U.S. v. Brown, 04-3159.

• Decision Date: 02 June 2006
• Docket Number: No. 04-3159.,04-3159.
• Parties: UNITED STATES of America, Appellee v. Kevin Patrick Luke BROWN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

449 F.3d 154

UNITED STATES of America, Appellee v. Kevin Patrick Luke BROWN, Appellant.

No. 04-3159.

United States Court of Appeals, District of Columbia Circuit.

Argued March 7, 2006.

Decided June 2, 2006.

Appeal from the United States District Court for the District of Columbia (No. 03cr00405-01).

Edward C. Sussman, appointed by the court, argued the cause and filed the briefs for appellant.

Steven W. Pelak, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, and Roy W. McLeese III and Frederick W. Yette, Assistant U.S. Attorneys.

Before: RANDOLPH and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

WILLIAMS, Senior Circuit Judge.

Congress has provided a minimum sentence of five years for any person who, in relation to any crime of violence, "uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." 18 U.S.C. § 924(c)(1)(A)(i). The minimum penalty increases to seven years if the firearm "is brandished," § 924(c)(1)(A)(ii), and to ten if it "is discharged," § 924(c)(1)(A)(iii). The question here is whether the accidental discharge of a weapon triggers a ten-year sentence for discharging. Phrased more formally, the question is whether an intent requirement is implicit in the discharge provision. We conclude that it is.

* * * * * *

The relevant facts are undisputed. About ten minutes before it closed, Kevin Patrick Luke Brown entered a SunTrust bank in downtown Washington, D.C. with a semi-automatic pistol. Brown approached the bank's acting manager and forced her, at gunpoint, to lead him into the locked teller area. Once inside, Brown directed another bank employee to put money from the tellers' drawers into a bag. Irritated because he thought she was moving too slowly, Brown snatched the bag, threw it at another employee, and jammed the barrel of the gun into the back of the second employee's head. That employee then stuffed cash into the bag before handing it back to Brown. As Brown closed the bag, his gun fired. Apparently startled, Brown asked, "Did I hurt anybody? Did I hurt anybody?" The bank employees responded that no one was injured; as it turned out, the bullet had lodged in the bank's ceiling. Brown then forced the second employee, at gunpoint, to direct him to an exit in the back of the bank. The police apprehended Brown moments later, aided by a SunTrust customer who had seen the robbery through a window at the bank's entrance.

The judge asked the jury not only for its verdict on the armed-robbery count (violation of 18 U.S.C. § 2113(a), (d)) and the firearm count (violation of § 924(c)(1)(A)), but also on whether the firearm was discharged during the robbery. About ninety minutes after the judge dismissed the jury to begin its deliberations, he received a note asking whether the gun had to have been discharged knowingly. The judge responded in the negative. Shortly thereafter, the jury returned two guilty verdicts and a finding that the firearm had been discharged. As the judge had before trial granted Brown's unopposed motion to sever the felon-in-possession charge under 18 U.S.C. § 922(g) and to proceed without a jury, the judge himself found guilt on that issue. The judge imposed a sentence that included ten years under § 924(c)(1)(A)(iii).

* * * * * *

We review the district court's interpretation of a criminal statute de novo. United States v. Wade, 152 F.3d 969, 972 (D.C.Cir.1998). So far, two circuits have interpreted the discharge provision and have reached different conclusions as to intent. The Tenth Circuit found no such requirement, United States v. Nava-Sotelo, 354 F.3d 1202, 1206 (10th Cir.2003), while the Ninth Circuit recently found that the government must show "general intent," United States v. Dare, 425 F.3d 634, 641 n. 3 (9th Cir.2005). We agree with the Ninth Circuit that there is an implicit requirement of general intent, precluding liability for the accidental discharge of Brown's weapon.

We start with the text of § 924(c)(1)(A):

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence ...

