59 F.3d 1323, 1334 (D.C. Cir. 1995) (en banc) (holding
one underlying crime cannot be the predicate for more than one § 924(c) conviction); United
States v, Wilson,
160 F.3d 732, 748-50 (D.C. Cir. 1998) (vacating one oftwo § 924(0)
convictions where the two predicate crimes of violence underlying those convictions arose from
defendant’s single use of a firearm). These remain open issues in this case, however, and have
been the subject of briefing by the parties.
8 At least with regard to Counts 28 and 29, however, which charge defendant Adona with two
counts of violating § 924(0) in relation to a drug trafficking offense, the Government has
acknowledged that they would merge at sentencing. See Gov’t’s Suppl. Brief at 5 n.2.
9 See Gov’t’s Memo. in Supp. of Court’s Acceptance of Plea Agreement at 6 [Dkt. # 144] ("the
government recognizes that the D.C. Circuit has not yet addressed the specific issue [raised by
means only federal crimes punishable under the U.S. Code. The Government, by
contrast, reads the phrase more expansively to encompass not only federal offenses, but
also D.C. Code offenses which, by operation of a jurisdictional statute unique to the
District of Columbia, can be brought in this federal district court (under certain
conditions).
The question is an important one. If the Moving Defendants’ interpretation is
correct, then the five challenged § 924(0) counts do not properly lie and must be
dismissed, significantly reducing their penalty exposure. 1f the Government is correct,
however, it would mean that the Moving Defendants face potential mandatory life
sentences. But beyond the consequences for these particular defendants, it would also
mean the Govemment can charge defendants in this District with § 924(c) counts that it
could not bring anywhere else in the country, thereby exposing defendants here to harsher
federal penalties for similar conduct.
Because 1 conclude that the language of the statute is ambiguous as to the precise
issue before this Court, 1 have had to look at the legislative history and utilize other tools
defendant Brown’s motion to dismiss § 924(c) chargcs]"). In fact, 1 was unable to locate a single
case in this District addressing, or even involving, a situation where the Govemment charged a
§ 924(0) violation predicated on a D.C. Code offense. Cy’. Wil.s'on, 160 F.3d at 748-50 & n.20
(where Government charged two counts of § 924(c) tied to two federal predicates-killing a
witness, in violation of 18 U.S.C. § 1512(a)(1)(A), and retaliating against a witness, in violation
of 18 U.S.C. § l513(a)(1)(B)~as well as one count of the D_ C. Code offense of possession of a
firearm during a crime of violence, in violation ofD.C. Code § 22-3204(b) (now codified at D.C.
Code § 22-4504(b)), tied to the predicate of first degree murder while armed, in violation ofD.C.
Code §§ 22-2401 and 22-3202, the court rejected defendant’s argument that his D.C. Code
murder conviction merged with his two federal convictions, but vacated one of the two § 924(c)
convictions because the two predicate federal crimes of violence underlying those convictions
arose from the defendant’s single use of a firearm); see also Indictmcnt, United States v. Wilson,
Criminal Case No. 96-319 (D.D.C. Sept. 19, 1996) [Dkt. # 3].
of statutory construction to discern Congress’ intent. Having done so, however, 1 find
that these sources clearly indicate that Congress in fact intended § 924(c)’s scope to reach
only federal, U.S. Code predicates, not state felonies. And even if this intent were not
clear, the ambiguity in the statute alone would be sufficient to invoke the rule of lenity in
favor of the Moving Defendants here. Accordingly, for the following reasons 1 find that
a D.C. Code offense cannot support a § 924(c) charge, and therefore the challenged
counts must be dismissed.
I. Plain Text of the Statute
As with all exercises in statutory interpretation, the language ofthe statute itself is
the Court``s starting point. E.g., Ransom v. FIA Card Servs., N.A., 131 S. Ct. 716, 723-24
(2011). lndeed, the Supreme Court has said that "[t]he first step is to determine whether
the language at issue has a plain and unambiguous meaning wit/z regard to the particular
a'ispute in the case.” Barnhart v. Sigmon Coal Co., Inc.,
534 U.S. 438, 450 (2002)
(emphasis added) (internal citations and quotation marks omitted). "[l]f the statutory
language is unambiguous and the statutory scheme is coherent and consistent[, the
inquiry ceases]." Id. lfnot, however, 1 must turn to other tools of statutory construction.
See Russell Motor Car Co. v. United States,
261 U.S. 514, 519 (1923) ("Rules of
statutory construction are to be invoked as aids to the ascertainment of the meaning or
application of words otherwise obscure or doubtful. They have no place, as this court has
many times held, except in the domain of ambiguity.") For the reasons discussed below,
1 find § 924(c) to be ambiguous with regard to the particular issue in this case.
Section 924(0)(1) provides. in relevant part:
. . . any person who, during and in relation to any crime of violence or drug
trafficking crime . . . for which the person may be prosecuted in a court of
the United States, 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 or drug trafficking crime--[be
sentenced to an additional, mandatory term of imprisonment].
18 U.S,C. § 924(0)(1) (2012). Although the statute then defines the tenn "drug
trafficking crime" in a manner that makes clear it must be a federal, U.S. Code offense,
see 18 U.S.C. § 924(0)(2),]0 it does not define "crime of violence" with similar clarity.
Instead, a "crime of violence," for purposes of § 924(0), is defined generally as a felony
that either "(A) has as an element the use, attempted use, or threatened use of physical
force against the person or property of another, or (B) that by its nature, involves a
substantial risk that physical force against the person or property of another may be used
in the course of committing the offense." 18 U.S.C. § 924(0)(3).
The question presented by the instant motion, therefore, is what universe of
predicate crimes is covered by the phrase "crime of violence . . . for which the person
may be prosecuted in a court of the United States." The Moving Defendants argue that it
means only federal crimes. See Defs.’ Mot. at 2. The Govcrnment, by contrast, argues
that the phrase is unambiguous and means just what it says_i.e., literally any crime of
violence offense, regardless whether federal or state, that technically may be brought in a
federal district court. See Gov’t’s Opp’n at 2-7.
m "For purposes of [§ 924(0)], the term ‘drug trafficking crime’ means any felony punishable
under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances import
and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46." 18 U.S.C. § 924(0)(2)
(2012).
