to a drug trafficking crime, and that the firearm at issue was equipped with a silencer. Since the jury will necessarily have to consider what it means for a firearm to be equipped with a silencer, defendant's vagueness challenge is properly before the court at this time.
It is the Constitution's Due Process Clause that protects defendants from prosecution for crimes that are not clearly defined. See Grayned v. City of Rockford, 408 U.S. 104, 108, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). But a statute is not unconstitutionally vague simply because it "'requires a person to conform his conduct to an imprecise but comprehensible normative standard.'" Village of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S. at 495 n.7 (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614, 29 L. Ed. 2d 214, 91 S. Ct. 1686 (1971)). Due process is violated only if a statute specifies "'no standard of conduct . . . at all,'" id., such that a "person of ordinary intelligence" is not given "a reasonable opportunity to know what is prohibited," Grayned v. City of Rockford, supra.
Section 924(c)(1), insofar as it prohibits individuals engaged in drug trafficking crimes from using firearms equipped with silencers, is not unconstitutionally vague. Defendant is willing to concede this point if the rule of lenity is applied to limit the statute's application to cases in which a defendant is using a firearm with a silencer actually affixed to it. But he insists that any broader application, such as the government relies on to support Count Four of his indictment, is violative of due process and, therefore, requires dismissal.
In general, the rule of lenity provides that "'where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.'" Adamo Wrecking Co. v. United States, 434 U.S. 275, 285, 54 L. Ed. 2d 538, 98 S. Ct. 566 (1978) (quoting United States v. Bass, 404 U.S. 336, 348, 30 L. Ed. 2d 488, 92 S. Ct. 515 (1971)). But as the Supreme Court itself has recognized, to consider the rule in the abstract is to gain little assistance, "'since it leaves open the crucial question -- almost invariably present -- of how much ambiguousness . . . constitutes ambiguity.'" Moskal v. United States, 498 U.S. 103, 108, 112 L. Ed. 2d 449, 111 S. Ct. 461 (1990) (quoting United States v. Hansen, 249 U.S. App. D.C. 22, 772 F.2d 940, 948 (D.C. Cir. 1985), cert. denied, 475 U.S. 1045, 89 L. Ed. 2d 571, 106 S. Ct. 1262 (1986)). The mere fact that a defendant can articulate a construction of a statute more narrow than that urged by the government is not enough to render that statute ambiguous and require application of the rule of lenity. Id. at 108; accord, Smith v. United States, 124 L. Ed. 2d 138, 113 S. Ct. 2050, 2059 (1993). The rule is not, after all, intended to beget ambiguities not really present in statutes when they are given "'their fair meaning in accord with the manifest intent of the lawmakers.'" United States v. Turkette, 452 U.S. 576, 587 n.10, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981) (quoting United States v. Brown, 333 U.S. 18, 26, 92 L. Ed. 442, 68 S. Ct. 376 (1948)).
Thus, the rule of lenity is generally used as a last, rather than first, resort in resolving problems of statutory interpretation. It "'comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.'" Chapman v. United States, 500 U.S. 453, 114 L. Ed. 2d 524, 111 S. Ct. 1919, 1926 (1991) (quoting Callanan v. United States, 364 U.S. 587, 596, 5 L. Ed. 2d 312, 81 S. Ct. 321 (1961); accord United States v. Concepcion, 983 F.2d 369, 380 (2d Cir. 1992), cert. denied, 114 S. Ct. 163 (1993). Indeed, it is "not applicable unless there is a 'grievous ambiguity or uncertainty in the language and structure of the Act,' . . . such that even after a court has 'seized everything from which aid can be derived,' it is still 'left with an ambiguous statute.'" Chapman v. United States, supra (quoting Huddleston v. United States, 415 U.S. 814, 831, 39 L. Ed. 2d 782, 94 S. Ct. 1262 (1974) and United States v. Bass, 404 U.S. at 347). The "everything" to be examined includes, of course, "'the language and structure, legislative history, and motivating policies' of the statute." Moskal v. United States, supra (quoting Bifulco v. United States, 447 U.S. 381, 387, 65 L. Ed. 2d 205, 100 S. Ct. 2247 (1980)). Language, however, is always the starting point, for if it is unambiguous, it is conclusive. United States v. Turkette, 452 U.S. at 580.
