Welcome back to SCOTUS oral arguments and opinions.

We're continuing our season preview.

Last week, we covered the first three cases of the upcoming term, which begins in October 6th.

On Monday, we opened the season and quickly ran through the cases scheduled for argument in October and in November.

On Wednesday, we covered Berm vs Choi, a case that attempts to answer whether a medical malpractice complaint must be dismissed in federal court unless it complies with a Delaware law that requires all medical malpractice complaints be filed with an expert affidavit.

On Thursday, we dissected Villarreal versus Texas, a case that involves the question about whether when a defendant testifies on his or her own behalf in a trial, the lawyer can constitutionally speak with a defendant about his or her testimony.

And on Friday, we covered Chili's versus Salazar.

In this case, the Supreme Court must answer whether a law that prohibits censors conversion therapy conversations between counselors and their clients regulates violates the free Speech clause.

Those three cases comprise three of the four cases the Supreme Court will hear in its first week.

Back today, we're tackling the last case the Supreme Court will hear its first week, a case with a fascinating twist, Barrett versus United States.

It asks a seemingly simple if you commit a single criminal act, can the government convict and punish you for it twice?

It sounds like a question with an obvious answer, right?

But it gets complicated fast.

We have a federal law that punishes using a gun during a violent crime and another that punishes killing someone with that gun.

The issue is, if a defendant does both in one act, does the government get to stack the punishments?

And here's a twist.

The US Government, which normally prosecutes these cases, is actually siding with the criminal defendant.

They agree that punishing someone twice here violates the double jeopardy clause of the Fifth Amendment to the Constitution.

The US Government switched its position under the Trump administration and and after the Supreme Court took up the case.

Exactly.

Because at the merit stage, no one defended the ability to stack sentences.

The Supreme Court appointed outside lawyer Charles L. McLeod to defend sentence stacking.

Doing so will allow the court to hear both sides arguments.

That tells you right away that we're dealing with a really thorny legal issue.

But before getting too far into the case, we wanted to tell listeners that the Supreme Court agreed to hear the Trump tariffs case on November 5th.

We analyze the certiorary briefs of this blockbuster case in our September 10 episode called A Constitutional Trump's Tariffs and the Separation of Powers.

We'll cover the merits briefs as oral Arguments get closer.

All right, with that one bit of housekeeping out of the way, let's get into the specifics.

Can you read the official question the court agreed to answer?

Absolutely.

The court granted certiorari on this question whether the double jeopardy clause permits punishment under both section 924C and section 924J for one act that violates each statute.

At the heart of that question is a core constitutional protection.

Let me read the text from the fifth Amendment.

No person shall be subject for the same offense to be twice put in jeopardy of life or limb.

That language sounds pretty absolute.

The same offense twice put in jeopardy.

It seems straightforward.

It does.

Now, historically, the court has said this clause prevents the government from imposing more punishment than the legislature intended.

But the real fight here is about what Congress actually intended when it wrote these two complex gun statutes.

The first one is section 924C.

It says that anyone who uses a gun during a violent or drug crime shall, in addition to the punishment provided for such crime, be sentenced to a term of imprisonment of not less than five years.

We'll call this the gun use statute.

And that five year minimum is just the floor.

The penalties in the gun use section get much steeper depending on the specifics of the crime.

Two, for example, if a firearm is brandished, the minimum sentence jumps to seven years.

Three, if the firearm is actually discharged, it goes up to a 10 year minimum.

And if the defendant has a prior conviction under this same statute, the mandatory minimum skyrockets to 25 years.

So it's not just about having a gun.

It's a detailed ladder of punishments based on the defendant's actions and history.

And it's not just about what you do with the gun, but also what kind of gun it is.

This is where the penalties become incredibly severe.

If the defendant uses a machine gun, a destructive device, or even just a gun equipped with a silencer or muffler, the mandatory minimum is 30 years.

Wait 30 years.

Not as a maximum, but as the starting point.

That's a huge jump from the base of five.

It's a massive jump.

And on top of all these required minimums, the statute doesn't set a maximum, meaning a judge has the discretion to impose a sentence all the way up to life in prison.

Wow.

Okay, got it.

And it gets even stronger.

Section 924C includes what the Supreme Court calls a consecutive sentence mandate.

It directs that a sentence under this section shall not run concurrently with any other term of imprisonment.

That means it has to be served back to back not at the same time.

