CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1998
Syllabus
HOLLOWAY AKA ALl
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 97-7164. Argued November 9, 1998-Decided March 2, 1999
Petitioner was charged with federal offenses including
carjacking, which 18 U. S. C. § 2119 defines as "tak[ing] a motor
vehicle ... from ... another by force and violence or by
intimidation" "with the intent to cause death or serious bodily
harm." Petitioner's accomplice testified that their plan was to
steal cars without harming the drivers, but that he would have used
his gun if any of the victims had given him a "hard time." The
District Judge instructed the jury,
inter alia, that the
intent requisite under § 2119 may be conditional, and that the
Government satisfies this element of the offense when it proves
that the defendant intended to cause death or serious bodily harm
if the alleged victims refused to turn over their cars. The jury
found petitioner guilty, and the Second Circuit affirmed,
declaring, among other things, that the inclusion of a conditional
intent to harm within § 2119 comported with a reasonable
interpretation of the legislative purpose. Petitioner's alternative
interpretation, which would cover only those carjackings in which
defendant's sole and unconditional purpose at the time of the
offense was to kill or maim the victim, was clearly at odds with
Congress' intent, concluded the court.
Held: Section 2119's "with the intent to cause death or
serious bodily harm" phrase does not require the Government to
prove that the defendant had an unconditional intent to kill or
harm in all events, but merely requires proof of an intent to kill
or harm if necessary to effect a carjacking. This
mens rea
component of § 2119 directs the factfinder's
2
Syllabus
attention to the defendant's state of mind at the precise moment
he demanded or took control over the car "by force and violence or
by intimidation." If the defendant has the proscribed state of mind
at that moment, the statute's scienter element is satisfied.
Petitioner's reading-that the defendant must possess a specific and
unconditional intent to kill or harm in order to complete the
prescribed offense-would improperly transform the
mens rea
element from a modifier into an additional
actus reus
component of the carjacking statute; it would alter the statute
into one that focuses on attempting to harm or kill a person in the
course of the robbery of a motor vehicle. Given that § 2119 does
not mention either conditional or unconditional intent
separately-and thus does not expressly exclude either-its text is
most naturally read to encompass the
mens rea of both
species of intent, and
not to limit its reach to crimes
involving the additional
actus reus of an attempt to kill or
harm. Two considerations strongly support the Court's conclusion.
First, petitioner's interpretation would exclude from the coverage
of the statute most of the conduct that Congress obviously intended
to prohibit. Second, it is reasonable to presume that Congress was
familiar with the leading cases and the scholarly writing
recognizing that the specific intent to commit a wrongful act may
be conditional. The Court's interpretation does not, as petitioner
suggests, render superfluous the statute's "by force and violence
or by intimidation" element. While an empty threat, or intimidating
bluff, would be sufficient to satisfy that element, such conduct,
standing on its own, is not enough to satisfy § 2119's specific
intent element. pp.6-12.
126 F.3d
82, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, GINSBURG, and
BREYER, JJ., joined. SCALIA, J.,
post, p. 12, and THOMAS,
J.,
post, p. 22, filed dissenting opinions.
Kevin J.
Keating, by appointment of the Court, 525
U. S. 806, argued the cause for petitioner. With him on the briefs
were
David G.
Secular and
Robert C.
Nissen.
Deputy Solicitor General Underwood argued the cause for the
United States. With her on the brief were Solicitor General Waxman,
Assistant Attorney General Robinson,
3
Deputy Solicitor General Dreeben, Edward C. DuMont, and Deborah
Watson. *
JUSTICE STEVENS delivered the opinion of the Court. Carjacking
"with the intent to cause death or serious bodily harm" is a
federal crime.1 The question presented in this case is whether that
phrase requires the Government to prove that the defendant had an
unconditional intent to kill or harm in all events, or whether it
merely requires proof of an intent to kill or harm if necessary to
effect a carjacking. Most of the judges who have considered the
question have concluded, as do we, that Congress intended to
criminalize the more typical carjacking carried out by means of a
deliberate threat of violence, rather than just the rare case in
which the defendant has an unconditional intent to use violence
regardless of how the driver responds to his threat.
I
A jury found petitioner guilty on three counts of carjacking, as
well as several other offenses related to stealing
*
Joshua L. Dratel filed a brief for the National
Association of Criminal Defense Lawyers as
amicus curiae
urging reversal.
1 As amended by the Violent Crime Control and Law Enforcement
Act of 1994, § 60003(a)(14), 108 Stat. 1970, and by the Carjacking
Correction Act of 1996, § 2, 110 Stat. 3020, the statute
provides:
"Whoever,
with the intent to cause death or serious bodily
harm takes a motor vehicle that has been transported, shipped,
or received in interstate or foreign commerce from the person or
presence of another by force and violence or by intimidation, or
attempts to do so, shall-
"(1) be fined under this title or imprisoned not more than 15
years, or both,
"(2) if serious bodily injury (as defined in section 1365 of
this title, including any conduct that, if the conduct occurred in
the special maritime and territorial jurisdiction of the United
States, would violate section 2241 or 2242 of this title) results,
be fined under this title or imprisoned not more than 25 years, or
both, and
"(3) if death results, be fined under this title or imprisoned
for any number of years up to life, or both, or sentenced to
death." 18 U. S. C. § 2119 (1994 ed. and Supp. III) (emphasis
added).