In considering the language used by Congress in drafting § 924(c)(1), this court notes that many of the relevant terms are statutorily defined. Among these are "person," "whoever," "firearm," "destructive device," "shotgun," "short-barreled shotgun," "rifle," "short-barreled rifle," "machinegun," "firearm silencer," and "firearm muffler," see 18 U.S.C. §§ 921(a)(1), (3), (4), (5), (6), (7), (8), (23), and (24), as well as "drug trafficking crime," and "crime of violence," 18 U.S.C. §§ 924(c)(2) and (3). No definition is provided for the term "equipped."
Under such circumstances, "equipped" is to be given its ordinary everyday meaning. E.g., Moskal v. United States, 498 U.S. at 108; United States v. Concepcion, 983 F.2d at 380. "Equip" is generally understood to mean "to provide with what is necessary, useful, or appropriate," or to "fit out," whether "with material resources," or "clothing or ornament," or even "with intellectual or emotional resources." Webster's Third New International Dictionary 768 (1971). It is also understood to mean "to make ready or competent for service or action or against a present need." Id. That these everyday definitions are adequate to deal with the present issue of law is apparent from the similar definition of "equip" found in Black's: "To furnish for service or against a need or exigency; to fit out; to supply with whatever is necessary to efficient action in any way." Black's Law Dictionary 631 (4th Ed. 1968).
What is key to these definitions is not whether items are attached to one another, as urged by defendant, but whether the items stand in a relation one to the other that makes them ready for efficient service to meet a particular need or exigency. See People v. Verdino, 78 Misc. 2d 719, 721, 357 N.Y.S.2d 769, 772 (Suffolk County Ct. 1974) (holding that state law prohibiting one from "equipping a motor vehicle" with a radio set capable of receiving police signals was not limited to cases where the receiver was actually plugged into the vehicle: "a physical fastening is neither implicit in the term 'equip' nor necessary in order for a vehicle to be equipped as proscribed in the statute"). Obviously, one can frequently achieve this goal by attaching the items, but that is not the only means by which to do so. Indeed, had Congress's sole concern been with such a narrow category of equipment, it would have been simple enough to write legislation proscribing use of firearms to which silencers have been "attached." Instead, by deliberately choosing the more expansive word, "equipped," Congress comprehensively addressed the heightened dangers perceived to be present when drug traffickers, in calculated fashion, proximately position firearms and silencers so as to ensure that within seconds they are readily available for joint use.
Thus, whether a firearm is equipped with a silencer -- indeed, whether any item is equipped with another -- necessarily turns on the circumstances of a particular case, not simply on the fact of attachment. A few examples illustrate the frequency with which one item can generally be understood to be equipped with another although they are not always attached. Certainly, a hardware manufacturer can fairly offer to sell a saw "equipped" with various blades or a drill "equipped" with several bits of different sizes although in his packaging he separates the various items. Similarly, an appliance manufacturer can offer a vacuum cleaner "equipped" with various cleaning tools (and even call them "attachments") although none is actually attached to the suction nozzle at the time of sale, and although no more than one at a time can, in fact, be attached. A soldier can be equipped for service with uniforms and gear for different duties and climates, various weaponry, and supplies of ammunition but, except in actual combat, he is rarely required to carry all of them on his person.
So in the criminal context, it can fairly be said -- and more important for defendant's vagueness challenge, it can commonly be understood by the person of average intelligence -- that a firearm may be equipped with a silencer even though the latter is not actually attached to the former. What is essential is proof that the two weapons stand in such a relation to one another that they can efficiently be pressed into joint service to meet a particular need. This necessarily requires consideration of the physical closeness between the weapons as well as the ease with which they can accept one another. Certainly, if it were proved that a defendant had deliberately placed a silencer in the same briefcase as a loaded 9 mm. pistol, and that affixing that silencer to that pistol would take only seconds, no reasonable person could complain that he did not fairly understand that by such placement he was "equipping" the firearm with the silencer.
