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WHITE, J., dissenting

conjunction with one another, a “rifle” is, not surprisingly, the result.

This was the difficult issue presented by this case, and its resolution, for me, is dispositive, as respondent Thompson/ Center concedes that it manufactures and distributes together a collection of parts that may be readily assembled into a short-barreled rifle. Indeed, Thompson/Center's argument concerning statutory construction, as well as its appeal to the rule of lenity, does not suggest, nor does any case brought to our attention, that one may escape the tax and registration requirements the NFA imposes on those who “make” regulated rifles simply by distributing as part of the package other interchangeable pieces of sufficient design to avoid the regulated definition. The plurality nevertheless draws an artificial line between, on the one hand, those parts that “can serve no useful purpose except the assembly of a firearm” or that have “no ostensible utility except to convert a gun into such a weapon,” and, on the other hand, those parts that have "an obvious utility for those who want both a pistol and a regular rifle.” Ante, at 512-513.

I cannot agree. Certainly the statute makes no distinction based on the “utility” of the extra parts. While the plurality prefers to view this silence as creating ambiguity, I find it only to signal that such distinctions are irrelevant. To conclude otherwise is to resort to “'ingenuity to create ambiguity'” that simply does not exist in this statute. United States v. James, 478 U. S. 597, 604 (1986), quoting Rothschild v. United States, 179 U. S. 463, 465 (1900). As noted by the Government, when a weapon comes within the scope of the "firearm” definition, the fact that it may also have a nonregulated form provides no basis for failing to comply with the requirements of the NFA. Brief for United States 13–14.

The Court today thus closes one loophole—one cannot circumvent the NFA simply by offering an unassembled collection of parts—only to open another of equal dimension-one

STEVENS, J., dissenting

can circumvent the NFA by offering a collection of parts that can be made either into a “firearm” or an unregulated rifle. I respectfully dissent.

JUSTICE STEVENS, dissenting.

If this were a criminal case in which the defendant did not have adequate notice of the Government's interpretation of an ambiguous statute, then it would be entirely appropriate to apply the rule of lenity. I am persuaded, however, that the Court has misapplied that rule to this quite different


I agree with JUSTICE WHITE, see ante, at 523-524, and also with the plurality, see ante, at 511, that respondent has made a firearm even though it has not assembled its constituent parts. I also agree with JUSTICE WHITE that that should be the end of the case, see ante, at 524, and therefore, I join his opinion. I add this comment, however, because I am persuaded that the Government should prevail even if the statute were ambiguous.

The main function of the rule of lenity is to protect citizens from the unfair application of ambiguous punitive statutes. Obviously, citizens should not be subject to punishment without fair notice that their conduct is prohibited by law. The

See, e. g., Crandon v. United States, 494 U. S. 152, 168 (1990) (“Finally, as we have already observed, we are construing a criminal statute and are therefore bound to consider application of the rule of lenity. To the extent that any ambiguity over the temporal scope of (18 U. S. C.) $ 209(a) remains, it should be resolved in petitioners' favor unless and until Congress plainly states that we have misconstrued its intent"); Commissioner V. Acker, 361 U. S. 87, 91 (1959) (“The law is settled that “penal statutes are to be construed strictly,' ... and that one 'is not to be subjected to a penalty unless the words of the statute plainly impose it'”) (citations omitted).

2 Ambiguity in a criminal statute is resolved in favor of the defendant because “a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed'” and because “of the seriousness of criminal penalties, and because criminal punishment usually represents the moral con

STEVENS, J., dissenting

risk that this respondent would be the victim of such unfairness, is, however, extremely remote. In 1985, the Government properly advised respondent of its reading of the statute and gave it ample opportunity to challenge that reading in litigation in which nothing more than tax liability of $200 was at stake. See 924 F. 2d 1041, 1042–1043 (CA Fed. 1991). Moreover, a proper construction of the statute in this case would entirely remove the risk of criminal liability in the future.

The plurality, after acknowledging that this case involves "a tax statute” and its construction “in a civil setting,” ante, at 517, nevertheless proceeds to treat the case as though it were a criminal prosecution. In my view, the Court should approach this case like any other civil case testing the Government's interpretation of an important regulatory statute. This statute serves the critical objective of regulating the manufacture and distribution of concealable firearms—dangerous weapons that are a leading cause of countless crimes that occur every day throughout the Nation. This is a field that has long been subject to pervasive governmental regulation because of the dangerous nature of the product and the public interest in having that danger controlled. The public interest in carrying out the purposes that motivated the enactment of this statute is, in my judgment and on this record, far more compelling than a mechanical application of the rule of lenity.

Accordingly, for this reason, as well as for the reasons stated by JUSTICE WHITE, I respectfully dissent.

demnation of the community, [and therefore) legislatures and not courts should define criminal activity.” United States v. Bass, 404 U. S. 336, 348 (1971).

