West Law Report

What does it mean “during”?

Posted in Statutory interpretation by mrkooenglish on May 20, 2008


certiorari to the united states court of appeals for the ninth circuit

No. 07-455. Argued March 25, 2008–Decided May 19, 2008

After respondent gave false information on his customs form while attempting to enter the United States, a search of his car revealed explosives that he intended to detonate in this country. He was convicted of, inter alia, (1) feloniously making a false statement to a customs official in violation of 18 U. S. C. §1001, and (2) “carr[ying] an explosive during the commission of” that felony in violation of §844(h)(2). The Ninth Circuit set aside the latter conviction because it read “during” in §844(h)(2) to include a requirement that the explosive be carried “in relation to” the underlying felony.

Held: Since respondent was carrying explosives when he violated §1001, he was carrying them “during” the commission of that felony. The most natural reading of §844(h)(2) provides a sufficient basis for reversal. It is undisputed that the items in respondent’s car were “explosives,” and that he was “carr[ying]” those explosives when he knowingly made false statements to a customs official in violation of §1001. Dictionary definitions need not be consulted to arrive at the conclusion that he engaged in §844(h)(2)’s precise conduct. “[D]uring” denotes a temporal link. Because his carrying of explosives was contemporaneous with his §1001 violation, he carried them “during” that violation. The statute’s history further supports the conclusion that Congress did not intend a relational requirement in §844(h) as presently written. Pp. 2-6

474 F. 3d 597, reversed.

Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Ginsburg, and Alito, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Part I. Thomas, J., filed an opinion concurring in part and concurring in the judgment, in which Scalia, J., joined. Breyer, J., filed a dissenting opinion.


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