4
cars.2 In each of the carjackings, petitioner and an armed
accomplice identified a car that they wanted and followed it until
it was parked. The accomplice then approached the driver, produced
a gun, and threatened to shoot unless the driver handed over the
car keys.3 The accomplice testified that the plan was to steal the
cars without harming the victims, but that he would have used his
gun if any of the drivers had given him a "hard time." App.52. When
one victim hesitated, petitioner punched him in the face, but there
was no other actual violence.
The District Judge instructed the jury that the Government was
required to prove beyond a reasonable doubt that the taking of a
motor vehicle was committed with the intent "to cause death or
serious bodily harm to the person from whom the car was taken."
Id., at 29. After explaining that merely using a gun to
frighten a victim was not sufficient to prove such intent, he added
the following statement over petitioner's objection:
"In some cases, intent is conditional. That is, a defendant may
intend to engage in certain conduct only if a certain event
occurs.
"In this case, the government contends that the defendant
intended to cause death or serious bodily harm if the alleged
victims had refused to turn over their cars. If you find beyond a
reasonable doubt that the defendant had such an intent, the
government has satisfied this element of the offense .... "
Id., at 30.
In his postverdict motion for a new trial, petitioner contended
that this instruction was inconsistent with the text
2 He was also charged with conspiring to operate a "chop shop"
in violation of 18 U. S. C. § 371, operating a chop shop in
violation of § 2322, and using and carrying a firearm in violation
of § 924(c).
3 One victim testified that the accomplice produced his gun and
threatened, "'Get out of the car or I'll shoot.' " App. 51. Another
testified that he said, "'Give me your keys or I will shoot you
right now.'''
Id., at 52.
5
of the statute. The District Judge denied the motion, stating
that there "is no question that the conduct at issue in this case
is precisely what Congress and the general public would describe as
carjacking, and that Congress intended to prohibit it in § 2119."
921 F. Supp. 155, 156 (EDNY 1996). He noted that the statute as
originally enacted in 1992 contained no intent element but covered
all carjackings committed by a person "possessing a firearm." A
1994 amendment had omitted the firearm limitation, thus broadening
the coverage of the statute to encompass the use of other weapons,
and also had inserted the intent requirement at issue in this case.
The judge thought that an "odd result" would flow from a
construction of the amendment that "would no longer prohibit the
very crime it was enacted to address except in those unusual
circumstances when carjackers also intended to commit another
crime-murder or a serious assault."
Id., at 159. Moreover,
the judge determined that even though the issue of conditional
intent has not been discussed very often, at least in the federal
courts, it was a concept that scholars and state courts had long
recognized.
Over a dissent that accused the majority of "a clear judicial
usurpation of congressional authority,"
United States v.
Arnold,
126 F.3d
82, 92 (CA2 1997) (opinion of Miner, J.), the Court of Appeals
affirmed. The majority was satisfied that "the inclusion of a
conditional intent to harm within the definition of specific intent
to harm" was not only "a wellestablished principle of criminal
common law," but also, and "most importantly," comported "with a
reasonable interpretation of the legislative purpose of the
statute."
Id., at 88. The alternative interpretation, which
would cover "only those carjackings in which the carjacker's sole
and unconditional purpose at the time he committed the carjacking
was to kill or maim the victim," the court concluded, was clearly
at odds with the intent of the statute's drafters.
Ibid.
6
To resolve an apparent conflict with a decision of the Ninth
Circuit,
United States v.
Randolph, 93 F.3d
656 (1996),4 we granted certiorari. 523 U. S. 1093 (1998).
II
Writing for the Court in
United States v.
Turkette,
452 U. S. 576, 593 (1981), Justice White reminded us that the
language of the statutes that Congress enacts provides "the most
reliable evidence of its intent." For that reason, we typically
begin the task of statutory construction by focusing on the words
that the drafters have chosen. In interpreting the statute at
issue, "[w]e consider not only the bare meaning" of the critical
word or phrase "but also its placement and purpose in the statutory
scheme."
Bailey v.
United States, 516 U. S. 137, 145
(1995).
The specific issue in this case is what sort of evil motive
Congress intended to describe when it used the words "with the
intent to cause death or serious bodily harm" in the 1994 amendment
to the carjacking statute. More precisely, the question is whether
a person who points a gun at a driver, having decided to pull the
trigger if the driver does not comply with a demand for the car
keys, possesses the intent, at that moment, to seriously harm the
driver. In our view, the
4 The Ninth Circuit held that neither a person's mere threat to
the driver that "'she would be okay if she [did] what was told of
her'" nor "the brandishing of a weapon, without more" constituted
an intent to cause death or serious bodily harm under the amended
version of § 2119. 93 F. 3d, at 664-665. The court therefore
reversed the defendant's carjacking conviction on the ground of
insufficient evidence. In the course of its opinion, the Ninth
Circuit also stated more broadly that "[t]he mere conditional
intent to harm a victim
if she resists is simply not enough
to satisfy § 2119's new specific intent requirement."
