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Supreme Court Rules on Gun "Use" During Drug Offense, Hears Arguments in Sentencing, Forfeiture Issues


January 1996

In a landmark ruling handed down on December 6, the U.S. Supreme Court unanimously declared that defendants must actively employ a weapon in order to be charged with "using" a weapon in the commission of a drug crime (Bailey v. U.S. and Robinson v. U.S., Nos. 94-7448, 94-7492, 1995USWL712269, 58 CrL 2029; for background, see 56 CrL 1060, 36 F.3d 106 (DC Cir (en banc) 1994); "Supreme Court Decides Forfeiture Case, Hears Arguments on Alcohol Advertising, Gun Use in Drug Crimes," NewsBriefs, December 1995, p. 8).

18 USC §924 provides for increased penalties for a defendant who, "during and in relation to any crime of violence or drug trafficking crime, ... uses or carries a firearm." The offense carries a five-year mandatory minimum in addition to other charges brought in a given case. What constitutes using or carrying a firearm has been an issue in lower courts.

Bailey was arrested when police discovered 30 grams of cocaine in the passenger compartment of his car. A search of the car found money and a loaded pistol in the trunk. In another case, Robinson was arrested after police made a controlled buy of crack cocaine. During a search of her house, they found money, drugs, and a pistol in a locked trunk in an upstairs closet.

The U.S. Court of Appeals for the District of Columbia en banc ruled 5-4 that two factors must be determined to decide if the defendants used or carried a weapon during the drug crimes: how close the firearm was to the drugs when the crime was committed, and how accessible the firearm was to the defendant. In both of these cases, the DC Circuit upheld the convictions.

Justice O'Connor, writing for the court, said the government must prove the defendant actively employed the weapon in carrying out the drug offense. She said the DC Circuit's interpretation of "use" made it possible for the government to find that any time a defendant possessed the gun, they would be charged with the additional offense.

O'Connor wrote that Congress obviously did not intend for defendants who simply possess a gun to be charged with "using" it. The Court's new interpretation of use includes "brandishing, displaying, bartering, striking with, and ... firing or attempting to fire a firearm." She noted that even if a defendant had a gun within reach but concealed while committing a drug offense, courts should not consider it use. Under the new interpretation, O'Connor wrote that neither Bailey nor Robinson used the firearm in the course of their drug offenses, returning their cases to the lower courts for revision.

LSD Sentencing

On December 4, the Court heard arguments in a case involving sentencing of a defendant based on the total weight of LSD and the paper on which it was contained (for background, see U.S. v. Neal, No. 94-1773, 46 F.3d 1405 (7th Cir. 1995); 57 CrL 3073; "Supreme Court Agrees to Hear LSD Carrier Medium Case," NewsBriefs, September 1995, p. 12).

Meirl Gilbert Neal pleaded guilty to conspiracy to distribute and to possession with intent to distribute LSD. He was sentenced according to the total weight of the LSD and the blotter paper on which it was contained. The total weight was 109.51 grams but the number of doses was 11,456, thus he received a mandatory minimum sentence of 188-235 months. Later, the U.S. Sentencing Commission amended the Sentencing Guidelines to assign an arbitrary 0.4 milligram per dose weight to LSD, regardless of the weight of the carrier medium. The Commission also provided that courts could apply the change retroactively to guidelines cases. Neal applied for resentencing to 70-87 months under the change for a revised weight of 4.58 grams.

The Supreme Court had previously ruled on LSD sentencing inChapman v. U.S., 500 U.S. 453 (1991). In that case, the Court found that the statute making distribution of a "mixture or substance containing a detectable amount" of LSD should be interpreted to apply to the entire weight of the LSD and the carrier medium for computing whether a mandatory minimum sentence is triggered.

During arguments, some of the justices recognized that the total weight scheme would cause some sentencing irregularities, but questioned the Commission's authority in making a change contrary to Chapman. Justice Breyer asked questions regarding the intent of Congress in writing the "mixture or substance" language. What did they consider a major LSD dealer? Someone who was caught with 125 doses, or 2500 doses? He pointed out that the current sentencing scheme creates an irrational "crazy quilt."

Justice Scalia said the Commission has no authority to make up "arbitrary" sentencing policies contrary to rulings of the Supreme Court and to mandatory minimum sentences created by Congress. The Commission can only make rules, not legislate, he said.

Justices Stevens and Breyer questioned the rationality of the total weight scheme. Stevens asked a hypothetical question about one defendant with a tiny discoloration on a small piece of blotter paper, and another defendant with the same small discoloration on a large desk blotter paper. Would the defendant with the larger paper be punished more severely? If a defendant put a drop of LSD in the Atlantic Ocean, Justice Breyer asked Solicitor General Paul Wolfson, would the government try to sentence him for the weight of the entire ocean?

The court should announce their ruling in the case by next summer.

Innocent Owner Forfeiture

On November 29, the Court heard arguments in an "innocent owner" forfeiture case that might have an impact on many drug forfeiture cases (Joan Biskupic, "Woman Asks Court to Shield Family Car From Straying Husband's Forfeiture," Washington Post, November 30, 1995, p. A25; for background, see Michigan Ex Rel. Wayne County v. Bennis, No. 94-8729, 527 N.W.2d 483 (Mich. Sup Ct 1994); "U.S. Supreme Court Agrees to Hear 'Innocent Owner' Forfeiture Case," NewsBriefs, September 1995, p. 15).

John Bennis was convicted under Michigan's nuisance abatement statute after police observed him engaged in an illegal sex act with a prostitute in 1988. The court ordered the forfeiture of Bennis' automobile, which was co-owned by his wife, Tina. She claimed at the forfeiture hearing that she had no knowledge of her husband's illegal actions and thus would qualify as an innocent owner of the car. The trial judge did not agree and ordered the forfeiture.

The Michigan Court of Appeals reversed that decision, ruling that the government was required to prove Tina knew of her husband's actions to sustain the forfeiture. The Michigan Supreme Court reversed that decision, finding U.S. Supreme Court precedent that property owners can lose their property even if they had no knowledge that it facilitated illegal acts.

Bennis' counsel Stefan B. Herpel argued the government should not be able to take property unless the owner knew of the illegal activity or was negligent in allowing it to be used for illegal acts. Assistant Solicitor General Richard H. Seamon argued for a different standard, that the property owner should be required to show that they took "all reasonable steps" to prevent or stop the activity. Wayne County Assistant Prosecutor Larry L. Roberts, arguing for the state of Michigan, said there is nothing in the Constitution that provides for an innocent owner defense, except when the property was stolen.

Many of the justices expressed reservations about the forfeiture activities of the government. Justice Stevens asked if the government would seize the home of a family where a teenager smoked some marijuana. Justice Souter wondered what actions Tina Bennis could possibly have taken to meet the "all reasonable steps" requirement. Justices asked if Tina Bennis would be required to report her husband's activity to the police to escape the forfeiture.

Roberts said the forfeiture provisions in the nuisance abatement statute are appropriate in protecting the public's interest. Justices asked if there were situations in which a rental car company or someone whose car was stolen would be responsible for what happened with that car after it left their possession. Tina Bennis was not a rental car company or the owner of a stolen vehicle, Roberts said, and should have had more control over her car.