, contends (78-6029 Br. 19-21) that “Con­
gress has carefully graded the potential penalties for the use 
of a weapon in violation of these provisions according to the 
nature of the crime and the threat posed to the interests of 
the United States” (footnote omitted). In our view, however, 
such a diversity of provisions does not evidence a deliberate 
congressional effort to calibrate, on a precise and comparative 
basis, the exclusive penalties for using a dangerous weapon in 
the commision of a federal felony. As discussed in the text, a 
general and a more specific federal statute often provide dif­

103



4 6

In this case, as in Batchelder, the proper resolution 
to “harmonize” the statutes is to interpret Section 
924 (c) as an alternative to the enhancement provisions 
of Section 111 and the other similar laws dealing 
with the use of dangerous weapons in the commission 
of particular crimes. Such an interpretation reflects 
the settled rule that, when two statutes are applicable 
to the same criminal conduct, the prosecutor has dis­
cretion to select the proper charge. As the Court 
stated in Batchelder, supra, slip op. 9, 10-11 (cita­
tions omitted):

This Court has long recognized that when an 
act violates more than one criminal statute, the 
Government may prosecute under either so long 
as it does not discriminate against any class of 
defendants. * * * Whether to prosecute and 
what charge to file or bring before a grand jury 
are decisions that generally rest in the prose­
cutor’s discretion.

* * * * *

* * * [T]here is no appreciable difference be­
tween the discretion a prosecutor exercises when

fering penalties for the same criminal conduct without either 
statute preempting the other. We submit that Congress, in 
enacting Section 924 (c), intended to allow federal prosecutors 
the flexibility in each case to bring an appropriate charge 
under either Section 924(c) or the enhancement provision 
of the predicate felony (see pages 46-47, infra). Moreover, 
there is no reason to believe that Congress, having specifically 
studied the firearm problem in passing the Gun Control Act 
of 1968, intended to treat more leniently criminals who used 
firearms to assault a federal officer or rob a bank than those 
who used such weapons to commit myriad other federal 
offenses (see pages 2 1 , 43,& n.7, supra).

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47

deciding whether to charge under one of two 
statutes with different elements and the discretion 
he exercises when choosing one of two statutes 
with identical elements. In the former situation, 
once he determines that the proof will support 
conviction under either statute, his decision is in­
distinguishable from the one he faces in the latter 
context. The prosecutor may be influenced by 
the penalties available upon conviction, but this 
fact standing alone does not give rise to a viola­
tion of the Equal Protection or Due Process 
Clauses. * * * Just as a defendant has no con­
stitutional right to elect which of two applicable 
federal statutes shall be the basis of his indict­
ment and prosecution, neither is he entitled to 
choose the penalty scheme under which he will 
be sentenced.

See also United States v. Brown, 602 F.2d 909, 912
(9th Cir. 1979).25

25 Petitioner LaRocca hypothesizes (78-6029 Br. 21 n.21) 
that “the government’s theory would create anomalies that 
Congress could not have intended between the penalties avail­
able to punish the use of a firearm and those available to 
punish the use of another type of dangerous weapon.” As dis­
cussed above (pages 21-24, swpra), however, the position ad­
vanced by petitioners entails a series of illogical results that 
seriously undermine their argument. In any event, the hypo­
thetical difficulties posed by petitioner LaRocca can be re­
solved, as in a great many other areas of the law, through the 
exercise of sound prosecutorial discretion to bring an appro­
priate charge in each case either under Section 924(c) or 
under the enhancement provision of the predicate felony.

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4 8

II. A DEFENDANT MAY BE CONSECUTIVELY SEN­
TENCED FOR AIDING AND ABETTING AN AS­
SAULT WITH A FIREARM UPON A FEDERAL 
OFFICER, IN VIOLATION OF 18 U.S.C. 2 AND 111, 
AND FOR CARRYING A SECOND FIREARM DUR­
ING THE COMMISSION OF THAT ASSAULT, IN 
VIOLATION OF 18 U.S.C. 924(c)(2)

Petitioner Busic was charged (Counts 6 and 7) 
with aiding and abetting petitioner LaRocca in as­
saulting federal officers by means of a firearm, in 
violation of 18 U.S.C. 2 and 111;26 on these counts

26 In addition to being present and armed during LaRocca’s 
attack on the federal agents, Busic also appears to have 
originally purchased the pistol used by LaRocca (App. 29).

The district court’s principal instructions to the jury on 
the charges against Busic of aiding and abetting LaRocca’s 
assault were as follows:

The Government contends, of course, as I understand it, 
that Busic was aware of the plan to rob Harvey and that 
he was there to assist LaRocca in all of the activities 
there and the fact that he did not fire merely indicates 
that he thought it better not to do so.

As I have explained, one who aids and abets another 
to commit an offense is as guilty of the offense as if he 
had committed it himself. Accordingly, you may find 
Busic guilty of the offenses of assault upon federal offi­
cers if you find beyond a reasonable doubt that he was 
LaRocca’s aider and abettor or counselor when they went 
to the shopping center. The question is did he associate 
himself with the venture, did he plan to help it succeed. 
This is, of course, for you to decide. If he had actually 
gone to the center to end the matter and if he did not aid 
and abet LaRocca, he would, of course, not be guilty of 
the assaults on the federal officers. [Tr. 604]

*  *

THE COURT: Let the record show we are in open
court. I have received a question from the jury which

106



49

Busic received a sentence of five years’ imprisonment 
(two years of which were perforce under the enhance­
ment provision of Section 111). Busic was also 
charged (Count 18) with unlawfully carrying a sec­
ond firearm during the commission of a federal 
felony, in violation of 18 U.S.C. 924(c) (2). On this 
count Busic was sentenced to a consecutive term of 
20 years’ imprisonment.

reads as follows: “Count Six. Even though Mr. Busic 
did not actively participate in the assault did his partici­
pation in the conspiracy make him guilty of the assault.” 

Ladies and gentlemen, the answer to your question 
is yes unless you find that Busic withdrew from the con­
spiracy before the assault began or unless you find that 
as he claimed he went there merely for the purpose of 
telling Harvey that the deals were off. If he had with­
drawn from the conspiracy before the assault began, he 
would not be guilty of the assault as an aider and abettor. 
If he was still a part of the conspiracy and intended to 
aid and abet LaRocca in the robbery in the event you find 
that the purpose in going to the shopping center was the 
robbery, then he would be guilty of the assault. This 
issue, of course, requires that you determine his mental 
state, that is, what he intended. [Tr. 629-631]

The district court denied Busic’s post-trial motion for judg­
ment of acquittal as to Counts 6 and 7 on the ground that 
LaRocca’s armed assault on the federal officers was in further­
ance of the original narcotics conspiracy and that therefore, 
under Pinkerton v. United States, 328 U.S. 640 (1946), Busic 
was liable for LaRocca’s acts (App. 30-32). The court of 
appeals affirmed, finding that “the evidence overwhelmingly 
supports his conviction under both a conspiracy and an aiding 
and abetting theory. See Nye & Nis[sen] V. United States, 
336 U.S. 613 (1949) ; Pinkerton V. United States, 328 U.S. 
640 (1946).” (App. 53 n.12). Busic does not in this Court 
challenge his convictions for aiding and abetting.

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50

Busie asserts as his “principfal] contention” that 
Section 924(c)(2), which prohibits the unlawful 
carrying of a firearm during the commission of a 
federal felony, “does not apply where the underlying 
offense already contains a sentencing enhancement 
provision for use of a firearm” (78-6020 Br. 8). As 
we have shown above in Part I, however, Section 
924(c) is fully applicable even though the predicate 
felony contains its own enhancement provision, so 
long as the defendant is not doubly punished for the 
same firearm element. Moreover, even if Section 
924(c) (1) were inapplicable to such a felony, so that 
a defendant (like LaRocca) who uses a firearm to 
assault a federal officer could be punished only under 
Section 111, we submit that a defendant (like Busic) 
who unlawfully carries (but does not use) a firearm 
during the commission of that felony can properly 
be sentenced under Section 924(c)(2). The federal 
enhancement statutes (including Sections 111 and 
2113) proscribe only the use of a dangerous weapon 
to commit the offense, and they contain no provision 
punishing the unlawful carrying of such a weapon. 
Thus, if Section 924(c)(2) were inapplicable, a de­
fendant who unlawfully carries a firearm would re­
ceive no enhanced sentence and would be subject only 
to the same penalty as one who commits the offense 
without carrying a firearm—a result directly con­
trary to the language and legislative history of Sec­
tion 924(c) (2), which unmistakably demonstrate that 
Congress intended to punish as a separate offense the

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51

unlawful carrying of a firearm in the commission of 
a federal felony. See note 8, supra.

Busic also contends that this Court’s decision in 
Simpson v. United States, supra, precludes the im­
position of an additional penalty under Section 
924(c) (2) for unlawfully carrying a firearm during 
the commission of an assault for which he received 
an enhanced sentence under Section 111.

If we are correct in the preceding argument (pages 
17-47, supra) that a defendant may be sentenced 
either under Section 924(c) or under the enhance­
ment provision of Section 111, then it is unnecessary 
for the Court to consider whether Busic was properly 
sentenced under both statutes. Since Busic’s five-year 
sentence under Section 111 is concurrent with seven 
other five-year terms of imprisonment that are un­
challenged, only his sentence under Section 924(c) (2 ) 
will actually affect his incarceration. See, e.g., Barnes 
v. United States, 412 U.S. 837, 848 n.16 (1973); 
compare Benton v. Maryland, 395 U.S. 784 (1969).27

In any event, in the circumstances of this case, 
petitioner Busic’s consecutive sentences under Section 
924(c) (2) and the enhancement provision of Section 
111 were fully proper. Unlike the situation in Simp­
son, where the government was “able to prove vio­
lations of two separate criminal statutes with pre-

27 We also note that, even if Busic were correct that con­
secutive sentences are barred for the aggravated assault 
and the firearm offense, this would at most affect his Section 
111 sentence and would leave intact the Section 924(c) 
sentence.

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52

cisely the same factual showing” (435 U.S. at 11) 
and “relied on the same proofs to support the con­
victions under both statutes” (435 U.S. at 12), 
Basic’s two convictions did not rest on identical evi­
dence. Two separate firearms were involved in peti­
tioners’ shootout with federal officers. One firearm 
was used by petitioner LaRocca to assault BATF 
agents Alfree and Petraitis and DEA agent Mac- 
ready. For his part in aiding and abetting LaRocca, 
Busic was sentenced to five years’ imprisonment un­
der 18 U.S.C. 2 and 111; the enhancement provisions 
of Section 111 were applicable because LaRocca had 
used a firearm and thus committed an aggravated 
assault. The second firearm was unlawfully carried 
(but not used) by Busic (a previously convicted 
felon) during LaRocca’s armed assault; for this dis­
tinct offense, Busic received a consecutive sentence 
of 20 years’ imprisonment under Section 924(c)(2) 
for unlawfully carrying a firearm during the com­
mission of a federal felony. Since each of his con­
victions was based on a different firearm that was 
used or carried by a different person, Busic was prop­
erly sentenced to consecutive terms under Section 
924(c) (2) and the enhancement provision of Section 
111.28

28 This is not a case that presents a question concerning 
“ [wjhat Congress has made the allowable unit of prosecu­
tion.” United States V. Universal C.I.T. Credit Corp., 344 
U.S. 218, 221 (1952). See, e.g., Ladner v. United States, 358 
U.S. 169 (1958) (Congress did not intend that injuring two 
federal officers with one shot be punished as two separate of­
fenses) ; Gore v. United States, 357 U.S. 386 (1958) (consecu­

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53

Nor, for the same reasons, do Busic’s consecutive 
sentences under Section 924(c)(2) and the enhance­
ment provision of Section 111 violate the Double 
Jeopardy Clause. For present purposes we may as­
sume that the Double Jeopardy Clause forbids the 
imposition of cumulative penalties for convictions at 
a single trial of two crimes, one of which is a lesser

tive sentences allowable for multiple offenses arising out of a 
single narcotics transaction) ; Bell V. United States, 349 U.S. 
81 (1955) (Congress did not intend that illegally carrying 
two women across state lines in one vehicle be punished as 
two separate crimes) ; Blockburger v. United States, 284 U.S. 
299 (1932) (consecutive prison terms permissible for two 
crimes committed by a single sale of narcotics) ; Ebeling V. 
Morgan, 237 U.S. 625 (1915) (consecutive sentences upheld 
for cutting several mail bags in one transaction). See also 
Sanabria v. United States, 437 U.S. 54, 70 n.24 (1978). Such 
a question would be presented, for example, if a single de­
fendant who used two firearms to assault a federal officer, 
or who fired two bullets from one gun at a federal officer, 
were prosecuted for two violations of the same statute. In 
this case, however, Busic was guilty both of aiding and 
abetting LaRocca’s armed assault and of carrying his own 
firearm; these clearly presented distinct risks to the public 
good and constituted separate violations of different statutes.

Similarly, this is also not an appropriate case to consider 
whether Sinvpson would ever bar the government from pro­
ceeding under Section 924(c) (2) and the enhancement pro­
vision of Section 111. That issue would be posed, for in­
stance, if a defendant who unlawfully carried and used a 
single firearm to assault a federal officer were prosecuted 
under Section 924(c) (2) for carrying the weapon and under 
the enhancement provision of Section 111 (but not under 
Section 924(c)(1)) for using the same firearm to commit 
the assault.

I l l



54

included offense of the other.29 The usual standard 
for determining whether offenses are sufficiently dis­
tinct to permit cumulative punishment was set forth 
in Blockburger v. United States, 284 U.S. 299, 304 
(1932) : “The applicable rule is that where the same 
act or transaction constitutes a violation of two dis­
tinct statutory provisions, the test to be applied to 
determine whether there are two offenses or only one, 
is whether each provision requires proof of a fact 
which the other does not.” “This test emphasizes the 
elements of the two crimes. ‘If each requires proof 
of a fact that the other does not, the Blockburger test 
is satisfied, notwithstanding a substantial overlap in 
the proof offered to establish the crimes.’ ” Brown v. 
Ohio, 432 U.S. 161, 166 (1977), quoting Iannelli v. 
United States, 420 U.S. 770, 785 n.17 (1975). See 
also Harris v. United States, 359 U.S. 19 (1959).

The Blockburger test is plainly satisfied in this 
case.30 The offense of aiding and abetting an aggra­
vated assault, in violation of 18 U.S.C. 2 and the

29 It is our position, however, as we argue in our brief in 
Whalen V. United States, No. 78-5471, that the legislature 
may constitutionally authorize consecutive punishments even 
where the two statutory violations are not sufficiently dis­
tinguishable to constitute separate offenses under the Block­
burger test. Since the Blockburger test is plainly satisfied in 
the instant case, the Whalen .argument need not be pursued 
here.

30 Indeed, the present case is not at all the type of situation 
that Blockburger was designed to address, since it is clear 
that Busic received consecutive sentences for two distinct 
acts rather than for “the same act.” Such a case indisputably 
does not violate the Double Jeopardy Clause.

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55

enhancement provision of 18 U.S.C. I l l ,  requires 
proof, inter alia, that a dangerous weapon was in 
fact used to assault a federal officer and that the 
defendant aided and abetted that assault; for this 
offense, it is not necessary to prove that a firearm 
(rather than some other dangerous weapon, such as 
a knife) was used, that the defendant either carried 
or used the dangerous weapon, or that, if the de­
fendant did carry the weapon, it was unlawful for 
him to do so. In contrast, a conviction under Section 
924(c)(2) requires, inter alia, a showing that any 
federal felony (not necessarily assault on a federal 
officer) was committed, that the defendant actually 
carried a firearm (not any other type of dangerous 
weapon) during the commission of that felony, and 
that it was unlawful, under applicable federal, state 
or local law, for the defendant to carry the firearm.31

31 The act of carrying the firearm must be independently 
unlawful under applicable federal, state or local law; un­
lawfulness based simply upon the fact that the firearm was 
carried in furtherance of the underlying felony is insufficient. 
See, e.g., United States V. Risi, 603 F.2d 1193 (5th Cir. 1979) ; 
United States V. Dorsey, 591 F.2d 922 (D.C. Cir. 1978) ; 
United States V. Garcia, 555 F.2d 708 (9th Cir. 1977) ; United 
States v. Akers, 542 F.2d 770 (9th Cir. 1976), cert, denied, 
430 U.S. 908 (1977) ; United States v. Crew, 538 F.2d 575 
(4th Cir.), cert, denied, 429 U.S. 852 (1976) ; Perkins V. 
United States, 526 F.2d 688 (5th Cir. 1976) ; United States 
V. Howard, 504 F.2d 1281 (8th Cir. 1974) ; United States v. 
Ramirez, 482 F.2d 807 (2d Cir.), cert, denied, 414 U.S. 1070 
(1973) ; United States V. Sudduth, 457 F.2d 1198 (10th Cir. 
1972). During the House debates on the Casey amendment, 
several congressmen expressed concern that the proposal, as 
originally introduced, might impose stiff penalties upon police-

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56

Thus, it is evident that the elements of the offenses 
are sufficiently distinct to meet the Blockburger test. 
See Wayne County Prosecutor v. Recorder’s Court 
Judge, 280 N.W.2d 793 (Mich. 1979), appeal dis­
missed for want of a substantial federal question 
sub nom. Brintley v. Michigan, No. 79-5506 (Nov. 
13, 1979); West v. United States, No. 78-5252 (6th 
Cir. Nov. 14, 1979), slip op. 3-4; Kowalski v. Parratt, 
533 F.2d 1071 (8th Cir.), cert, denied, 429 U.S. 844 
(1969).

Furthermore, because two separate guns were in­
volved in this case, the prosecution was required to 
prove, and the jury was required to find, independent 
facts as to each offense. As the Court noted in Brown 
v. Ohio, supra, 432 U.S. at 167 n.6, strict application 
of the Blockburger test would permit imposition of 
consecutive sentences in these circumstances because 
separate convictions for aiding and abetting an as­
sault with one firearm and for unlawfully carrying 
a second firearm require proof in each count that 
a different firearm was involved. See also Ebeling v. 
Morgan, supra, 237 U.S. at 631. Hence, under this 
analysis as well, it is again apparent that Busic’s 
consecutive sentences pursuant to Sections 924(c) (2)

men or other licensed gun carriers who were later found to 
have committed federal felonies while lawfully carrying their 
firearms. See, e.g., 114 Cong. Rec. 21788-21789, 21792, 22231 
(1968). In order to avoid this result, the Poff amendment 
included the requirement that the firearms be carried “unlaw­
fully” (id. at 22231), and the House rejected an amendment 
that would have deleted the word “unlawfully” from the Poff 
proposal (id. a t 22236, 22237, 22245).

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57

and 111 are not barred by the Double Jeopardy 
Clause.

III. IN THE EVENT THE COURT VACATES PETI­
TIONERS SECTION 924(c) SENTENCE, THE AP­
PROPRIATE DISPOSITION OF THE CASE WOULD 
BE TO REMAND TO THE DISTRICT COURT FOR 
RE-SENTENCING ON THE SECTION 111 COUNTS

In the event the Court disagrees with our principal 
contention that petitioners were properly sentenced 
under Section 924(c), the question remains what dis­
position of the case would be “just under the circum­
stances” (28 U.S.C. 2106). We submit that the ap­
propriate course in this case would be to vacate 
petitioners’ sentence on the Section 111 counts and to 
remand for re-sentencing on those counts, subject to 
(1) the maximum statutory penalty authorized by 
Section 111, and (2) the limitation that the new 
sentence cannot exceed that previously imposed for 
the armed assault offenses under Sections 924(c) and 
111.32

Petitioners Busic and LaRoeca were respectively 
found guilty in this case on 16 and 14 felony counts, 
including, as relevant here, two armed assaults on 
federal officers. Prior to this Court’s decision in 
Simpson v. United States, supra,33 petitioners were

32 The disposition we suggest would be equally applicable 
if the Court holds that petitioner Busic’s sentence under 
Sections 924(c) and 111 was inconsistent with Simpson v. 
United States, supra, or violated the Double Jeopardy Clause.

33 Petitioners were sentenced on March 11, 1977 (App. 17- 
20), almost a year before this Court’s decison in Simpson V. 
United States, supra.

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58

each sentenced for their armed assaults to 25 years’ 
imprisonment (five years of which were made con­
current with other terms of imprisonment not at 
issue here).34 If they prevail in this Court and have 
their sentence under Section 924(c) vacated, peti­
tioners will be subject to only a five-year term of 
imprisonment for the armed assault offenses.