As an initial matter, this question would present little difficulty if raised in any
other federal district court in the country because the distinction between the parties’ two
readings of the statute would be one without a difference. Put simply, outside of the
District of Columbia, the phrase "crime of violence . . . for which the person may be
prosecuted in a court of the United States" is susceptible to only one meaning»a federal,
U.S. Code offense. This is true for two reasons. First, a federal district court is "a court
of the United Sta.tes,"“ and there is no dispute that in the context of criminal jurisdiction,
the phrase "may be prosecuted in a court of the United States" limits the application of
§ 924(0) to crimes of violence which can be charged in a federal district court.]z See
Gov’t’s Opp’n at 2; 18 U.S.C. § 3231 ("'l``he district courts of`` the United States shall have
original jurisdiction, exclusive of the courts of the States, of all offenses against the laws
of the United States."). Second, it is axiomatic that federal courts do not have jurisdiction
over state criminal offenses.l$ See Beai v. Missouri Pac. R.R. Corp., 312 U.S. 45, 49-50
(l 941) ("The federal courts are without jurisdiction to try alleged criminal violations of
" see 2a u.s.c. § 451 (“AS need in [Tnie 23 (Jiniieiniy end Jneiieiei Preeednre)]; the tenn
‘court of the United States’ includes . . . district courts constituted by chapter 5 of this title . . .").
12 There are certain, limited exceptions, however: Congress has also vested the federal
jurisdiction of U.S. District Courts (listed in 28 U.S.C. ch. 5), including over criminal offenses,
in the district courts for Guam, see 48 U.S.C. § 1424, the Northern Mariana Islands, see 48
U.S.C. § 1822, and the Virgin Islands, see 48 U.S.C. § 1612. Congress has also specifically
made these courts "courts of the United States" for purposes of Title 18. See 18 U.S.C. § 23
("As used in [Title 18], except where otherwise expressly provided the term ‘court of the United
States’ includes the District Court of Guam, the District Court for the Northern Mariana Islands,
and the District Court of the Virgin Islands.").
13 The district courts for Guam, the Northern Mariana1slands, and the Virgin 1slands might be
viewed as an "exception" to this rule but for the fact they are not technically U.S. District Courts,
See 28 U.S.C. § 451 ("The terms ‘district court’ and ‘district court of the United States’ mean the
courts constituted by chapter 5 of this title."); 28 U.S.C. §§ 81-131 (enumerating judicial
districts).
state statutes."); Jerome v. United States, 318 U.S. 101, 104-05 (1943) ("Since there is no
common law offense against the United States, the administration of criminal justice
under our federal system has rested with the states, except as criminal offenses have been
explicitly prescribed by Congress." (internal citations omitted)); United States v. Hudson,
11 U.S. 32, 32-34 (1812) (holding that federal courts do not have jurisdiction to try
criminal charges based on the common law, and all federal crimes must be based on a
statute of Congress). Accordingly, the only criminal offenses that can be prosecuted in
(almost all) federal district courts are federal, U.S. Code offenses.
Not so in the District of Columbia, however, where this District Court has unique
jurisdictional features. Until the enactment of the District of Columbia Court Reform and
Criminal Procedure Act of 1970 ("Court Refonn Act"), Pub. L. No. 91-358, 84 Stat. 473
(1970), federal courts in D.C. exercised a combination of federal and local jurisdiction,
including original jurisdiction over all felony cases. See, e.g., Tliompson v. United States,
548 F.2d 1031, 1033-34 (D.C. Cir. 1976). Through the Court Reform Act, Congress
provided for the Superior Court and the District of Columbia Court of Appeals to assume
responsibility for local jurisdiction, similar to that exercised by state courts, including
over criminal matters. See ia'. But the act did not completely end this District Court’s
jurisdiction over local criminal offenses, as the Govemment rightly points out. See
Gov’t’s Opp’n at 3. lnstead, as part of the same act, Congress provided that "the United
States District Court for the District of Columbia has jurisdiction of . . . [a]ny offense
under any law applicable exclusively to the District of Columbia which offense is joined
in the same information or indictment with any F ederal offense." Court Reforrn Act,
10
Pub. L. No. 91-358, title 1, § 111, 84 Stat. 473, 477-78 (codified at D.C. Code § 11-
502(3)); see also D.C. Code § 23-101. 1n other words, this Court may still exercise
jurisdiction over local D.C. Code criminal offenses, but only in a manner similar to
pendentjurisdiction. See United States v. Keml)er,
648 F.2d 1354, 1359-60 (D.C. Cir.
1980) (analogizing D.C. Code § 11-502(3) to civil law doctrine of pendent jurisdiction
over state claims); United States v. Shepard,
515 F.2d 1324, 1330-31 (D.C. Cir. 1975)
(same). Accordingly, the Government is technically correct-and the Moving
Defendants do not dispute, as a jurisdictional matter-that the D.C. Code offenses
underlying the challenged § 924(c) counts in this case may be prosecuted in this Court,
provided they are properly joined to federal offenses in the same indictment.m
Based on this unique jurisdictional statute, the Govemment contends that the
"clear and unambiguous" plain language of § 924(c) requires the conclusion that the
Government is permitted to charge the way it did here. See Gov’t’s Opp’n at 4.