Id.,
at 665. It is this proposition with which other courts have
disagreed. See
United States v.
Williams, 136 F.3d
547, 550-551
(CA8 1998), cert. pending, No. 97-9553;
United States v.
Arnold, 126 F.3d
82, 89, n. 4
(CA2 1997);
United States v.
Romero, 122 F.3d
1334, 1338 (CAlO 1997), cert. denied, 523 U. S. 1025
(1998);
United States v.
Anderson, 108 F.3d
478, 481-483
(CA3), cert. denied, 522 U. S. 843
(1997).
7
answer to that question does not depend on whether the driver
immediately hands over the keys or what the offender decides to do
after he gains control over the car. At the relevant moment, the
offender plainly does have the forbidden intent.
The opinions that have addressed this issue accurately point out
that a carjacker's intent to harm his victim may be either
"conditional" or "unconditional." 5 The statutory phrase at issue
theoretically might describe (1) the former, (2) the latter, or (3)
both species of intent. Petitioner argues that the "plain text" of
the statute "unequivocally" describes only the latter: that the
defendant must possess a specific and unconditional intent to kill
or harm in order to complete the proscribed offense. To that end,
he insists that Congress would have had to insert the words "if
necessary" into the disputed text in order to include the
conditional species of intent within the scope of the statute. See
Reply Brief for Petitioner 2. Because Congress did not include
those words, petitioner contends that we must assume that Congress
meant to provide a federal penalty for only those carjackings in
which the offender actually attempted to harm or kill the driver
(or at least intended to do so whether or not the driver
resisted).
We believe, however, that a commonsense reading of the
carjacking statute counsels that Congress intended to criminalize a
broader scope of conduct than attempts to assault or kill in the
course of automobile robberies. As we have repeatedly stated, "'the
meaning of statutory language, plain or not, depends on context.'"
Brown v.
Gardner, 513 U. S. 115, 118 (1994)
(quoting
King v.
St. Vincent's Hospital, 502 U. S.
215, 221 (1991)). When petitioner's argument is considered in the
context of the statute, it becomes apparent that his proffered
construction of the intent element overlooks the significance of
the placement of that element in
5 See,
e. g.,
Williams, 136 F. 3d, at 550-551;
Anderson, 108 F. 3d, at 481.
8
the statute. The carjacking statute essentially is aimed at
providing a federal penalty for a particular type of robbery. The
statute's
mens rea component thus modifies the act of
"tak[ingJ" the motor vehicle. It directs the factfinder's attention
to the defendant's state of mind at the precise moment he demanded
or took control over the car "by force and violence or by
intimidation." If the defendant has the proscribed state of mind at
that moment, the statute's scienter element is satisfied.
Petitioner's reading of the intent element, in contrast, would
improperly transform the
mens rea element from a modifier
into an additional
actus reus component of the carjacking
statute; it would alter the statute into one that focuses on
attempting to harm or kill a person in the course of the robbery of
a motor vehicle.6 Indeed, if we accepted petitioner's view of the
statute's intent element, even Congress' insertion of the
qualifying words "if necessary," by themselves, would not have
solved the deficiency that he believes exists in the statute. The
inclusion of those words after the intent phrase would have
excluded the unconditional species of intent-the intent to harm or
kill even if not necessary to complete a carjacking. Accordingly,
if Congress had used words such as "if necessary" to describe the
conditional species of intent, it would also have needed to add
something like "or even if not necessary" in order to cover both
species of intent to harm. Given the fact that the actual text does
not mention either species separatelyand thus does not expressly
exclude either-that text is most naturally read to encompass the
mens rea of both conditional and unconditional intent, and
not to limit the statute's reach to crimes involving the additional
actus reus of an attempt to kill or harm.
6 Although subsections (2) and (3) of the carjacking statute
envision harm or death resulting from the crime, subsection (1),
under petitioner's reading, would have to cover attempts to harm or
kill when no serious bodily harm resulted.
9
Two considerations strongly support the conclusion that a
natural reading of the text is fully consistent with a
congressional decision to cover both species of intent. First, the
statute as a whole reflects an intent to authorize federal
prosecutions as a significant deterrent to a type of criminal
activity that was a matter of national concern.7 Because that
purpose is better served by construing the statute to cover both
the conditional and the unconditional species of wrongful intent,
the entire statute is consistent with a normal interpretation of
the specific language that Congress chose. See
John Hancock Mut.
Life Ins. Co. v.
Harris Trust and Sav. Bank, 510 U. S. 86, 94-95 (1993)
(statutory language should be interpreted consonant with "the
provisions of the whole law, and ... its object and policy"
(internal quotation marks omitted)). Indeed, petitioner's
interpretation would exclude from the coverage of the statute most
of the conduct that Congress obviously intended to prohibit.
Second, it is reasonable to presume that Congress was familiar
with the cases and the scholarly writing that have recognized that
the "specific intent" to commit a wrongful act may be conditional.
See
Cannon v.