Such an unanticipated and undeserved windfall to 
petitioners should not be countenanced. Whether their 
criminal conduct is denominated as a violation of 
Section 924(c), or of Section 111, or both, petitioners 
engaged in criminal activities calling for severe con­
demnation and punishment. The district court im­

34 Petitioners were sentenced to a term of five years’ im­
prisonment under Section 111 (Counts 6 and 7) and to a 
consecutive term of 20 years’ imprisonment under Section 
924(c) (Count 18 for petitioner Busic, and Count 19 for 
petitioner LaKocca). Petitioners’ sentence under Section 111 
was concurrent with their sentence of five years’ imprison­
ment for firearms offenses other than Section 924(c). In 
addition, petitioners were sentenced to a consecutive term of 
five years’ imprisonment for various narcotics offenses. In 
total, each petitioner received a sentence of 80 years’ im­
prisonment. See page 5, supra.

Because the maximum penalty that could be imposed under 
Section 111 for two counts of armed assault is 20 years’ im­
prisonment (two consecutive 10-year terms), petitioners’ 
re-sentence on remand would in fact be less than the 25 years’ 
imprisonment (five years of which were concurrent with the 
sentences on other counts) they originally received for the 
armed assaults under Sections 924(c) and 111. Nevertheless, 
such a 2 0 -year sentence, if made consecutive to the sentences 
on the other charges of which petitioners were convicted, 
would result in a total term of 30 years’ imprisonment, the 
same cumulative sentence that was initially imposed.

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59

posed substantial terms of imprisonment commensu­
rate with the gravity of petitioners’ acts, and it is 
of no practical consequence that petitioners’ sentence 
for the armed assaults was apportioned between the 
counts under Section 924(c) and those under Section 
111. Petitioners now seek to have their armed assault 
sentence reduced from 25 years’ imprisonment to five 
years’ imprisonment because of this Court’s inter­
vening decision in Simpson v. United States, supra 
—a decision that the district court could not have 
taken into account in structuring petitioners’ sen­
tence. It is, we think, inconceivable that the district 
judge, who elected a total sentence of 25 years for 
the assaults and chose Section 924(c) as the primary 
vehicle for that result, would have sentenced peti­
tioners to only five years for their conduct had he 
known that Section 111 was the sole provision under 
which the armed assaults could be punished.38 Indeed, 
since petitioners’ sentence on the Section 111 counts 
is concurrent with other sentences they received, 
vacation of the Section 924(c) sentence would mean 
that petitioners would in effect be subject to no 
augmented punishment for their armed assaults. In 
these circumstances, we submit that the appropriate 
disposition of this case (assuming the Court con- 35

35 Since the legal issue petitioners raise concerns purely 
formal and technical aspects of the sentencing and is wholly 
unrelated to the choice of a just punishment for their criminal 
conduct, it seems especially unlikely that the district court 
would have imposed a sentence of only five years for the 
armed assaults if. it had understood the law to be as peti­
tioners now contend.

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60

eludes that petitioners’ Section 924(c) sentence was 
unauthorized) is to remand to the district court for 
re-sentencing on the Section 111 counts subject only 
to (1) the maximum penalties prescribed by Congress 
in that statute, and (2) the restriction that the new 
sentence imposed on each petitioner for the armed 
assault offenses not exceed the original total sentence 
he received for those offenses.36

36 United States v. Addonizio, No. 78-156 (June 4, 1979), 
is not to the contrary. In Addonizio, the Court held that 
Section 2255 relief was not available to a prisoner who claimed 
that a change in the policies of the United States Parole Com­
mission had frustrated the sentencing judge’s subjective in­
tent concerning the expected term of actual imprisonment. 
Unlike Addonizio, the instant case does not involve the “settled 
law that * * * narrowly limit [s] the grounds for collateral 
attack on final judgments” (slip op. 6 ). Moreover, our con­
tention does not turn on “the subjective intent of the sentenc­
ing judge” (slip op. 9) or on the judge’s “expectations with 
respect to the actual release of a sentenced defendant short 
of his statutory term” (slip op. 11). Rather, our position 
depends solely on the objective fact that the district judge 
sentenced petitioners to 25 years’ imprisonment for their 
armed assaults on federal officers—a decision that unques­
tionably was “his to make” (slip op. 1 1 ) and was not com­
mitted to any other institution of government.

Of course, the district court on remand is not obligated to 
impose a sentence equivalent to that originally ordered. If, 
for example, the initial sentence was influenced by the fact 
that petitioners violated both Section 924 (c) and Section 111, 
then the re-sentence on the Section 111 counts alone might be 
appreciably less than the earlier sentence. On the other hand, 
if, as we believe likely, the initial sentence reflected the dis­
trict court’s view that petitioners’ armed assaults on federal 
officers, in light of their prior criminal records and prospects 
for rehabilitation, warranted a sentence of 25 years’ imprison­
ment and that the apportionment of this sentence between

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61

We acknowledge the double jeopardy implications 
of the disposition we propose, but we believe that such 
concerns cannot withstand analysis.

The Double Jeopardy Clause “has been said to con­
sist of three separate constitutional protections. It 
protects against a second prosecution for the same 
offense after acquittal. It protects against a second 
prosecution for the same offense after conviction. 
And it protects against multiple punishments for the 
same offense.” North Carolina v. Pearce, 395 U.S. 
711, 717 (1969) (footnotes omitted). Only the last 
of these three protections is involved here.

In our view, the course we advocate cannot be 
said in any meaningful sense to constitute “multiple 
punishments for the same offense.” As the Court held 
in Pearce, supra, the Double Jeopardy Clause does 
not “impose [] an absolute bar to a more severe sen­
tence upon reconviction” (395 U.S. at 723).

[A]t least since 1919, when Stroud v. United 
States, 251 U.S. 15, was decided, it has been 
settled that a corollary of the powder to retry a 
defendant is the power, upon the defendant’s 
reconviction, to impose whatever sentence may 
be legally authorized, whether or not H is greater 
than the sentence imposed after the nrst convic­
tion. * * *

the two statutes was immaterial, then the re-sentence would, 
to the extent possible, parallel the earlier punishment. The 
critical point here is whether anything in the Double Jeopardy 
Clause precludes a remand to the district court for such re­
sentencing, which this Court is statutorily empowered to 
order under 28 U.S.C. 2106.

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62

Although the rationale for this “well-estab­
lished part of our constitutional jurisprudence” 
has been variously verbalized, it rests ultimately 
upon the premise that the original conviction 
has, at the defendant’s behest, been wholly nulli­
fied and the slate wiped clean. * * * [If a new 
trial] does result in a conviction, we cannot say 
that the constitutional guarantee against double 
jeopardy of its own weight restricts the imposi­
tion of an otherwise lawful single punishment 
for the offense in question. [395 U.S. at 720-721; 
footnotes omitted].

Although petitioners in the instant case have not 
challenged their conviction or sentence under Section 
111, we submit that the Double Jeopardy Clause does 
not forbid the district court to re-sentence them on 
the Section 111 counts if their sentence under Sec­
tion 924(c) is upset at their behest. As in Pearce, 
petitioners initiated the appellate proceedings that 
give rise to the need for re-sentencing. Cf. United 
States v. Scott, 437 U.S. 82, 93, 98-99 (1978). Thus, 
this is not a case in which the government instituted 
steps to increase a defendant’s punishment on a given 
count, and there is no “act of governmental oppres­
sion of the sort against which the Double Jeopardy 
Clause was intended to protect.” United States v. 
Scott, supra, 437 U.S. at 91. In addition, the sen­
tences under Section 924(c) and Section 111 derive 
from the same armed assaults on federal officers. 
Since petitioners would not on remand be subject to 
any greater sentence for the armed assaults than the

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63

25 years’ imprisonment they initially received (in­
cluding credit for time already served, see North 
Carolina v. Pearce, supra, 395 U.S. at 717-719), they 
would suffer no enhanced or multiple punishment for 
those offenses.37

37 Since, under this analysis, petitioners’ sentences would 
not be increased by re-sentencing, the due process protections 
against vindictiveness recognized in North Carolina V. Pearce, 
supra, are inapplicable here. Moreover, “the possibility that 
a defendant might be deterred [by this result] from the exer­
cise of a legal right [to appeal]” does not violate the Due 
Process or Double Jeopardy Clauses. Bordenkircher V. Hayes, 
434 U.S. 357, 363 (1978). See also Blackledge v. Perry, 417 
U.S. 21, 27 (1974) ; Chaffin V. Stynchcombe, 412 U.S. 17, 29 
(1973) ; North Carolina V. Pearce, supra, 395 U.S. a t 719- 
721. Indeed, since the appeal could not result in a higher 
sentence than that originally imposed, there could be no de­
terrent to an appeal.

For the same reasons, the court of appeals erred in con­
cluding (App. 47) that petitioner LaRocca could not be re- 
sentenced to a greater punishment on the Section 924(c) 
count or on the Section 111 counts (whichever the govern­
ment elects for re-sentencing) than he had initially received 
for the offense. As discussed in the text, the appropriate 
standard for measuring the severity of the re-sentence is the 
composite sentence initially imposed on the armed assault 
counts under Sections 924(c) and 111. Nor would the dis­
position we propose “allow the government to do indirectly 
what * * * it cannot do directly.” United States V. Stewart, 
585 F.2d 799, 801 n.5 (oth Cir. 1978), cert, denied, No. 78- 
6007 (Apr. 30, 1979). Rather, this procedure will enable the 
district court to impose whatever sentence it would have in­
itially ordered for the armed assault offenses if it had been 
aware of the legal restrictions on its sentencing power, sub­
ject to the limitation that petitioners cannot be given a 
greater punishment than they originally received.

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64

This Court has also recognized that an unlawful 
sentence can be corrected without running afoul of 
the Double Jeopardy Clause even if the revised sen­
tence exceeds the original one. See Bozza v. United 
States, 330 U.S. 160 (1947); Murphy v. Massachu­
setts, 177 U.S. 155 (1900); see also Pollard v. United 
States, 352 U.S. 354 (1957). “To hold otherwise 
would allow the guilty to escape punishment through 
a legal accident” (Pollard v. United States, supra, 
352 U.S. at 361), for “ [i]f this inadvertent error 
cannot be corrected * * * no valid and enforceable sen­
tence can be imposed at all” (Bozza v. United States, 
supra, 330 U.S. at 166). Analogously to those cases, 
petitioners here, if not subject to re-sentencing, would 
in a very real sense be allowed to escape punishment 
for the aggravated offense of armed assault. To the 
extent that the district court, following reversal of 
the Section 924(c) convictions, cannot bring peti­
tioners’ sentence into line with the penalty it origi­
nally intended and imposed for the armed assaults, 
petitioners will be allowed through a legal accident 
to escape the full and fair measure of their punish­
ment. Indeed, under the existing sentence, petitioners 
have received concurrent five-year terms of imprison­
ment on the two Section 111 counts of armed assault, 
a lesser penalty than could have been imposed for two 
unarmed assaults on federal officers. See also page 
59, supra.

It is well settled that “ [corresponding to the right 
of an accused to be given a fair trial is the societal 
interest in punishing one whose guilt is clear after 
he has obtained such a trial.” United States v. Tateo,

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65

377 U.S. 463, 466 (1964). See also, e.g., United 
States v. Scott, 437 U.S. 82, 92 (1978). Inherent in 
this societal interest is the fundamental recognition 
that a convicted defendant should receive an appro­
priate sentence that reflects his character and the na­
ture and severity of his criminal conduct. See, e.g., 
Pennsylvania v. Ashe, 302 U.S. 51, 55 (1937) (“For 
the determination of sentences, justice generally re­
quires * * * that there be taken into account the cir­
cumstances of the offense together with the character 
and propensities of the offender.” ). As North Caro­
lina v. Pearce and Bozza v. United States illustrate, 
the Double Jeopardy Clause does not render nugatory 
or illegitimate the societal interest in having just 
sentences meted out to convicted defendants. While 
the Double Jeopardy Clause was designed “to pro­
tect the integrity of a final judgment” (United 
States v. Scott, 437 U.S. 82, 92 (1978)) and requires 
due regard for “principles of fairness and finality” 
(United States v. Wilson, 420 U.S. 332, 343 (1975)), 
it cannot be said that to allow petitioners to be re­
sentenced following their successful appeal in this 
case would forsake these precepts. Likewise, it is at 
best a semantic exercise to conclude that re-sentencing 
petitioners to no greater penalty than they originally 
received for their armed assaults on federal officers 
would be to subject them “to the possibility of further 
punishment by being again * * * sentenced for the 
same offense” (ibid.). If petitioners’ Section 111 
sentences are vacated and the case remanded for 
re-sentencing, “we cannot say that the constitutional

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6 6

guarantee against double jeopardy of its own weight 
restricts the imposition of an otherwise lawful single 
punishment for the offense in question.” North Caro­
lina v. Pearce, supra, 395 U.S. at 721.

This Court has never considered whether a de­
fendant who succeeds in challenging one of two 
related sentences can be subject to re-sentencing on 
the unchallenged count. The lower federal courts 
have resolved this question against the government.88 
In our view, however, these decisions have simply 
seized, without further analysis, on the perceived 
double-jeopardy rule that in no circumstances can a 
valid sentence on an uncontested conviction be in- * 14

38 See United States V. Frady, 607 F.2d 383 (D.C. Cir. 
1979) ; Borum V. United States, 409 F.2d 433 (D.C. Cir. 1967), 
cert, denied, 395 U.S. 916 (1969) ; United States V. Bynoe, 
562 F.2d 126 (1st Cir. 1977) ; United States V. Sacco, 367 F.2d 
368 (2d Cir. 1966) ; United States V. Fredenburgh, 602 F.2d 
1143 (3d Cir. 1979) ; United States V. Benedetto, 558 F.2d 
171 (3d Cir. 1977) ; Government of the Virgin Islands V. 
Henry, 533 F.2d 876 (3d Cir. 1976) ; United States V. Corson, 
449 F.2d 544 (3d Cir. 1971) (en banc) ; United States V. 
Welty, 426 F.2d 615 (3d Cir. 1970) ; Whaley V. North Caro­
lina, 379 F.2d 221 (4th Cir. 1967) ; Chandler V. United States, 
468 F.2d 834 (5th Cir. 1972) ; United States V. Adams, 362 
F.2d 210 (6th Cir. 1966) ; United States V. Turner, 518 F.2d
14 (7th Cir. 1975) ; United States V. Durbin, 542 F.2d 486 
(8th Cir. 1976) ; United States v. Edick, 603 F.2d 772 (9th 
Cir. 1979) ; United States V. Best, 571 F.2d 484 (9th Cir. 
1978) ; Kennedy V. United States, 330 F.2d 26 (9th Cir. 
1964); Owensby V. United States, 385 F.2d 58 (10th Cir. 
1967).

124



creased. As discussed above, however, such a rale 
is unfounded.39

39 The Third Circuit has endeavored to support this asserted 
rule on the theory that “the constitution protects the expecta­
tions created in a defendant when he is properly convicted 
and sentenced [on a given count].” United States v. Freden- 
burgh, supra, 602 F.2d at 1147-1148. “Perhaps the best expla­
nation for this rule is that a defendant’s initial expectations 
as to the maximum sentence he must serve on a valid judg­
ment of conviction should not be defeated * * *.” Id, a t 1148. 
It is wholly unrealistic^ however, to believe that petitioners’ 
original sentence created an expectation that they would not 
be imprisoned for more than five years on the Section 111 
counts. Rather, petitioners knew that they had received an 
overall sentence of 30 years’ imprisonment in this case and 
a composite sentence of 25 years’ imprisonment (five years 
of which were concurrent with other terms of incarceration) 
for the armed assault offenses.

In any event, the Double Jeopardy Clause does not require 
that considerations other than a defendant’s expectations be 
disregarded. Neither North Carolina v. Pearce nor Bozza v. 
United States turned on the existence or predominance of a 
defendant’s expectations; rather, they represent the careful 
accommodation of the right of the defendant to fair treatment 
and the interest of society in the just disposition of criminal 
cases. Likewise, the Third Circuit’s view that the Double 
Jeopardy Clause vests a defendant with an indefeasible 
expectation that his sentence on one of a series of related 
counts will not be changed, regardless of the interests of 
justice and of society, cannot be squared with the principle 
derived from United States v. Wilson, supra, that a defend­
ant’s expectations arising from an acquittal by the trial court 
following a jury verdict of guilty are subject to defeasance 
when the favorable action is premised upon a legal error 
(see 420 U.S. a t 345)., In the same way, we suggest that the 
Double Jeopardy Clause does not make inviolable whatever 
expectations petitioners might have in this case or entitle peti­
tioners to a windfall reduction in their sentence by barring 
the district court from re-sentencing them on the Section 111 
counts up to the penalty previously imposed for the armed as­
sault offenses under Sections 924(c) and 111.



68

Moreover, these lower federal court decisions are 
almost uniformly premised on what we believe is 
a superficial and incorrect reading of this Court’s 
decision in Ex parte Lange, 85 U.S. (18 Wall.) 163 
(1873). In Lange, the trial court sentenced the de­
fendant to imprisonment and a fine even though the 
punishment authorized by statute was imprisonment 
or a fine. After defendant had paid the fine, the trial 
court sought to correct the sentence by imposing only 
a term of imprisonment. This Court held that once 
the defendant had paid the fine (which had gone into 
the Treasury and therefore could not be refunded), 
he had satisfied a sentence authorized by statute and 
thus could not thereafter be re-sentenced without 
being subjected to impermissible double punishment:

If there is anything settled in the jurispru­
dence of England and America, it is that no man 
can be twice lawfully punished for the same 
offence. And * * * there has never been any 
doubt of [this rule’s] entire and complete pro­
tection of the party when a second punishment 
is proposed in the same court, on the same facts, 
for the same statutory offence.

Ex Parte Lange, supra, 85 U.S. (18 Wall.) at 168, 
quoted in North Carolina v. Pearce, supra, 395 U.S. 
at 717-718. See also In re Bradley, 318 U.S. 50 
(1943); United States v. Benz, 282 U.S. 304, 307 
(1931).

The imposition of both a fine and imprisonment in 
Ex parte Lange was a multiple punishment pro­
hibited by the Double Jeopardy Clause precisely be­

126



69

cause Congress had not authorized both penalties; it 
had authorized only one or the other.40 In our view, 
Ex parte Lange holds that “the role of the * 41 * 
[Double Jeopardy Clause] is limited to assuring that 
the court does not exceed its legislative authorization 
by imposing multiple punishments for the same of­
fense.” Brown v. Ohio, 432 U.S. 161, 165 (1977). 
Such a rule has no bearing on the question whether a 
defendant who successfully attacks certain counts of 
his conviction or punishment can be re-sentenced on 
the remaining counts that grow out of the same 
criminal conduct as the invalidated counts. Notwith­
standing Ex parte Lange, we submit that where an 
unlawful act results in a multi-count prosecution 
under more than one federal statute, the Double 
Jeopardy Clause does not bar a defendant from being 
re-sentenced on the outstanding counts if his con­
viction or sentence on the other counts is overturned 
on his appeal, provided that the re-sentence complies 
with the maximum penalty authorized by statute for 
each count and does not exceed the aggregate sen­
tence originally imposed for such criminal conduct.

In the instant case, it is clear that petitioners’ 
sentences under Section 924(c) and Section 111 de­

It is not entirely clear why the Court in Ex parte Lange 
rested its decision on double jeopardy grounds, since the same
result was compelled by the statute under which the de­
fendant was convicted, wholly without regard to the existence 
of the constitutional double jeopardy protection. Moreover, 
it would seem indisputable that the Due Process Clause 
would preclude the imposition of a sentence depriving a de­
fendant of either liberty or property in a manner or to an 
extent not authorized by statute.

127



70

rive from the same criminal act—the armed assaults 
of federal officers. For this criminal conduct, peti­
tioners were each sentenced to consecutive terms of 
20 years’ imprisonment on the Section 924(c) count 
and five years’ imprisonment on the Section 111 
counts. If this Court vacates the Section 924(c) 
counts, the fact that petitioners’ sentences were al­
lotted between two statutes should not, as a matter of 
constitutional command, entitle petitioners to serve 
only a five-year term of incarceration on the Section 
111 counts. Instead, the case should be remanded to 
the district court to re-sentence petitioners on the 
Section 111 counts, subject to the limitation that such 
re-sentence cannot exceed either the maximum penalty 
allowed by that statute or the total sentence previ­
ously imposed on petitioners under Sections 924(c) 
and 111  for the armed assault offenses of which they 
were convicted.41 * 28

41 In our view, there is no procedural impediment to the 
Court’s consideration of this issue even though the govern­
ment did not file a cross-petition for a writ of certiorari. (We 
note that the issue was presented in the government’s brief 
in the court of appeals (Brief for Appellee a t 19-21, Nos. 
77-1375, 77-1376 (3d Cir.)) and in the Brief for the United 
States as respondent at the petition stage (page 11 n.10).) 
This issue is incident to the Court’s “plenary authority under
28 U.S.C. § 2106 to make such disposition of the case ‘as may 
be just under the circumstances.’ ” Haynes v. United States, 
390 U.S. 85, 101 (1968). Moreover, we address here only the 
question of the proper disposition of the case in the event 
the judgment of the court of appeals is reversed—a matter 
the Court would be obliged in any event to consider. Since 
the government was and is satisfied with the court of appeals’ 
judgment, and since the disposition we propose would not

128



71

CONCLUSION

The judgment of the court of appeals should be 
affirmed.