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

As the text makes clear, the minimum penalty doesn't kick in anytime a gun is present on the scene of one of the specified crimes; instead, the firearm must be used or carried "during and in relation to" the crime, or possessed "in furtherance of" the crime. See Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (interpreting "carry" provision); Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (interpreting "use" provision); United States v. Gaston, 357 F.3d 77, 82-83 (2004) (interpreting "possession in furtherance of"); United States v. Wahl, 290 F.3d 370, 375-77 (D.C.Cir.2002) (same).

The three subsections of § 924(c)(1)(A) penalize increasingly culpable or harmful conduct. The government doesn't dispute that the five-year sentence in § 924(c)(1)(A)(i) requires proof of mens rea. See United States v. Harris, 959 F.2d 246, 258 (D.C.Cir.1992) (saying, in interpretation of § 924(c) prior to 1998 amendment that appears irrelevant to this issue, "Consistent with the presumption of mens rea in criminal statutes, we assume that section 924(c) is violated only if the government proves that the defendant ... intentionally used firearms in the commission" of the crime.). Nor is there any dispute that the bump to seven years for brandishing in § 924(c)(1)(A)(ii) requires a separate intentional act. Congress defined "brandishing" as "display[ing] all or part of the firearm, or otherwise mak[ing] the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person." 18 U.S.C. § 924(c)(4) (emphasis added). A requirement of intent for the discharge provision would be consistent with this progression on the face of § 924(c)(1)(A); it would reserve the ten-year minimum penalty for the unambiguously more culpable act of intentionally discharging a firearm.

To be sure, discharges of a firearm are more likely to cause severe injury or even death than mere brandishing (though in cases where they actually do so the defendant would virtually always become independently guilty of another, major substantive offense). Nonetheless, as between an intentional brandishing and a purely accidental discharge, the increment in risk, given the less reprehensible intent, seems inadequate to explain a congressional intent to add three years (or five years if the discharge occurs without brandishing).

Moreover, the presumption against strict liability in criminal statutes supports the inference of an intent requirement. Our circuit has said that "[a]lthough cases generally apply [this presumption] to statutes that define criminal offenses, we have little doubt that it should also be applied to legal norms that define aggravating circumstances for purposes of sentencing." United States v. Burke, 888 F.2d 862, 866 n. 6 (D.C.Cir.1989). Like the rule of lenity—which the Supreme Court has stated on several occasions applies not only "to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose," Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980)—"the presumption against strict liability is founded on the principle that laws that deprive an individual of his liberty should be strictly construed. Laws that enhance the sentence of a criminal defendant meet this description." Burke, 888 F.2d at 866 n. 6 (citation omitted).

The government argues that "[t]he ten year mandatory minimum sentence is applicable `if the firearm is discharged.' ... No words of qualification or limitation are included." Brief for Appellees 39 (citation omitted). But at oral argument the government conceded some implicit limitations: for example, that the statute (despite its use of the passive voice) wouldn't render an armed robber liable for the discharge by a law enforcement officer or bank teller who got a hold of the robber's gun and used it to threaten the robber. See Oral Argument Recording at 16:58-17:26. Even with that concession, however, the government's reading would produce a mandatory ten year sentence (i.e., five more than under the basic possession bump) if a defendant's weapon accidentally discharged when he dropped it to comply with a police request to do so.

The government's other arguments for a (limited) strict-liability reading do not convince us. The government seeks to draw a contrast between § 924(c)(4)'s definition of "brandish"—which explicitly includes an intent requirement—and the absence of such a provision for "discharge." We don't find the proposed inference compelling. There is a very reasonable explanation for Congress's decision to include a definition of one term but not the other. The statute's definition of "brandish" is broader than the dictionary definition, as it (Congress's definition) includes uses of a gun invisible to the person threatened so long as the perpetrator somehow makes its presence known. Compare, e.g., WEBSTER'S II NEW RIVERSIDE DICTIONARY 89 (1984): (defining "brandish" to mean "[t]o wave or flourish threateningly, as a weapon"); WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED 268 (1981) (defining "brand...