3 See, e. g., Gun Control Act of 1968, 18 U. S. C. 8 921 et seq.; Arms Export Control Act, as amended Pub. L. 94-329, 90 Stat. 744, 22 U. S. C. $2778; United States v. Biswell, 406 U. S. 311, 316 (1972) (acknowledging that the sale of firearms is a "pervasively regulated business”).




No. 91-5843. Argued March 2, 1992—Decided June 8, 1992 After a Florida jury found petitioner Sochor guilty of capital murder, the

jury was instructed at the penalty hearing on the possibility of finding four aggravating factors, including the State's "heinousness” and “coldness” factors. The jury was also charged with weighing any mitigating circumstances it might find against the aggravating ones in reaching an advisory verdict as to whether Sochor's sentence should be life imprisonment or death. The jury's recommendation of death was adopted by the trial court, which found all four aggravating circumstances defined in the jury instructions and no mitigating circumstances. The State Supreme Court held, among other things, that the question whether the jury instruction on the heinousness factor was unconstitutionally vague had been waived for failure to object. The court also held that the evidence failed to support the trial judge's finding of the coldness factor, but nevertheless affirmed the death sentence. Held:

1. The application of the heinousness factor to Sochor did not result in reversible error. Pp. 532–537.

(a) In a weighing State like Florida, Eighth Amendment error occurs when the sentencer weighs an “invalid” aggravating factor in reaching the decision to impose a death sentence. See Clemons v. Mississippi, 494 U. S. 738, 752. While federal law does not require the state appellate court reviewing such error to remand for resentencing, the court must, short of remand, either itself reweigh without the invalid aggravating factor or determine that weighing the invalid factor was harmless error. See, e. g., Parker v. Dugger, 498 U. S. 308, 321. P. 532.

(b) This Court lacks jurisdiction to address Sochor's claim that the jury instruction on the heinousness factor was unconstitutionally vague. The State Supreme Court indicated with requisite clarity that its rejection of the claim was based on an alternative state ground, see, e. g., Michigan v. Long, 463 U. S. 1032, 1041, and Sochor has said nothing to persuade the Court that this state ground is either not adequate or not independent, see Herb v. Pitcairn, 324 U. S. 117, 125–126. Pp. 533-534.

(c) No Eighth Amendment violation occurred when the trial judge weighed the heinousness factor. Although the State Supreme Court's recent decisions may have evinced inconsistent and overbroad constructions of the heinousness factor that leave trial judges without sufficient


guidance in other factual situations, that court has consistently held that heinousness is properly found where, as here, the defendant strangled a conscious victim. Under Walton v. Arizona, 497 U. S. 639, 653, it must be presumed that the trial judge in the case at hand was familiar with this body of case law, which, at a minimum, gave the judge “some guidance," id., at 654. This is all that the Eighth Amendment requires. Pp. 535–537.

2. The application of the coldness factor to Sochor constituted Eighth Amendment error that went uncorrected in the State Supreme Court. Pp. 538-541.

(a) Sochor's claim that an Eighth Amendment violation occurred when the jury "weighed” the coldness factor is rejected. Because, under Florida law, the jury does not reveal the aggravating factors on which it relies, it cannot be known whether the jury actually relied on the coldness factor here. This Court will not presume that a general verdict rests on a ground that the evidence does not support. Griffin v. United States, 502 U. S. 46, 59-60. P. 538.

(b) However, Eighth Amendment error occurred when the trial judge weighed the coldness factor. In Florida, the judge is at least a constituent part of the “sentencer” for Clemons purposes, and there is no doubt that the judge “weighed” the coldness factor in this case. Nor is there any question that the factor was “invalid” for Clemons purposes, since the State Supreme Court found it to be unsupported by the evidence. See Parker, supra, at 311. Pp. 538–539.

(c) The State Supreme Court did not cure the Eighth Amendment error. That court generally does not reweigh evidence independently. See, e. g., Parker, supra, at 319. Nor did that court support the death verdict by performing harmless-error analysis, since its opinion fails to mention “harmless error" and expressly refers to the quite different enquiry whether Sochor's sentence was proportional, and since only one of the four cases cited by the court contained explicit harmless-error

language. Pp. 539-540. 580 So. 2d 595, vacated and remanded.

SOUTER, J., delivered the opinion of the Court, Part I of which was unanimous, Part II of which was joined by REHNQUIST, C. J., and WHITE, O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., Part III-A of which was joined by REHNQUIST, C. J., and WHITE, O'CONNOR, KENNEDY, and THOMAS, JJ., Part III-B-1 of which was joined by REHNQUIST, C. J., and WHITE, BLACKMUN, STEVENS, O'CONNOR, KENNEDY, and THOMAS, JJ., and Parts III-B-2 and IV of which were joined by BLACKMUN, STEVENS, O'CONNOR, and KENNEDY, JJ. O'CONNOR, J., filed a concurring opinion, post, p. 541. REHNQUIST, C. J., filed an opinion concurring in part and dissenting in part, in which WHITE and THOMAS, JJ., joined, post, 541.

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