Respectfully submitted.

January 1980

Wade H. McCree, Jr.
Solicitor General

P hilip B. Heymann
Assistant Attorney General

A ndrew L. Frey
Deputy Solicitor General

Mark I. Levy
Assistant to the Solicitor General

Carolyn L. Gaines 
Attorney

grant the government any greater relief than was afforded 
by the court of appeals, there should be no requirement that 
a cross-petition be filed. Finally, we note the tremendous 
burden that would be imposed on the federal government 
and on this Court if the government were obligated to scru­
tinize each of the thousands of cases every Term in which it 
is or might be a respondent to determine whether a cross­
petition is necessary to protect, in the event certiorari is 
granted, the fruits of a lower court judgment with which it 
is content. See Stern, When to Cross-Appeal or Cross-Petition 
—Certainty or Confusion?, 87 Harv. L. Rev. 763, 775-776 
(1974).

129



Supreme Court of tlje (Hmteti States
OCTOBER TERM, 1979

I N  T H E

No. 78-6029

ANTHONY LaROCCA, JR.,
Petitioner,

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE THIRD CIRCUIT

REPLY BRIEF FOR PETITIONER

G ERA LD  GOLDM AN 
Hughes Hubbard & Reed 
1660 L Street, N.W, 
Washington, D.C, 20036

(Court-appointed Counsel for 
Petitioner)

Of Counsel:
PETER E. SCH EER

131



TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES...................................   iii
ARGUMENT...............................................   1

I. PETITIONER’S CONVICTION AND 
SENTENCE UNDER COUNT 19 MUST
BE VACATED .....................................     1
A. Simpson v. United States Is Depositive Of

This Case............................................... . 2
B. The Pertinent Tools Of Statutory Con­

struction Dictate The Inapplicability Of 
Section 924(c) To Armed Assault...................... 4
1. The legislative history demonstrates

Congress’s intent to exclude Section 
111 violations from the scope of 
Section 924(c)..................................... . 5

2. The government’s interpretation of
Section 924(c) draws no support from 
any need to implement the deterrence 
rationale or to avoid anomalous appli­
cations of this provision..........................  10

3. Section 111 takes precedence over 
Section 924(c) because a specific 
criminal statute governs over a general
one........................................  13

4. The rule of lenity precludes the imposi­
tion of an enhanced penalty for armed
assault under Section 924(c)........................15

II. PETITIONER CANNOT NOW BE RE­
SENTENCED UNDER COUNTS 6 AND
7 ......................................................................... 17
A. The Failure To Cross-Petition Is Fatal To 

The Government’s Request For Re­
sentencing Under Counts 6 And 7..... .................18

(i)

133



(HJ

B. The Principles Of Finality Embodied In
Federal Criminal Rule 35 Preclude Re­
sentencing Under Counts 6 And 7.....................21

C. The Due Process Clause Forbids Re­
sentencing Under Counts 6 And 7.....................24

D. The Double Jeopardy Clause Bars Re­
sentencing Under Counts 6 And 7...... ............. 31

CONCLUSION........................... .................................38

134



TABLE OF AUTHORITIES

Cases:
Bames v. United States,

223 F,2d 891 (5th Cir. 1955)........... .........................22
Benton v. Maryland,

395 U.S. 784 (1969)..................................................37
Berman v. United States,

302 U.S. 211 (1937).................................................34
Blackledge v. Perry,

417 U.S. 21 (1974)...........................................passim
Bordenkircher v. Hayes,

434 U.S. 357 (1978).......................   26,27
Bozza v. United States,

330 U.S. 160 (1947)................................................ 36
Brown v. Ohio,

432 U.S. 161 (1977)................................................ 32
Burks v. United States,

437 U.S. 1 (1978)............................................ ....3 7
Chaffin v. Stynchcombe,

412 U.S. 17 (1973)............................................  25,26
Chandler v. United States,

468 F.2d 834 (5th Cir. 1972)...................................  30
Colten v. Kentucky,

407 U.S. 104 (1972)...............................................  26
Crist v. Bretz,

437 U.S. 28 (1978)................................................  34
Ex parte Lange,

18 U.S. (Wall.) 163 (1874).................................. 31
FTC v. Minneapolis-Honeywell Regulatory Co.,

344 U.S. 206 (1952)...................... ' . . . ...................35

( I I I )

135



Green v. United States,
355 U.S. 184 (1957)............................................32,36,37

Haynes v. United States,
390 U.S. 85 (1968).......................................... ...........  19

In re Bradley,
318 U.S. 50 (1943)...............................................32,33,35

Kennedy v. United States,
330 F.2d 26 (9th Cir. 1964)........................................  33

Morley Construction Co. v. Maryland Casualty Co.,
300 U.S. 185 (1937).......................................................18

Morris v. United States,
185 F. 73 (8th Cir. 1911)............................................... 21

Murgia v. United States,
448 F.2d 1275 (9th Cir. 1971)....................................... 17

Murphy v. Massachusetts,
177 U.S. 155 (1900)..................................................32,33

NLRB v. International Van Lines,
409 U.S. 48 (1972)......................................................  20

North Carolina v. Pearce,
395 U.S. 711 (1969)........................................... passim

Pugliese v. United States,
353 F.2d 514 (1st Cir. 1965)...................................  23

Reid v. Covert,
354 U.S. 1 (1957)...................................................  32>33

Simpson v. United States,
435 U.S. 6 (1978).................................................. passim

Swarb v. Lennox,
405 U.S. 191 (1972)................... ....................... ••••• 18

Train v. Colorado Public Interest Research Group, Inc.,
426 U.S. 1 (1976)........................................................... 5

Union Pacific Railroad Co. v. Sheehan,
439 U.S. 89 (1978)......................................................  20

(iv)

136



United States v. Adams,
362 F.2d 210 (6 th Cir. 1966)............................... 23,33

United States v. Addonizio,
442 U.S. 178 (1979).............................. ............. 23,29

United States v. American Railway Express Co.,
265 U.S. 425 (1924).................................................18

United States v. American Trucking Assns.,
310 U.S. 534 (1940).................................................5

United States v. Batchelder,
442 U.S. 114 (1979)........ ..................................  5,6,15

United States v. Benz,
282 U.S. 304 (1931)........   32,33

United States v. Best,
571 F,2d 484 (9th Cir. 1978)...................................  30

United States v. Busic,
587 F.2d 577 (1978)...............................................  20

United States v. Corson,
449 F.2d 544 (3d Cir. 1971)................... .................23

United States v. DiFrancesco,
604 F.2d 769 (2d Cir. 1979), petition for writ of 
certiorari pending (No. 79-567).................................. 34

United States v. Eagle,
539 F.2d 1166 (8th Cir. 1976), cert, denied, 429
U.S. 1110 (1977)...................    11

United States v. Fredenburgh,
602 F.2d 1143 (3d Cir. 1979)..............................  23,34

United States v. Reliable Transfer Co.,
421 U.S. 397 (1975)...............................................  18

United States v. Sacco,
367 F.2d 368 (2d Cir. 1966)................................ 30,33

United States v. Scott,
437 U.S. 82 (1978)........................................34,35,36

United States v. Stewart,
585 F.2d 799 (5th Cir. 1978), cert, denied, 440
U.S. 918 (1979)...................   27

( v )

137



( vi)

United States v. Tateo,
377 U.S. 463 (1964)................ ............................... 36

United States v. Tucker,
404 U.S. 443 (1972)................................................  27

United States v. Tuffaneili,
138 F.2d 981 (7th Cir. 1943)....................... 21,22,23,24

United States v. Turner,
518 F.2d 14 (7th Cir. 1975)..................................30,35

United States v. Walker,
346 F.2d 428 (4th Cir. 1965)..................................... 23

United States v. Welty,
426 F.2d 615 (3d Cir. 1970)............................. 20,29,30

United States v. Wilson,
420 U.S. 332 (1975).............................................32,35

Vincent v. United States,
337 F.2d 891 (8th Cir. 1964), cert, denied, 380
U.S. 988 (1965)......................................................... 23

United States Constitution:
Amendment V........................................ .........passim

Statutes:
Gun Control Act of 1968,

Pub. L. No. 90-618, 82 Stat. 1213.....................5,7,8,16
Omnibus Crime Control Act of 1970,

Pub. L. No. 91-644, 84 Stat. 1889................................7
18 U.S.C. §111 ..................................................... passim
18 U.S.C. §922(h)...................................................... 5,15
18 U.S.C. §924(a)....................................................  5,15
18 U.S.C. §924(c).................................................. passim
18 U.S.C. §2113(b)........................................................ 12
18 U.S.C. §2113(d).....................................................9,12
18 U.S.C. §2114........................................................ 9,12
28 U.S.C. §2106 .....................................   19,23,24
Rules:
Federal Rules of Appellate Procedure:

Rule 4(b).............................................................23,34
138



Federal Rules of Criminal Procedure:
Rule 32(b)............................................................ 23,34
Rule 35 ..........................   passim
Rule 54 (a) ........................  23

Supreme Court Rules:
Rule 23(1 )(c)..................................... .................. 18,19

Congressional Materials:
S. 1722, 96th Cong., 1st Sess. (1979).............. .......... .. .14
H.R. 6233, 96th Cong., 2d Sess. (1980).......................... 14
H.R Conf. Rep. No. 1956,

90th Cong., 2d Sess. (1968).......................................... 7
114 Cong. Rec. (1968):

p. 22229..............     7
p. 22231 ......................................................................7
p. 22232...........................   .......5 ,6
p. 22233......................................................................7
p. 23096.....................................     8
p. 27142......................................................................9
p. 27143......................................................................9
p. 30582...........   . . . . . 8
p. 30583.........   8
p. 30584 ..................................................................8
p. 30586...........  8
p. 30587........  8

Miscellaneous:
6A J. Moore Federal Practice, H 59.09(5]

(2d ed. 1979)...........................................................19
Resolution 119, American Bar Association, House of 

Delegates, printed in, American Bar Association,
1980 Midyear Meeting Reports With Recommenda­
tions To The House of Delegates (1980)........... .........34

Stem, When to Cross-Appeal or Cross-Petition —
Certainty or Confusion?, 87 Harv. L. Rev. 763 
(1974)................................................................ 20,21

( v i l )

139



R. Stem & E. Gressman,
Supreme Court Practice (5th Ed. 1978)........  18,19,21,24

Westen & Drubel, Toward A General Theory of Double 
Jeopardy, 1978 Supreme Court Review 81 
(1979)/.....................................................................30

( viii)

140



IN THE

Supreme Court of tlje ©niteb
OCTOBER TERM, 1979

No. 78-6029

ANTHONY LaROCCA, JR,
Petitioner,

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE THIRD CIRCUIT

REPLY BRIEF FOR PETITIONER

ARGUMENT

I.

PETITIONER’S CONVICTION AND 
SENTENCE UNDER COUNT 19 MUST BE 
VACATED.

Almost a decade ago the government took the position that 
the use of a firearm in assaulting a federal officer should be 
prosecuted pursuant to the specific “enhanced penalty” 
provision of 18 U, S.C. §111, rather than the general one in

141



2

18 U.S.C. §924(c). See PET. BR at 10, 12 & n.12, 17.1 
The government now labors long and hard to disavow this 
view in an effort to sustain petitioner LaRocca’s Section 
924(c) conviction and sentence under Count 19. But when 
all is said and done, the government’s present position 
cannot be reconciled with Simpson v. United States, 435 
U.S. 6 (1978), in which this Court specifically endorsed the 
government’s original views on the restricted scope of 
Section 924(c). Id. at 16. Indeed, as we discuss below, the 
government’s brief in this case is largely a rehash of 
arguments that were offered, and rejected, in Simpson.

There is one new argument of note advanced by the 
government — an asserted gloss on Representative Poff s 
explanation of the limited reach of Section 924(c). However, 
this piece of legerdemain cannot mask the central fact that 
Congress considered it both unnecessary and inappropriate 
to extend Section 924(c) to Section 111 violations.

A. Sim pson v. U nited States Is D epositive O f This 
Case.

The government maintains that nothing in Simpson limits 
its discretion to prosecute the use of a firearm in assaulting a 
federal officer pursuant to Section 924(c). In the govern­
ment’s view, Simpson merely bars simultaneous sentencing 
under both Section 924(c) and the second paragraph of 
Section 111. U.S. BR at 37-39.

A moment’s reflection betrays the flaw in this argument.

'“ PET. B R ” refers to petitioner LaRocca’s opening brief filed 
December 1979, while “ U.S. B R ” refers to the brief filed by the United 
States in opposition thereto in January 1980. All references to the 
position in this case of the United States are to the latter brief, unless 
otherwise noted.

142



3

Simpson does forbid the imposition of doubly enhanced 
sentences, but the Court reached this result precisely 
because it concluded, as Simpson argued, that no conviction 
can be obtained at all under Section 924(c) when the specific 
enhanced penalty provision of another section of Title 18 
applies. See PET. BR at 9 & n. 8 . The government carefully 
passes over this conclusion in its description of Simpson, 
Yet it is set out in haec verbae at various points in the Court’s 
opinion. See PET. BR at 9-11.

Even more important is the rationale of the Simpson 
decision. The Court’s analysis of the legislative history of 
Section 924(c), for example, logically forecloses the 
government’s argument The Court found this history 
pertinent not merely because it indicated a congressional 
aversion to cumulative sentences, but because it was 
“clearly probative of a legislative judgment that the purpose 
of §924(c) is already served [and the provision, therefore, 
should not apply] whenever the substantive federal offense 
provides enhanced punishment for use of a dangerous 
weapon.” 435 U.S. at 13 (emphasis added) .2

The Court also relied in Simpson on “the interpretative 
preference for specific criminal statutes over general crimi­
nal statutes.” 435 U.S. at 16. The very invocation of this 
principle leaves no room for the government’s reading of 
Simpson. Because this principle “gives precedence to the 
terms of the more specific statute,” id. at 15, it was — and 
could only have been — invoked in the decision to support 
the conclusion that the specific enhanced penalty provisions

2With admirable candor the government acknowledged in its brief in 
response to our petition for a writ of certiorari (at 7) that this language 
“ lends considerable credence to petitioners’ contention that Section 111 
violations can never supply the predicate for a conviction under Section 
924(c)(1)

143



4

of Title 18 govern to the exclusion of Section 924(c) .3
In sum, Simpson held that Section 924(c) has no 

application where the predicate felony statute already 
provides an enhanced penalty for the use of a weapon. What 
the government seeks in this case, then, is not the answer to 
any novel issue, but rather reconsideration of a decision 
already handed down. If the doctrine of stare decisis means 
anything, the Court should reject the government’s position 
out of hand. See PET. BR. at 8 & n.7. Not only is Congress 
free to overrule or alter Simpson in any way that it sees fit, 
but, in fact, legislation is presently pending addressing the 
very issues raised here. See note 14, infra. The government’s 
arguments, accordingly, would be more appropriately 
directed to Congress than to this Court.

B. The Pertinent Tools Of Statutory Construction 
Dictate The Inapplicability Of Section 924(c)
To Armed Assault.

Even if Simpson were not directly dispositive of this case, 
the “tools of statutory construction” relied on there (435 
U. S. at 12) point unmistakably to the conclusion that Count 
19 here must be vacated. See PET. BR at 11-21. The 
government’s contrary arguments do not withstand 
analysis.4

3 Although the government now seems to think that Sim pson’s reliance 
on this rule of construction can be reconciled with its theory of an 
election of offenses (see U.S. BR. at 43 & n.22), this principle was the 
foundation for the government’s original position that Section 924(c) 
does not embrace any Section 111 violations. See 435 U.S. at 16.

“•Emphasizing that Section 924(c) applies to the use of a firearm to 
commit “ any” felony, the government suggests (at 17-19) that the 
language of this provision makes reliance on legislative history and other 
similar interpretative tools suspect Yet the government made essentially

fcon tinuedI

144



5

I. The legislative history demonstrates Congress’s 
intent to exclude Section 111 violations from the 
scope of Section 924(c),

T h is  c a s e  b e a rs  little  re s e m b la n c e  to  United States v. 
Batchelder, 4 4 2  U .S . 1 1 4  (1 9 7 9 ) ,  o n  w h ic h  th e  g o v e rn m e n t 
re lie s  so  h e a v ily  to  s u p p o r t  its  th e o ry  o f  a n  e le c tio n  o f  
o ffen ses. Batchelder  in v o lv e d  S e c tio n s  9 2 2 (h )  a n d  9 2 4 (a )  o f  
T itle  18 , b o th  o f  w h ic h  p ro h ib it  c o n v ic te d  fe lo n s  fro m  
re c e iv in g  f ire a rm s . T h e  C o u r t  h e ld  th a t  th e s e  p ro v is io n s  
c o n s ti tu te  “ tw o  in d e p e n d e n t  g u n  c o n tro l s ta tu te s , e a c h  fu lly  
e n fo rc e a b le  o n  its  o w n  t e r m s . . . , ”  d e s p ite  d if fe re n c e s  in  th e ir  
s e n te n c in g  p ro v is io n s . Id. a t  1 1 9 . T h e  C o u r t  re a c h e d  th is  
re s u lt  o n  th e  b a s is  o f  a u th o r i ta t iv e  s ta te m e n ts  in  b o th  h o u se s  
“  e v in c in g ]  C o n g re s s ’ clear u n d e r s ta n d in g  th a t  th e  tw o  
T itle s  w o u ld  b e  a p p lie d  in d e p e n d e n tly .”  Id. a t  121 
(e m p h a s is  a d d e d ).

H e re  th e re  is n o  s u c h  “ u n d e r s ta n d in g ,”  a s  Sim pson  i ts e lf  
m a k e s  c le a r . See  4 3 5  U .S . a t  1 3 -1 4 . O n  th e  c o n tra ry , th e  
leg is la tiv e  h is to ry  o f  th e  G u n  C o n tro l  A c t  o f  1 9 6 8  c o n ta in s  
th e  u n e q u iv o c a l  s ta te m e n t  b y  R e p re s e n ta t iv e  P o f f  th a t  
S e c tio n  9 2 4 (c )  is n o t  in te n d e d  to  a p p ly  to  S e c tio n  1 1 1 , s in ce  
th a t  p ro v is io n  “ a lre a d y  d efin e [s] th e  p e n a lt ie s  fo r  th e  u se  o f  a 
f ire a rm  in  a s s a u lt in g  o ff ic ia ls  . . . . ” 1 1 4  C o n g . R ec . 2 2 2 3 2

(footnote continued from preceding page)
the same argument in Simpson. See Br. for the United States, Nos. 76- 
5761 and 76-5796, filed August 5, 1977, at 11-12. The argument was 
rejected then, and should be rejected now.

It is well-established that “fw]hen aid to construction of the meaning 
of words, as used in [ a] statute, is available, there certainly can be no ‘ rule 
of law’ which forbids its use, however clear the words may appear on 
‘superficial examination.’ ” Train v. Colorado Public Interest Research 
Group, Inc., 426 U.S. 1, 10 (1976), quoting United States v. American 
Trucking Assns., 310 U.S. 534, 543-44(1940). Here the pertinent aids 
to construction belie any facile interpretation of Section 924(c) based on 
its reference to “any” felony.

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6

(1 9 6 8 ) .  T h is  s ta te m e n t  b y  th e  s p o n s o r  o f  S e c tio n  9 2 4 (c )  
u p o n  its  in tro d u c tio n  w a s  e x p re s s ly  m a d e  “ [f]o r  th e  s a k e  o f  
le g is la tiv e  h is to ry ,”  id., a n d  is th e  m o s t  a u th o r i ta t iv e  
e x p la n a tio n  o f  th e  s c o p e  o f  th e  p ro v is io n . See  P E T .  B R  a t 
11 n. 1 1 .5

In  a d d itio n , in  e n a c tin g  R e p re s e n ta t iv e  P o fF s  p ro p o sa l, 
C o n g re s s  re je c te d  a n  a m e n d m e n t o ffe re d  b y  S e n a to r  
D o m in ic k  th a t  “ w o u ld  h a v e  p e rm itte d  th e  im p o s it io n  o f  an  
e n h a n c e d  s e n te n c e  fo r  th e  u se  o f  a  f ire a rm  in  th e  c o m m iss io n  
o f  a n y  fe d e ra l c r im e , e v e n  w h e re  a l lo w a n c e  w a s  a lre a d y  
m a d e  in  th e  p ro v is io n s  o f  th e  s u b s ta n tiv e  o ffe n se  fo r 
a u g m e n te d  p u n is h m e n t  w h e re  a  d a n g e ro u s  w e a p o n  is u s e d .”  
4 3 5  U .S . a t  1 4 .6 T h is  le g is la tiv e  re c o rd  sh o w s  th a t  C o n g re ss  
in te n d e d  th e  e n h a n c e d  p e n a lty  p a r a g ra p h  o f  S e c tio n  111 to  
a p p ly  in  p la c e  o f  S e c tio n  9 2 4 (c ) ,  see P E T . B R  a t  1 1 -1 3 , a n d  
se ts  th is  c a s e  e n tire ly  a p a r t  fro m  Batchelder.