University of Chicago, 441 U. S. 677, 696-698
(1979). The facts of the leading case on the point are strikingly
similar to the facts of this case. In
People v.
Connors, 253 Ill. 266, 97 N. E. 643 (1912),
7 Although the legislative history relating to the carjacking
amendment is sparse, those members of Congress who recorded
comments made statements reflecting the statute's broad deterrent
purpose. See 139 Congo Rec. 27867 (1993) (statement of Sen.
Lieberman) ("Th[e 1994] amendment will broaden and strengthen thEe]
[carjacking] law so our U. S. attorneys will have every possible
tool available to them to attack the problem"); 140 Congo Rec. E858
(May 5, 1994) (extension of remarks by Rep. Franks) ("We must send
a message to [carjackers] that committing a violent crime will
carry a severe penalty"). There is nothing in the 1994 amendment's
legislative history to suggest that Congress meant to create a
federal crime for only the unique and unusual subset of carjackings
in which the offender intends to harm or kill the driver regardless
of whether the driver accedes to the offender's threat of
violence.
10
the Illinois Supreme Court affirmed the conviction of a union
organizer who had pointed a gun at a worker and threatened to kill
him forthwith if he did not take off his overalls and quit work.
The court held that the jury had been properly instructed that the
"specific intent to kill" could be found even though that intent
was "coupled with a condition" that the defendant would not fire if
the victim complied with his demand.8 That holding has been
repeatedly cited with approval by other courts 9 and by scholars.10
Moreover, it reflects the views endorsed by the authors of the
Model
8 The trial judge had given this instruction to the jury:
"'The court instructs you as to the intent to kill alleged in
the indictment that though you must find that there was a specific
intent to kill the prosecuting witness, Morgan H. Bell, still, if
you believe from the evidence beyond a reasonable doubt that the
intention of the defendants was only in the alternative-that is, if
the defendants, or any of them, acting for and with the others,
then and there pointed a revolver at the said Bell with the
intention of compelling him to take off his overalls and quit work,
or to kill him if he did not-and if that specific intent was formed
in the minds of the defendants and the shooting of the said Bell
with intent to kill was only prevented by the happening of the
alternative-that is, the compliance of the said Bell with the
demand that he take off his overalls and quit work-then the
requirement of the law as to the specific intent is met.''' 253
Ill., at 272-273, 97 N. E., at 645.
9 See
People v.
Vandelinder, 192 Mich. App. 447,
451, 481 N. W. 2d 787, 789 (1992) (endorsing holding of
Connors); Eby v.
State, 154 Ind. App. 509, 517,290 N.
E. 2d 89,95 (1972) (same);
Beall v.
State, 203 Md.
380, 386,101 A. 2d 233, 236 (1953) (same);
Price v.
State, 168 Tenn. 378, 381, 79 S. W. 2d 283,284 (1935)
(same). But see
State v.
Irwin, 55 N. C. App. 305,285
S. E. 2d 345 (1982) (reaching opposite conclusion);
State v.
Kinnemore, 34 Ohio App. 2d 39, 295 N. E. 2d 680 (1972)
(same).
10 See 1 W. LaFave & A. Scott, Substantive Criminal Law §
3.5(d), p. 312 (1986); R. Perkins & R. Boyce, Criminal Law
646-647, 835 (3d ed. 1982); 1 J. Bishop, Bishop on Criminal Law
§287a (9th ed. 1923); 1 H. Brill, Cyclopedia of Criminal Law
§ 409, p. 692 (1922); Alexander & Kessler, Mens Rea and
Inchoate Crimes, 87 J. Crim. L. & C. 1138, 1140-1147 (1997).
See also 2 C. Torcia, Wharton's Criminal Law § 182 (15th ed. 1994)
(supporting principle of conditional intent but not citing
Connors).
11
Criminal Code.ll The core principle that emerges from these
sources is that a defendant may not negate a proscribed intent by
requiring the victim to comply with a condition the defendant has
no right to impose; "[a]n intent to kill, in the alternative, is
nevertheless an intent to kill." 12
This interpretation of the statute's specific intent element
does not, as petitioner suggests, render superfluous the statute's
"by force and violence or by intimidation" element. While an empty
threat, or intimidating bluff, would be sufficient to satisfy the
latter element, such conduct, standing on its own, is not enough to
satisfy § 2119's specific intent element. 13 In a carjacking case
in which the driver surrendered or otherwise lost control over his
car without the defendant attempting to inflict, or actually
inflicting, serious bodily harm, Congress' inclusion of the intent
element re-
11 Section 2.02(6) of the Model Penal Code provides:
"Requirement of Purpose Satisfied if Purpose is Conditional.
"When a particular purpose is an element of an offense, the
element is established although such purpose is conditional, unless
the condition negatives the harm or evil sought to be prevented by
the law defining the offense." American Law Institute, Model Penal
Code (1985).
Of course, in this case the condition that the driver surrender
the car was the precise evil that Congress wanted to prevent.
12Perkins & Boyce, Criminal Law, at 647.
13 In somewhat different contexts, courts have held that a
threat to harm does not in itself constitute intent to harm or
kill. In
Hairston v.
