U.S. v. Phelps

• Decision Date: 13 February 1990
• Docket Number: No. 88-5294,88-5294
• Citation: 895 F.2d 1281
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark PHELPS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1281

895 F.2d 1281

UNITED STATES of America, Plaintiff-Appellee, v. Mark PHELPS, Defendant-Appellant.

No. 88-5294.

United States Court of Appeals, Ninth Circuit.

Feb. 13, 1990.

Prior report: 9th Cir., 877 F.2d 28.

Before WRIGHT, FARRIS and NELSON, Circuit Judges.

ORDER

En banc review of the court's opinion herein was requested by an active circuit judge. A majority of the active judges have voted to deny the request. En banc review is denied.

KOZINSKI, Circuit Judge, and four other Circuit Judges dissent from this order.

KOZINSKI, Circuit Judge, with whom Circuit Judges NORRIS, BRUNETTI, THOMPSON and O'SCANNLAIN concur, dissenting from the order rejecting the suggestion for rehearing en banc.

By failing to take this case en banc, the court "lets stand an unfortunate and utterly needless hindrance to effective law enforcement." United States v. Cunningham, 890 F.2d 199, 200 (9th Cir.1989) (O'Scannlain, J., dissenting from the order rejecting the suggestion for rehearing en banc). In reversing defendant's conviction for violating 18 U.S.C. Sec. 924(c)(1), the panel's opinion reads into the statute a scienter requirement that Congress refused to put there, a requirement that has been rejected by every other federal court of appeals that has addressed the issue. Equally troubling, the panel reverses a conviction for conduct that is squarely covered by the relevant statute, raising serious doubt about whether Congress can ever write a law safe from judicial dismemberment.

Facts

Mark Phelps was a man with a problem: He was in the business of manufacturing illegal drugs, but he just couldn't get his hands on a commercial quantity of Ephedrine, a restricted precursor of methamphetamine. RTI 16-17, 22. His partner, Raymond Turnipseed, eventually turned up a potential supply of Ephedrine, but the supplier wanted to satisfy himself that he wasn't dealing with amateurs. RTI 19-20, 39-40. Having learned that the supplier had a friend who was interested in guns, RTI 41-42, Phelps decided to impress them by displaying his expertise not merely with drugs, but with illegal weapons as well. Thus, just before Turnipseed gave the supplier and his friend a tour of the lab, Phelps showed them a MAC 10 machine pistol and did everything he could to impress them: He boasted about how he had converted it from semiautomatic to automatic, RTI 55; he broke it down and explained to them how it worked, RTI 56, 110-11; he showed them the silencer he had built for it, RTI 107, 113; and he brought out four or five loaded magazines, RTI 109, which he encouraged them to test-fire. RTI 52, 102-03.

Phelps's dog-and-pony show was a hit; the men were fascinated by the gun. But when they asked Phelps how much he wanted for it, he told them it wasn't for sale--unless they agreed to supply Ephedrine, in which case he would give them the machine gun and silencer for free. RTI 60-61, 114-16. The suppliers--in reality, undercover federal agents--agreed and set a date for the exchange.

With the benefit of perfect foresight, the federal agents no doubt would have tried to arrest Phelps and Turnipseed on the spot. A fellow law enforcement officer would pay dearly for the fact that Phelps still had the MAC 10 in his possession two and a half hours later.

Discussion

The question presented here is simple: Did Phelps use the MAC 10 "in relation to" a drug trafficking crime? The panel concludes he did not; it couldn't be more wrong.

1. Plain Language

The relevant statute is 18 U.S.C. Sec. 924(c)(1), which tacks on five years to the sentence of any person who uses a firearm "during and in relation to any crime of violence or drug trafficking crime" (emphasis added). The panel concludes that Phelps's conduct is not covered by section 924(c)(1). This conclusion is nothing short of astonishing, given the statute's exceptionally broad language and the direct and active part the gun played in the drug transaction.

The panel recognizes that "[t]he phrase 'in relation to' is broad." United States v. Phelps, 877 F.2d 28, 30 (9th Cir.1989). Having started down the right path, the panel immediately takes a wrong turn: "Because either party's interpretation of the statute is plausible, we look to its history and purpose to ascertain the correct reading." Id. But this is a non sequitur: A statute's breadth has no bearing on whether it is subject to multiple interpretations. A statute can be very precise while covering much territory; Congress is capable of painting with a wide brush, yet making its meaning perfectly clear.