Unfortunately,_the issue is not so simple. Indeed, it is ironic, to say the least, that the
very statute that makes the Government’s reading possible-D.C. Code § 11-502(3)-is
also what makes § 924(c) ambiguous as applied to the case before me. For in the final
analysis, there are two plausible ways to read the phrase "may be prosecuted in a court of
the United States" as regards a predicate crime of violence. Taken most literally (and
14 There is no dispute between the parties that the D.C. Code offenses underlying the challenged
§ 924(c) counts are properly joined. See United States v. Richardson,
161 F.3d 728, 733-34
(D.C. Cir. 1998) ("Joined means ‘properly joined in accordance with [Federal Rule of Criminal
Procedure] 8(a).’ To be properly joined under Rule 8(a), offenses must be ‘of the same or
similar character or based on the same act or transaction or on two or more acts or transactions
connected together or constituting parts of a common scheme or plan."’ (internal citations
omitted)).
ll
broadly), the phrase could encompass any crime of violence that may_i.e., can
possibly_be prosecuted in a federal district court, which might include, as here, non-
federal crimes that can be brought in federal court only by operation of some other
statute. On the other hand, the language could be read more narrowly (and perhaps more
naturally) as simply meaning federal offenses-i.e., only crimes of violence that
themselves may be prosecuted in federal district court directly because such court has
original jurisdiction over them, a universe limited to federal, U.S. Code offenses. See 18
U.S.C. § 3231. Accordingly, my inquiry does not end with the plain text of § 924(c), and
1 must look at the legislative history.
II. Statutory and Legislative History
Though the legislative history was, unfortunately, not briefed by the parties,
"[w]here, as here, resolution of a question of federal law tums on a statute and the
intention of Congress, we look first to the statutory language and then to the legislative
history ifthe statutory language is unclear." Blum v. Stenson, 465 U.S. 886, 896 (1984).
Having done so, 1 conclude that Congress clearly intended to punish only using, carrying,
or possessing a firearm in relation to the commission of a federal crime-i.e., a U.S.
Code violation-and not state or local crimes. Thus, notwithstanding the District of
Columbia’s unique federal character, 1 find Congress did not intend to reach these acts
and, moreover, it would be manifestly unfair to do so.
a. ()riginal Enactment
Congress enacted § 924(c) in October 1968 as part of the Gun Control Act of
12
1963, Pnb. L. Ne. 90-613, s2 stan 1213.‘5 in its iniiiei fenn, seetien 924(¢) reea, in
relevant part:
Whoever-(l) uses a firearm to commit any felony which may be
prosecuted in a court of the United States, or (2) carries a firearm
unlawfully during the commission of any felony which may be prosecuted
in a court of the United States, shall be sentenced to a term of
imprisonment for not less than one year nor more than 10 years.
Pub. L. No. 90-618, § 924(c), 82 Stat. 1213 (emphasis added). This provision was
originally offered as an amendment on the House Floor by Representative Richard Poff
of Virginia, see 114 Cong. Rec. 22231 (July 19, 1968), and passed the same day, see id.
at 22248. As a result, "the committee reports and congressional hearings to which [the
court1 normally turn[s] for aid in these situations simply do not exist, and [the court is]
forced in consequence to search for clues to congressional intent in the sparse pages of
floor debate that make up the relevant legislative history." Busic v. United States,
446
U.S. 398, 405 (1980) (specifically discussing § 924(c) and the Poff amendment),
superseded by statute, Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473,
§ 1005, 98 Stat. l837, as recognized in Abbott v. United States,
131 S. Ct. 18, 28 (2010).
1n introducing the amendment, Congressman Poff made it unmistakably clear that the
provision applied only to federal predicate felonies, and his remarks, while "not
dispositive of the issue of § 924(c)’s reach, [] are certainly entitled to weight, coming as
15 Technica11y, Section 924(c) was first added to Title 18 of the U.S. Code in June 1968 as part of
the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197
(1968). But that original provision addressed forfeiture of firearms (or ammunition) "involved
in, or used or intended to be used in, any violation of the provisions of this chapter, or a rule or
regulation promulgated thereunder, or violation of any other criminal law of the United States,"
rather than enhancing the sentence of a felon who used, carried, or possessed a firearm in relation
to another crime.
13
they do from the provision’s sponsor." Simpson v. United States,
435 U.S. 6, 13 (1978)
(discussing Poff’s remarks), superseded by statute, Comprehensive Crime Control Act of
1984, Pub. L. No. 98-473, § 1005, 98 Stat. 1837, as recognized in United States v.
Gonzales, 520 U.S. l, 10 (l997).
First, Congressman Poff stated that his amendment "makes it a separate F ederal
crime to use a firearm in the commission of another Federal crz'me," 114 Cong. Rec.
22231 (emphasis added), and he explained that the purpose of attaching a mandatory
minimum sentence is "to persuade the man who is tempted to commit a F ederal felony to
leave his gun at home," id. (emphasis added). Next, and more importantly, he explicitly
contrasted his proposed amendment with one proposed earlier by Representative Bob
Casey of Texas-which would have applied to both federal and state felonies_and set
forth his legal, practical, and policy reasons for why "[in]y substitute is confined to
Federal felonies." See id. at 22231-32. 1n explaining one of those reasons for limiting
the application of his amendment to federal felonies-avoiding the burden on the
prosecutor of proving a given firearm moved in interstate commerce in order to establish
federal jurisdiction_Congressman Poff noted that "[e]very Federal felony defined in the
code already has its own jurisdictional base," id. at 22231, which further indicates he
contemplated only U.S. Code offenses as predicates.
Ultimately, a Conference Committee adopted Congressman Poff``s version of
§ 924(c) with only minor changes, and the Conference Report itself described the House
bill as punishing "a person [who] uses a firearm to commit, or carries a firearm
unlawfully during the commission of, a Federal felony." See H.R. Rep. No. 90-1956, at
14
31 (1968) (Conf. Rep.) (emphasis added); see also Simpson, 435 U.S. at 14 (detailing
Congressional process of approving § 924(c)). Given the existence of such clear
legislative history, 1 think it beyond question that Congress intended § 924(c) to apply
only to federal predicate crimes when it first enacted the provision. See United States v.
