Barrett v. U.S: Defendants can’t be convicted of both use of a firearm in connection with a crime of violence under Sec. 924(c) and causing death under Sec. 924(j); Gorsuch calls for revisiting Court’s Double Jeopardy jurisprudence
By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender
A person convicted of having a firearm in connection with a federal crime of violence or drug trafficking under Sec. 924(c) cannot also be convicted of violating Sec. 924(j) when the subsection (c) violation causes death, because Congress did not authorize two convictions, the U.S. Supreme Court held January 14 in Barrett v. United States.
Title 18 U.S.C. Sec. 924(c)(1)(A)(i) criminalizes using, carrying, or possessing a firearm in connection with a federal crime of violence or drug trafficking.
Sec. 924(j) prescribes different penalties – including up to capital punishment – when “a violation of subsection (c)” causes death.
The question in Barrett was whether a person who commits a single act that violates both Sec. 924(c) and Sec. 924(j) may be convicted only under one provision or the other, or instead, may be convicted under both provisions.
Facts
Dwayne Barrett committed a series of robberies during which a co-defendant shot and killed a victim.
Barrett was convicted at trial of violating both Sec. 924(c) and Sec. 924(j), and received separate convictions and sentences for each.
The Second Circuit rejected Barrett’s argument that the Double Jeopardy Clause prohibited two convictions and sentences.
The Supreme Court granted cert. to resolve a circuit split.
Holding
The Court, in an opinion joined by all Justices as to most parts, held that Barrett could not be convicted of both offenses.
As an initial matter, the Court rejected Barrett’s contention that the case posed a constitutional Double Jeopardy issue. Instead, the case presented a question of statutory construction and congressional authorization, the Court said.
The first step in analyzing the statute is to apply the Blockburger test, the Court said, in order to determine whether Secs. 924(c) and 924(j) define the same offense. That requires comparing the statutes to see if each requires proof of a fact the other does not.
“If the answer is yes, then the offenses prescribed by each statute are different and the inquiry generally ends”, the Court said. “If the answer is no, then the statutes define the same offense, and the Blockburger presumption is triggered.”
But because Blockburger is a “rule of statutory construction to help determine legislative intent”, the Court said, “its presumption can yield to a ‘plainly expressed’ intent to abandon it.”
“Accordingly, the second step of today’s analysis requires us to search for a clear manifestation of Congress’ intent to authorize more than one punishment”, the Court said.
Barrett and the Government agree that under the first step, Secs. 924(c) and 924(j) define the same offense, the Court said.
The relationship between 924(c) and 924(j) is “the classic relation of the lesser-included offense to the greater offense” where the same conduct violates two statutes and one is subsumed within the other, the Court said.
Courts have long “presumed that Congress does not intend for a defendant to be cumulatively punished for two crimes where on crime is a lesser-include offense of the other”, the Court said.
“This case therefore turns on the analysis’s second step discerning whether Congress clearly intended to authorize multiple convictions for one act that violates both Sec. 924(c)(1)(A)(i) and Sec. 924(j)”, the Court said.
“To ascertain such intent, we turn to statutory text, structure, and (for those who accept its help) legislative history”, the Court said.
Turning to the text, the Court noted that “Congress typically includes Blockburger-surmounting language when it wishes to authorize dual convictions for the same offense.”
For example, other portions of the statute state the convictions must be “in addition to the punishment provided for” the predicate crime, the Court said.
“But Congress used no similar language with respect to the interplay between subsection (c)(1) and subsection (j)”, the Court said. “Its silence on the topic speaks volumes.”
“Congress intended subjection (j) as an alternative, not a supplement, to subsection (c)(1)(A)(i)”, the Court said. “At the very least, Congress did not clearly manifest a contrary intention, as it would have to do if it wished to authorize two convictions in these circumstances.”
Concurrence questions Court’s Double Jeopardy jurisprudence
Justice Gorsuch concurred, but wrote separately to state his view that the Court’s Double Jeopardy jurisprudence should be revisited.
Gorsuch noted that if the Government had sought to convict Barrett in two separate prosecutions for the Sec. 924(c) offense and the Sec. 924(j) offense, the Fifth Amendment’s Double Jeopardy Clause would have prohibited the second prosecution, since the offenses are the same under the Blockburger test.
“What happens, though, where (as here) the government brings the two charges for the same offense concurrently in the same proceeding rather than successively in two separate ones?”, Gorsuch said. That question rarely arose in the country’s early years, but arises frequently today since “federal and state criminal codes have exploded with scores of repetitive offenses on the books.”
“Frequently, also, today’s prosecutors bring as many overlapping felony charges as they can in a single case to see what will stick, and courts often tolerate the practice,” Gorsuch said.
“The litigants before us proceed on the unexamined premise that Blockburger works differently in concurrent prosecutions than it does in successive ones”, Gorsuch said. But “[i]f the Constitution always prohibits the government from securing two convictions for the same offense in successive prosecutions, why would it sometimes tolerate a different result in concurrent prosecutions?”
“[O]ur cases speak confusingly about the role of the Double Jeopardy Clause in concurrent prosecutions”, Gorsuch said.
“This Court has sometimes said that the Clause protects against multiple punishments for the same offense”, Gorsuch said. “From this, it would seem to follow that Congress cannot authorize multiple convictions for the same offense in concurrent prosecutions. But this Court has also sometimes said that, in the concurrent-prosecution context, the Clause merely directs courts to ascertain statutory meaning accurately.”
“Someday, we will need to resolve the tension in our case law”, Gorsuch said. “And when we do, I see two likely solutions.”
The first is that “the same offense” in the Fifth Amendment means “different things in different contexts”, Gorsuch said. “That solution, though, would be a curious one indeed.”
“A second solution would be to recognize, as other of our cases imply, that two charges amount to the same offense under the Double Jeopardy Clause if they fail the Blockburger test – full stop”, Gorsuch said. “So a defendant cannot be prosecuted for both charges in successive proceedings. Nor may he be convicted twice (much less sentenced twice) for both charges just because they happen to be brought concurrently.”
“But while today’s decision is correct as far as it goes, sooner or later we will have to clear up the confusion – and to my eyes, this case serves as a poster child for how that confusion should be resolved,” Gorsuch said.
“Mr. Barrett really was charged twice for the same offense. He really was convicted twice. Before our intervention, he really was set to be criminally punished twice. And whatever Congress might or might not intend, that is double jeopardy”, Gorsuch concluded.