T h e  g o v e rn m e n t a t te m p ts  to  o v e rc o m e  th is  leg is la tiv e  
h is to ry  b y  a n  e x te n s iv e  r e c i ta t io n  o f  o th e r  e v e n ts  d u r in g  the

5The government suggests (at 31) that Representative Poff was 
speaking only to whether Section 924(c) permits doubly enhanced 
sentences and not to whether it can be invoked in place of existing 
enhancement provisions. This is absurd. Representative Poff plainly 
stated that his proposal would not apply to Section 111 inasmuch as that 
statute already provided for an enhanced penalty in case a firearm was 
used.

Contrary to the government’s suggestion (at 37 n.18), the rejection of 
the Dominick amendment signifies more than a congressional de­
termination to punish the use of a firearm even in the commission of non­
violent crimes and to avoid cumulative sentencing. The Dominick 
amendment would have conferred on the government the very authority 
sought in this case — to prosecute an armed assault under Section 
924(c). Although a number of considerations may have animated the 
Congress in choosing the Poff over the Dominick proposal, that does not 
diminish the significance of the fact that, according to their respective 
sponsors, the proposal that was rejected applied to Section 111 
violations, while the provision that was adopted did not.

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7

c o n s id e ra tio n  a n d  p a s s a g e  o f  th e  G u n  C o n tro l  A c t. T h is  
re c i ta t io n  m a in ly  p a r ro ts  th e  g o v e rn m e n t’s p re s e n ta t io n  in  
Simpson. Compare  U .S . B R  a t  2 4 -3 1 , with Br. fo r  th e  
U n ite d  S ta te s , n o te  4 , supra, a t  1 6 -2 2 . H e re , a s  th e re , th e  
g o v e rn m e n t a t te m p ts  to  d ra w  su p p o r t  fo r  its  p o s it io n  fro m  
re m a rk s  b y  R e p re s e n ta t iv e  P o f f  c o n c e rn in g  th e  c o m p e tin g  
a m e n d m e n t o ffe re d  b y  R e p re s e n ta t iv e  C a se y . R e p re s e n ta ­
tiv e  P o f f  s ta te d  th a t  h is  p ro p o s a l  “ s tre n g th e n s ”  th e  C a s e y  
a m e n d m e n t, 1 1 4  C o n g . R ec . a t  2 2 2 3 1 ,  a n d  “ a p p l i e s ]  to  all 
F e d e r a l  fe lo n ie s  in c lu d in g  h e in o u s  c r im e s  in  all g ra d es , 
d o w n  to  th e  lo w e s t lev e l o f  a  fe lo n y . " Id .  a t2 2 2 3 3 .  H o w e v e r , 
th e se  s ta te m e n ts  n o  m o re  a s s is t  th e  g o v e rn m e n t in  th is  c a se  
th a n  in  Simpson. R e a d  in  c o n te x t, th e y  m e re ly  c o n f irm  th a t  
R e p re s e n ta tiv e  P o f f  s p ro p o sa l  w a s  in te n d e d  to  b e  s tro n g e r 
a n d  m o re  in c lu s iv e  th a n  th e  C a s e y  a m e n d m e n t, w h ic h  w as  
lim ite d  to  th e  u se  o f  a  f ire a rm  in  th e  c o m m iss io n  o f  c e r ta in  
g ra v e  c r im e s  o f  v io len ce . See id. a t  2 2 2 2 9 .  T h e  re m a rk s  o f  
R e p re s e n ta tiv e  P o f f  in  n o  w a y  c o n tra d ic t  h is  fo rm a l ex­
p la n a tio n  th a t  S e c tio n  111 v io la tio n s  a re  s im p ly  b e y o n d  th e  
sc o p e  o f  S e c tio n  9 2 4 (c ) .

T h e  g o v e rn m e n t’s b r ie f  in  th is  c a s e  c o n ta in s  o n e  re fin e ­
m e n t o v e r  its  p re s e n ta t io n  o f  th e  le g is la tiv e  h is to ry  in  
Simpson. T h e  g o v e rn m e n t a t ta c h e s  g re a t  w e ig h t to  th e  
m o d if ic a tio n s  m a d e  to  th e  P o f f  a m e n d m e n t b y  th e  C o n ­
fe re n c e  C o m m itte e , in c lu d in g  th e  e lim in a tio n  o f  th e  p r o ­
h ib itio n  o n  su s p e n d e d  s e n te n c e s  a n d  p ro b a tio n  fo r f irs t 
o ffe n d e rs , a n d  th e  e lim in a tio n  o f  th e  re s tr ic t io n  o n  c o n c u rre n t  
se n te n c e s . See  H . R  C o n f. R ep . N o . 1 9 5 6 , 9 0 th  C o n g ., 2 d  
S ess. 3 1 -3 2  (1 9 6 8 ) .

T h e  g o v e rn m e n t —- a n d  th is  C o u r t  —  c o n s id e re d  th e se  
c h a n g e s  to  b e  “ m in o r”  in  Sim pson.1 N e v e r th e le s s ,  th e

’See Br. for the United States, note 4, supra, atl8n.6;435 U.S. at! 4. 
The changes were partially undone in the Omnibus Crime Control Act

(continued)

147



8

g o v e rn m e n t n o w  a rg u e s  th a t  th e y  w e re  o f  g re a t  s ig n ific a n c e  
b e c a u s e  th e y  o c c a s io n e d  a n  o u tc ry  in  th e  H o u s e  a m o n g  
C o n g re s sm e n  fa v o rin g  s tif f  p e n a lt ie s  fo r  c r im e s  in v o lv in g  th e  
u se  o f  f ire a rm s . E v e n  R e p re s e n ta tiv e  P o ff, th e  g o v e rn m e n t 
n o te s , b e lie v e d  th e s e  c h a n g e s  to  b e  so  s e r io u s  th a t  h e  v o ted  
a g a in s t th e  C o n fe re n c e  R e p o rt. See  1 1 4  C o n g . R ec . a t 
3 0 5 8 3 , 3 0 5 8 7 . O n  th e  b a s is  o f  th is  d e v e lo p m e n t the  
g o v e rn m e n t a s s e r ts  ( a t  3 6 )  th a t  it is “ im p o s s ib le ”  to  b e liev e  
th a t  R e p re s e n ta tiv e  P o f f  in te n d e d  a rm e d  a s s a u l t  to  be 
p u n ish a b le  so le ly  u n d e r  S e c tio n  1 1 1 , w ith o u t a n y  o f  th e  
se n te n c in g  lim ita t io n s  c o n ta in e d  in  S e c tio n  9 2 4 (c ) .

T h is  a rg u m e n t is  fu n d a m e n ta lly  m isc o n c e iv e d . T h e  
p ro p e r  sc o p e  o f  S e c tio n  9 2 4 (c )  c a n  h a rd ly  b e  in fe r re d  fro m  a 
v iew  th a t  p la in ly  fa ile d  to  b e  e n a c te d .* 8 H o w e v e r  s tro n g  the  
s e n tim e n t m a y  h a v e  b e e n  in  th e  H o u s e  in  fa v o r  o f  sev e re  
p u n ish m e n t o f  a rm e d  o ffe n se s , th e  fa c t  is th a t  C o n g re ss  
a d o p te d  a  s ta tu te  th a t  le f t ro o m  fo r  m itig a tio n  o f  p e n a ltie s . I f  
an y th in g , th e  a c tio n  a c tu a lly  ta k e n  b y  C o n g re s s  th u s  su p ­
p o rts  r a th e r  th a n  u n d e rm in e s  th e  lim ita t io n  o n  th e  a p p lic a ­
tio n  o f  S e c tio n  9 2 4 (c )  to  a rm e d  a s s a u lt  th a t  R e p re s e n ta tiv e

(footnote continued from preceding page)

of 1970, Pub. L. No. 91-644, 84 Stat. 1889. Title II of that legislation 
amended Section 924(c) by reinstating the restriction on concurrent 
sentences. However, Title II retained the trial court’s power to suspend 
sentences or grant probation for first offenders, while lowering the 
minimum mandatory sentence for repeat offenders from five to two 
years. See  435 U.S. at 14 n.9.

8In fact, many of those who criticized the Conference Committee 
modifications to the Poff proposal were opponents of the Gun Control 
Act. See, e.g., 114 Cong. Rec. at 30582 (remarks of Reps. Watson and 
Sikes); id. at 30584 (remarks of Rep. Hansen); id. at 30586 (remarks of 
Rep. Saylor), all of whom voted against the House bill even with the 
original Poff substitute. S ee  id. at 23096. The inference is irrestible that 
many Congressmen seized on the changes to the Poff amendment as 
merely another ground on which to urge defeat of the legislation.

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9

P o ff  e s p o u s e d  in  in tro d u c in g  h is  a m e n d m e n t.
M o re  im p o rta n tly , th e re  is n o  n e e d  to  d ra w  in fe re n c e s  

a b o u t w h a t C o n g re s s  m e a n t  w ith  re s p e c t  to  S e c tio n  111 
v io la tio n s . R e p re s e n ta t iv e  P o f f  e x p la in e d  e x a c t ly  w h a t w a s  
in te n d e d  w h e n  h e  f irs t  o ffe re d  h is  a m e n d m e n t, a n d  h e  d id  so  
in  te rm s  th a t  n o  o n e  c o u ld  m isa p p re h e n d . See  n o te  5 , supra. 
T h e  g o v e rn m e n t, o f  c o u rse , is c o r re c t  th a t  R e p re s e n ta tiv e  
P o fP s  o b je c tiv e  w a s  to  d e te r  th e  u se  o f  f ire a rm s  in  th e  
c o m m iss io n  o f  fe d e ra l fe lo n ie s . T h e  p o in t  h e re , h o w e v e r, is 
th a t  h e  m a n ife s t ly  s a w  n o  n e e d  to  a c c o m p lis h  th is  o b je c tiv e  
b y  e x te n d in g  S e c tio n  9 2 4 (c )  to  e x is tin g  s ta tu te s  th a t  a lre a d y  
c o n ta in e d  s p e c ia l  p e n a lt ie s  fo r f ire a rm  u s e .9

T h is  s u re ly  w a s  a  re a s o n a b le  ju d g m e n t  —  w h o le sa le  
a p p lic a tio n  o f  S e c tio n  9 2 4 (c )  w o u ld  h a v e  s e r io u s ly  d is ­
ru p te d  th e  p e n a lty  s tru c tu re  o f  e x is tin g  law s  th a t  a lre a d y  
p ro v id e d  in c re a s e d  p u n is h m e n t fo r f ire a rm  u se . See  P E T . 
R R. a t  1 9 -2 1 . In  a ll e v e n ts , th is  w a s  th e  ju d g m e n t th a t  
R e p re s e n ta tiv e  P o f f  e x p re s s ly  re a c h e d , a n d  th e  b a s is  on  
w h ic h  b o th  th e  H o u s e  a n d  th e  S e n a te  a c te d  o n  h is p ro p o sa l. 
A s  n o te d  in  o u r  o p e n in g  b r ie f  ( a t  11 n. 11 ), th e re  is no  
s ta te m e n t  o th e r  th a n  R e p re s e n ta tiv e  P o f f  s e x p lic i t  in tro ­
d u c to ry  re m a rk s  o n  h is  a m e n d m e n t to  w h ic h  th e  m e m b e rs  o f  
C o n g re s s  c o u ld  h a v e  lo o k e d  to  a s c e r ta in  th e  sc o p e  o f  S e c tio n

’Indeed, as Congress was well aware (see, e.g., 114 Cong. Rec. at 
27142-43), in some cases these statutes provided a considerably 
stronger penalty than Section 924(c). Sections 2114 and 2113(d) of 
Title 18 prescribe a 25-year sentence — and in the case of Section 2114 
it is mandatory — for armed robbery of a postal employee and armed 
bank larceny, respectively, even for a first offender. Even if the Double 
Jeopardy Clause permits adding the maximum 10-year term provided 
for a first offender in Section 924(c) to the penalty authorized for the 
underlying felony (see  PET. BR at 7 n.5), prosecution under Section 
924(c) carries with it a potential over-all sentence significantly shorter 
than this.

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10

9 2 4 (c ) .  N o th in g  in  th e  o rig in a l H o u s e  d e b a te  o r  in  th e  d e b a te  
o n  th e  C o n fe re n c e  C o m m itte e  r e p o r t  in d ic a te s  a n y  d e c is io n  
to  re je c t  o r  re v ise  R e p re s e n ta t iv e  P o f f  s o rig in a l v iew s.

W h e n  th e  g o v e rn m e n t f irs t  a d d re s s e d  th e  in te rp la y  o f  
S e c tio n s  9 2 4 (c )  a n d  1 1 1 , i t  c o n c lu d e d  th a t  R e p re s e n ta tiv e  
P o ffis  o p e n in g  s ta te m e n t  s h o u ld  b e  a c c o rd e d  “ p r im a ry  
c o n s id e ra tio n ”  a n d , a c c o rd in g ly , “ a d o p te d  th is  s ta te m e n t  as 
[g o v e rn m en t] p o lic y .” 10 T h e  g o v e rn m e n t’s e ffo rts  to  b a c k  o ff 
th is  v iew  n o w  a re  s tra in e d  a n d  u n p e rsu a s iv e . T h e  g o v ern ­
m e n t w a s  r ig h t th e  f irs t  t im e  a ro u n d .

2. The government’s interpretation of Section 924(c) 
draws no support from any need to implement the 
deterrence rationale or to avoid anomalous ap­
plications of this provision.

T h e  g o v e rn m e n t s tre n u o u s ly  a rg u e s  ( a t  1 9 -2 4 )  th a t  
C o n g re ss  m u s t  h a v e  in te n d e d  S e c tio n  9 2 4 (c )  to  a p p ly  to  
S e c tio n  111 a s s a u lts ,  s in c e  d e fe n d a n ts  w o u ld  o th e rw ise  
e sc a p e  th e  sp e c ia l se n te n c in g  re q u ire m e n ts  o f  S e c tio n  
9 2 4 (c ) ,  w ith  a s s e r te d ly  “ i r ra t io n a l”  a n d  “ u n te n a b le ”  
re su lts . A  s im ila r , o v e rb lo w n  c la im  w a s  m a d e  a n d  re je c te d  in 
Simpson. See  Br. fo r  th e  U n ite d  S ta te s , n o te  4 , supra, a t  12- 
15. T h e  a rg u m e n t is n o  m o re  c o n v in c in g  w h e n  re c y c le d  in 
th is  ca se .

T h e re  is n o  d o u b t  th a t  th e  s tif f  p e n a lt ie s  o f  S e c tio n  9 2 4 (c )  
a re  d ire c te d  a t  th e  c r im in a l u se  o f  f ire a rm s . H o w e v e r , the  
g o v e rn m e n t’s c la im  to  a n  e le c tio n  o f  o ffe n se s  c a n n o t 
lo g ica lly  re s t  o n  th e  n e e d  to  g ive e ffe c t to  th e  d e te r re n c e

10Letter dated Jan. 13, 1972, from Carl W. Belcher, Chief, General 
Crimes Section, Criminal Division, to George Beall, United States 
Attorney, Baltimore, Maryland, reprin ted  in the appendix to the 
Supplemental Memorandum for the United States, S im p so n  v. U nited  
States, Nos. 76-5761 and 76-5796, filed on Nov. 22, 1977, at 2a.

150



ra tio n a le  o f  S e c tio n  9 2 4 (c ) ,  T h e  g o v e rn m e n t’s a rg u m e n t 
p ro v e s  fa r  to o  m u ch . I f  th e  g o v e rn m e n t w e re  c o r re c t  —  an d  
S e c tio n  9 2 4 (c )  h a d  to  b e  a p p lic a b le  to  im p le m e n t th e  
d e te r r e n t  o b je c tiv e  o f  th a t  s ta tu te  —  th e re  w o u ld  n e v e r  b e  a  
s ing le  o c c a s io n  in  w h ic h  i t  w o u ld  b e  a p p ro p r ia te  to  c h a rg e  a n  
a rm e d  a s s a u lt  u n d e r  S e c tio n  11 1 ; th e  p e n a lt ie s  p re s c r ib e d  
u n d e r  S e c tio n  9 2 4 (c )  w o u ld  a lw a y s  b e  g re a te r . Y e t e v e n  th e  
g o v e rn m e n t c o n c e d e s  ( a t  4 7  n .2 2 )  th a t  S e c tio n  9 2 4 (c )  d id  
n o t  im p lie d ly  re p e a l  th e  e n h a n c e m e n t  p a r a g ra p h  o f  S e c tio n  
11 1 . See P E T . B R . a t  19 n .1 9 .

T h e  fa c t is th a t  th e  g o v e rn m e n t m is se s  th e  m a rk  in  
c o m p a r in g  th e  se v e r ity  o f  th e  e n h a n c e d  p e n a lt ie s  p ro v id e d  
b y  S e c tio n s  9 2 4 (c )  a n d  1 1 1 . W h a t  m a tte r s  is n o t  w h e th e r  
S e c tio n  9 2 4 (c )  p ro v id e s  a  g re a te r  s e n te n c e ,11 b u t  th a t  
S e c tio n  111 fo c u se s  n o  le ss  d ire c tly  o n  d e te r r in g  th e  u se  o f  
f ire a rm s . See P E T . B R . a t  18 . A s  d is c u s s e d  in  th e  p re c e d in g  
se c tio n , C o n g re s s  d id  n o t  re g a rd  it  a s  re le v a n t  in  d e te rm in in g  
th e  c o v e ra g e  o f  S e c tio n  9 2 4 (c )  to  a sk  w h ic h  p re -e x is tin g  
e n h a n c e m e n t  s ta tu te s  im p o se d  a  m o re  o n e ro u s  p e n a lty  th a n  
th e  P o f f  a m e n d m e n t a n d  w h ic h  d id  n o t. E x c lu s io n  fro m  
S e c tio n  9 2 4 (c )  tu rn e d  s im p ly  o n  w h e th e r  th e  o th e r  s ta tu te  
a lre a d y  p re s c r ib e d  a n  a u g m e n te d  s e n te n c e  fo r  th e  u se  o f  a  
f ire a rm . C o n g re s s , in  o th e r  w o rd s , a d o p te d  th e  c o m m o n  
se n se  v iew  t h a t “ [ i] t  is n o t  n e c e s s a ry  to  d e te r re n c e  to  im p o se  
a n  in c re a s e d  p e n a lty  fo r u se  o f  a  f ire a rm  b y  s e p a ra te  s ta tu te , 
w h e n  th e  s u b s ta n tiv e  s ta tu te  i ts e lf  d o e s  s o .”  United States v. 
Eagle, 5 3 9  F .2 d  1 1 6 6 , 1 1 7 2  (8 th  C ir. 1 9 7 6 ) , cert, denied, 
4 2 9  U .S . 1 1 1 0 ( 1 9 7 7 ) ,  cited with approval in Simpson, 4 3 5  
U .S . a t  14 . T h u s , a s  th is  C o u r t  c o n c lu d e d  in  Simpson, th e  
lim ita t io n  o f  S e c tio n  9 2 4 (  c) to  p ro v is io n s  th a t  d o  n o t  a lre a d y

“In fact, Section 924(c) does n ot provide a quantatively or quali­
tatively greater sentence than all of the pre-existing enhancement 
provisions cited by Representative Poff. S ee  note 9, supra.

151



12

c o n ta in  e n h a n c e m e n t  p e n a lt ie s  fo r  th e  u se  o f  a  f ire a rm  “ is in  
c o m p le te  a c c o rd  w ith , a n d  g ives fu ll p la y  to , th e  d e te r re n c e  
ra tio n a le  o f  § 9 2 4 ( c ) .”  4 3 5  U .S . a t  1 3 -1 4 .

M o re o v e r , th e  g o v e rn m e n t’s p o s it io n  is n o t  h e lp e d  b y  th e  
e x a m p le s  it  c ite s  o f  a lle g e d ly  a n o m a lo u s  a p p lic a tio n s  o f  
S e c tio n  9 2 4 (c ) .  A s id e  fro m  c o m p o u n d in g  th e  g o v e rn m e n t’s 
e r ro r  in  c o m p a r in g  th e  re la tiv e  s ize  o f  e n h a n c e m e n t 
p e n a l t ie s ,12 th e s e  il lu s tra tio n s  o v e r lo o k  th a t  th e  g o v e rn ­
m e n t’s p o s it io n  is f ra u g h t w ith  d ifficu ltie s , to o , a s  th e  
g o v e rn m e n t re lu c ta n t ly  c o n c e d e s  in  a  fo o tn o te  e ls e w h e re  in  
its b r ie f  ( a t  4 7  n .2 5 ) .

