author: Justice Scalia Justice Stevens,

text:
    DEAL v. UNITED STATES
    No. 91-8199.
    Argued March 1, 1993 —
    Decided May 17, 1993

      Dola J. Young argued the cause for petitioner. With her on the briefs were Roland E. Dahlin II and H. Michael Sokolow.

      Miguel A. Estrada argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Robert J. Erickson.

   Justice Scalia

delivered the opinion of the Court.

Between January and April 1990, petitioner committed six bank robberies on six different dates in the Houston, Texas, area. In each robbery, he used a gun. Petitioner was convicted of six counts of bank robbery, 18 U. S. C. §§ 2118(a) and (d), six counts of carrying and using a firearm during and in relation to a crime of violence, § 924(c), and one count of being a felon in possession of firearms, § 922(g). Title 18 U. S. C. § 924(c)(1) (1988 ed., Supp. III) provides:

“Whoever, during and in relation to any crime of violence ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ..., be sentenced to imprisonment for five years .... In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years ....”

The United States District Court for the Southern District of Texas sentenced petitioner to 5 years’ imprisonment on the first § 924(c)(1) count and to 20 years on each of the other five § 924(c)(1) counts, the terms to run consecutively. The United States Court of Appeals for the Fifth Circuit affirmed the convictions and sentence. 954 F. 2d 262 (1992). We granted certiorari on the question whether petitioner’s second through sixth convictions under § 924(c)(1) in this single proceeding arose “[i]n the ease of his second or subsequent conviction” within the meaning of § 924(e)(1). 506 U. S. 814 (1992).

Petitioner contends that the language of § 924(c)(1) is facially ambiguous, and should therefore be construed in his favor pursuant to the rule of lenity. His principal argument in this regard is that the word “conviction” can, according to the dictionary, have two meanings, “either the return of a jury verdict of guilt or the entry of a final judgment on that verdict,” Brief for Petitioner 4; and that the phrase “second or subsequent conviction” could therefore “mean ‘an additional finding of guilt rendered at any time’ ” (which would include petitioner’s convictions on the second through sixth counts in the single proceeding here) or “ ‘a judgment of conviction entered at a later time,’” (which would not include those convictions, since the District Court entered only a single judgment on all of the counts), id., at 7.

It is certainly correct that the word “conviction” can mean either the finding of guilt or the entry of a final judgment on that finding. The word has many other meanings as well, including “[a]ct of convincing of error, or of compelling the admission of a truth”; “[s]tate of being convinced; esp., state of being convicted of sin, or by one’s conscience”; “[a] strong persuasion or belief; as, to live up to one’s convictions; an intensity of thorough conviction.” Webster’s New International Dictionary 584 (2d ed. 1950). But of course susceptibility of all of these meanings does not render the word “conviction,” whenever it is used, ambiguous; all but one of the meanings is ordinarily eliminated by context. There is not the slightest doubt, for example, that § 924(c)(1), which deals with punishment in this world rather than the next, does not use “conviction” to mean the state of being convicted of sin. Petitioner’s contention overlooks, we think, this fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used. See King v. St. Vincent’s Hospital, 502 U. S. 215, 221 (1991); Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989); United States v. Morton, 467 U. S. 822, 828 (1984).

In the context of § 924(c)(1), we think it unambiguous that “conviction” refers to the finding of guilt by a judge or jury that necessarily precedes the entry of a final judgment of conviction. A judgment of conviction includes both the adjudication of guilt and the sentence. See Fed. Rule Crim. Proc. 32(b)(1) (“A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence” (emphasis added)); see also Black’s Law Dictionary 843 (6th ed. 1990) (quoting Rule 32(b)(1) in defining “judgment of conviction”). Thus, if “conviction” in § 924(e)(1) meant “judgment of conviction,” the provision would be incoherent, prescribing that a sentence which has already been imposed (the defendant’s second or subsequent “conviction”) shall be 5 or 20 years longer than it was.