Dorsey,
591 F.2d 922, 941 (D.C. Cir. 1978) (noting that statement by Congressman Poff
"made in the context of explaining why the drafters had not included state offenses
among those felonies the commission of which is an element of section 924(0)(2) . . .
seems relevant only to defining the ‘commission of [ a] felony ’ element under section
924(c)(2)" (emphasis added)), superseded by statute as recognized in United States v,
Fennez/, 53 F.zd 1296, 1300-01 (D.C. cii~. 1995).‘6
To be sure, at the time § 924(c) was first enacted in 1968, this District Court still
had original jurisdiction over D.C. Code felonies. See supra at 10-11 (discussing Court
Reform Act). But there is no basis to believe Congress intended to treat D.C. crimes any
differently from state crimes for purposes of § 924(c). 1n fact, the additional context and
legislative history available persuades me of just the opposite because the very same
Congress that enacted § 924(c) in 1968 passed a similar measure for the District of
Columbia just nine months earlier, amending a D.C. Code provision that punished
16 At the time of the Dorsey decision, § 924(c)(2) read as follows:
Whoever . . . carries a firearm unlawfully during the commission of any felony for
which he may be prosecuted in a court of the United States, shall, in addition to
the punishment provided for the commission of such felony, be sentenced to a
tenn of imprisonment for not less than one year nor more than ten years.
is U.s.c. 924(@(2) (1976).
15
possessing a firearm during the commission of a crime of violence by enhancing its
penalties. See Pub. L. No. 90-226, § 605, 81 Stat. 734 (1967) (now codified at D.C. Code
§ 22-4504(b))." Indeed, as Senator Peter Dominick of Colorado noted on the Senate
floor when proposing an amendment to the Gun Control Act of 1968 that differed slightly
from Congressman Poff" s (in that it proposed to punish the defendant who used or carried
a firearm while committing a "Federal crime of violence" as opposed to a "F ederal
felony," see 114 Cong. Rec. 22231), his amendment was "based on the same formula,
insofar as practicable, as that approved by the Congress and signed by the President just 9
months ago as part of the omnibus crime law for the District of Columbia." 114 Cong.
Rec. 27142 (Sept. 17, 1968) (statement of Senator Dominick). Like Congressman Poff`` s
ultimately successful amendment, see 114 Cong. Rec. 2223 l, Senator Dominick stressed
17 Congress initially passed a statute making it a distinct offense to "commit a crime of violence
in the District of Columbia when armed with or having readily available any pistol or other
firearm" in 1932. See Pub. L. No. 72-275, ch. 465, § 2, 47 Stat. 651 (1932) (providing for a term
of imprisonment of up to five years for a first conviction, up to ten years for a second conviction,
up to fifteen years for a third conviction, and up to thirty years for a fourth or subsequent
conviction). 1n 1967, Congress amended this provision to delineate "other dangerous or deadly
weapon[s]" that triggered the statute, as well as to enhance its penalties. See Pub. L. No. 90-226,
§ 605, 81 Stat. 734 (1967) (providing that person violating the provision "may in addition to the
punishment provided for the crime [of violence] be punished by imprisonment for an
indeterminate number of years up to life as determined by the court," and, for a person
committing a subsequent violation, "the court shall not suspend his sentence or give him a
probationary sentence"). 1n its current forrn, that D.C. Code provision now provides:
No person shall within the District of Columbia possess a pistol, machine gun,
shotgun, rifle, or any other firearm or imitation firearm while committing a crime
of violence or dangerous crime as defined in § 22-4501. Upon conviction of a
violation of this subsection, the person may be sentenced to imprisonment for a
term not to exceed 15 years and shall be sentenced to imprisonment for a
mandatory-minimum tenn of not less than 5 years and shall not be released on
parole, or granted probation or suspension of sentence, prior to serving the
mandatory-minimum sentence.
D.C. cede § 22-4504@).
16
that his proposed amendment applied only to predicate federal crimes, not state crimes.
See 114 Cong. Rec. 27143. Acknowledging that any version of the amendment so
cabined to federal crimes would necessarily be limited in effect because most crimes are
state crimes, he nonetheless emphasized that "[b]y its enactment, [Congress] can stress to
State and local legislative bodies the desirability of their enacting similar measures. We
recently took this step for residents of the District of Columbia. Let us now do it for the
rest of the Nation." ]d. Although Congress ultimately adopted Congressman Poff’s
version of § 924(c) over Senator Dominick’s, 1 nonetheless find this floor statement
instructive for two reasons: (1) Senator Dominick discussed D.C. much like a state for
purposes of § 924(¢), and (2) it highlights that the very Congress that enacted § 924(c)
did so with knowledge that it had just months earlier amended a similar statute that
applied to local, D.C. Code crimes of violence.
Considered together, these factors~the sponsor’s statements, Congress’ specific
rejection of the alternative Casey amendment, the use of the word "federal" in the
Committee Report, and the pre-existence of a parallel provision in the D.C. Code-leave
one hard pressed to find any congressional intent whatsoever to capture D.C. Code
offenses as predicate crimes triggering § 924(c), regardless ofD.C.’s unique federal
status.
b. Subsequent Amendments
Congress has subsequently amended § 924(c) multiple times, often to expand its
reach or increase the severity of its penalties. See, e.g., Abbott v. United States, 131 S.
Ct. l8, 29 (2010) (recounting statutory amendments to § 924(0)). Yet there is no
17
indication that Congress’ intent changed over time as to the scope of predicate crimes
sufficient to support a § 924(c) charge. How so?
As relevant here, Congress amended § 924(c) as part of the Comprehensive Crime
Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837 (1984), in part by replacing the
"any fclony" language with the phrase "any crime ofviolence." Pub. L. No. 98-473,
§ 1005.'8 1n that same act, Congress added a definition of "crime of violence" to Title
18, which applied to all of the provisions in that title that used the phrase, including
§ 924(c). See S. Rep. No. 98-225, at 307 (1983). The term "crime of violence" meant
"(a) an offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or (b) any other offense that is a
felony and that, by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the offense." Pub.
L. No. 98-473, § 1001 (codified at 18 U.S.C. § 16). Although this definition of"crime of
violence" does not, on its face, illuminate whether the crime must be federal or not, the
18 The 1984 act amended § 924(c) to read as follows:
(c) Whocver, during and in relation to any crime of violence, including a crime of
violence which provides for an enhanced punishment if committed by the use of a
deadly or dangerous weapon or device, for which he may be prosecuted in a court
of the United States, uses or carries a firearm, shall, in addition to the punishment
provided for such crime of violence, be sentenced to imprisonment for five years.