State, 54 Miss. 689 (1877), for
example, the defendant in an angry and profane manner threatened to
shoot a person if that person stopped the defendant's mules. The
court affirmed the defendant's conviction for assault, but reversed
a conviction of assault with intent to commit murder, explaining
that "we have found no case of a conviction of assault with intent
to kill or murder, upon proof only of the levelling of a gun or
pistol."
Id., at 694. See also
Myers v.
Clearman, 125 Iowa 461, 464, 101 N. W. 193, 194 (1904) (in
determining whether defendant acted with intent to commit great
bodily harm the issue for the jury was "whether the accused, in
aiming his revolver at [the victim], intended to inflict great
bodily harm, or some more serious offense, or did this merely with
the purpose of frightening her").
12
quires the Government to prove beyond a reasonable doubt that
the defendant would have at least attempted to seriously harm or
kill the driver if that action had been necessary to complete the
taking of the car.
In short, we disagree with petitioner's reading of the text of
the Act and think it unreasonable to assume that Congress intended
to enact such a truncated version of an important criminal
statute.14 The intent requirement of § 2119 is satisfied when the
Government proves that at the moment the defendant demanded or took
control over the driver's automobile the defendant possessed the
intent to seriously harm or kill the driver if necessary to steal
the car (or, alternatively, if unnecessary to steal the car).
Accordingly, we affirm the judgment of the Court of Appeals.
It is so ordered.
JUSTICE SCALIA, dissenting.
The issue in this case is the meaning of the phrase, in 18 U. S.
C. § 2119, "with the intent to cause death or serious bodily harm."
(For convenience' sake, I shall refer to it in this opinion as
simply intent to kill.) As recounted by the Court, petitioner's
accomplice, Vernon Lennon, "testified that the plan was to steal
the cars without harming the victims, but that he would have used
his gun if any of the drivers had given him a 'hard time.'"
Ante, at 4. The District Court instructed the jury that the
intent element would be satisfied if petitioner possessed this
"conditional"
14 We also reject petitioner's argument that the rule of lenity
should apply in this case. We have repeatedly stated that" '[t]he
rule of lenity applies only if, after seizing everything from which
aid can be derived, ... we can make no more than a guess as to what
Congress intended.' "
Muscarello v.
United States,
524 U. S. 125,
138 (1998) (quoting
United States v.
Wells, 519 U. S. 482, 499
(1997)) (additional quotations and citations omitted). Accord,
Ladner v.
United States, 358 U. S. 169, 178
(1958). The result of our preceding analysis requires us to make no
such guess in this case.
13
intent. Today's judgment holds that instruction to have been
correct.
I dissent from that holding because I disagree with the
following, utterly central, passage of the opinion:
"[A] carjacker's intent to harm his victim may be either
'conditional' or 'unconditional.' The statutory phrase at issue
theoretically might describe (1) the former, (2) the latter, or (3)
both species of intent." Ante, at 7 (footnote omitted).
I think, to the contrary, that in customary English usage the
unqualified word "intent" does not usually connote a purpose that
is subject to any conditions precedent except those so remote in
the speaker's estimation as to be effectively nonexistent-and it
never connotes a purpose that is subject to a condition
which the speaker hopes will not occur. (It is this last sort of
"conditional intent" that is at issue in this case, and that I
refer to in my subsequent use of the term.) "Intent" is "[a] state
of mind in which a person seeks to accomplish a given result
through a course of action." Black's Law Dictionary 810 (6th ed.
1990). One can hardly "seek to accomplish" a result he hopes will
not ensue.
The Court's division of intent into two categories, conditional
and unconditional, makes the unreasonable seem logical. But
Aristotelian classification says nothing about linguistic usage.
Instead of identifying two categories, the Court might just as
readily have identified
three: unconditional intent,
conditional intent, and feigned intent. But the second category,
like the third, is simply not conveyed by the word "intent" alone.
There is intent, conditional intent, and feigned intent, just as
there is agreement, conditional agreement, and feigned
agreement-but to say that in either case the noun alone, without
qualification, "theoretically might describe" all three phenomena
is simply false. Conditional intent is no more embraced by the
unmodified word "intent" than a sea lion is embraced by the
unmodified word "lion."
14
If I have made a categorical determination to go to Louisiana
for the Christmas holidays, it is accurate for me to say that I
"intend" to go to Louisiana. And that is so even though I realize
that there are some remote and unlikely contingencies-"acts of
God," for example-that might prevent me. (The fact that these
remote contingencies are always implicit in the expression of
intent accounts for the humorousness of spelling them out in such
expressions as "if I should live so long," or "the Good Lord
willing and the creek don't rise.") It is less precise, though
tolerable usage, to say that I "intend" to go if my purpose is
conditional upon an event which, though not virtually certain to
happen (such as my continuing to live), is reasonably likely to
happen, and which I hope will happen. I might, for example, say
that I "intend" to go even if my plans depend upon receipt of my
usual and hoped-for end-of-year bonus.