Petitioner contends that this absurd result is avoided by the “[i]n the case of” language at the beginning of the provision. He maintains that a case is the “case of [a defendant’s] second or subsequent” entry of judgment of conviction even before the court has entered that judgment of conviction and even before the eourt has imposed the sentence that is the prerequisite to the entry of judgment of conviction. We think not. If “conviction” meant “entry of judgment of conviction,” a “case” would surely not be the “case of his second or subsequent conviction” until that judgment of conviction was entered, by which time a lower sentence than that which § 924(c)(1) requires would already have been imposed. And more fundamentally still, petitioner’s contention displays once again the regrettable penchant for construing words in isolation. The word “case” can assuredly refer to a legal proceeding, and if the phrase “in the case of” is followed by a name, such as “Marbury v. Madison,” that is the apparent meaning. When followed by an act or event, however, “in the case of” normally means “in the event of” — and we think that is its meaning here.

The sentence of § 924(c)(1) that immediately follows the one at issue here confirms our reading of the term “conviction.” That sentence provides: “Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection.” That provision, like the one before us in this ease, is obviously meant to control the terms of a sentence yet to be imposed. But if we give the term “convicted” a meaning similar to what petitioner contends is meant by “conviction” — as connoting, that is, the entry of judgment, which includes sentence — we once again confront a situation in which the prescription of the terms of a sentence cannot be effective until it is too late, i. e., until after the sentence has already been pronounced.

We are also confirmed in our conclusion by the recognition that petitioner’s reading would give a prosecutor unreviewable discretion either to impose or to waive the enhanced sentencing provisions of § 924(c)(1) by opting to charge and try the defendant either in separate prosecutions or under a multicount indictment. Although the present prosecution would not have permitted enhanced sentencing, if the same charges had been divided into six separate prosecutions for the six separate bank robberies, enhanced sentencing would clearly have been required. We are not disposed to give the statute a meaning that produces such strange consequences.

The dissent contends that § 924(e)(1) must be read to impose the enhanced sentence only for an offense committed after a previous sentence has become final. Though this interpretation was not mentioned in petitioner’s briefs, and was put forward only as a fallback position in petitioner’s oral argument, see Tr. of Oral Arg. 4, the dissent thinks it so “obvious,” post, at 142, that our rejection of it constitutes a triumph of “textualism” over “common sense,” post, at 146, and the result of “an elaborate exercise in sentence parsing,” ibid. We note, to begin with, that most of the textual distinctions made in this opinion — all of them up to this point— respond to the elaborate principal argument of petitioner that “conviction” means “entry of judgment.” It takes not much “sentence parsing” to reject the quite different argument of the dissent that the terms “subsequent offense” and “second or subsequent conviction” mean exactly the same thing, so that “second conviction” means “first offense after an earlier conviction.”

No one can disagree with the dissent’s assertion that “Congress sometimes uses slightly different language to convey the same message,” post, at 137 — but when it does so it uses “slightly different language” that means the same thing. “Member of the House” instead of “Representative,” for example. Or “criminal offense” instead of “crime.” But to say that “subsequent offense” means the same thing as “second or subsequent conviction” requires a degree of verbal know-nothingism that would render government by legislation quite impossible. Under the terminology “second or subsequent conviction,” in the context at issue here, it is entirely clear (without any “sentence parsing”) that a defendant convicted of a crime committed in 1992, who has previously been convicted of a crime committed in 1993, would receive the enhanced sentence.

The dissent quotes extensively from Gonzalez v. United States, 224 F. 2d 431 (CA1 1955). See post, at 138-139. But far from supporting the “text-insensitive” approach favored by the dissent, that case acknowledges that “[i]n construing subsequent offender statutes ... the decisions of the courts have varied depending upon the particular statute involved.” 224 F. 2d, at 434. It says; as the dissent points out, that federal courts have “uniformly” held it to be the rule that a second offense can occur only after conviction for the first. Ibid. But those holdings were not arrived at in disregard of the statutory text. To the contrary, as Gonzalez goes on to explain:

“ Tt cannot legally be known that an offense has been committed until there has been a conviction. A second offense, as used in the criminal statutes, is one that has been committed after conviction for a first offense/” Ibid, (quoting Holst v. Owens, 24 F. 2d 100, 101 (CA5 1928)).