1n the case of his second or subsequent conviction under this subsection, such
person shall be sentenced to imprisonment for ten years. Notwithstanding any
other provision of law, the court shall not place on probation or suspend the
sentence of any person convicted of a violation of this subsection, nor shall the
term of imprisonment imposed under this subsection run concurrently with any
other term of imprisonment including that imposed for the crime of violence in
which the firearm was used or carried. No person sentenced under this subsection
shall be eligible for parole during the tenn of imprisonment imposed herein.
Pub. L. No. 98-473, § 1005, 98 Stat. 1837 (1984).
18
legislative history for the amendment to § 924(c) itself makes clear, once again, that
Congress had in mind only federal crimes of violence as predicates. The Senate
Committee Report explained:
The Committee has concluded that subsection 924(c) should be completely
revised to ensure that all persons who commit F ederal crimes of violence,
including those crimes set forth in statutes which already provide for
enhanced sentences for their commission with a dangerous weapon, receive
a mandatory sentence, without the possibility of the sentence being made to
run concurrently with that for the underlying offence or for any other crime
without the possibility of a probationary sentence or parole.
S. Rep. No. 98-225, at 313 (einphasis added; footnote oinitted).lg
Just two years later, in 1986, Congress again amended § 924(c) through the
Firearms Owners’ Protection Act of 1986. See Pub. L. No. 99-308, 100 Stat. 449 (1986).
1n that act, Congress clarified which predicate felonies qualified to trigger § 924(c) by
bifurcating the statutory predicate, expanding the phrase "crime of violence" to include a
"crime ofviolence or drug trafficking crime." Pub. L. No. 99-308, § 104. The act also
added definitions for both "crime of violence" and ‘“drug trafficking crime" to § 924(c)
itself. And while Congress expressly defined "drug trafficking crime" as a federal
offense,zo Congress simply carried over the pre-existing statutory definition of "crime of
'9 1n amending § 924(c), Congress was responding to perceived drafting problems and
interpretations of the provision by the Supreme Court that had "reduced its effectiveness as a
deterrent to crime." See S. Rep. No. 98-225, at 312. In particular, Congress intended the new
"crime of violence" language to overrule the Supreme Court’s interpretation_in Simpson v.
United States,
435 U.S. 6 (1978), and Busic v. United States,
446 U.S. 398 (l980)-that § 924(c)
did not apply to cases in which the predicate statute contained its own, built-in enhancement
provision for the use of a dangerous weapon. See S. Rep. No. 98-225, at 312-14.
20 See Pub. L. No. 99-308, § 104 (codified at 18 U.S.C. § 924(0)(2)) ("For purposes ofthis
subsection, the tenn ‘drug trafficking crime’ means any felony violation of F ederal law
involving the distribution, manufacture, or importation of any controlled substance (as defined in
section 102 of the Controlled Substances Act (21 U.S.C. 802)." (emphasis added)). Congress
19
violence" from 18 U.S.C. § 16 (while adding the requirement that the crime be a felony).
See Pub. L. No. 99-308, § 104 (codified at 18 U.S.C. § 924(c)(3)) ("For purposes of this
subsection the term ‘crime of violence’ means an offense that is a felony and - (A) has
as an element the use, attempted use, or threatened use of physical force against the
person or property of another, or (B) that by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the course of
committing the offense.").
Why Congress chose to make it expressly clear in the text of the statute itself that
a "drug trafficking crime" is a "federal" felony drug offense while not providing
comparable clarity for the term "crime of violence," 1 cannot tell. But once again, the
relevant legislative history demonstrates that Congress, when amending § 924(c),
continued to conceive of that statute as applying to federal crimes of violence. See H.R.
Rep. No. 99-495, at 27 (1986) (the amendment providing for a mandatory prison term for
whoever uses or carries a firearm during and in relation to a drug trafficking crime
"expands the coverage of the mandatory prison term for using or carrying [a] fireann
during and in relation to a F ederal crime of violence enacted in October 1984" and "is
consistent with Recommendation 17 of The Attomey General’s Task Force on Violent
Crime that the mandatory prison tenn for the use of a firearm apply not only to the
commission of crimes of violence but to the commission of Federal felonies generally"
later amended the definition and expressly delineated which U.S. Code provisions must be
violated to qualify as a "drug trafficking crime." See § 924(c)(2) (2012); supra note 10.
20
(emphasis added)).zl
1n sum, nowhere in the history of the statute, its multiple amendments, or the
accompanying legislative history can 1 discern any change in Congress’ originally-
expressed intent to target only federal felonies. Nor can 1 discem any intention to include
D.C. Code offenses by the use of the term "federal" in the legislative history. As such,
the statutory and legislative history overwhelmingly supports the Moving Defendants’
construction of the statute-not the Government’s!
III. Prior judicial Interpretation
Case law addressing § 924(c) further supports the l\/loving Defendants’ position
that the section only applies to federal felonies. Although 1 am not aware of any
precedent squarely addressing the specific issue before this Court, the Moving
Defendants accurately point out that many courts have interpreted the phrase "crime . . .
for which [the defendant] may be prosecuted in a court of the United States" to mean a
federal crime. See Defs.’ Mot. at 2-4.
ln particular, the Supreme Court has routinely treated the phrase as synonymous
with a federal crime. 1n United States v. Gonzalez, 520 U.S. 1 (1997), for instance, the
Supreme Court considered whether federal courts are required to run a term of
imprisonment under § 924(c) consecutively with a state-imposed sentence. 1n reaching
its holding that they are, the Court contrasted the phrase "any crime of``vio1ence or drug
21 1n 1998, Congress amended § 924(c) again, this time in response to the Supreme Court’s
decision in Bailey v. United States, 516 U.S, 137 (1995), holding that "use" ofa firearm did not
include "mere possession." See Abbott, 131 S. Ct. at 25. The 1998 amendment thus brought
possession within the scope ofthe statute. See Pub. L. No. 105-386, 112 Stat. 3469 (1998).