In deciding whether it is appropriate to go beyond statutory language, the touchstone is not breadth but ambiguity: Are the conflicting interpretations proffered by the parties each plausible? Here the defendant's proffered interpretation certainly is not. It is difficult to think of a term broader than "in relation to"; I can envision no plausible interpretation of the phrase that would place Phelps beyond the reach of section 924(c). Phelps agreed to turn over the gun and a quantity of methamphetamine in exchange for the Ephedrine he so badly needed. Far more than the ordinary case where a gun is carried by one of the parties merely for protection, the gun here was an integral part of the transaction--it was the sweetener that made the deal work. Yet the panel concludes that it was not used "in relation to" the crime. Under the panel's reasoning, one could equally well conclude that the drugs themselves were not used "in relation to" the drug transaction.

The panel's refusal to apply the statute to a fact situation squarely covered by the clear statutory language, and the full court's failure to correct the error, raise a fundamental question: Is there any law that the courts cannot circumvent through creative "interpretation"? The answer apparently is no. If the phrase "during and in relation to any ... drug trafficking crime" can be construed as excluding the situation where a drug manufacturer brings an automatic weapon and ammunition to a place where a drug deal is going down, offers to load the gun and shoot it, and the gun serves as the bait that makes the deal click, it is difficult to imagine any statutory language that a court cannot construe out of existence, based simply on its own gut feeling that this is not what Congress had in mind.

Judges must apply the law as written, not as their instincts tell them Congress probably meant it. Language, when properly interpreted and literally applied, provides a meaningful constraint on judicial action; when we allow ourselves to be guided by intuition that Congress didn't really mean what it said, we are no longer interpreting laws, we are making them.

2. Legislative History

A. "Given the unambiguous nature of the statute, recourse to legislative history is unnecessary." Saratoga Sav. & Loan Ass'n v. Federal Home Loan Bank Bd., 879 F.2d 689, 693 (9th Cir.1989). Accord Hallstrom v. Tillamook County, --- U.S. ----, 110 S.Ct. 304, 308, 310, 107 L.Ed.2d 237 (1989); Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399, 108 S.Ct. 1255, 1258, 99 L.Ed.2d 460 (1988). But even if resort to legislative history were appropriate here, there is no justification for the manner in which the panel opinion uses it in this case.

The panel notes that the relevant legislative history is "sparse." 877 F.2d at 30. This is an understatement. Within a 425-page committee report, the only reference to the "in relation to" requirement is contained in a single sentence buried in a long footnote:

Moreover, the requirement that the firearm's use or possession be 'in relation to' the crime would preclude its application in a situation where its presence played no part in the crime, such as a gun carried in a pocket and never displayed or referred to in the course of a pugilistic barroom fight.

S.Rep. No. 225, 98th Cong., 2d Sess. 314 n. 10, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3492 n. 10 (emphasis added). I am at a loss to understand what support the panel draws from this lonely reference. The report in question pertains to the 1984 version of section 924(c), which does not even mention drug trafficking crimes; that language was added two years later. See pp. 1284-1285 infra. This pithy statement reveals only that Congress meant to exclude from the sweep of section 924(c) those rare cases where the gun plays absolutely no part in the criminal activity because it is completely concealed and its presence at the scene of the crime is accidental. This is the antithesis of the situation presented here: Phelps's converted MAC 10 was at the heart of this drug transaction and everyone involved was aware of its presence. More to the point, the risks generated by Phelps's possession of the gun were precisely those Congress meant to deter and punish when it passed section 924(c). See pp. 1284-1286 infra.

Ultimately, the panel's conclusion hinges on its "doubt that Congress considered the novel use of a firearm as an item of barter." 877 F.2d at 30. But Congress need not contemplate every factual permutation to which its statutes are likely to apply. It is enough if Congress sets out an intelligible and reasonably precise standard that covers the situation. Here, Congress used the broad term "in relation to" precisely to avoid interpretive hair-splitting about peculiar and unexpected factual scenarios that might escape a more narrowly drawn definition. See p. 1284 infra. Once we determine that the statutory language covers the situation, our task is at an end.

What the panel has done here is quite extraordinary. Having started with clear statutory language, it has nevertheless turned to the legislative history for help. But the legislative history turns out to be no help at all; it shows only that Congress did not single out this particular fact pattern for special consideration, directing its only comment to a non-analogous situation. The panel nevertheless manages to deduce from this wholly ungermane...