The present statute, however, does not use the term “offense,” so it cannot possibly be said that it requires a criminal act after the first conviction. "What it requires is a conviction after the first conviction. There is utterly no ambiguity in that, and hence no occasion to invoke the rule of lenity. (The erroneous lower-court decisions cited by the dissent, see post, at 142-144, do not alter this assessment; judges cannot cause a clear text to become ambiguous by-ignoring it.)

In the end, nothing but personal intuition supports the dissent’s contention that the statute is directed at those who “ Tañed to learn their lessons from the initial punishment,’ ” post, at 146 (quoting United States v. Neal, 976 F. 2d 601, 603 (CA9 1992) (Fletcher, J., dissenting)). Like most intuitions, it finds Congress to have intended what the intuitor thinks Congress ought to intend. And like most intuitions, it is not very precise. “[Flailed to learn their lessons from the initial punishment” would seem to suggest that the serving of the punishment, rather than the mere pronouncement of it, is necessary before the repeat criminal will be deemed an inadequate student — a position that certainly appeals to “common sense,” if not to text. Elsewhere, however, the dissent says that the lesson is taught once “an earlier conviction has become final,” post, at 142 — so that the felon who escapes during a trial that results in a conviction becomes eligible for enhanced punishment for his later crimes, though he has seemingly been taught no lesson except that the law is easy to beat. But no matter. Once text is abandoned, one intuition will serve as well as the other. We choose to follow the language of the statute, which gives no indication that punishment of those who fail to learn the “lesson” of prior conviction or of prior punishment is the sole purpose of § 924(e)(1), to the exclusion of other penal goals such as taking repeat offenders off the streets for especially long periods, or simply visiting society’s retribution upon repeat offenders more severely. We do not agree with the dissent’s suggestion that these goals defy “common sense.” It seems to us eminently sensible to punish the second murder, for example, with life .in prison rather than a term of years— whether or not conviction of the first murder (or completion of the sentence for the first murder) has yet occurred.

Finally, we need not tarry over petitioner’s contention that the rule of lenity is called for because his 105-year sentence “is so glaringly unjust that the Court cannot but question whether Congress intended such an application of the phrase, ‘in the case of his second or subsequent conviction.’” Brief for Petitioner 24. Even under the dissent’s reading of § 924(c)(1), some criminals whose only offenses consist of six armed bank robberies would receive a total sentence of 105 years in prison. We see no reason why it is “glaringly unjust” that petitioner be treated similarly here, simply because he managed to evade detection, prosecution, and conviction for the first five offenses and was ultimately tried for all six in a single proceeding.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice Stevens,

with whom

Justice Blackmun and Justice O’Connor join, dissenting.

Congress sometimes uses slightly different language to convey the same message. Thus, Congress uses the terms “subsequent offense,” “second or subsequent offense,” and “second or subsequent conviction” in various sections of the Criminal Code, all to authorize enhanced sentences for repeat offenders. On some occasions, Congress meticulously defines the chosen term to identify those offenses committed after a prior conviction “has become final”; more frequently, it relies on settled usage and the reader’s common sense to impart the same meaning.

In certain sections of the Code, even absent a definition, the context makes perfectly clear that the word “subsequent” describes only those offenses committed after a prior conviction has become final. Title 18 U. S. C. § 1302, for instance, which prohibits mailing of lottery tickets, authorizes a 5-year prison sentence for “any subsequent offense.” A literal reading of that phrase, like the one adopted by the majority today, presumably would justify imposition of five 5-year sentences if a defendant who sold six lottery tickets through the mail were charged in a single indictment. But it is absurd to think that Congress intended to treat such a defendant as a repeat offender, subject to penalty enhancement, “simply because he managed to evade detection, prosecution, and conviction for the first five offenses and was ultimately tried for all six in a single proceeding.” Ante, at 137.