21
trafficking crime . . . for which he may be prosecuted in a court of the United States" with
the text of another sentence in § 924(c) (now codified at § 924(c)(1)(D)(ii)), which
prohibited courts from running sentences imposed under the section concurrently with
"any other term of imprisonment." Gonzalez, 520 U.S. at 5. Unlike the unrestricted
phrase "any other term of imprisonment," the Court highlighted that "Congress explicitly
limited the scope of the phrase ‘any crime of violence or drug trafficking crime’ to those
‘for which [a defendant] may be prosecuted in a court of the United States,"’ id. at 5
(emphasis in original), and in the very next sentence of the opinion described this as
meaning that "Congress expressly limited the phrase ‘any crime’ to only federal crimes,"
id. (emphasis added).
The Supreme Court has made similar observations-often drawing directly on
Congressman Poff’ s statements and the legislative history~in other cases too. See Busz'c,
446 U.S. at 399 (stating § 924(c) "authorizes the imposition of enhanced penalties on a
defendant who uses or carries a firearm while committing afederal felony" (emphasis
added)); Simpson, 435 U.S. at 10 ("Quite clearly, §§ 924(c) and 2113(d) are addressed to
the same concem and designed to combat the same problem: the use of dangerous
weapons_most particularly firearms-to commit federal felonies." (emphasis added));
see also United States v. Rodriguez-Moreno, 526 U.S. 275, 283 (1999) (Scalia, J.,
dissenting) ("The provisions of the United States Code defining the particular predicate
offenses already punish all of the defendant’s alleged criminal conduct except his use or
carriage of a gun; § 924(c)(1) itself criminalizes and punishes such use or carriage
‘during’ the predicate crime, because that makes the crime more dangerous." (emphasis
22
added)); Muscarello v. United States, 524 U.S. 125, 132 (1998) (discussing § 924(c)’s
broad purpose and noting "the provision’s chief legislative sponsor has said that the
provision seeks ‘to persuade the man who is tempted to commit a Federal felony to leave
his gun at home."’ (citation omitted)).
While the Moving Defendants also cite to several decisions from other Circuits
listing a "federal" crime as an element of a § 924(c) violation,zz our own Circuit Court
has been similarly straightforward in its even more specific assessment that the predicate
must be a U.S. Code violation. fn United States v. Anderson,
59 F.3d 1323 (D.C. Cir.
1995) (en banc), our Circuit Court held that one underlying predicate offense could not
support multiple § 924(c) convictions, Anderson, 59 F.3d at 1328. 1n reaching this
conclusion, the court~though not addressing the precise situation before this Court
involving D.C. Code offense predicates-necessarily did focus in detail on the predicate
offense underlying a § 924(c) charge, and in doing so interpreted the statute as meaning
"[t]he underlying drug offense or crime of violence is already made a federal crime
under another section of the federal code." ]d. at 1331 (emphasis added); see also
Dorsey, 591 F.2d at 942 (describing, under Blockburger test, the proof of a fact necessary
for a § 924(0)(2) violation as "unlicensed carrying during commission of a federal
felony" (emphasis added)).
Thus, while the persuasiveness of this prior precedent is somewhat limited because
it does not squarely address the issue before this Court, 1 nonetheless find it further
22 see Defs.’ i\/iei. et 3-4 (eiiing United states n Angizee,
717 F.3d 781, 783 gunn Cir. 2013);
United States v. McClellan, 436 Fed. App’x 479, 488 (6th Cir. 2011)).
23
supports the Moving Defendants’ position. At a minimum, to the extent some federal
courts have simply assumed, without any analysis, that the phrase "may be prosecuted in
a court of the United States" connotes a federal crime, it serves to highlight what an
anomalous circumstance is presented by the Government’s charging decision in this case.
But it is also quite clear that when other federal courts-including our own Circuit Court
in Anderson_have engaged in deeper analysis, often citing the legislative history, they
have reached the very same conclusion.” Therefore, contrary to the Government’s
suggestion, some courts have indeed done much more than merely use the term "federal"
in the phrase "federal felony" as "shorthand" for the proposition that § 924(c) charges are
limited to predicate offenses that may be brought in federal court. See Gov’t’s Opp’n at
2_3?"
23 in a case perhaps closest to paralleling the situation facing this Court, the District Court of the
Virgin islands addressed the issue of a § 924(c) charge tied to a predicate Virgin islands Code
offense. See Gov’t ofthe Virgin islands v. Frett,
684 F. Supp. 1324 (D.C.V.i. 1988). Although
the District Court of the Virgin islands is not technically a U.S. District Court like this Court, it
does possess similar federal jurisdiction, see supra notes 12-13, and also has jurisdiction over
local offenses. in Frett, the court held that § 924(c) requires a federal predicate offense,
finding~as 1 do_ambiguity in the phrase "may be prosecuted in a court of the United States,"
and concluding that Congress did not intend to reach local crimes with that statute. The court
further noted that applying § 924(c) charges to Virgin islands Code offenses "would unduly
distinguish prosecutions of § 924(c) in [the District Court of the Virgin Islands] and those in the
United States District Courts" and relied on the rule of lenity. Frett, 684 F, Supp. at 1328-29,
Although the Frett court did not parse the legislative history as 1 have in this opinion, 1 find its
rationale further supports my ruling today.
24 Finally, 1 find it noteworthy that the Department of .iustice’s own Criminal Resource l\/ianual
describes predicate crimes of violence under § 924(c) as "federal.” See Dep’t of Justice, United
States Attomeys’ Manual, Title 9, Criminal Resource Manual 1434 (1997) ("'i``o avoid
exacerbating the conflict in the circuits on this issue [of the relevant unit of prosecution for a
§ 924(c) charge], the Criminal Division urges prosecutors to base each § 924(c) count on a
separate, distinct predicate narcotics offense or F ederal crime of violence." (emphasis added)).