F o r  e x a m p le , a  p e r s o n  u s in g  a  k n ife  to  ro b  a  p o s ta l 
e m p lo y e e  w o u ld  fa c e  a  m a n d a to ry  2 5 - y e a r  s e n te n c e  u n d e r  
18 U . S. C . § 2 1 1 4 , w h ile  h is  c o u n te r p a r t  w ith  a  p is to l c o u ld  
b e  le t  o ff  w ith  a  m e re  o n e -o r- tw o  y e a r  s e n te n c e  i f  p ro s e c u te d  
fo r  u n a g g ra v a te d  v io la t io n  o f  S e c tio n  2 1 1 4  a n d  fo r  v io la t io n  
o f  S e c tio n  9 2 4 (c ) .  S im ila rly , a  f irs t  o ffe n d e r  u s in g  a  k n ife  to  
c o m m it g ra n d  b a n k  la rc e n y  c o u ld  b e  s e n te n c e d  u p  to  25 
y e a rs  u n d e r  18 U . S .C . § 2 1 1 3 (d ) , b u t  h is  c o u n te r p a r t  w ith  a 
g u n  w o u ld  fa c e  a t  m o s t  a  2 0 - y e a r  s e n te n c e  i f  c h a rg e d  u n d e r  
S e c tio n s  2 1 1 3 (b ) a n d  9 2 4 (c ) .

I t  is tru e , a s  th e  g o v e rn m e n t su g g e s ts  ( a t  4 7  n .2 5 ) , th a t  
th e se  a n o m a lie s  c a n  b e  a v o id e d  b y  p ro s e c u tin g  th e  gun- 
w ie ld in g  d e fe n d a n t in  th e se  e x a m p le s , lik e  h is  c o u n te rp a r t  
w ith  th e  kn ife , u n d e r  S e c tio n  2 1 1 4  o r  2 1 1 3 (d ) .  B u t th a t

nFor instance, in example (b) on p. 22 of the government’s brief the 
government finds it significant that one defendant is subject to twice the 
enhanced punishment of the other. What the government conveniently 
ignores is that Doe is subject to a total sentence (assuming no Double 
Jeopardy bar) of 15 years for burglarizing the post office with a firearm, 
while Roe is subject to a total punishment of 25-years imprisonment for 
armed bank robbery. Even if this result is achieved by increasing Roe’s 
punishment by only half as much as Doe’s, it hardly follows that Roe’s 
enhanced penalty is inadequate for deterrence purposes or that the result 
itself is irrational.

152



13

h a rd ly  a lte rs  th e  f a c t  th a t  in  th e s e  e x a m p le s  th e  g o v e rn m e n t’s 
o w n  re a s o n in g  d ic ta te s  th a t  th e  f ire a rm  v io la t io n  always  b e  
p u n is h e d  u n d e r  th e  m o re  se v e re  te rm s  o f  th e  p re -e x is tin g  
e n h a n c e m e n t  s ta tu te  r a th e r  th a n  u n d e r  S e c tio n  9 2 4 (c ) ,  a n d  
th a t  f la tly  c o n tra d ic ts  th e  g o v e rn m e n t’s th e o ry  o f  a n  e le c tio n  
o f  o ffen ses . B e c a u s e  th e  g o v e rn m e n t’s o w n  th e o ry  is th u s  
in te rn a lly  in c o n s is te n t ,  g u id a n c e  in  th e  p ro p e r  in te rp re ta t io n  
o f  S e c tio n  9 2 4 (c )  lo g ic a lly  m u s t  b e  so u g h t e ls e w h e re  th a n  in 
th e  a t te m p t to  a v o id  a s s e r te d ly  “ i r ra t io n a l”  a p p lic a tio n s  o f  
S e c tio n  9 2 4 ( c ) .13

3. Section 111 takes precedence over Section 924(c) 
because a specific criminal statute governs over a 
general one.

A s  p re v io u s ly  n o te d , th e  J u s t ic e  D e p a r tm e n t  o r ig in a lly

13There is nothing mysterious about the fact that both sides in this case 
can claim that the other’s construction of Section 924(c) results in 
anomalies. This phenomenon arises from the fact that (a) Section 924(c) 
and each of the pre-existing enhancement statutes only partially overlap 
and (b) Section 924(c) prescribes greater penalties in comparison to 
some of these statutes, but not others. Thus, when Section 924(c) 
provides the greater penalty, petitioner’s construction results in more 
lenient punishment for the use of a firearm to violate the pre-existing 
statute than for the use of a firearm to commit another felony. On the 
other hand, when the pre-existing statute prescribes the greater penalty, 
the government’s interpretation condones more lenient punishment for 
the use of a firearm than for the use of any other dangerous weapon by 
permitting prosecution under Section 924(c).

The anomaly caused by the government’s construction is contrary to 
the legislative intent of “enacting Section 924(c) to punish with special 
severity the criminal use of firearms,” as the government itself interprets 
it (at 22). However, the purported anomaly created by petitioner’s 
construction is, we submit, no anomaly at all. The fact that a defendant 
may receive a lesser augmented penalty for using a firearm in violation of 
Section 111, for example, than for using a firearm to commit some other 
felony merely reflects Congress’ s specific judgment that armed assault of 
a federal officer is appropriately punished by no more than a 10-year 
term of imprisonment 153



14

d e te rm in e d  n o t  to  p ro s e c u te  a  d e fe n d a n t  u n d e r  S e c tio n  
9 2 4 (c )  in  th e  c a s e  o f  a  S e c tio n  111 v io la t io n  b e c a u s e , ev e n  
a p a r t  fro m  th e  le g is la tiv e  h is to ry  o f  S e c tio n  9 2 4 (c ) ,  th e  te rm s  
o f  a  sp ec if ic  c r im in a l s ta tu te  g o v e rn  w h e re  a  g e n e ra l a n d  a 
sp ec if ic  s ta tu te  in c o n s is te n tly  a d d re s s  th e  s a m e  c o n c e rn . See 
4 3 5  U .S . a t  16. In  its  a b o u t- fa c e  th e  g o v e rn m e n t n o w  
a d v a n c e s  a  s e r ie s  o f  a rg u m e n ts  th a t ,  i f  a n y th in g , d e m o n s tra te  
th a t  th e  g o v e rn m e n t w a s  rig h t in  its  o rig in a l v iew s.

T h e  g o v e rn m e n t p e rs is ts  in  a rg u in g  ( a t  21 n .7 , 4 3 )  th a t  
S e c tio n  9 2 4 (c )  r a th e r  th a n  S e c tio n  111 is th e  m o re  sp ec if ic  
p ro v is io n . H o w e v e r , w e  h a v e  a lre a d y  d e m o n s tr a te d  th a t  th is  
is p a lp a b ly  in c o rre c t. See  P E T . B R  a t  1 7 -2 1 . S in c e  S e c tio n  
9 2 4 (c )  a d d re s se s  th e  u se  o f  a  f ire a rm  in  th e  c o m m iss io n  o f  
fe lo n ie s  in  g e n e ra l, S e c tio n  111 c e r ta in ly  is th e  m o re  sp ec if ic  
p ro v is io n  in  p re sc r ib in g  th e  a p p ro p r ia te  p u n is h m e n t  fo r th e  
u se  o f  a  f ire a rm  in  a s s a u lt in g  a  fe d e ra l  o ff ic e r  in  p a r t ic u la r .14 
In d e e d , th e  p re -e x is tin g  e n h a n c e d  p e n a lty  p ro v is io n s  o f  T it le  
18 re p re s e n t  a  s c a le  o f  p u n ish m e n ts , c a re fu lly  g ra d e d  
a c c o rd in g  to  th e  n a tu re  o f  th e  p a r t ic u la r  c r im e  a n d  th e  th re a t  
p o se d  to  th e  in te re s ts  o f  th e  U n ite d  S ta te s , w h ic h  w h o le sa le  
a p p lic a tio n  o f  S e c tio n  9 2 4 (c )  w o u ld  to ta l ly  d is ru p t.

N o r , c o n tra ry  to  th e  g o v e rn m e n t’s c la im  ( a t  4 4 -4 7 ) ,  c a n  
S e c tio n s  9 2 4 (c )  a n d  111 b e  h a rm o n iz e d  so  th a t  th e y  b o th  
ap p ly . A s  sh o w n  b y  th e  g o v e rn m e n t’s o w n  a rg u m e n t

14Moreover, contrary to the government’s argument (at 21 n.7), 
Section 111, if anything, embodies the more contemporary view of the 
appropriate punishment for armed offenses. Pending legislation to codify 
Title 18 would establish maximum sentences for the criminal use of a 
firearm much more in line with the provisions of Section 111 than 
924(c). S ee  S. 1722, 96th Cong., 1 st Sess. § § 1823, 2301 (1979) (use 
of a firearm in the commission of a crime of violence subject to a 
maximum five-year term of imprisonment); H.R. 6233, 96th Cong., 2d 
Sess. § §2723, 3702 (1980) (use of a firearm in the commission of a 
felony subject to a maximum 80-month sentence for a first offender and a 
160-month sentence for a repeat offender).

154



15

e m p h a s iz in g  th e  s e v e r ity  o f  S e c tio n  9 2 4 (c )  p e n a lt ie s ,  th e  
s e n te n c in g  p ro v is io n s  o f  S e c tio n  9 2 4 (c )  a n d  111 a re  
in c o m p a tib le , p a r t ic u la r ly  in  th e  m a x im u m  im p riso n m e n t 
te rm s  th a t  th e y  a u th o r iz e . T h e  s a m e  in c o n s is te n c y  o b ta in e d  
in  United States v. Batchelder, supra, as  th e  g o v e rn m e n t 
p o in ts  o u t  H o w e v e r , in  th a t  c a s e  n o t  o n ly  w a s  th e re  
a ff irm a tiv e  e v id e n c e  th a t  C o n g re s s  in te n d e d  S e c tio n s  
9 2 2 (h )  a n d  9 2 4 (a )  to  o v e r la p  (see p. 5 , supra), b u t  
n e ith e r  s ta tu te  w a s  in  a n y  s e n se  m o re  sp e c if ic  th a n  th e  o th e r. 
In  b o th  re s p e c ts  th e  p re s e n t  c a s e  is c le a r ly  d is t in g u is h a b le .15

Sim pson  re so lv e d  th a t  S e c tio n  9 2 4 (c )  g iv es w a y  to  th e  
o th e r  e n h a n c e d  p e n a lty  p ro v is io n s  o f  T it le  18 , s in c e  th o se  
s ta tu te s  fo c u s  m o re  n a r ro w ly  o n  th e  u se  o f  w e a p o n s  in  th e  
c o n te x t  o f  sp e c if ic  c r im e s . T h e  g o v e rn m e n t h a s  n o t  o ffe red  
a n y  so u n d  re a s o n  fo r  re c o n s id e r in g  th is  c o n c lu s io n .

15The government also contends (at 43) that the interpretative 
preference for specific criminal statutes can be dismissed in this case as 
nothing more than a corollary of the rule of lenity. We show below that 
the rule of lenity is no less applicable here than in S im pson , since the 
statutory ambiguity that triggers the rule is the same in both cases. But 
even if there were no such ambiguity here, the interpretative preference 
for specific criminal statutes would still require that Section 111 take 
precedence. S im p so n  holds that this principle is a corollary of the rule of 
lenity, not because it, too, rests upon a finding of ambiguity, but because 
it limits possible prosecution to one statute instead of two where both 
statutes inconsistently address the same concern. 435 U.S. at 15-16.

The government’s erroneous characterization of the basis of the 
specificity principle only underscores that S im p so n ’s reliance on this 
rule of construction cannot be squared with the government’s theory of 
an election of offenses. S ee  pp. 3-4, supra.

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16

4. The rule of lenity precludes the imposition of an 
enhanced penalty for armed assault under Section 
924(c).

F in a lly , th e  g o v e rn m e n t a rg u e s  ( a t  4 1 -4 3 )  th a t  th e  la s t  a id  
to  in te rp re ta t io n  re lie d  o n  b y  p e t i t io n e r  —  th e  ru le  o f  le n ity  
—  is a lso  in a p p lic a b le  h e re  b e c a u s e  th e re  is n o  a m b ig u ity  to  
b e  re so lv e d  in  h is  fav o r. O n c e  ag a in , th e  s a m e  a rg u m e n t w as 
a d v a n c e d  in  Sim pson  a n d  p ro p e r ly  re je c te d . See  B r. fo r  th e  
U n ite d  S ta te s , n o te  4 , supra, a t  25  n .1 0 . I t  h a s  e v e n  less 
fo rce  th e  s e c o n d  tim e  a ro u n d .

C o n tra ry  to  th e  g o v e rn m e n t’s su g g es tio n , th e  am b ig u ity  
c o n c e rn in g  th e  sc o p e  o f  S e c tio n  9 2 4 (c )  is n o t  lim ite d  to  its 
a p p lic a tio n  to  th e  s e c o n d  p a ra g ra p h  o f  S e c tio n  1 1 1 . T h e  
q u e s tio n  r a is e d  b y  th e  le g is la tiv e  h is to ry  o f  th e  G u n  C o n tro l  
A c t  a n d  b y  th e  in te rp re ta t iv e  p re fe re n c e  fo r  sp e c if ic  c r im in a l 
law s is w h e th e r  S e c tio n  9 2 4 (c )  a p p lie s  in  th e  c a s e  o f  any 
v io la tio n  o f  S e c tio n  1 1 1 , s im p le  o r  a g g ra v a te d . T h e  is su e  to  
w h ic h  R e p re s e n ta t iv e  P o f f  a n d  S e n a to r  D o m in ic k  s p o k e  w as  
w h e th e r  S e c tio n  9 2 4 (c )  re a c h e s  th e  u se  o f  a  f ire a rm  th a t  is 
a lre a d y  s u b je c t to  a  s p e c ia l  p e n a lty  p u r s u a n t  to  th e  te rm s  o f  
th e  u n d e r ly in g  fe lo n y  s ta tu te . L ik e w ise , th e  in c o n s is te n c y  to  
b e  re so lv e d  b y  th e  in te rp re ta t iv e  p re fe re n c e  fo r  sp ec if ic  
s ta tu te s  is w h e th e r  S e c tio n  9 2 4 (c )  o r  th e  s e c o n d  p a ra g ra p h  
o f  S e c tio n  111 g o v e rn s  th e  se n te n c in g  o f  a  d e fe n d a n t  w h o  
u se s  a  f ire a rm  in  v io la t io n  o f  th e  f irs t  p a ra g ra p h  o f  S e c tio n  
111.

T h u s , i f  th e  le g is la tiv e  h is to ry  o f  S e c tio n  9 2 4 (c )  a n d  th e  
in te rp re ta t iv e  p re fe re n c e  fo r  sp e c if ic  c r im in a l  s ta tu te s  d o  n o t 
re so lv e  th e  r e a c h  o f  S e c tio n  9 2 4 (c ) ,  a t  th e  v e ry  le a s t  th e y  
c re a te  a n  a m b ig u ity  w h e th e r  S e c tio n  9 2 4 (c )  a p p lie s  to  
S e c tio n  111 a s sa u lts .  A s  in  Simpson, th e  ru le  o f  le n ity  
re q u ire s  th a t  th is  a m b ig u ity  b e  re so lv e d  in  th e  d e fe n d a n t’s 
favo r. See  P E T . B R  a t  1 4 -1 7 .

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17

II.

PETITIONER CANNOT NOW BE RE­
SENTENCED UNDER COUNTS 6 AND 7.

E v id e n tly  re c o g n iz in g  th e  w e a k n e s s  o f  its  a s rg u m e n ts  o n  
th e  m e rits  o f  th is  p e tit io n , th e  g o v e rn m e n t n o w  a d v a n c e s  a  
fa llb a c k  p o s itio n . In  th e  e v e n t th a t  th e  C o u r t  d e te rm in e s  th a t  
S e c tio n  9 2 4 (c )  d o e s  n o t  e m b ra c e  v io la tio n s  o f  S e c tio n  1 1 1 , 
th e  g o v e rn m e n t a sk s  th e  C o u rt:

“ to  v a c a te  p e ti t io n e rs ’ s e n te n c e  o n  th e  S e c tio n  111 
c o u n ts  [C o u n ts  6 a n d  7] a n d  to  re m a n d  fo r  re -s e n te n c in g  
o n  th o s e  c o u n ts , su b je c t  to  (1 )  th e  m a x im u m  s ta tu to ry  
p e n a lty  a u th o r iz e d  b y  S e c tio n  1 1 1 , a n d  (2 )  th e  l im ita ­
t io n  th a t  th e  n e w  s e n te n c e  c a n n o t  e x c e e d  th a t  p re ­
v io u s ly  im p o s e d  fo r  th e  a rm e d  a s s a u lt  o ffe n se s  u n d e r  
S e c tio n s  9 2 4 (c )  a n d  1 1 1 .”  U .S . B R . a t  5 7 . 16

T h e  e x p re s s  p u rp o s e  o f  th is  re lie f  is to  e n a b le  th e  d is tr ic t  
c o u r t  to  re - im p o se  th e  to ta l  o rig in a l s e n te n c e  g iv en  L a R o c c a ,  
d e sp ite  re v e rs a l  o f  th e  S e c tio n  9 2 4 (c )  c o n v ic t io n .17

16In addition to the Section 924(c) charge in Count 19, LaRocca was 
convicted under Counts 6 and 7 of using a dangerous weapon to assault 
federal officers in violation of Section 111. Exercising the enhancement 
authority of this provision, the district court then sentenced LaRocca to 
concurrent five-year terms on these assault charges. The court also 
imposed a 20-year term on Count 19, to be served consecutively to all 
other sentences.

1’Contrary to the government’s assessment (at 58 n.34), the total 
permissible sentence that could be meted out to LaRocca under the 
government’s proposal would be 20 rather than 30 years. On July 3,
1979, the U. S. District Court for the Western District of Pennsylvania 
vacated LaRocca’s prior Section 924(c) conviction, which had provided 
the basis for his 20-year sentence as a repeat offender under Section 
924(c) in this case. S ee  U n ited  S ta te s  v. B asic, Crim. A. No. 73-221. 
Since LaRocca, therefore, is entitled in any event to a ten-year reduction 
in his original 30-year sentence, see, e.g., M u rg ia  v. U n ited  S ta tes , 448 
F.2d 1275 (9th Cir. 1971), the appropriate benchmark under the 
government’s formula is 20 years.

157



18

W e  s u b m it th a t  th is  e x tra o rd in a ry  r e q u e s t  m u s t  b e  d en ied . 
N o t  o n ly  h a s  th e  g o v e rn m e n t fa ile d  p ro p e r ly  to  ra is e  th e  
is su e  b y  c ro s s -p e titio n , b u t  th e  re lie f  re q u e s te d , in  a n y  e v e n t, 
is c o n tra ry  to  R u le  35 o f  th e  F e d e r a l  R u le s  o f  C rim in a l 
P ro c e d u re , th e  D u e  P ro c e s s  C la u se , a n d  th e  D o u b le  
J e o p a rd y  C la u s e  o f  th e  C o n s titu tio n .

A . The Failure To Cross-Petition Is Fata! To The 
G overnm ent’s R equest For R esentencing  
U nder Counts 6  And 7.

A s  th e  g o v e rn m e n t re c o g n iz e s  ( a t  7 0  n .4 1 ) , its  fa ilu re  to  
file a  c ro s s -p e ti t io n  fo r  a  w rit  o f  c e r t io ra r i  in  th is  c a se  ra is e s  
th e  q u e s tio n  w h e th e r  c o n s id e ra tio n  o f  its  re se n te n c in g  
re q u e s t  is p ro c e d u ra lly  b a r re d . “ T h e  ru le  is in v e te ra te  an d  
c e r ta in ”  th a t  a n  a p p e lle e  “ in  th e  a b s e n c e  o f  a  c ro s s  a p p e a l” 
m a y  n o t a t ta c k  th e  ju d g m e n t  b e lo w  “  ‘w ith  a  v iew  e ith e r  to  
en la rg in g  h is  o w n  r ig h ts  th e re u n d e r  o r  o f  le s se n in g  th e  righ ts  
o f  h is  a d v e rs a ry  . . . . ’ ”  Morley Construction Co. v. 
Maryland Casualty Co., 3 0 0  U .S . 1 8 5 , 191 (1 9 3 7 ) ,  
q u o tin g  United States v. American Railway Express Co., 
2 6 5  U .S . 4 2 5 ,4 3 5  (1 9 2 4 ) .  “ T h e  e s ta b l is h e d  d o c tr in e  . . .  is 
th a t  a  p a r ty  m u s t  c ro s s -a p p e a l  o r  c ro s s -p e ti t io n  i f  h e  se e k s  to  
c h a n g e  th e  ju d g m e n t b e lo w  o r  a n y  p a r t  th e re o f .”  R . S te m  &  
E . G re s s m a n , Supreme Court Practice 4 7 8  (5 th  ed . 1 9 7 8 ). 
See, e.g., United States v. Reliable Transfer Co., 4 2 1  U .S . 
3 9 7 , 4 0 1  n .2  (1 9 7 5 ) ;  Swarb v. Lennox, 4 0 5  U .S . 1 9 1 , 201 
(1 9 7 2 ) .  See also S up . C t  R . 2 3 ( l ) ( c )  ( th e  C o u r t  w ill 
c o n s id e r  “ [o ]n ly  th e  q u e s tio n s  s e t  fo r th  in  th e  p e ti t io n  o r 
fa ir ly  c o m p ris e d  th e re in ” ) . 18

18The principle is also well-established that “a cross-petition is not 
necessary to enable a party to advance any ground, even one rejected or

(continued)

158



19

T h e  g o v e rn m e n t a p p e a rs  to  c la im  th a t  its  re se n te n c in g  
re q u e s t  d o e s  n o t  ru n  a fo u l o f  th is  ru le  b e c a u s e  th e  re q u e s t  
m e re ly  a d d re s s e s  th e  p ro p e r  d is p o s it io n  o f  th e  c a s e  w ith o u t 
th e  g o v e rn m e n t’s s e e k in g  a n y  g re a te r  re l ie f  th a n  it  w as  
a f fo rd e d  in  th e  c o u r t  o f  a p p e a ls .19 B u t th is  is  s im p ly  n o t so.