In other Code sections, where context is less illuminating, the long-established usage of the word “subsequent” to distinguish between first offenders and recidivists is sufficient to avoid misunderstanding by anyone familiar with federal criminal practice. Thus, in a 1955 opinion construing the undefined term “subsequent offense,” the First Circuit noted that most “subsequent offender” statutes had been construed to provide that any offense “committed subsequent to a conviction calls for the increased penalty.” Gonzalez v. United States, 224 F. 2d 431, 434 (1955). The court continued:

“In the United States courts uniformly this has been held to be the rule. In Singer v. United States, [278 F. 415 (1922)], the Court of Appeals for the Third Circuit considered a substantially similar statute to that presently before us and held that a second offense within the meaning of the statute could occur only after a conviction for the first offense. See, e. g., United States v. Lindquist, [285 F. 447 (WD Wash. 1921)], and Biddle v. Thiele, [11 F. 2d 235 (CA8 1926)]. The Court of Appeals for the Fifth Circuit said in Holst v. Owens, [24 F. 2d 100, 101 (1928)]: Tt cannot legally be known that an offense has been committed until there has been a conviction. A second offense, as used in the criminal statutes, is one that has been committed after conviction for a first offense. Likewise, a third or any subsequent offense implies a repetition of crime after each previous conviction.’ Similarly, in Smith v. United States, [41 F. 2d 215, 217 (CA9 1930)], the court stated: Tn order that a conviction shall affect the penalty for subsequent offenses, it must be prior to the commission of the offense.’ ” Ibid.

Congress did not define the term “subsequent conviction” when it enacted § 924(e) in 1968. It is fair to presume, however, that Congress was familiar with the usage uniformly followed in the federal courts. See NLRB v. Amax Coal Co., 453 U. S. 322, 329 (1981); Perrin v. United States, 444 U. S. 37, 42-45 (1979). Indeed, given the settled construction of repeat offender provisions, it is hardly surprising that Congressman Poff, who proposed the floor amendment that became § 924(c), felt it unnecessary to elaborate further. Cf. Morissette v. United States, 342 U. S. 246, 263 (1952) (“[W]here Congress borrows terms of art... absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them”). It is also unsurprising that there appears to have been no misunderstanding of the term “second or subsequent conviction” for almost 20 years after the enactment of § 924(c).

Section 924(e) was construed by this Court for the first time in Simpson v. United States, 435 U. S. 6 (1978), a case involving sentencing of a defendant who had committed two bank robberies, two months apart. Convicted in two separate trials, the defendant was sentenced in each for bank robbery, and in each to 10 years under § 924(c), then the maximum authorized term for a first-time offender. Id., at 9. Apparently, nobody considered the possibility that the defendant might have been treated as a repeat offender at his second trial, and sentenced under § 924(c)’s “second or subsequent conviction” provision. ’ In any event, despite the fact that the literal language of the statute would have authorized the § 924(c) sentences, id., at 16-17 (Rehnquist, J., dissenting), the Court set them aside, applying the rule of lenity and concluding that Congress did not intend enhancement under § 924(c) when, as in Simpson’s case, a defendant is also sentenced under a substantive statute providing for an enhancement for use of a firearm. Id., at 14-15.