24
IV. The Government’s Remaining Arguments
The Government raises several other arguments opposing the Moving Defendants’
reading of the statute. None of them, however, are persuasive, and they only merit a brief
discussion. First, the Govemment suggests that where cases cited by the Moving
Defendants use the word "federal" to describe the predicate offense underlying a § 924(c)
charge, this adjective should be read merely as "shorthand" for the "unremarkable"
proposition that § 924(c) charges are limited to offenses that "may be prosecuted" in
federal court. See Gov’t’s Opp’n at 2-3. Since the word "federal" is not actually in the
statute, the Government argues, this Court should obey the literal words of the statute-
full stop. See id. But even after acknowledging that the case law discussed above is not
directly on point (and setting aside our Circuit Court’s more specific reference to the
"federal code" in Anderson), and even ignoring the overwhelming use of the word
"federal" in the legislative history to describe § 924(c) predicates, this argument is
unconvincing by its own terms.
After all, the Government’s argument that D.C. Code offenses "may be
prosecuted" in this Court rests on D.C. Code § 11-502(3), which grants this Court
jurisdiction over "[a]ny ojfense under any law applicable exclusively to the District of
Columbia which offense is joined in the same infonnation or indictment with any
Federal offense." D.C. Code § 11-502(3) (einphasis added). The text of this
jurisdiction-granting statute thus draws a distinction between D.C. Code offenses and the
"federal" offenses to which they are joined. So if, as the Govemment contends, the word
"federal" as used in the case law simply means "can be brought in federal district court,"
25
to include D.C. Code offenses, then the term "federal" as used in D.C. Code § 11-502(3)
would be rendered meaningless or superfluous. That, of course, makes little sense, and in
fact nothing about D.C. Code § 11-502(3) purports to treat D.C. Code offenses as
themselves "federal."
Second, for the same reason, the Government’s emphasis on the District of
Columbia’s unique position in our federal system and its assertion that "D.C. Code
offenses have a distinctive federal character," see Gov’t’s Opp’n at 3-4, do not convince
me that D.C. Code offenses fall within the ambit of § 924(c)’s reach. To be sure, D.C. is
different from the other fifty states, particularly in the realm of criminal prosecution.25
But this does not mean D.C. Code offenses are "federal" in the same sense that U.S. Code
offenses are. Again, the linchpin of the Government’s argument, D.C. Code § 11-502(3),
itself distinguishes between D.C. Code offenses and "federal" offenses. And there is
simply no indication whatsoever in the legislative history of§ 924(c) that Congress
meant to capture D.C. Code offenses when it used the term "federal."
Third, and finally, the Government draws an analogy to two statutes, the
Assimilative Crimes Act (ACA), 18 U.S.C. § 13, and the Major Crimes Act (MCA), 18
25 See Goode v. Markley, 603 F.2d 973, 976 (D.C. Cir. 1979) (noting that: "[v]iolations of the
District of Columbia Code and violations of the United States Code are all crimes against a
,n, cc
single sovereign, namely, the United States , [a]ll crimes prosecuted under the District of
Columbia Code are maintained in the name of the United States"; "[i]ndividuals convicted of
crimes under either Code are committed to the custody of the Attorney General of the United
States"; "[t]he Attomey General can commit violators of the District of Columbia criminal code
to federal correctional facilities"; "District of Columbia Code offenders properly incarcerated in
federal penitentiaries are subject to parole review before the United States Parole Commission
rather than the District of Columbia Parole Board"; and "[t]he District of Columbia Court
Reforin and Criminal Procedure Act [of 1970] . . ., did not vitiate the essential character of the
District of Columbia as an arm of the sovereign United States" (citations omitted)).
26
U.S.C. § 1153, and suggests that its analysis of the reach of § 924(c) regarding D.C. Code
predicates is "consistent with" decisions by other courts permitting § 924(c) charges to lie
based on charges brought in federal court under these two statutes. See Gov’t’s Opp’n at
6-7. in the Government’s description, the ACA and the l\/ICA "both permit local crimes
of violence to be prosecuted in federal court," Gov’t’s Opp’n at 6, much as D.C. Code
§ 11-502(3) permits D.C. Code offenses to be brought in this District Court. And
therefore it follows that if § 924(c) charges can attach to state crimes brought under the
ACA and MCA, see Gov’t’s Opp’n at 6-7 (eiting cases), then § 924(c) charges can just as
easily be predicated on D.C. Code offenses.
The Govemment’s analogy is flawed, however, The ACA and MCA do not
"permit local crimes of violence to be prosecuted in federal courts" directly; on the
contrary, those two statutes expressly transform conduct that is a crime under state law
into a federal, U.S. Code offense. Thus, the Govemment’s citation to the ACA and MCA
actually supports the Moving Defendants’ argument here.
As to the ACA, that statute authorizes the United States to adopt state law as
federal law for any act or omission occurring on federal property which, "although not
made punishable by any enactment of Congress, would be punishable if committed or
omitted within the jurisdiction of the State, Territory, Possession, or District in which
such place is situated . . . ." 18 U.S.C. § 13; see also 18 U.S.C. § 7 (defining territorial
jurisdiction of the United States). in other words, a federal indictment charging an
assimilated state crime brings the count under 18 U.S.C. § 13, and thus the defendant is
charged with a federal, U.S. Code offense. it is not surprising, therefore, that the one
27
case the Government cites in support of its ACA argument itself states that "[a]n
assimilated crime is a federal crime for § 924(c) purposes and is a crime that can be
prosecuted in a court of the United States." United States v. Terry,
131 F.3d 138,
1997
WL 759274, at *2 (4th Cir. 1997) (emphasis added); see also United States v. Minger,
976 F.2d 185, 187 (4th Cir. 1992) ("When a state law is assimilated under the ACA, the
ACA transforms the state law into a federal law for purposes of prosecution, and any
violation of the state law becomes a crime against the United States." (emphasis added)).
indeed, the Department of Justice itself has acknowledged that prosecutions under the
ACA "are not to enforce the laws of the state, but to enforce F ederal law, the details of
which, instead of being recited, are adopted by reference." Dep’t of Justice, United
States Attorneys’ Manual, Title 9, Criminal Resource Manual 667 (Assimilative Crimes
Act).