But it is not common usage-indeed, it is an unheard-of usage-to
speak of my having an "intent" to do something, when my plans are
contingent upon an event that is not virtually certain, and that I
hope will not occur. When a friend is seriously ill, for example, I
would not say that "I intend to go to his funeral next week." I
would have to make it clear that the intent is a conditional one:
"I intend to go to his funeral next week if he dies." The carjacker
who intends to kill if he is met with resistance is in the same
position: He has an "intent to kill if resisted"; he does not have
an "intent to kill." No amount of rationalization can change the
reality of this normal (and as far as I know exclusive) English
usage. The word in the statute simply will not bear the meaning
that the Court assigns.
The Government makes two contextual arguments to which I should
respond. First, it points out that the statute criminalizes not
only carjackings accomplished by "force and violence" but also
those accomplished by mere "intimidation." Requiring an
unconditional intent, it asserts, would make the number of covered
carjackings accomplished by in-
15
timidation "implausibly small." Brief for United States 22. That
seems to me not so. It is surely not an unusual carjacking in which
the criminal jumps into the passenger seat and forces the person
behind the wheel to drive off at gunpoint. A carjacker who intends
to kill may well use this
modus operandi, planning to kill
the driver in a more secluded location. Second, the Government
asserts that it would be hard to imagine an
unconditional-intent-to-kill case in which the first penalty
provision of § 2119 would apply, i.
e., the provision
governing cases in which no death or bodily harm has occurred.
I
d., at 23. That is rather like saying that the crime of
attempted murder should not exist, because someone who intends to
kill always succeeds.
Notwithstanding the clear ordinary meaning of the word "intent,"
it would be possible, though of course quite unusual, for the word
to have acquired a different meaning in the criminal law. The Court
does not claim-and falls far short of establishing-such
"term-of-art" status. It cites five state cases (representing the
majority view among the minority of jurisdictions that have
addressed the question) saying that conditional intent satisfies an
intent requirement; but it acknowledges that there are cases in
other jurisdictions to the contrary. See
ante, at 10, n. 9
(citing
State v.
Irwin, 55 N. C. App. 305, 285 S. E.
2d 345 (1982);
State v.
Kinnemore, 34 Ohio App. 2d
39, 295 N. E. 2d 680 (1972)); see also
Craddock v.
State, 204 Miss. 606, 37 So. 2d 778 (1948);
McArdle
v.
State, 372 So. 2d 897 (Ala. Crim. App.), writ denied, 372
So. 2d 902 (Ala. 1979). As I understand the Court's position, it is
not that the former cases are right and the latter wrong, so that
"intent" in criminal statutes, a term of art in that context,
includes conditional intent; but rather that "intent" in criminal
statutes may include conditional intent, depending upon the statute
in question. That seems to me not an available option. It is so
utterly clear in normal usage that "intent" does
not include
conditional intent, that only an accepted convention in the
criminal law could
16
give the word a different meaning. And an accepted convention is
not established by the fact that some courts have thought so some
times. One must decide, I think, which line of cases is correct,
and in my judgment it is that which rejects the conditional-intent
rule.
There are of course innumerable federal criminal statutes
containing an intent requirement, ranging from intent to steal, see
18 U. S. C. § 2113, to intent to defeat the provisions of the
Bankruptcy Code, see § 152(5), to intent that a vessel be used in
hostilities against a friendly nation, see § 962, to intent to
obstruct the lawful exercise of parental rights, see § 1204.
Consider, for example, 21 U. S. C. § 841, which makes it a crime to
possess certain drugs with intent to distribute them. Possession
alone is also a crime, but a lesser one, see § 844. Suppose that a
person acquires and possesses a small quantity of cocaine for his
own use, and that he in fact consumes it entirely himself. But
assume further that, at the time he acquired the drug, he told his
wife not to worry about the expense because, if they had an
emergency need for money, he could always resell it. If conditional
intent suffices, this person, who has never sold drugs and has
never "intended" to sell drugs in any normal sense, has been guilty
of possession with intent to distribute. Or consider 18 U. S. C. §
2390, which makes it a crime to enlist within the United States
"with intent to serve in armed hostility against the United
States." Suppose a Canadian enlists in the Canadian army in the
United States, intending, of course, to fight all of Canada's wars,
including (though he neither expects nor hopes for it) a war
against the United States. He would be criminally liable. These
examples make it clear, I think, that the doctrine of conditional
intent cannot reasonably be applied across-the-board to the
criminal code. I am unaware that any equivalent absurdities result
from reading "intent" to mean what it saysa conclusion strongly
supported by the fact that the Government has cited only a single
case involving another federal
17
statute, from over two centuries of federal criminal
jurisprudence, applying the conditional-intent doctrine (and that
in circumstances where it would not at all have been absurd to
require real intent).l The course selected by the Court, of
course-"intent" is sometimes conditional and sometimes not-would
require us to sift through these many statutes
1 The one case the Government has come up with is
Shaffer
v.
United States, 308 F.2d
654 (CA5 1962), cert. denied, 373 U. S. 939 (1963),
which upheld a conviction of assault "with intent to do bodily
harm" where the defendant had said that if any persons tried to
leave the building within five minutes after his departure "he
would shoot their heads off," 308 F. 2d, at 655. In my view, and in
normal parlance, the defendant did not "intend" to do bodily harm,
and there would have been nothing absurd about holding to that
effect.