Wait, so that in addition to language, sounds like Congress explicitly telling courts to stack sentences.

It is.

Okay, that seems pretty clear.

So where's the conflict?

The conflict comes from the second statute, Section 924J.

This is the one that punishes killing someone with a gun.

Its very first line defines the crime as when a person in the course of a violation of subsection C causes the death of a person.

We'll call subsection 9.24J the fatal result section.

So to even prove a violation of the fatal result section, you first have to prove a violation of the gun use statute.

That means the first crime is a building block for the second.

That's fascinating because it sets up the core tension.

Does the government get to punish you for the building block and for the final structure?

You got it.

And the facts of this case lay that tension out perfectly.

Let's talk about the background.

This case involves Dwayne Barrett, who joined a robbery crew in New York in 2011.

He acted as the getaway driver while two others robbed men inside a minivan.

During the robbery, one of Barrett's co conspirators shot and killed Gamar Dafala.

So for that single act, a robbery where a gun was used and a person was killed, the government charged Barrett.

Under both statutes, a jury convicted Barrett of violating section 924C, the gun use section, for using the gun, and section 924J, the fatal result, section 4, 3, resulting murder.

Now, at the initial sentencing, the trial judge thought this looked like a classic double jeopardy problem.

He said that since since the gun crime was a necessary part of the murder crime, they were the same offense and had to be merged for sentencing.

So he only punished Barrett under the more serious fatal results section.

That seems like a common sense approach.

Barrett appealed the case.

And then things got complicated after a trip up to the Supreme Court and backed down on a different issue.

The case landed in the Second Circuit Court of Appeals again, and this time, the Second Circuit flipped the script.

It said that far from being unconstitutional, punishing Barrett under both statutes was required.

The court reasoned that Congress created two distinct offenses and that the text of Section 924 commanded that its sentence be added on top of any other sentence.

This created a deep disagreement among the federal courts of appeal, what lawyers call a circuit split on how to handle these cases.

And that circuit split is exactly why the Supreme Court decided to take the case.

They granted certiorari legalese.

That just means the court agreed to hear the case and issue A final nationwide ruling on the question.

And as we mentioned, it led to the very unusual situation where the Solicitor General, the government's top lawyer, switched sides and now believes the 2nd Circuit got it wrong and that these sentences can't be stacked.

So let's get into the legal arguments the court will be hearing.

On one side, you have Dwayne Barrett, who is in a rare moment of agreement, fully supported by the US Government.

Their argument is grounded in a landmark case called Block Burger versus United States.

For our listeners, Blockburger established what's known as the same elements test.

The idea is to look at the ingredients or elements of two crimes.

If each crime has at least one unique ingredient that the other doesn't, they're different offenses.

But if one crime contains all the ingredients of another, plus one or two more, it's considered a greater offense and the other is a lesser included offense.

And when you have a greater and lesser included offense, the Constitution presumes they are the same offense and a person can only receive punished for one of the offenses.

That is, unless Congress gives a crystal clear statement that it wants to punish both as separate offenses.

Exactly.

So Barrett and the government say that section 924C, the gun use section, is a textbook lesser included offense of section 924J, the fatal results section.

You literally cannot violate fatal results section without first violating the gun use section.

So the presumption against double punishment applies.

Then they make their killer argument, which comes from another part of the statute, section 924.

This part deals with crimes using armor piercing ammunition.

In that subsection, Congress explicitly wrote that the punishment for using armored piercing ammunition runs in addition to the lesser included crime.

Wait, so you're telling me Congress included specific language to allow stacking for armor piercing bullets, but left that language out for regular bullets under the fatal results section?

Precisely.

And that omission is deafening.

Barrett and the government argue it's proof that Congress knew exactly how to authorize cumulative punishment when it wanted to, and it chose not to do so here.

Okay, so how does the court appointed lawyer rebut these arguments?

How does the court appointed amicus defend the Second Circuit's ruling?

The amicus makes a very clever textual argument.

He points back to that consecutive sentence mandate in the gun use section that says its sentence must be served back to back with any other term of imprisonment.

The amicus says that since the Supreme Court in Laura called the fatal results section a standalone separate offense, then a sentence under the fatal results section is clearly an other term of imprisonment.

So Congress did provide a clear statement.

It's just located entirely within the gun use section.

That's a really interesting structural point.

The amicus also argues from a common sense perspective, right that Congress intended to punish two different evils.