(footnote continued from preceding page)
not considered below, in support of the judgment in hisfavor.” R. Stem&
E. Gressman, su pra , at 478. However, in this case the government does 
not, and cannot, claim that its argument merely affords an additional 
basis for affirming the Section 924(c) conviction. Indeed, the argument 
has nothing whatever to do with the merits of that issue. Moreover, not 
only does the logic of the argument require a modification of the 
judgment, but the government seeks exactly that result. In these 
circumstances the authorities are unanimous that in the absence of a 
cross-petition the argument cannot be heard. S ee  also, e.g., id. at 479 
(cross-petition always necessary to raise argument relating to claim not 
covered by initial petition), 480-86 (cross-petition possibly required to 
raise argument that logically would result in modification of the judgment 
even if that relief is not sought).

19The government cites 28 U.S.C. §2106 in this connection, but that 
statute has no bearing on the procedural defect in the government’s 
argument. This provision merely authorizes appropriate relief based on 
arguments and issues that have been properly raised. It does not enlarge 
the arguments or issues open for review, and certainly does not justify a 
change favorable to a non-cross-petitioning respondent in a portion of 
the judgment not challenged by the petitioner. Thus, if, as here, the 
respondent seeks a disposition that raises an issue not “set forth in the 
petition or fairly comprised therein,” Sup. Ct. R. 23(l)(c), or that 
constitutes a change in an unchallenged part of the judgment below, 28 
U.S.C. §2106 does not cure the respondent’s error in failing to file a 
cross-petition. S ee  6A J. Moore, F ed era l P ra ctice  59.09[5], at 59- 
232(2ded. 1979) (“very doubtful... that Congress intended [in Section 
2106] to give the appellate courts unconditional power to deal with a 
case, once it is appealed, without regard to the power that appellate 
courts had traditionally exercised”) (footnote omitted).

Nothing in H a yn es  v. U n ited  S ta tes, 390 U.S. 85, 101 (1968), on 
which the government relies, is to the contrary. The Court there reversed 
the petitioner’s conviction outright rather than remand for the formality 
of further findings. The decision did not address any issue not fairly 
embraced by the petition or alter the judgment below in any way 
favorable to the non-cross-petitioning respondent, and thus is of no 
significance here. 159



20

E ls e w h e re  in  its  b r ie f  ( a t  6 3  n .3 7 )  th e  g o v e rn m e n t a c ­
k n o w led g e s  th a t  “ th e  c o u r t  o f  a p p e a l s . . .  c o n c lu d e d ]  ( A p p . 
4 7 )  th a t  p e t i t io n e r  L a R o c c a  c o u ld  not b e  r e s e n te n c e d  to  a  
g re a te r  p u n is h m e n t . . .  o n  th e  S e c tio n  111 c o u n t s . . .  th a n  h e  
h a d  in itia lly  re c e iv e d  fo r  th e  o ffe n se .”  (E m p h a s is  a d d e d .)20 
T h e  g o v e rn m e n t’s re s e n te n c in g  r e q u e s t  o b v io u s ly  seek s  
m o d if ic a tio n  o f  th is  l im ita tio n , a n d  fo r th a t  a  c ro s s -p e ti t io n  
w a s  re q u ir e d .21

20The court of appeals specifically stated in its original decision that 
the trial court could not impose a more severe sentence if the government 
elected to proceed under Counts 6 and 7 on remand. A. 47, 587 F.2d 
577, 584. Although this portion of its first decision was vacated upon 
rehearing, A. 59,587 F.2dat588, that was for reasons having nothing to 
do with this statement. Indeed, it is clear that the court meant the same 
limitation to apply to the final judgment, since the court’s opinion on 
rehearing expressly noted that the government could preserve the total of 
LaRocca’s original sentences by proceeding on remand under Count 19 
rather than under Counts 6 and 7, which ran concurrently with other 
counts. A. 59 n.2, 587 F.2d at 5 88 n.2. The court obviously intended, in 
accordance with established doctrine in the Third Circuit, that 
LaRocca’s Section 111 sentences could not be increased on remand. 
See, e.g., U n ited  S ta te s  v. W elty, 426 F.2d 615, 618 (3d Cir. 1970) 
(“We would open the door wide to an invasion of rights of defendants if 
an attack by a defendant on an illegal sentence could be employed for 
reconsideration of the sentences on other counts which are valid and 
which he has not attacked, in order to award the government the same 
ultimate punishment as that originally imposed on all the counts.”).

21This conclusion is sound despite the fact that, as the government 
notes, the resentencing issue was presented in its brief in the court of 
appeals and in its response to LaRocca’s petition, albeit in a somewhat 
different form. (The government in those briefs sought resentencing on 
a ll remaining counts rather than merely Counts 6 and 7.) It is settled that 
inclusion of an argument in a response to a petition for a writ of certiorari 
after the time for filing a cross-petition has expired, as here, cannot 
satisfy the respondent’s burden of cross-petitioning. U nion P acific  
R a ilro a d  Co. v. Sheehan, 439 U.S. 89, 92 n.2 (1978); N L R B  v. 
In tern a tio n a l Van L ines, 409 U.S. 48, 52 n.4 (1972), d iscu ssed  in 
Stem, W hen to C ro ss-A p p ea l o r  C ross-P etition  — C erta in ty  or

(continued)

160



21

For this reason the government’s fail-back position in this 
case should not even be considered.

B. The Principles Of Finality Embodied In Fed­
eral Criminal Rule 35 Preclude Resentencing 
Under Counts 6 And 7

Before adoption of the Federal Rules of Criminal 
Procedure it was settled that the trial courts in the federal 
system had no authority to increase a valid sentence that had 
been affirmed on appeal and thereby had become final. This 
was so even if the increase was necessary to effectuate the 
court’s intent in originally sentencing the defendant. United 
States v. Tuffanelli, 138 F.2d 981 (7th Cir. 1943); Morris

(footnote continued from preceding page)

Confusion"], 87 Harv. L. Rev. 763,771 n.45 (1974). See also R. Stem& 
E. Gressman, supra, at 491 (in opposing a petition for a writ of certiorari, 
respondent “may not seek, whether by way of argument or of presenting 
a question, to overturn any portion of the judgment without filing a cross­
petition”).

Likewise, the government was obligated to cross-petition in this case 
regardless of any administrative burdens that this requirement may have 
imposed. The government joined petitioner in asking the Court to review 
the judgment below and, therefore, was plainly on notice of the need to 
assess its interests in cross-petitioning in this case. Moreover, although 
commentators have, as the government notes, remarked on the burdens 
created by the cross-petition rule, see Stem, supra, at 775-76, this has 
only been in the limited context of recommending that respondents 
always be allowed without cross-petitioning to raise arguments in 
support of the judgment below. The administrative burdens of the rule 
when the question is whether the government actually wants a change in 
the judgment are less significant. These burdens, in any event, certainly 
cannotjustify permitting respondents to seek a change in the judgment in 
the absence of a cross-petition without eliminating altogether the well- 
established — and, so far as we are aware, universally approved — 
procedure that a cross-petition in these circumstances is, indeed, 
required.

161



22

v. United States, 185  F . 7 3  (8 th  C ir. 1 9 1 1 ) . See also Barnes 
v. United States, 2 2 3  F . 2 d 8 9 1 , 8 9 2  (5 th  C ir. 1 9 5 5 ) .22T h is  
p rin c ip le  is n o w  c o d if ie d  in  F e d e r a l  C rim in a l  R u le  3 5 , a n d  
p ro h ib its  th e  re s e n te n c in g  o f  L a R o c c a  o n  h is  S e c tio n  111 
c o n v ic tio n s .

R u le  35 p ro v id e s  in  p e r t in e n t  p a r t  th a t  “ [ t]h e  c o u r t  m a y  
c o r re c t  a n  illegal s e n te n c e  a t  a n y  t im e ”  a n d  “ m a y  reduce a  
s e n te n c e ”  w ith in  1 2 0  d a y s  a f te r  a f f irm a n c e  o n  ap p e a l. 
(E m p h a s is  a d d e d .)23 R u le  35 g ra n ts  n o  p o w e r  w h a te v e r  to  
in c re a se  a  s e n te n c e  th a t  h a s  b e e n  a ff irm e d  o n  a p p e a l  —  a n d  
b y  n e g a tiv e  im p lic a tio n  it  p ro h ib its  su c h  a n  in c re a se . See 
Barnes v. United States, supra. T h is  l im ita t io n  h a s  b ee n

22In T uffanelli the trial judge on remand increased the defendants’ 
sentences on certain valid counts to compensate for the reversal of their 
convictions on other counts. The court of appeals had no difficulty in 
concluding that this action was beyond the trial court’s power, stating:

“We have made a careful search for and study of cases and we 
have found none which has upheld the authority of a trial court to 
change or alter a lawful judgment after affirmance by an appellate 
court. . . . ” 138 F.2d at 983.
23Rule 35 reads in full:

“(a) C orrection  o f  Sentence. —The court may correct an illegal 
sentence at any time and may correct a sentence imposed in an 
illegal manner within the time provided herein for the reduction of 
sentence.

“(b) R edu ction  o f  Sentence. — The court may reduce a 
sentence within 120 days after the sentence is imposed, or within 
120 days after receipt by the court of a mandate issued upon 
affirmance of the judgment or dismissal of the appeal, or within 120 
days after entry of any order or judgment of the Supreme Court 
denying review of, or having the effect of upholding, a judgment of 
conviction. The court may also reduce a sentence upon revocation 
of probation as provided by law. Changing a sentence from a 
sentence of incarceration to a grant of probation shall constitute a 
permissible reduction of sentence under this subdivision.”

162



23

u n ifo rm ly  fo llo w e d  in  th e  fe d e ra l c o u r ts .24 E.g., United 
States v. Fredenburgh, 6 0 2  F .2 d  1 1 4 3 , 1 1 4 7  ( 3 d  C ir. 
1 9 7 9 ); United States v. Corson, 4 4 9  F . 2 d 5 4 4 , 5 5 0 ( 3 d C i r .  
1 9 7 1 ); Pugliese v. United States, 3 5 3  F .2 d  5 1 4  ( 1 s t  C ir. 
1 9 6 5 ) .25

S in c e  th e  a p p e lla te  c o u r ts  h a v e  n o  p o w e r  to  a u th o r iz e  a  
d if fe re n t re s u lt  in  re m a n d in g  c a s e s  to  th e  t r ia l  c o u r t ,26 th e

24Whether the district court is powerless to increase a sentence after 
the sentence has been announced and before appeal is not as clear. 
Compare, e.g., Vincent v. United States, 337 F.2d 891, 893-94 (8th 
Cir. 1964), cert, denied, 380 U.S. 988 (1965), with, e.g., United States 
v. Adams, 362 F.2d 210, 211 (6th Cir. 1966), and United States v. 
Walker, 346 F.2d 428, 430 (4th Cir. 1965).

Although this question need not be resolved in this case, it is 
significant, nonetheless, that the decisions permitting increases 
generally seem to have involved changes to the sentence even before 
judgment was first entered in the trial court See Fed. R. Crim. P. 32(b); 
Fed. R. App. P. 4(b). See also United States v. Addonizio, 442 U.S. 
178, 189 (1979) (“once a sentence has been imposed, the trial judge’s 
authority to modify it is . . . circumscribed [by] Rule 35 . . . .”).

2!The court of appeals in Fredenburgh succinctly explained the trial 
judge’s sentencing powers after remand:

“A related problem arises when a defendant’s appeal results in a 
reversal of his conviction on certain counts and affirmance of his 
conviction on other counts. The Pearce decision [North Carolina 
v. Pearce, 395 U.S. 711 (1969)] controls the trial judge’s 
sentencing authority with respect to any new sentence imposed 
upon a conviction entered after a retrial on the reversed counts. 
With respect to the counts on which the conviction was affirmed, a 
district court judge on remand has no authority to increase the 
sentences imposed on those counts.” 602 F.2d at 1147 (emphasis 
added).
26Pugliese v. United States, supra, 353 F.2d at 516; United States v. 

Tuffanelli, supra, 138 F.2d at 983, 985.
It would be odd if an appellate court could permit a trial court to 

fashion relief that the trial court would otherwise be unable to award. See 
also Fed. R. Crim. P. 54(a) (rules govern criminal proceedings in courts 
of appeals and Supreme Court as well as in district courts). Section 2106

(continued)

163



24

g o v e rn m e n t’s fa ll-b a c k  p o s it io n  m u s t  b e  re je c te d  e v e n  if  it is 
p ro p e r ly  b e fo re  th is  C o u rt. L a R o c c a ’s S e c tio n  111 sen ­
te n c e s  h a v e  b e e n  a ff irm e d  o n  a p p e a l  a n d  a re  f in a l .27 R u le  35 
a n d  th e  p r in c ip le s  o f  f in a lity  th a t  i t  e m b o d ie s  d ic ta te  th a t  
th o s e  se n te n c e s , th e re fo re , c a n n o t  n o w  b e  in c re a se d .

C  The D u e Process Clause Forbids R esentencing  
U nder Counts 6  And 7.

T h e  F if th  A m e n d m e n t’s D u e  P ro c e s s  C la u s e  a lso  
fo re c lo se s  th e  a rg u m e n t th a t  th e  g o v e rn m e n t p re s se s  h e re . In  
North Carolina v. Pearce, 3 9 5  U .S . 7 1 1 , 7 2 5  (1 9 6 9 ) ,  th is  
C o u r t  h e ld  th a t  th e  D u e  P ro c e s s  C la u s e  “ re q u ire s  th a t  
v in d ic tiv e n e ss  a g a in s t  a  d e fe n d a n t fo r  h a v in g  su c c e ss fu lly  
a t ta c k e d  h is  f irs t  c o n v ic tio n  m u s t  p la y  n o  p a r t  in  th e  se n te n c e  
h e  re c e iv e s  a f te r  a  n e w  tr ia l .”  “ [T ]o  a s s u re  th e  a b s e n c e  o f ’ 
“ a  r e ta l ia to ry  m o tiv a tio n  o n  th e  p a r t  o f  th e  se n te n c in g  
ju d g e ,”  th e  C o u r t  fu r th e r  h e ld  th a t  th e  ju d g e  m a y  n o t  im p o se  
a n  in c re a s e d  s e n te n c e  u n le s s  ju s t if ie d  b y  sp e c if ic  find ings 
“ b a s e d  u p o n  o b je c tiv e  in fo rm a tio n  c o n c e rn in g  id e n tif ia b le  
c o n d u c t o n  th e  p a r t  o f  th e  d e fe n d a n t o c c u rr in g  a f te r  th e  tim e

(footnote continued from preceding page)

of Title 28, on which the government relies, certainly does not authorize 
the appellate courts to countermand the Rules of Criminal Procedure or 
the traditional principles that they codify. S ee  note 19, supra; U nited  
S ta tes  v. Tuffanelli, supra, at 984 (predecessor provision of 28 U.S.C. 
§2106 does not permit resentencing on affirmed counts on remand).

27These sentences became final when the government failed to file any 
cross-petition. See, e.g., R. Stem&E. Gressman, supra, at479(“When 
a judgment disposes of separate claims, whether in a separate provision 
or not, a cross-petition or cross-appeal must be taken to present 
arguments relating to items other than those covered by the initial 
appeal.”); pp. 18-21, supra.

164



25

of the original sentencing proceeding.” Id. at 725-26.28
In Blackledge v. Perry, A ll U.S. 21 (1974), the Court 

applied an even stronger remedy to guard against the risk of 
vindictiveness. The defendant there had originally been 
convicted of a misdemeanor in a state prosecution. When he 
invoked his right under local procedures to a trial de novo, 
the prosecutor “upped the ante” by re-indicting him on a 
felony charge covering the same conduct. Id. at 28. This 
Court readily concluded that “the same considerations 
[governing Pearce] apply here,” id., since the possibility “of 
increased punishment upon retrial . . . posefd] a realistic 
likelihood of‘vindictiveness’ ” for the exercise of appellate 
rights. Id. at 27. However, the Court ruled that the state had 
to dismiss the felony conviction rather than merely re­
sentence the defendant under Pearce guidelines. “[T]he very 
institution of the felony indictment” constituted the due 
process violation, and that violation could not otherwise be 
remedied. Id. at 3 0 -3 1  & n.8.

The government argues (at 6 3  n.3 7 ) that these principles 
have no application here because, under its proposal, the 
maximum cumulative sentence on remand could not exceed 
the over-all term of imprisonment that was originally 
imposed. But this argument misconceives the purpose 
behind the due process protections. As this Court has

28The Court held in P earce  that “due process also requires that a 
defendant be freed of apprehension of. . .  a retaliatory motivation on the 
part of the sentencing judge.” 395 U.S. at 725. As the Court explained in 
C haffin v. S tyn ch com be, 412 U.S. 17, 24-25 (1973), “Those actually 
subjected to harsher resentencing as a consequence of such motivation 
would be most directly injured, but the wrong would extend as well to 
those who elect not to exercise their rights of appeal because of a 
legitimate fear of retaliation.” The prophylactic rule adopted by the 
Court, accordingly, was intended to eliminate both actual vindictiveness 
and the appearance of vindictiveness for the exercise of appellate rights.

165



26

re p e a te d ly  s tre s se d , it is th e  lik e lih o o d  o f  v in d ic tiv e n e s s  o r  
p e rc e iv e d  v in d ic tiv e n e s s  th a t  trig g e rs  th e  Pearce a n d  Perry 
l im its  "ons —  n o t th e  r isk  th a t  a  d e fe n d a n t w ill b e  w o rse  o ff  
a f te r  a n  a p p e a l  th a n  b e fo re .29 O b v io u s ly  th e  im p o s it io n  o f  th e  
sa m e  c u m u la tiv e  s e n te n c e  so  a s  to  n e g a te  a  su c c e s s fu l a p p e a l 
m a y  b e  j u s t  a s  v in d ic tiv e  a s  th e  im p o s itio n  o f  a  m o re  sev e re  
se n te n c e  o n  a  s in g le -c o u n t in d ic tm e n t. S in c e  th e  o p p o r tu n ity  
to  re ta l ia te  a g a in s t  th e  a c c u s e d  is n o  le ss  a v a ila b le  w h e n  th e  
o v e r-a ll  te rm  o f  im p r is o n m e n t is lim ited , Pearce a n d  Perry 
m u s t b e  a p p lie d  o n  a  p e r -c o u n t  r a th e r  th a n  a  c u m u la tiv e -  
se n te n c e  b a s is .30

I n  fa c t, th e  p o te n t ia l  fo r  a b u s e  is g re a te r  h e re  th a n  in

B orden kirch er v. H ayes, 434 U.S. 357, 363 (1978); B la ck led g e  v. 
Perry, supra, 417 U.S. at27; C haffin  v. S tynchcom be, supra, 412 U.S. 
at 25-26, 29; C olten  v. K en tu cky, 407 U.S. 104, 116 (1972); N orth  
C aro lin a  v. Pearce, supra, 395 U.S. at 723-25.

A resentencing proceeding under the government’s proposal would 
contain none of the safeguards that were regarded as controlling in 
C olten  v. K en tu cky, supra, and C haffin  v. Styn ch com be, supra. Here 
the resentencing court would be fully aware of the sentences imposed on 
LaRocca initially. Thus, the prerequisite for retaliatory sentencing would 
be clearly present. In addition, the enhanced penalty would be imposed 
by the very court responsible for the original judgment. That court 
undeniably would have, or at least appear to have, a stake in vindicating 
its original judgment by negating the effect of the successful appeal.