In Busic v. United States, 446 U. S. 398 (1980), the Court construed the first offender portion of § 924(e) even more narrowly than in Simpson, again rejecting a literal reading of the statutory text that would have supported a contrary result. In his dissenting opinion, Justice Stewart succinctly described § 924(c) as a “general enhancement provision— with its stiff sanctions for first offenders and even stiffer sanctions for recidivists.” This understanding that the term “second or subsequent conviction” was used to describe recidivism seemingly was shared by other judges, as several years were to elapse before the construction adopted by the Eleventh Circuit in United States v. Rawlings, 821 F. 2d 1543, cert. denied, 484 U. S. 979 (1987), and endorsed by the Court today, appeared in any reported judicial opinion.

At oral argument, the Government was unable to tell us how the “second or subsequent conviction” language of §,924(c) was construed by Government prosecutors prior to 1987, when Rawlings was decided. Tr. of Oral Arg. 27-28. It seems to me, however, quite likely that until 1987, the Government read the “second or subsequent” section of § 924(e) as a straightforward recidivist provision, just as Justice Stewart did in 1980. That reading certainly would comport with the Government’s submissions to this Court in Simpson, supra, and Busic, supra, both of which describe the “second or subsequent conviction” provision in terms of recidivism. It would be consistent, too, with the reported cases involving § 924(c) sentencing, which make clear that the district courts were routinely imposing consecutive 5-year sentences when defendants were convicted of two separate offenses under § 924(e), apparently without objection from the Government that the second conviction warranted a longer sentence. See, e. g., United States v. Henry, 878 F. 2d 937, 938 (CA6 1989); United States v. Jim, 865 F. 2d 211, 212 (CA9), cert. denied, 493 U. S. 827 (1989); United States v. Fontanilla, 849 F. 2d 1257, 1258 (CA9 1988); United States v. Chalan, 812 F. 2d 1302, 1315 (CA10 1987), cert. denied, 488 U. S. 983 (1988).

In light of this history, I would find no ambiguity in the phrase “subsequent conviction” as used in § 924(e). Like its many counterparts in the Criminal Code, the phrase clearly is intended to refer to a conviction for an offense committed after an earlier conviction has become final; it is, in short, a recidivist provision. When that sensible construction is adopted, of course, the grammatical difficulties and the potential for prosecutorial manipulation that trouble the majority, see ante, at 181-134, are avoided entirely. See United States v. Neal, 976 F. 2d 601, 603 (CA9 1992) (Fletcher, J., dissenting) (“common-sense reading of § 924(c)” as recidivist statute).

Even assuming, however, that the meaning of § 924(c)’s repeat offender provision is not as obvious as I think, its history belies the notion that its text admits of only one reading, that adopted in Rawlings. Surely it cannot be argued that a construction surfacing for the first time 19 years after enactment is the only available construction. Indeed, even after Rawlings, there is no consensus on this point; some courts — and some Government prosecutors — continue to apply § 924(c) as a recidivist statute. In United States v. Nabors, 901 F. 2d 1351 (CA6), cert. denied, 498 U. S. 871 (1990), for instance, a ease decided in 1990, the Court of Appeals purported to follow Rawlings, but actually affirmed imposition of two 5-year sentences for convictions on two distinct § 924(c) violations. Similarly, in United States v. Luskin, 926 F. 2d 372 (CA4), cert. denied, 502 U. S. 815 (1991), decided a year later, the Court of Appeals upheld three 5-year sentences for three violations of § 924(c) committed on separate dates, even though the minimum mandatory penalty for a “second or subsequent conviction” was 10 years at the time of trial. Significantly, the Government did not challenge the 5-year sentences on the second and third convictions.