The Government cites six other federal cases, Brief for United
States 14-15, n. 5, but they are so inapposite that they succeed
only in demonstrating the weakness of its assertion that
conditional intent is the federal rule. Two of them,
United
States v.
Richardson, 27 F. Cas. 798 (No. 16,155) (CCDC
1837), and
United States v.
Myers, 27 F. Cas. 43 (No.
15,845) (CCDC 1806), involve convictions for simple assault
with
no specific intent, and do not even contain any dictum bearing
upon the present question. A third,
United States v.
Arrellano, 812 F.2d
1209, 1212, n. 2 (CA9 1987), contains nothing
but
dictum, since the jury found no intent of any sort. A fourth,
United States v.
Marks, 29 M. J. 1 (Ct. Mil. App.
1989), involved a defendant who tried to set fire to material that
he assertedly believed was flame resistant. The crime he was
convicted of, aggravated arson, was, as the court specifically
stated, "a general intent crime," id., at 3. And the last two
cases,
United States v.
Dworken, 855 F.2d
12 (CAl1988), and
United States v.
Anello,
765 F.2d
253 (CA1), cert. denied
sub nom. Wendolkowski v.
United States, 474 U. S. 996 (1985), both involved
conspiracy to possess drugs with intent to distribute. Defendants
contended that they could not be convicted because they did not
intend to complete the conspired-for transaction unless the quality
of the drugs (and, in the case of
Dworken, the price as
well) was satisfactory. Of course the intent necessary to conspire
for a specific-intent crime is not the same as the intent necessary
for the crime itself,
particularly insofar as antecedent
conditions are concerned. And in any event, since it can hardly be
thought that the conspirators
wanted the quality and price
of the drugs to be inadequate, neither case involved the
conditional intent that is the subject of the present case.
18
one-by-one, making our decision on the basis of such ephemeral
indications of "congressional purpose" as the Court has used in
this case, to which I now turn.
Ultimately, the Court rests its decision upon the fact that the
purpose of the statute-which it says is deterring carjacking-"is
better served by construing the statute to cover both the
conditional and the unconditional species of wrongful intent."
Ante, at 9. It supports this statement, both premise and
conclusion, by two unusually uninformative statements from the
legislative history (to stand out in that respect in that realm is
quite an accomplishment) that speak generally about strengthening
and broadening the carjacking statute and punishing carjackers
severely.
Ante, at 9, n. 7. But every statute intends not
only to achieve certain policy objectives, but to achieve them by
the means specified. Limitations upon the means employed to achieve
the policy goal are no less a "purpose" of the statute than the
policy goal itself. See
Director, Office of Workers'
Compensation Programs v.
Newport News Shipbuilding &
Dry Dock Co., 514 U. S. 122, 135-136
(1995). Under the Court's analysis, any interpretation of the
statute that would broaden its reach would further the purpose the
Court has found. Such reasoning is limitless and illogical.
The Court confidently asserts that "petitioner's interpretation
would exclude from the coverage of the statute most of the conduct
that Congress obviously intended to prohibit."
Ante, at 9.
It seems to me that one can best judge what Congress "obviously
intended" not by intuition, but by the words that Congress enacted,
which in this case require intent (not conditional intent) to kill.
Is it implausible that Congress intended to define such a narrow
federal crime? Not at all. The era when this statute was passed
contained well publicized instances of not only carjackings, and
not only carjackings involving violence or the threat of violence
(as, of course, most of them do); but also of carjackings in which
the perpetrators senselessly harmed the car owners
19
when that was entirely unnecessary to the crime. I have a friend
whose father was killed, and whose mother was nearly killed, in
just such an incident-after the car had already been handed over.
It is not at all implausible that Congress should direct its
attention to this particularly savage sort of carjacking-where
killing the driver is part of the intended crime.2
Indeed, it seems to me much more implausible that Congress would
have focused upon the ineffable "conditional intent" that the Court
reads into the statute, sending courts and juries off to wander
through "would-a, could-a, should-a" land. It is difficult enough
to determine a defendant's actual intent; it is infinitely more
difficult to determine what the defendant planned to do upon the
happening of an event that the defendant hoped would not happen,
and that he himself may not have come to focus upon. There will not
often be the accomplice's convenient confirmation of conditional
intent that exists in the present case. Presumably it will be up to
each jury whether to take the carjacker ("Your car or
2 Note that I am discussing what was a
plausible
congressional purpose in enacting this language-not what I
necessarily think was the real one. I search for a plausible
purpose because a text without one may represent a "scrivener's
error" that we may properly correct. See
Green v.
Bock
Laundry Machine Co., 490 U. S. 504, 528-529
(1989) (SCALIA, J., concurring in judgment); see also
United
States v.
X-Citement Video, Inc., 513 U. S. 64, 82 (1994)
(SCALIA, J., dissenting). There is no need for such correction
here; the text as it reads, unamended by a meaning of "intent" that
contradicts normal usage, makes total sense. If I
were to
speculate as to the
real reason the "intent" requirement was
added by those who drafted it, I think I would select neither the
Court's attribution of purpose nor the one I have hypothesized.