30The government suggests that the cumulative cap it proposes on 
resentencing will prevent any defendant from actually being deterred 
from appealing. In fact, this is not so. Under the government’s proposal 
defendants to multi-count indictments would be apt not even to bother 
appealing even a clearly erroneous conviction so long as one or more 
counts exist that are not subject to challenge and that could sustain the 
original cumulative sentence.

In any event, any sentence that, in fact, is imposed for vindictive 
reasons clearly offends the Due Process Clause, whether or not the 
likelihood of vindictiveness deters defendants from appealing. More­
over, the prophylactic remedies adopted in P earce  and P erry  are as much 
designed to eliminate actual retaliation against defendants as the 
appearance of retaliation. See  note 28, supra.

166



27

Pearce a n d  Perry. A n y  in c re a s e  in  L a R o c e a ’s S e c tio n  111 
se n te n c e s  w o u ld  n o t  fo llo w  a  re tr ia l , a t  w h ic h  th e  e v id e n c e  
m ig h t d iffe r  f ro m  w h a t  w a s  p re s e n te d  in  th e  f irs t  tr ia l. 
In s te a d ,  th e  ju d g e  p re s id in g  a t  th e  re s e n te n c in g  p ro c e e d in g  
d e s ire d  b y  th e  g o v e rn m e n t w o u ld  b e  p re s e n te d  w ith  
a b s o lu te ly  n o th in g  n e w  —  e x c e p t  th e  fa c t  th a t  L a R o c c a  
s u c c e e d e d  in  re v e rs in g  th is  S e c tio n  9 2 4 (c )  c o n v ic tio n . 
Im p o s it io n  o f  a  m o re  s e v e re  s e n te n c e  in  th e s e  c irc u m s ta n c e s  
w o u ld  m a k e  th e  in fe re n c e  o f  v in d ic tiv e n e s s  a lm o s t  ir­
re s is tib le .

B u t th e  p ro b le m s  w ith  th e  g o v e rn m e n t’s p o s i t io n  a re  fa r  
d e e p e r  th a n  th is . “ T o  p u n is h  a  p e r s o n  b e c a u s e  h e  h a s  d o n e  
w h a t  th e  la w  p la in ly  a llo w s  h im  to  d o  is a  d u e  p ro c e s s  
v io la t io n  o f  th e  m o s t  b a s ic  s o r t  . . . . ”  Bordenkircher  v. 
Hayes, supra, 4 3 4  U .S . a t  3 6 3 . T o  p u n is h  a  p e r s o n  b e c a u s e  
o f  a  c r im e  th a t  h e  d id  n o t  c o m m it is e v e n  w o rse . Y e t  th e  
g o v e rn m e n t’s re s e n te n c in g  p ro p o s a l  w o u ld  u n d e rm in e  th is  
s e c o n d  p re c e p t  o f  d u e  p ro c e s s  n o  le s s  th a n  th e  f i r s t

I f  th is  C o u r t  h o ld s  th a t  S e c tio n  9 2 4 (c )  is n o t  a v a ila b le  fo r  
p ro s e c u t io n  o f  a  S e c tio n  111 fe lo n y , re s e n te n c in g  o f  
L a R o c c a  w o u ld  m a k e  p u n is h m e n t p o s s ib le  n o t  m e re ly  fo r a 
su c c e ss fu l a p p e a l ,  b u t  fo r  a  c r im e  th a t  h e  d id  n o t  c o m m it a n d  
fo r  w h ic h  h e  c o u ld  n o t  e v e n  b e  p ro se c u te d . P a te n t ly ,  th e  
se n te n c in g  ju d g e  c o u ld  n o  m o re  d o  th is  th a n  h e  c o u ld  b a s e  a  
s e n te n c e  o n  p a s t  c o n v ic tio n s  th a t  h a v e  b e e n  re v e rs e d  
b e c a u s e  o f  c o n s t i tu t io n a l  e rro r . United States  v. Tucker, 
4 0 4  U .S . 4 4 3  ( 1 9 7 2 ) .31 I n  sh o rt, th e  g o v e rn m e n t’s re-

3‘If Congress were to repeal Section 924(c) retroactively, the fatal due 
process implications of resentencing LaRocca on Counts 6 and 7 would 
be evident — resentencing obviously would enable the government to 
punish LaRocca indirectly for the use of a firearm when Congress would 
have determined that it cannot do so directly. S ee U n ited  S ta te s  v. 
Stew art, 585 F.2d799, 801 n.5 (5th Cir. 1978), cert, denied, 440 U.S. 
918(1979).No difference can arise from the fact that LaRocca has been 
erroneously convicted under Section 924(c) in the first place.

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28

s e n te n c in g  p ro p o s a l  p o s e s  th e  s u b s ta n t ia l  r isk  o f  b o th  
v in d ic tiv e  a n d  u n a u th o r iz e d  p u n ish m e n t, ir re s p e c tiv e  o f  
w h e th e r  th e  to ta l, c u m u la tiv e  s e n te n c e  re m a in s  th e  sam e.

W e  su b m it  th a t  th e  re m e d y  re q u ire d  b y  th e  D u e  P ro c e s s  
C la u s e  to  a v o id  th e s e  risk s  is to  fo rb id  re se n te n c in g  
a lto g e th e r . A s  in  Perry, th e  Pearce g u id e lin e s  o n  re ­
se n te n c in g  w ill n o t  su ffice  to  p re v e n t c o n s t i tu t io n a l  e rro r. 
“ O b je c tiv e  in fo rm a tio n ”  o f  th e  k in d  re q u ir e d  b y  Pearce (3 9 5  
U .S . a t  7 2 6 )  s im p ly  c a n n o t  e x is t  to  o v e rc o m e  th e  o b v io u s  
in fe re n c e  u n d e r  th e  g o v e rn m e n t’s p ro p o s a l  th a t  a n  im ­
p e rm is s ib le  m o tiv a tio n  h a s  p la y e d  so m e  p a r t  in  a n y  in­
c re a s e d  s e n te n c e  im p o se d  o n  re m a n d .

T h e  h a z a rd s  o f  re s e n te n c in g  a re  d e m o n s tra te d  in  th is  v e ry  
c a s e  b y  th e  g o v e rn m e n t’s c o n te n tio n  ( a t  5 8 , 5 9 )  th a t  
L a R o c c a  w ill e n jo y  “ a n  u n a n tic ip a te d  a n d  u n d e se rv e d  
w in d fa ll”  u n le s s  h is  S e c tio n  111 s e n te n c e s  a re  s u b je c t to  
in c re a se . T h e  b a s is  fo r th is  b o ld  a s s e r t io n  is th e  u n a d o rn e d  
c la im  th a t  i t  is “ in c o n c e iv a b le ”  th a t  th e  t r ia l  ju d g e  w o u ld  
h a v e  im p o se d  a  f iv e -y e a r  s e n te n c e  o n  th e  S e c tio n  111 
c o n v ic tio n s  i f  h e  h a d  k n o w n  th a t  L a R o c c a ’s c o n d u c t  d id  n o t 
a d d itio n a lly  v io la te  S e c tio n  9 2 4 ( c ) .32

W e  a re  n o t  so  c la irv o y a n t;  n o r, d o  w e  b e lie v e , is a n y  
a p p e lla te  c o u r t  th a t  h a s  s e t  a s id e  o n e  c o n v ic tio n  a n d  is a sk e d  
to  p e rm it  re s e n te n c in g  o n  a  s e p a ra te , a n d  u n c h a lle n g e d , 
co n v ic tio n . T h e  p la in  fa c t  is th a t  th e  g o v e rn m e n t’s o w n  
th e o ry  p re s u p p o se s  th a t  th e  t r ia l  ju d g e  w a s  m is ta k e n  b o th  as 
to  th e  a p p lic a b ili ty  vel non o f  S e c tio n  9 2 4 (c )  a n d  a s  to  the  
m a x im u m  te rm  o f  im p r is o n m e n t a u th o r iz e d  b y  C o n g re ss . 
In d e e d , if  C o u n t  19  is  in v a lid , th e  ju d g e  la b o re d  u n d e r  the

32Interestingly, even the government acknowledges that there is some 
uncertainty as to what the sentencing judge intended. The government 
states (at 60 n.36) that “[o]f course, the district court on remand is not 
obligated to impose a sentence equivalent to that originally ordered.”

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29

misapprehension that LaRocca could be sentenced to 45- 
rather than 20-years imprisonment for the armed assaults.33

The government itself vigorously argues on this appeal — 
erroneously, as we show above — that Section 924(c) is 
unique in its strict deterrent purpose, and in its embodiment 
of a specific congressional intent to impose particularly 
harsh penalties in felony cases involving the use of guns. 
Who is to say that the sentencing judge did not share this 
belief? If he did, his decision to impose 5-year concurrent 
sentences for the Section 111 convictions was not arbitrary 
at all. Indeed, it is a fair inference that his allocation of 
sentences on LaRocca’s various convictions depended on 
the applicability of Section 924(c). Thus, as the court of 
appeals stated in United States v. Welty, supra, 426 F.2d at 
618:

“This [very case] illustrates the undesirability of 
attempting to reconstruct the intention of the sentencing 
judge from indications, however unambiguous, of his 
intention at the time he acted under a misapprehension 
of the law.”34
The courts of appeals have consistently refused to allow 

resentencing even in cases in which all convictions are left 
undisturbed, and in which the sentencing judge’s original 
intention — defeated by inadvertent error —- is relatively

"Moreover, any criminal trial lawyer or judge knows better than the 
government’s extraordinary statement (at 59) that the trial court's 
apportionment of time among Counts 6, 7, and 19 was "‘of no practical 
consequence.” Appellate reversals of selected counts commonly affect 
total time served.

3iSee United States v. Addonizio, supra, 442 U.S. at 187-88 (“the 
subjective intent of the sentencing judge would provide a questionable 
basis for testing the validity of his judgment,” since ‘‘it will often be 
difficult to reconstruct with any uncertainty the subjective intent of the 
judge at the time of sentencing.”).

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30

c le a r  a n d  u n a m b ig u o u s . T h e s e  c o u r ts  h a v e  c o r re c tly  
re a s o n e d  th a t  “ th e  p o s s ib il i ty  o f  a b u s e s  in h e re n t  in  b ro a d  
ju d ic ia l  p o w e r  to  in c re a s e  s e n te n c e s  o u tw e ig h s  th e  p o s­
s ib ility  o f  w in d fa lls  to  a  few  p r is o n e r s .”  United States v. 
Sacco, 3 6 7  F .2 d  3 6 8 , 3 7 0  ( 2 d  C ir. 1 9 6 6 ) .35 In  th e  in s ta n t  
c a se , b y  c o n tra s t,  a  c ru c ia l  c o n v ic tio n  is  v a c a te d , a n d  th e  
s e n te n c in g  ju d g e ’s o rig in a l in te n tio n  is n e c e s s a r i ly , th e re ­
fo re , a n y th in g  b u t  c le a r . T o  p e rm it  L a R o c c a ’s a t ta c k  on  
C o u n t  19 to  ju s t ify  in c re a s e d  s e n te n c e s  o n  C o u n ts  6 a n d  7 in 
th e se  c irc u m s ta n c e s  “ w o u ld  o p e n  th e  d o o r  w id e  to  a n  
in v a s io n  o f  th e  r ig h ts  o f  d e fe n d a n ts  . . . .”  United States v. 
Welty, supra, 4 2 6  F .2 d  a t  6 1 8 .

Pearce i ts e lf  d e m o n s tra te s  th a t  a m b ig u itie s  in  th e  
s e n te n c in g  ju d g e ’s o r ig in a l in te n tio n  a re  to  b e  re so lv e d  in  th e  
d e fe n d a n t’s fav o r. In  h o ld in g  th a t  o n e  o f  th e  d e fe n d a n ts  th e re  
w as  e n tit le d  u n d e r  th e  D o u b le  J e o p a rd y  C la u s e  to  c re d i t  o n  
h is  2 5 -y e a r  re s e n te n c e  fo r tw o  a n d  a  h a l f  y e a rs  a lre a d y  
s e rv e d  (see n o te  3 8 , infra), th e  C o u r t  r e m a rk e d  th a t  th e  tr ia l 
c o u r t  c o u ld  h a v e  n e g a te d  th e  c re d it  s im p ly  b y  in c re a s in g  th e  
d e fe n d a n t’s re s e n te n c e  to  21 Vi y e a rs . See 3 9 5  U .S . a t  7 1 9  
n. 14. N o n e th e le s s ,  th e  C o u r t  re fu se d  to  r e m a n d  th e  c a s e  to  
d e te rm in e  w h e th e r  th e  se n te n c in g  ju d g e  a c tu a l ly  in te n d e d  
th e  a c c u s e d  to  se rv e  a n o th e r  25  o r  a n o th e r  22Vi y e a rs .

“ [T ]h e  C o u r t  th u s  m a d e  a  c o n s t i tu t io n a lju d g m e n t  th a t  th e  
a m b ig u ity  in  th e  ju d g e ’s s e n te n c e  m u s t  b e  c o n s tru e d  in  fa v o r 
o f  le n ity  in  o rd e r  to  a v o id  th e  p o te n tia l  risk  o f  d o u b le  
p u n is h m e n t.”  W e s te n &  D ru b e l,  Toward A General Theory 
of Double Jeopardy, 1 9 7 8  T h e  S u p re m e  C o u r t  R e v ie w  8 1 ,
1 1 0  (1 9 7 9 ) .  A lth o u g h  th is  ju d g m e n t w a s  re a c h e d  u n d e r  th e

35S ee also, e.g., U n ited  S ta te s  v. Best, 571 F.2d 484 (9th Cir. 1978); 
U nited  S ta te s  v. Turner, 518 F.2d 14 (7th Cir. 1975); C h a n d ler  v. 
U nited  S ta tes, 468 F.2d 834 (5th Cir. 1972); U nited  S ta tes  v. Welty, 
supra.

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31

Double Jeopardy Clause, the same judgment should be 
dispositive with respect to petitioner5 s due process claim. Cf. 
Blackledge v. Perry, supra, 417 U.S. at 31. The con­
stitutional prohibition against multiple punishments for the 
same offense cannot be subordinated to the uncertain and 
shifting intentions of the sentencing judge.36

D. The Double Jeopardy Clause Bars Re­
sentencing Under Counts 6 and 7.

Procedural requirements, Rule 35, and due process all 
aside, the government’s resentencing theory runs into yet 
one more obstacle. As shown in the discussion of Pearce just 
presented, the theory contravenes the Double Jeopardy 
Clause of the Fifth Amendment, too. Although this Court 
has not previously ruled directly on this question, the lower 
federal courts have “resolved” it against the government, as 
the government itself concedes. U.S. BR at 66 &n. 38. More 
importantly, fundamental double jeopardy principles es­
tablished in this Court’s prior decisions dictate that a final, 
valid sentence cannot be increased without punishing the 
defendant twice for the same offense.

As long ago as Ex parte Lange, 18 U.S. (Wall.) 163, 168 
(1874), this Court held;

“If there is anything settled in the jurisprudence of
England and America, it is that no man can be twice

■ “Even if not required by the Due Process Clause to forbid 
resentencing, this Court should do so in the exercise of its supervisory 
powers over the federal courts. In addition to precluding unconstitutional 
sentences, a resentencing bar, at the very least, would serve the salutary 
purpose of encouraging trial judges carefully to tailor the sentences they 
impose when they first announce them. It would also avoid the unseemly- 
review of the subjective motivations of the sentencing judge that a 
Pearcc-statement-of-reasons approach would entail.

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32

lawfully punished for the same offense. A n d  th o u g h  
th e re  h a v e  b e e n  n ic e  q u e s tio n s  in  th e  a p p l ic a tio n  o f  th is  
ru le  [ in  so m e] c a s e s . . . ,  there has never been any doubt 
of its entire and complete protection ofthe party when a 
second punishment is proposed in the same court, on 
the same facts, for the same statutory offense.” 
(E m p h a s is  a d d e d .) 37

S im p ly  p u t, th e  D o u b le  J e o p a r d y  C la u s e  “ p ro te c ts  the  
a c c u s e d  . . . fro m  a tte m p ts  to  s e c u re  a d d it io n a l  p u n is h m e n t 
a f te r  a  p r io r  c o n v ic tio n  a n d  s e n te n c e  Brown v. Ohio, 
4 3 2  U .S . 1 6 1 ,1 6 5 - 6 6 ( 1 9 7 7 ) .  G o v e rn m e n t  m a y  n o t  c o m p e l 
a  d e fe n d a n t “ to  live  in  a  c o n tin u in g  s ta te  o f  a n x ie ty  an d  
in se c u r ity ,”  Green v. United States, 3 5 5  U .S . 1 8 4 , 1 8 7 -8 8  
(1 9 5 7 ) ,  b y  h o ld in g  o v e r  h im  th e  th r e a t  o f  a  s e c o n d  p u n ish ­
m en t. “ W h e n  a  d e fe n d a n t  h a s  b e e n  o n c e  c o n v ic te d  a n d  
p u n ish e d  fo r  a  p a r t ic u la r  c r im e , p r in c ip le s  o f  fa irn e s s  an d  
fin a lity  re q u ire  th a t  h e  n o t  b e  su b je c te d  to  th e  p o s s ib il i ty  o f  
fu r th e r  p u n is h m e n t b y  b e in g  a g a in  tr ie d  o r  s e n te n c e d  fo r th e  
sa m e  o ffe n se .”  United States v. Wilson, 4 2 0  U .S . 3 3 2 , 3 4 3  

( 1 9 7 5 ) .38

31 S ee also, e.g., N orth  C aro lin a  v. Pearce, supra, 395 U. S. 711,717- 
18; R e id  v. Covert, 354 U.S. 1,37 n.68 (1957) (dictum); In re B radley , 
318 U.S. 50 (1943); U n ited  S ta te s  v. B enz, 282 U.S. 304, 306 (1931) 
(dictum); M u rp h y  v. M a ssach u setts , 111 U.S. 155, 160 (1900) 
(dictum).

38The government engages (at 68-69) in an extended discussion of the 
L a n g e  decision that we are not certain we understand. But if the 
government is suggesting that the only double jeopardy limitation on 
resentencing is that the total punishment exacted be within the legis­
lature’s authorization, then the government is plainly wrong.

Not only would this narrow reading of L a n g e  render superfluous the 
Court’s grounding of that decision on double jeopardy principles, as the 
government itself acknowledges (at 69 n.40), but it would be flatly 
inconsistent with later decisions interpreting and re-affirming L a n g e ’s  
double jeopardy-based holding. Thus, in U nited  S ta te s  v. B enz, supra, 
the court held that the Double Jeopardy Clause permits the sentencing

(continued)

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33

T h e  d o u b le  je o p a r d y  p ro te c t io n  a g a in s t  m u ltip le  p u n ish -

(footnote continued  from preceding page)
judge to “amend a sentence so as to mitigate the punishment, but not so 
as to increase it . . . 282 U.S. at 307. The Court explained that this
distinction:

“is not based upon the ground that the court has lost control ol the 
judgment in the latter case, but upon the ground that to  increase the 
p e n a lty  is to su b jec t the d efen dan t to  d o u b le  p u n ish m e n t f o r  the 
sa m e offense in v io la tio n  o f  the F ifth  A m en d m en t to  the C on­
s titu tio n  ___T his is the b a s is  o f  the dec ision  in E x  p a r te  L a n g e .”
Id. (emphasis added).
Similarly, it would follow from the narrow reading of L a n g e  that the 

trial judge there would have acted unobjectionably if he had first offered 
to return the fine to the defendant before amending the judgment and 
imposing imprisonment as an alternative; in that case, the punishment 
would have been fully authorized by statute. However, this precise 
variation on the L a n g e  facts was presented to the Court in In re B radley , 
supra. The Court squarely rejected the argument that the double 
jeopardy bar was avoided because of the fact that the judge had sought to 
return the fine before amending the judgment. 318 U.S. at 52.

N o rth  C aro lin a  v. P earce  also forecloses any suggestion that the 
function of the Double Jeopardy Clause is merely to assure that 
punishments are kept within the maximums prescribed by Congress. In 
holding that “this basic constitutional guarantee is violated when 
punishment already exacted for an offense is not fully ‘credited’ in 
imposing sentence upon a new conviction for the same offense,” the 
Court in P earce  specifically elaborated that while “[t]he constitutional 
violation is flagrantly apparent in a case involving the imposition of a 
maximum sentence after reconviction,” “ the sa m e  p r in c ip le  ob vio u sly  
h olds true w henever p u n ish m e n t a lre a d y  en du red  is n o t fu l ly  su b tra c ted  

fro m  a n y  new  sen tence im p o sed .” 395 U.S. at 718 (emphasis added).
Finally, the proper reading of L a n g e  has not escaped the attention of 

the many courts of appeals that, relying on this decision, have time and 
again rebuffed government efforts to increase valid sentences based on 
uncontested convictions. See U.S. BR. at 66 n.38. Significantly, three of 
these decisions, U nited  S ta te s  v. Sacco, supra, U n ited  S ta te s  v. A dam s, 
supra, and K e n n e d y  v. U n ited  S ta tes, 330F.2d26(9thCir. 1964), were 
cited with approval in Pearce, 395 U.S. at 717 n. 11. S ee a lso  R e id  v. 
Covert, supra, 354 U.S. at 37 n.68 (dictum);M u rp h y  v. M assach u setts , 
supra, 111 U.S. at 160 (dictum).