Section 924 punishes the abstract danger of of bringing a gun to a crime, while section 9, 24J punishes the concrete harm of a resulting death.

Since they are targeting different wrongs, it makes sense to punish for both.

And that leads to the amicus's strongest point.

Avoiding absurd results.

He presents a A criminal who uses a machine gun to commit voluntary manslaughter could, under the fatal result section, section 924J face a maximum sentence of 15 years.

But a different criminal who merely brandishes a machine gun without hurting anyone faces a mandatory minimum of 30 years under the gun use section.

Section 924C, the amicus argues there is no way Congress intended for the person who actually killed someone to get a lighter sentence.

Therefore, the only logical conclusion is that Congress wanted both sentences to apply.

Looking ahead to oral argument, I'll be listening to see how the Justices grapple with that absurd results hypothetical.

Do they see it as a reason to ignore the Blockburger presumption?

Or do they say that's a policy problem that Congress, not the Court, needs to fix?

And I'll be focused on how they interpret the different statutory texts.

Do they agree with the petitioner that the absence of stacking language in the fatal result section is decisive, especially when compared to the explicit language in the armor piercing section?

Or do they agree with the amicus that the broad any other term of imprisonment language in the gun use section is clear enough to do the job.

Another point of oral argument interest.

I can see the entire case turning on one powerful common sense argument from the amicus, the absurd results problem we just mentioned the court appointed lawyer's hypothetical and argument about how that under the petitioner's logic, a criminal uses a machine gun to commit voluntary manslaughter under the fatal result statute, section 924J, the maximum possible sentence is 15 years.

Yet if another criminal who just uses a machine gun during a crime without killing anyone faces a mandatory minimum sentence of 30 years under the gun use statute, Section 924, according to the petitioner, that feels completely backward and contrary to Congress's intent.

In their reply briefs, the petitioner and the government argue this clever hypothetical falls apart under scrutiny.

Their first response is simple prosecutorial discretion.

They argue that in this scenario a prosecutor would simply choose to charge the defendant under the gun use statute to get the 30 year minimum sentence.

There's no law forcing them to pick the manslaughter charge with the lower penalty.

The absurd result, they say, is easily avoided in the real world.

The government adds another point.

The Supreme Court has already seen this movie.

In the Laura case, the government made a similar argument about implausible results, and the court rejected it.

The Court essentially said that Congress is allowed to create different punishment schemes, one with high minimums and another with high maximums and flexibility.

And it's not the court's job to rewrite the law if the interaction seems strange.

And the petitioner's reply brief makes one more technical but crucial point.

He argues that in this specific hypothetical, the two crimes might not even be the same offense under the Blockburger test.

The machine gun crime requires proof of a specific weapon type, which the manslaughter crime doesn't, and the manslaughter crime requires proof of a death, which the machine gun crime doesn't.

If they each have a unique element, then there's no double jeopardy violation in punishing both, and the whole hypothetical dissolves.

So at oral argument, I'll be watching to see which of the justices are persuaded by the amicus's common sense absurdity argument versus those who stick to the petitioner's strict textual and structural analysis.

The case may ride or fall on whether the court appointed lawyer lands the hypothetical.

So why does this case matter beyond the walls of the courthouse?

It's about a core constitutional protection against government overreach.

The double jeopardy clause ensures that once the state has punished someone for a crime, it doesn't get a second bite at the apple for the same act.

This case tests the limits of that principle, and the practical stakes are huge.

The outcome will affect how federal prosecutors charge gun crimes and how judges calculate sentences across the country.

It's a fundamental question about the separation of powers.

It is Congress's job to write criminal laws, and it's the judiciary's job to interpret them.

The question here is whether the lower court imposed a punishment that Congress never clearly authorized.

This case forces the court to decide just how clear a clear statement has to be when a fundamental right like the protection against double jeopardy is on the line.

We'll be closely following the oral arguments and we'll be back to break down the decision once it's released.

Thanks for joining us for this deep dive into Barrett versus United States.

If you found this helpful, please rate and share our podcast.

In the next episode, we'll tackle Postal Service versus Conan, a case that asks whether a person can sue the government when postal workers allegedly refuse to deliver mail to specific addresses and out of spite or discrimination.

It's a fascinating question about federal immunity that could affect how Americans seek redress when the post office fails them.

Thanks for listening to SCOTUS oral arguments and opinions.

Talk to you soon.