Like the District Court, see 921 F. Supp. 155, 158 (EDNY 1996), and
the Court of Appeals for the Third Circuit, see
United
States v.
Anderson, 108 F.3d
478, 482-483 (1997), I suspect the "intent" requirement was
inadvertently expanded beyond the new subsection 2119(3), which
imposed the death penalty-where it was thought necessary to ensure
the constitutionality of that provision. Of course the actual
intent of the draftsmen is irrelevant; we are governed by what
Congress enacted.
20
your life") at his word. Such a system of justice seems to me so
arbitrary that it is difficult to believe Congress intended it. Had
Congress meant to cast its carjacking net so broadly, it could have
achieved that result-and eliminated the arbitrariness-by defining
the crime as "carjacking under threat of death or serious bodily
injury." Given the language here, I find it much more plausible
that Congress meant to reach-as it said-the carjacker who intended
to kill.
In sum, I find the statute entirely unambiguous as to whether
the carjacker who hopes to obtain the car without inflicting harm
is covered. Even if ambiguity existed, however, the rule of lenity
would require it to be resolved in the defendant's favor. See
generally
United States v.
Wiltberger, 5 Wheat. 76,
95 (1820). The Government's statement that the rule of lenity "has
its
primary application in cases in which there is some
doubt whether the legislature intended to criminalize conduct that
might otherwise appear to be innocent," Brief for United States 31
(emphasis added), is carefully crafted to conceal the fact that we
have repeatedly applied the rule to situations just like this. For
example, in
Ladner v.
United States, 358 U. S. 169 (1958), the
statute at issue made it a crime to assault a federal officer with
a deadly weapon. The defendant, who fired one shotgun blast that
wounded two federal officers, contended that under this statute he
was guilty of only one, and not two, assaults. The Court said, in
an opinion joined by all eight Justices who reached the merits of
the case:
"This policy of lenity means that the Court will not interpret a
federal criminal statute so as to increase the penalty that it
places on an individual when such an interpretation can be based on
no more than a guess as to what Congress intended. If Congress
desires to create multiple offenses from a single act affecting
more than one federal officer, Congress can make that meaning
clear. We thus hold that the single discharge of a shot-
21
gun alleged by the petitioner in this case would constitute only
a single violation of § 254." Id., at 178.
In
Bell v.
United States, 349 U. S. 81 (1955), the
issue was similar: whether transporting two women, for the purpose
of prostitution, in the same vehicle and on the same trip,
constituted one or two violations of the Mann Act. In an opinion
authored by Justice Frankfurter, the Court said:
"When Congress leaves to the Judiciary the task of imputing to
Congress an undeclared will, the ambiguity should be resolved in
favor of lenity. And this is not out of any sentimental
consideration, or for want of sympathy with the purpose of Congress
in proscribing evil or antisocial conduct. It may fairly be said to
be a presupposition of our law to resolve doubts in the enforcement
of a penal code against the imposition of a harsher punishment."
Id., at 83.
If that is no longer the presupposition of our law, the Court
should say so, and reduce the rule of lenity to a historical
curiosity. But if it remains the presupposition, the rule has
undeniable application in the present case. If the statute is not,
as I think, clear in the defendant's favor, it is at the very least
ambiguous and the defendant must be given the benefit of the
doubt.
***
This seems to me not a difficult case. The issue before us is
not whether the "intent" element of some commonlaw crime developed
by the courts themselves-or even the "intent" element of a statute
that replicates the commonlaw definition-includes, or should
include, conditional intent. Rather, it is whether the English term
"intent" used in a statute defining a brand new crime bears a
meaning that contradicts normal usage. Since it is quite impossible
to say that longstanding, agreed-upon legal usage has converted
this word into a term of art, the answer has to be no. And it would
be no even if the question were doubt-
22
ful. I think it particularly inadvisable to introduce the new
possibility of "conditional-intent" prosecutions into a modern
federal criminal-law system characterized by plea bargaining, where
they will predictably be used for
in terrorem effect. I
respectfully dissent.
JUSTICE THOMAS, dissenting.
I cannot accept the majority's interpretation of the term
"intent" in 18 U. S. C. § 2119 (1994 ed. and Supp. III) to include
the concept of conditional intent. The central difficulty in this
case is that the text is silent as to the meaning of "intent" -the
carjacking statute does not define that word, and Title 18 of the
United States Code, unlike some state codes, lacks a general
section defining intent to include conditional intent. See,
e. g., Del. Code Ann., Tit. 11, § 254 (1995); Haw. Rev.
Stat. § 702-209 (1993); 18 Pa. Cons. Stat. § 302(f) (1998). As the
majority notes,
ante, at 9-11, there is some authority to
support its view that the specific intent to commit an act may be
conditional. In my view, that authority does not demonstrate that
such a usage was part of a wellestablished historical tradition.
Absent a more settled tradition, it cannot be presumed that
Congress was familiar with this usage when it enacted the statute.
For these reasons, I agree with JUSTICE SCALIA the statute cannot
be read to include the concept of conditional intent and,
therefore, respectfully dissent.
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