Under 18 U.S.C. § 844(h)(2), Carrying of Explosives Need Only Be "During," Not "In Relation To," Underlying Felony

United States v. Ressam, No. 07-455 (U.S. May 19, 2008)

Title 18 U.S.C. § 844(h)(2) makes it a crime to "carry an explosive during the commission of any [federal] felony." Ressam was convicted of that offense, and a § 1001 false statements count, for carrying explosives in his car trunk when he provided false identity information on a customs declaration form at a port of entry in Washington. The Ninth Circuit reversed Ressam's § 844 conviction, holding that the "during" element requires that the explosives be carried "in relation to" the other felony. Other circuits, including our very own Fifth Circuit, had interpreted § 844 to require only that the carrying be during the other felony. Hence cert.

The Supreme Court held, in a brief opinion authored by Justice Stevens, that "during" means "during" and only "during":

The term "during" denotes a temporal link; that is surely the most natural reading of the word as used in the statute. Because repondent's carrying of explosives was contemporaneous with his violation of § 1001, he carried them "during" that violation.

The Court also found this reading compelled by legislative history. As originally enacted, both § 844(h)(2) and § 924(c)(2) prohibited "unlawful" carrying of an explosive or firearm "during" another federal felony. Section 924(c)(2) was later amended to remove the requirment that the firearm-carrying be "unlawful," and to add that it must be "in relation to" the underlying felony. A few years later, Congress amended § 844(h)(2) to remove the term "unlawful," but it did not add an "in relation to" element as it did when it amended § 924(c)(2). The Court concluded that this history demonstrated Congress' intent not to require that explosives-carrying be in relation to the underlying felony.

(Justices Scalia and Thomas did not join the legislative history portion of the opinion, which is a little strange. Their usual objection is to the use of committee reports and such. But the Court here simply compares the evolution of two initially identical statutory provisions over time, which would seem to fall outside the typical objections to consideration of legislative history.)

But this is one of those cases in which the dissent is the more interesting part of the case. Justice Breyer, writing only for himself, pointed to some potentially absurd results produced by the majority's interpretation, since the statutory definition of "explosives" includes items such as kerosene, gasoline, or fertilizer:

Consequently the Court’s opinion brings within the statute’s scope (and would impose an additional mandatory 10-year prison term upon), for example, a farmer lawfully transporting a load of fertilizer who intentionally mails an unauthorized lottery ticket to a friend, a hunter lawfully carrying gunpowder for shotgun shells who buys snacks with a counterfeit $20 bill, a truckdriver lawfully transporting diesel fuel who lies to a customs official about the value of presents he bought in Canada for his family, or an accountant who engaged in a 6-year-long conspiracy to commit tax evasion and who, one day during that conspiracy, bought gas for his lawnmower. In such instances the lawful carrying of an "explosive" has nothing whatsoever to do with the unlawful felonies. I cannot imagine why Congress would have wanted the presence of totally irrelevant, lawful behavior to trigger an additional 10-yearmandatory prison term.

One might question whether Justice Breyer's parade of absurdities is consistent with his opinion for the Court in Gonzales v. Duenas-Alvarez, which held that, for purposes of the Taylor categorical approach,

to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.

Snark aside, Justice Breyer's main argument is a very good one (and one that arguably commanded a majority of the Court in Begay): "Context matters. And if judges are to give meaningful effect to the intent of the enacting legislature, they must interpret statutory text with reference to the statute's purpose and history."

The Court, with its decision today, makes possible the strange results I describe above precisely because it resolves the statutory interpretation question by examining the meaning of just one word in isolation. In context, however, the language excludes from the statute’s scope instances in which there is no significant relation between the explosives-carrying and the felony. A contextual interpretation furthers Congress’ original purpose, is less likely to encourage random punishment, and is consistent with the statute’s overall history. As a result, like the Ninth Circuit, I would read the statute as insisting upon some (other than merely temporal) relationship between explosives carrying and "felony."

Which is not to say that Justice Breyer "agree[d] with the Ninth Circuit that the statute restricts the requisite relationship to one in which the carrying of explosives 'facilitated' (or 'aided') the felony."

In my view, the statute must also cover a felony committed to facilitate the carrying of explosives. Why should it matter in which direction the facilitating flows? Either way, there is a relation between the carrying of explosives and the other felony. Either way, one might reasonably conclude that the presence of the explosives will elevate the risks of harm that otherwise would ordinarily arise out of the felony’s commission. Either way, one might consider the explosives "misused." Thus, I believe the statute applies if the felony, here, the making of a false statement to a customs officer, facilitated or aided the carrying of explosives.

Despite the fact that Justice Breyer's opinion didn't carry the day (or garner any other votes) here, you should keep the "context matters" argument in mind. Sometimes it works.