Further supporting this court's conclusion that "equipped," as used in § 924(c)(1), is fairly interpreted in light of its broad general meaning and not narrowly limited to items attached to one another is case law interpreting other key terms in the statute. The core prohibition of § 924(c)(1) is, after all, the "use" or "carrying" of a firearm during a crime of violence or a drug trafficking crime. It is only as a variation on that theme that particularly severe punishments are mandated if the firearm at issue is a machinegun, or a destructive device, or if it is equipped with a silencer. The terms "use" and "carry" -- which are not statutorily defined -- are certainly susceptible to narrow interpretation. And yet the federal courts have not, in either the name of lenity or due process, engaged in the sort of restrictive line drawing here urged by defendant. To the contrary, both terms have been given "exceptionally broad" definitions drawn from general usage. See 1A Leonard Sand, et al., Modern Federal Jury Instructions P 35.08, Comment to Instruction 35-55 (1993).
Thus, prosecution for "carrying" a firearm in violation of § 924(c)(1) has not been limited to those who have such weapons on their persons. It has been extended to those who have a gun "within reach" during the commission of a drug offense. See United States v. Feliz-Cordero, 859 F.2d 250, 253 (2d Cir. 1988) (citing approvingly to United States v. Brockington, 849 F.2d 872 (4th Cir. 1988) (evidence that defendant had fully loaded automatic pistol under his seat in a taxi cab and heroin and cocaine on his person sufficient to support a conviction for carrying a firearm during and in relation to a drug trafficking crime)).
Even more significantly, "use" of a firearm has not been limited to those occasions when a defendant actually fires or brandishes such a weapon. It has been held to apply to those drug transactions "in which the circumstances surrounding the presence of a firearm suggest that the possessor of the firearm intended to have it available for possible use during the transaction," or to those situations in which "the circumstances surrounding the presence of a firearm in a place where drug transactions take place suggest that it was strategically located so as to be quickly and easily available for use during such a transaction." Id. at 254 (emphasis added); see United States v. Medina, 944 F.2d 60 (2d Cir. 1991), cert. denied, 112 S. Ct. 1508 (1992); United States v. Meggett, 875 F.2d 24 (2d Cir.), cert. denied, 493 U.S. 858 (1989).
There is a striking consistency between the cited highlighted portion of the standard for determining "use" and the commonly understood meaning of the term "equipped." Such consistency is, of course, to be expected when terms so closely related in a statutory scheme are interpreted to effect Congress's purpose.
Had Congress, in enacting § 924(c)(1), intended by the word "use" to proscribe only the actual firing or brandishing of a firearm, defendant's contention that one could not, therefore, use a firearm "equipped" with a silencer unless the silencer was actually attached to the gun brandished or fired might have some appeal. But if, as Feliz-Cordero makes plain, a drug-dealing defendant uses a firearm in violation of § 924(c)(1) whenever he "strategically locate[s] it so as to [make it] quickly and easily available for use," then it is fair to say that the same defendant has "equipped" his firearm with a silencer whenever he has placed the two weapons in such a proximate relation to one another that they are ready for efficient joint action to meet any need or exigency that may arise.
The court finds that by giving the word "equipped," as used in § 924(c)(1), its common, everyday meaning, it best serves Congress's intent in broadly proscribing the use of firearms in relation to drug trafficking. Such an interpretation is, moreover, sufficiently comprehensible to persons of ordinary intelligence, particularly when considered in light of the facts of this case, to provide the notice required by due process. Defendant's constitutional challenge to Count Four of the indictment is rejected.
The statutory prohibition against use of a firearm "equipped" with a silencer in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1), is not unconstitutionally vague as applied to the facts of this case. The everyday meaning of the term equipped -- supplied or made ready with whatever is necessary efficiently to meet a particular need or exigency -- gives adequate notice to a person of ordinary intelligence that he risks prosecution if, in relation to drug trafficking, he deliberately places a silencer in a briefcase with a loaded firearm designed or modified readily to accept that silencer. It is, therefore, unnecessary to apply the rule of lenity to limit the statute to those cases in which a silencer is actually attached to a firearm. Defendant's motion to dismiss Count Four is denied. The jury will consider such relevant evidence as is adduced with respect to this count and determine whether the government has met its burden of proof beyond a reasonable doubt.
Dated: Brooklyn, New York
January 3, 1994
UNITED STATES DISTRICT JUDGE