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34

m e n ts  m u s t  a t ta c h  w h e n  se n te n c e  is im p o s e d  a n d  fin a l 
ju d g m e n t  is e n te r e d .39 T h is  a c c o rd s  w ith  “ th e  e x p e c ta t io n s  
c re a te d  in  a  d e fe n d a n t w h e n  h e  is  p ro p e r ly  c o n v ic te d  an d  
s e n te n c e d ,”  United States  v. Fredenburgh, supra, 6 0 2  F .2 d  
a t  1 1 4 7 -4 8 , a n d  re c o g n iz e s  th a t  “ th e  p r im a ry  p u rp o se  o f  th e  
D o u b le  J e o p a rd y  C la u s e  w a s  to  p ro te c t  th e  in te g r ity  o f  a
fin a l j u d g m e n t___ ”  United States v. Scott, 4 3 7  U .S . 8 2 ,9 2
( 1 9 7 8 ) .40 A c c o rd in g ly , “ [a] d e fe n d a n t  w h o  h a s  s to o d  tr ia l 
a n d  b e e n  c o n v ic te d  a n d  s e n te n c e d  b y  th e  th e  d is tr ic t  c o u r t  
h a s  b e e n  p la c e d  o n c e  in  je o p a r d y .”  United States  v. 
DiFrancesco, 6 0 4  F .2 d  7 6 9 , 7 8 3  ( 2 d  C ir. 1 9 7 9 ) , petition  
fo r  writ o f  certiorari pending  (N o . 7 9 - 5 6 7 ) .41

39S ee  Fed. R. Crim. P. 32(b); Fed. R. App. P. 4(b); B erm an  v. U nited  
States, 302 U.S. 211, 212 (1937): “Final judgment in a criminal case 
means sentence. The sentence is the judgment”

,0See C r is t v. B retz, 437 U.S. 28, 33 (1978) (emphasis added; 
footnotes omitted):

“The Fifth Amendment guarantee against double jeopardy 
derived from English common law, which followed then, as it does 
now, the relatively simple rule that a defendant has been put in 
jeopardy only when there has been a conviction or an acquittal — 
after a complete trial. A  p r im a ry  p u rp o se  served  b y  such a  ru le is 
. . . to  p re serve  th e f in a l i ty  o f  ju d g m e n ts .”

Of course, as developed in the United States, double jeopardy pro­
tections apply in many instances “even where no final determination of 
guilt or innocence has been made.” U n ited  S ta te s  v. Scott, supra, 437 
U.S. at 92.

41 D iF ran cesco  held that the government may not seek to increase a 
defendant’s sentence on appeal consistently with the Double Jeopardy 
Clause. The American Bar Association endorsed this result at the 
meeting of the House of Delegates in Chicago on February 4,1980. See  
Resolution 119, American Bar Association, House of Delegates, 
p r in te d  in American Bar Association, 1 9 8 0  M id y e a r  M eetin g  R ep o rts  
W ith R eco m m en d a tio n s  To The H o u se  O f  D e leg a te s  (1980).

A number of courts have taken the position that the double jeopardy 
bar attaches once the defendant has begun to serve the sentence that the

(continued)

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35

B u t th e  C o u r t  n e e d  n o t  r e a c h  th is  c o n c lu s io n  in  th is  c a s e  to  
h o ld  fo r  p e ti t io n e r . A t  th e  v e ry  le a s t, th e  d o u b le  je o p a r d y  
s a fe g u a rd  a g a in s t  m u ltip le  p u n is h m e n ts  m u s t  b e  tr ig g e re d  
w h e re , a s  h e re , a  v a lid  s e n te n c e  h a s  b e c o m e  fin a l o n  d ire c t  
rev iew . I f  th is  w e re  a  c iv il l i tig a tio n  w ith  th e  v a r io u s  c o u n ts  o f  
th e  in d ic tm e n t t r e a te d  a s  d if fe re n t c la im s ,42 it  w o u ld  b e  
a b s o lu te ly  c le a r  th a t  th e  c a s e  c o u ld  n o t  b e  r e m a n d e d  fo r 
p le n a ry  c o n s id e ra t io n  o f  re q u e s ts  to  m o d ify  C o u n ts  6 a n d  7. 
T h e  s a m e  re s u lt  m u s t  o b ta in  h e re .

T h is  C o u r t  h a s  a lw a y s  ta k e n  th e  p o s it io n  th a t  th e  D o u b le  
J e o p a rd y  C la u s e , if  a n y th in g , s e c u re s  to  d e fe n d a n ts  greater 
p ro te c t io n  th a n  th e y  w o u ld  e n jo y  in  c iv il l i t ig a tio n .43 
L a R o c c a ’s in te re s t  in  f in a lity  c a n n o t, c o n s is te n tly  w ith  th is  
tra d itio n , b e  e n ti t le d  to  le s s  p ro te c tio n  th a n  it  w o u ld  b e  
a c c o rd e d  in  a  c iv il su it. M o re o v e r , a n y  o th e r  ru le  w o u ld  
e x p o s e  d e fe n d a n ts  to  a n  u n c o n s c io n a b le  d isa d v a n ta g e : 
W h ile  th e  g o v e rn m e n t w o u ld  b e  fre e  to  se e k  re s e n te n c in g  o n

(footnote continued from preceding pane)

government seeks to have increased. See, e.g., United States v. Turner, 
supra. However, if this rule is intended to preclude the attachment of 
jeopardy before the defendant has started serving his sentence, it seems 
contrary to In re Bradley, supra. There the trial court offered to return a 
fine paid by the defendant, thereby rendering the original punishment 
unexecuted. Nonetheless, this Court disallowed the subsequent increase 
in punishment See note 38, supra. Even the government makes no 
attempt to support the commencement-of- sentence distinction.

i2See, e.g., FTCv. Minneapolis-Honey well Regulator Co., 344 U.S. 
206 (1952).

4'■See, e.g., United States v. Scott, supra, 437 U.S. at 92; United 
States v. Wilson, 420 U.S. 332, 351-52 (1975).

In Wilson the Court specifically rejected Mr. Justice Holmes’ view 
that “the first jeopardy should be treated as continuing until both sides 
[as in civil litigation] have exhausted their appeals on claimed errors of 
law, regardless of the possibility that the defendant may be subjected to 
retrial after a verdict of acquittal.” 420 U.S. at 352.

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36

o th e rw ise  f in a l c o u n ts , th e  d e fe n d a n t w o u ld  b e  p re c lu d e d  
fro m  p re s e n tin g  to  th e  a p p e lla te  c o u r t  c la im s  o f  e r ro r  in  th e se  
s a m e  c o n v ic tio n s  th a t  h e  h a d  d e c id e d , fo r  w h a te v e r  re a so n , 
n o t  to  r a is e  o n  a p p e a l .44 S u c h  a  b re a c h  o f  m u tu a l i ty  w o u ld  b e  
fu n d a m e n ta lly  u n fa ir .45

T h e  g a p in g  h o le  th a t  th e  g o v e rn m e n t’s re se n te n c in g  
p ro p o sa l w o u ld  t e a r  in  e s ta b lis h e d  p r in c ip le s  o f  f in a lity  
u n d e rs c o re s  th e  f la w  in  its  th e o ry . T h e r e  is s im p ly  n o th in g  in 
th e  th e o ry  th a t  w o u ld  e v e r  to ll th e  g o v e rn m e n t’s re se n te n c in g  
p re ro g a tiv e . J e o p a r d y  w o u ld  n e v e r  a t ta c h  a t  a ll —  n o t a f te r  
ju d g m e n t h a s  b e e n  e n te re d , n o t  a f te r  th e  s e n te n c e  h a s  
b e c o m e  fin a l o n  d ire c t  rev iew , an d , so  fa r  a s  a p p e a rs , n o t 
e v e n  a f te r  th e  s e n te n c e  h a s  b e e n  se rv ed . R e s e n te n c in g  w o u ld  
b e  p e rm is s ib le  e v e n  y e a rs  la te r  —  a s  w h e re , fo r  in s ta n c e , a  
d e fe n d a n t u lt im a te ly  su c c e e d s  in  o v e r tu rn in g  o n e  o f  s e v e ra l 
re la te d  c o n v ic tio n s  o n  c o l la te ra l  a tta c k . T h e  g o v e rn m e n t’s 
v iew s th u s  g ive n o  e ffe c t w h a te v e r  to  th e  f in a lity  p r in c ip le s  
th a t  lie  a t  th e  c o re  o f  th e  D o u b le  J e o p a r d y  C la u s e  (see n o te  
4 0 , supra), a n d  w o u ld  tu rn  th a t  “ v i ta l ,”  “ d e a r ly  w o n ” 
g u a ra n te e  in to  a n  e m p ty  fo rm a lism . Green v. United States, 
3 5 5  U .S . 1 8 4 , 1 9 8  ( 1 9 5 7 ) .46

“Here, for example, in seeking review in this Court, LaRocca 
relinquished several issues affecting the validity of Counts 6 and 7 that he 
had raised in the court of appeals. See Br. for Appellant LaRocca, 3d Cir. 
No. 77-1376.

4!The analogy to civil litigation by itself disposes of the government’s 
reliance (at6 L66) on North Carolinav. Pearce, supra; United States v. 
Tateo, 377 U.S. 463 (1964); Bozza v. United States, 330 U.S. 160 
(1947); and United States v. Scott, supra. The questions raised in those 
cases (/. e., the defendant’s rights to avoid retrial after the dismissal of 
charges, to rely on a judgment illegally entered, and to avoid a new trial 
after the reversal or setting aside of his conviction) concerned the extent 
to which the Double Jeopardy Clause affords protections greater than 
the defendant would have in civil litigation. The fact that the Court 
answered these questions in these cases favorably to the government

(continued)

176



37

In  sum , th e  g o v e rn m e n t’s re se n te n c in g  re q u e s t  is b a r re d  a t  
th e  th re s h o ld  b e c a u s e  o f  th e  g o v e rn m e n t’s fa ilu re  to  file  a 
c ro s s -p e titio n . I f  th e  re q u e s t, n o n e th e le s s , is  c o n s id e re d , it 
sh o u ld  b e  re je c te d . F e d e r a l  C r im in a l  R u le  3 5 , th e  D u e  
P ro c e s s  C la u s e , a n d  th e  D o u b le  J e o p a r d y  C la u s e  all 
fo re c lo se  re s e n te n c in g  h ere .

(footnote continual from preceding page)

hardly means that defendants have less security than ordinary finality 
principles would guarantee in the civil context.

46The government suggests (at 61-62) that by appealing one con­
viction the defendant has subjected himself to continuing —- indeed, 
indefinite — jeopardy on other convictions, but this does not save the 
government’s theory. G reen  v. U nited  S ta tes, supra, 355 U.S. at 193-94, 
settles that “[ conditioning an appeal of one offense on a coerced 
surrender of a valid plea of former jeopardy on another offense exacts a 
forfeiture in plain conflict with the constitutional bar against double 
jeopardy.” By seeking review in this Court of his Section 924(c) 
conviction, LaRocca did not voluntarily or knowingly expose himself to 
the risk that, if successful, he would be subjected to the absolutely novel 
peril of more severe sentences on his separate, and unchallenged. 
Section 111 convictions. S ee  a lso  B u rks v. U n ited  S ta tes, 437 U.S. 1, 
15 & n.9 (1978); B enton  v. M a ry la n d , 395 U.S. 784, 796-97 (opinion 
for the Court), 811-12 (opinion of Harlan, J., dissenting) (1969).

177



38

CONCLUSION

For the foregoing reasons, the judgment on rehearing of 
the court of appeals should be reversed, and the case 
remanded with instructions to vacate the conviction and 
sentence against petitioner under Count 19, without re­
sentencing him on Counts 6 and 7.

Respectfully submitted,

GERALD GOLDMAN

Hughes Hubbard & Reed
Court-appointed Counsel fo r  

Petitioner
O f Counsel:

PETER E. SCHEER

February 1980

178



IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 78-6020

MICHAEL M. BUSIC,

Petitioner, 
v .

UNITED STATES OF AMERICA.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE THIRD CIRCUIT

REPLY BRIEF FOR THE PETITIONER

SAMUEL J. REICH, ESQ.
JAY H. SPIEGEL, ESQ. 
GEFSKY, REICH AND REICH 
1321 Frick Building 
Pittsburgh, PA 15219
Attorneys for Petitioner

179



TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES................................. ! . .
ARGUMENT................................................................................................................................

I n t r o d u c t i o n ............................................................................................

I. SIMPSON V. UNITED STATES, REQUIRES 
THAT PETITIONER'S CONVICTION AND 
SENTENCE UNDER COUNT 18 BE VACATED.....

II. PETITIONER CANNOT BE RESENTENCED
UNDER ANY COUNTS OF THE INDICTMENT......................

CONCLUSION............................................................................................ .............................

TABLE OF AUTHORITIES
Cases:

Bell v. United States,
549 U.S. 81, 84...... ...............................

Callanan v. United States,
364 U.S. 587, 596:75777.....................

Gore v. United States,
357 U.S. 386 (1958)..............

Ladner v. United States,
358 U.S.' 169 (1958)77............

Pinkerton v. United States,
328~07s7“54(r (1946). 7777...................

Simpson v. United States,
425 U.S. 6 (1978 )7 7 ^7 ........................

United States v. Addonizio,
442 U.S. 178 (1979)..............

Statutes:
18 U.S.C. § 111.....................
18 U.S.C. § 924(c).................

Congressional Materials:

114 Cong. Rec. 22231 (1968) at 22232

( i ) 181



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1979

No. 78-6020

MICHAEL M. BUSIC,

Petitioner, 
v.

UNITED STATES OF AMERICA.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE THIRD CIRCUIT

ARGUMENT

Introduction
Various propositions of fact and law have been 

discussed at length in the briefs of the petitioners, Busic 
and LaRocca, and the reply brief of LaRocca. No attempt is 
made herein to repeat arguments made previously on behalf of 
either petitioner. However, there are certain observations 
which must be made about the contentions of the Government 
relating to petitioner Busic.

I.
SIMPSON V. UNITED STATES, REQUIRES THAT 
PEflTIONER' S-C O W l C T l M  AND SENTENCE 

______UNDER COUNT 18 BE VACATED._______

The Government correctly points out that the firearm 
which Busic "carried" was different than the firearm which

183



2

LaRocca "used" in his assaults on the Federal agents and that 
Busic was convicted of aiding and abetting the assaults by 
LaRocca. Also, Busic was sentenced under the enhanced 
sentencing provision of 18 D.S.C. § 111.'*'

There should not be any misunderstanding about 
Busic's position. The fundamental contention is that § 924(c) 
is inapplicable where the underlying federal felony itself 
contains a sentencing enhancement provision for use of a 
firearm. The contention is not that Busic has been punished 
twice for the single use of a single firearm. The contention 
is that § 924(c) cannot be applied to underlying felonies 
such as assaults on Federal officers or process servers, 
armed robberies of the mail or banks, and various other Federal 
felonies which contain sentencing enhancement provisions.
Under this formulation, the distinction between "using" and 
"carrying" and the number of weapons or the identity of 
weapons in given counts, are irrelevant.

As noted in the initial briefs, the legislative 
history of § 924(c), particularly the unmistakable remarks 
of the sponsor, Representative Poff, clearly support petitioner's 
position. Moreover, this Court's language and reasoning in 
Simpson v. United States, 425 U.S. 6 (1978), needed no additions 
and was quoted verbatim in petitioner's brief.

^The maximum imprisonment on each of the two counts 
which Busic could have received for assault without a deadly 
weapon was 3 years; the maximum imprisonment for use of a 
deadly or dangerous weapon in each assault was 10 years, 18 
U.S.C. § 111. Busic received concurrent sentences of imprisonment 
for 5 years on Counts 6 and 7.

184



Representative Poff said:
For the sake of legislative history, it 
should be noted that my substitute is 
not intended to apply to title 18, 
sections 111, 112, or 113 which already 
define the penalties for the use of a 
firearm in assaulting officials, with 
sections 2113 or 2114 concerning armed 
robberies of the mail or banks, with 
section 2231 concerning armed assaults 
upon process servers or with chapter 44 
which defines other firearm felonies.
114 Cong, Rep. 22231 (1968) at 22232.
The Government makes several lengthy arguments 

regarding the legislative history and the reasonable construc­
tion of the statute. Giving full weight to the Government's 
position, at best, there is an ambiguity. Normally, in criminal 
cases, this Court tends to resolve such ambiguities in favor 

of lenity. Simpson v. United States, 435 U.S. 6 (1978); Gore v. 
United States, 357 U.S. 386 (1958); Calianan v. United States, 
364 U.S. 587, 596; Ladner v. United States, 358 U.S. 169 (1958); 
Bell v. United States, 349 U.S. 81, 84. However, even the 
finding of an ambiguity would require this Court to ignore 
the statement of the statute's sponsor and to cut back on its 
own position in Simpson.

II.
PETITIONER CANNOT BE RESENTENCED 

UNDER ANY COUNTS OF THE INDICTMENT.
The Government also contends that this case should

be remanded for resentencing in the event that petitioner's
positions are upheld. The contention is that petitioner should
be resentenced on the § 111 counts (counts 6 and 7) but that
the total sentence may not exceed the total sentence previously
imposed (30 years total; 20 years on Count 18, consecutive to

185



4

the 10 years imposed on other counts).
Preliminarily, it should be noted that the sentence 

already requires modification of at least ten years because 
of a recent action in the District Court vacating an earlier 
conviction for violation of 924(c). Thus, Busic cannot be 
treated as a repeat offender under § 924(c) and the maximum 
imprisonment thereunder is 10 years. This is discussed in 

petitioner LaRocca's reply brief, footnote 17, page
Petitioner Busic joins in the contentions of LaRocca 

that the requested relief must be denied because: the Govern­
ment failed to cross-petition or to otherwise preserve the 
issue, the resentencing would be contrary to Rule 35 of the 
Federal Rules of Criminal Procedure, the Due Process clause 
and the Double Jeopardy clause of the United States Constitution.

Petitioners are not here challenging any conviction 
or sentence except for the sentence under 924(c) (as to Busic, 
Count 18). In this Court there is no question raised as to 
the validity of the convictions or sentence under any other 
count including the assault counts. Therefore, except as to 
the questions raised on this appeal by the petitioners as 
to the single count, all other aspects of the case have been 
resolved.

It should also be noted that in the District Court 
and in the Court of Appeals, numerous legal issues were 
raised by both petitioners challenging the validity of their 
convictions under the assault and other counts. Because of 
the concurrent nature of the sentences imposed by the Court

186



and other factors, a number of serious and potentially valid 

appellate grounds were abandoned because such contentions 
seemed to have no effect.. Such contentions include the scope 
of the Pinkerton rule and the sufficiency of the Court's

2instructions on this issue.
If the Government's request is followed, in multiple 

count indictments, it would be difficult for appellants to 
limit issues or to abandon issues because of the possibility 
that otherwise closed counts on which probationary or con­
current sentences were imposed could provide the basis for 
resentencing if there was prosecution error as to other counts. 
The extent and unfairness of the resulting burdens to litigants 
and to the courts should be obvious.

It is respectfully submitted that there is no 
precedent to vacate the sentence on any count of this indict­
ment other than the counts which are challenged by the 
petitioners. All that has happened here is that the Court's 
sentencing expectations as to the validity of the sentence 
under 924(c) may not be correct. This seems to be the other 
side of the coin from the situation which confronted this 
Court in U.S. v. Addonizio, 442 U.S, 178 (1979). In that 
case, the court had expected more lenient parole consideration

2Under the Court's instructions to the jury, Busic 
could be convicted of assault if LaRocca's assaults were part 
of the drug conspiracy in which both were involved and if 
LaRocca's acts were foreseeable. The jury apparently had 
trouble with this issue because they asked for further guidance 
on the premise that Busic had not been personally involved 
in the assaults. See Pinkerton v. United States. 328 U.S.
640 (1946). ---------- -

187



6

for a sentenced defendant. It was held that these disappointed 
expectations did not provide a basis for collateral relief.
The only substantial difference here is that the court 
expected that all other sentences were valid and the total 
imprisonment would be longer, rather than shorter as in 

Addonizio.

CONCLUSION
For the reasons stated in this reply brief and all

other briefs submitted on behalf of both petitioners, it is
hereby requested that this Honorable Court vacate petitioner
Michael M. Busic's conviction under Count 18.

Respectfully submitted,
SAMUEL J. REICH 
JAY H. SPIEGEL
Gefsky, Reich and Reich
Court-appointed Counsel for 
Petitioner

February, 1980

188



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