Ncxt, as to the l\/ICA, 18 U.S.C. § 1153 grants jurisdiction to federal courts,
exclusive of the states, over "indians" who commit any of certain listed offenses "within
indian country." See 18 U.S.C. § 1153; § 1151 (defining "indian country"); see also
United States v. John, 437 U.S. 634 (1978).26 Federal statutes define most ofthe listed
26 is U.s.c. § 1153 provided
(a) Any indian who commits against the person or property of another indian or
other person any of the following offenses, namely, murder, manslaughter,
kidnapping, maiming, a felony under chapter 109A, incest, a felony assault
under section 1 13, an assault against an individual who has not attained the
age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a
felony under section 661 of this title within the indian country, shall be
subject to the same law and penalties as all other persons committing any of
the above offenses, within the exclusive jurisdiction of the United States.
(b) Any offense referred to in subsection (a) of this section that is not defined and
28
offenses, and those that are not so "defined and punished by Federal law" are to be
defined and punished in accordance with the laws of the state where the crime was
committed. 18 U.S.C. § 1153(b). Thus, to the extent a listed offense is defined by
federal law, it is already a federal, U.S. Code offense, and it is unremarkable that courts
have found § 924(c) counts properly charged based on such an MCA predicate. See, e.g.,
Standing Bear v. United States,
68 F.3d 271, 272 (8th Cir. 1995) (affinning that federal
district court had jurisdiction over § 924(c) charge where 18 U.S.C. § 1153 conferred
federal court jurisdiction for the underlying felony of murder within indian country, in
violation of 18 U.S.C. § 111l). To the extent an offense is not so defined and must
instead be defined by state law, on the other hand, the Govemment has not pointed to any
cases involving such a predicate supporting a § 924(c) charge. But even assuming a
§ 924(c) charge would properly lie in that circumstance, the MCA operates to grant
federal jurisdiction over those offenses directly when they are charged under 18 U.S.C.
§ 1153. Not so for the D.C. Code jurisdictional statute, which grants this Court
jurisdiction over D.C. Code crimes in a manner similar to pendent jurisdiction.
in short, a § 924(c) charge brought under the ACA or MCA is, in fact, predicated
on a federal, U.S. Code offense. By contrast, the D.C. Code offenses underlying the
§ 924(c) counts at issue in the instant case come before this Court in a completely
different posture. As D.C. Code § 11-502(3) makes clear, this Court has jurisdiction over
punished by Federal law in force within the exclusive jurisdiction of the
United States shall be defined and punished in accordance with the laws of the
State in which such offense was committed as are in force at the time of such
offense.
29
D.C. Code offenses when they are properly joined to federal, U.S. Code offenses; nothing
in that statute, however, converts or morphs those D.C. Code offenses into federal
offenses.
CONCLUSION
While it is true that criminal defendants in the District of Columbia are, at times,
treated differently from defendants in other federal courts as a result of this District’s
unique joinder provision, our Circuit Court has found that being tried under two statutory
schemes at the same time#and as a result receiving more severe punishment-does not
violate the equal protection clause. See United States v. Sumler,
136 F.3d 188, 190-91
(D.C. Cir. 1998) (eiting United States v. Jones,
527 F.2d 817, 822 (D.C. Cir. 1975)). But
while it is one thing for a defendant in this District to incidentally face stiffer sentences as
a result of joinder rules, it is quite another for him to face a severe mandatory minimum
sentence_up to and including life in prison-as a result of the Government electing to
bring federal charges here that it could not bring in any of the fifty states.27 indeed, to
permit the Government to bring the challenged § 924(c) charges, predicated on D.C.
Code offenses, would unfairly distinguish prosecutions of § 924(c) in this Court from
27 While 1 will not speculate on the specific motive behind the Govemment’s charging decision,
it is clear what the Govermnent could have done in this case. instead of bringing § 924(c)
charges, it could have brought D.C. Code § 22-4504(b) charges for possessing a firearm while
committing a crime of violence based on each of the predicate violent D.C. Code offenses
alleged in Counts 2, 8, 10, 12, and 14. See D.C. Code §§ 22-4504(b), 22-4501(1), 23-1331(4)
(for purposes of § 22-4504(b), the tenn "crime of violence" includes, inter alia, assault with a
dangerous weapon, kidnapping, robbery, extortion, and burglary). it is also evident that charging
in this manner would not have resulted in the "stacking" effect created by § 924(c) because,
unlike § 924(c), D.C. Code § 22-4504(b) provides for a sentence of at least five years but no
more than 15 years and does not provide for enhanced penalties for subsequent convictions or
require that any such sentences run consecutively. Draw your own conclusions!
30
those in all other federal district courts. My review of the legislative history convinces
me that Congress did not intend such a sentencing oddity, but even if`` any ambiguity
remained, it should be resolved in favor of the Moving Defendants under the rule of
lenity. See, e.g., Simpson, 435 U.S. at 14 (applying "the established rule of`` construction
that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of
lenity"’ (quoting United States v. Bass,
404 U.S. 336, 347 (1971))). Accordingly, the
challenged § 924(c) counts must be dismissed.
As a result of my ruling today, these four Moving Defendants no longer face a
potential sentence of mandatory life in prison, if convicted. With regard to defendant
Dawayne Brown, one § 924(c) charge remains (Count 17). With regard to defendant ira
Adona, three § 924(c) charges remain (Counts 17, 28, and 29).28 With regard to
defendant Breal Hicks, two § 924(c) charges remain (Counts 17 and 28). And with
regard to defendant Keith Matthews, one § 924(c) charge remains (Count 17).
United States Dis rict Judge
28 The Govemment has acknowledged, however, that Counts 28 and 29 would merge at
sentencing, should a jury convict him of both offenses. See supra note 8.
31