At the very least, this equivocation on the part of those charged with enforcing § 924(c), combined with the understanding of repeat offender provisions current when § 924(c) was enacted, render the construction of § 924(e) sufficiently uncertain that the rule of lenity should apply. Cf. Simpson, 435 U. S., at 14-15; see United States v. Abreu, 962 F. 2d 1447, 1450-1451 (CA10 1992) (en banc). As one District Court judge said of § 924(c), in the course of a 1991 sentencing:

“The statute is not a model of clarity. Its use of the word ‘conviction’ rather than wording describing the offense suggests an intent to reach recidivists who repeat conduct after conviction in the judicial system for prior offenses. The legislative history suggests that Congress was trying to impose draconian punishment ‘if he does it a second time.’ 114 Cong. Rec. 22231, 22237 (1968). It is unclear whether this means a second time as a recidivist or a second time offender who has not faced deterrence by a prior sentence. Criminal statutes must be strictly construed. Nabors [901 F. 2d, at 1358] said that ‘§ 924(c)(1) is, at best, hard to follow in simple English . .With Mr. Godwin in front of me, I decline to hold him to a higher test than one found difficult by appellate court judges.” United States v. Godwin, 758 F. Supp. 281, 283 (ED Pa. 1991).

In an effort to cure § 924(c) of any ambiguity, the Court undertakes an intricate grammatical analysis, with an emphasis on the word “conviction.” According to the Court, the “conviction” referred to in § 924(c) must be a finding of guilt, preceding the entry of final judgment, because sentence is imposed with the final judgment; if “conviction” referred to the final judgment itself, there would be no opportunity for sentence enhancement. Ante, at 132. The “absurdity]” of this situation, ibid., which, I note, has thus far eluded all of the courts to apply § 924(c) as a recidivist statute, see supra, evaporates if we assume that sentencing judges are gifted with enough common sense to understand that they may, upon entry of a second final judgment, enhance the sentence incorporated therein. In any event, the majority’s conclusion that a “second or subsequent conviction” is a finding of guilt leaves unanswered the question dispositive here: whether that second conviction (finding of guilt or entry of judgment) is subject to enhancement if it is not for an offense committed after a prior conviction has become final.

The Court finds additional support for its conclusion in the fact that at least some contrary readings of § 924(c) would “give a prosecutor unreviewable discretion either to impose or to waive the enhanced sentencing provisions” through the manner in which she charged a crime or crimes. Ante, at 133. I have already pointed out that the majority’s particular concern is not implicated if § 924(c) is treated as a straightforward recidivist provision, supra, at 142-143; under that construction, a defendant who commits a second § 924(c) offense before trial on the first would not be eligible. for sentence enhancement whether the two counts were tried separately or together. I would add only that the Court’s alternative reading does not solve the broader problem it identifies. As the Government concedes, see Tr. of Oral Arg. 31-32, prosecutors will continue to enjoy considerable discretion in deciding how many § 924(c) offenses to charge in relation to a criminal transaction or series of transactions. An armed defendant who robs a bank and, at the same time, assaults a guard, may be subject to one or two § 924(c) charges; the choice is the prosecutor’s, and the consequence, under today’s holding, the difference between a 5- and a 15-year enhancement. Cf. United States v. Jim, 865 F. 2d, at 212 (defendant charged with three counts under § 924(c), each arising from the same criminal episode); United States v. Fontanilla, 849 F. 2d, at 1257 (same).

Section 924(c) of the Criminal Code mandates an enhanced, 20-year sentence for repeat offenders. Between 1968, when the statute was enacted, and 1987, when textualism replaced common sense in its interpretation, the bench and bar seem to have understood that this provision applied to defendants who, having once been convicted under § 924(c), “failed to learn their lessons from the initial punishment” and committed a repeat offense. See United States v. Neal, 976 F. 2d, at 608 (Fletcher, J., dissenting). The contrary reading adopted by the Court today, driven by an elaborate exercise in sentence parsing, is responsive to neither historical context nor common sense. Because I cannot agree with this unwarranted and unnecessarily harsh construction of § 924(c), the meaning of which should, at a minimum, be informed by the rule of lenity, I respectfully dissent.

       Petitioner also argues that the terms “second” and “subsequent” admit of at least two meanings — next in time and next in order or succession. That ambiguity is worth pursuing if “conviction” means “judgment,” since a judgment entered once-in-time can (as here) include multiple, counts. The point becomes irrelevant, however, when “conviction” means (as we hold) a finding of guilt. Unlike a judgment on several counts, findings of guilt on several counts are necessarily arrived at successively in time.

       The dissent contends that even under our reading of the statute, “prosecutors will continue to enjoy considerable discretion in deciding how many § E)24(c) offenses to charge in relation to a criminal transaction or series of transactions.” Post, at 145. That discretion, however, pertains to the prosecutor’s universally available and unvoidable power to charge or not to charge an offense. Petitioner’s reading would confer the extraordinary new power to determine the punishment for a charged offense by simply modifying the manner of charging.

       The dissent quotes approvingly the ungarnished policy view that “‘punishing first offenders [i. e., repeat offenders who have not yet been convicted of an earlier offense] with twenty-five-year sentences does not deter crime as much as it ruins lives.’ ” Post, at 146, n. 10 (quoting United States v. Jones, 965 F. 2d 1507, 1521 (CA8 1992)).

       See, e. g., 18 U. S. C. § 1302 ("subsequent offense” related to mailing of lottery tickets); § 1735 (“second or subsequent offense” related to sexually oriented advertising); § 844(h) (“second or subsequent conviction” for felonious use of explosives).

       See, e. g., 21 U. S. C. § 859(b) (1988 ed., Supp. III) (distribution of drugs to minors); 21 U. S. C. § 860(b) (1988 ed., Supp. Ill) (distribution of drugs near schools); 21 U. S. C. § 962(b) (importation of controlled substances).

       See, e.g., 18 U. S. C. §2114 (“subsequent offense” of mail robbery), as interpreted in United States v. Cooper, 580 F. 2d 259, 261 (CA7 1978) (“obvious” that “subsequent offense” language must be read as applying only to offenses committed after conviction on a prior offense).

         446 U. S., at 416. His full comment:
      “I agree with the holding in Simpson that Congress did not intend to ‘pyramid' punishments for the use of a firearm in a single criminal transaction. Yet I find quite implausible the proposition that Congress, in enacting § 924(c)(1), did not intend this general enhancement provision — with its stiff sanctions for first offenders and even stiffer sanctions for recidivists — to serve as an alternative source of enhanced punishment for those who commit felonies, such as bank robbery and assaulting a federal officer, that had been previously singled out by Congress as warranting special enhancement, but for which a lesser enhancement sanction than that imposed by § 924(c) had been authorized.”

       See Brief for United States in Busic v. United States, O. T. 1979, No. 78-6020, p. 19 (“Section 924(c) establishes mandatory minimum sentences, requires increasingly severe sentences for recidivists (without possibility of suspension or probation), and prohibits concurrent sentencing”); Brief for United States in Simpson v. United States, O. T. 1977, No. 76-5761, pp. 13-14 (discussing application of sentencing provisions “[i]f the gun-wielding bank robber were a recidivist”).

       Dismissing these eases, as well as those decided pre-Rawlings, as a long line of “erroneous lower-court decisions,” ante, at 135, cannot explain why 19 years passed before the correct interpretation of a statute of “utterly no ambiguity,” ibid., made its first reported appearance.

       There is some tension between the notion that the text of the'statute is clear and unambiguous and the Court of Appeals’ explanation for its holding:
      “While § 924(c)(1) is, at best, hard to follow in simple English, we concur with the reasoning in Rawlings that two distinct violations of the statute trigger the subsequent sentence enhancement provisions of § 924(c)(1). Thus, the commission of two violations of § 924(c)(1) would result in a five-year consecutive sentence for the first conviction and a ten-year consecutive sentence for the second § 924(c)(1) conviction. However, because of the complexity of this issue, we find the district court’s failure to sentence Nabors to a ten-year consecutive sentence for his second § 924(c)(1) conviction not clearly erroneous.” United States v. Nabors, 901 F. 2d, at 1358-1359.

       “The 1988 amendment raised the penalty for repeat violators of the statute to twenty years. In the version that was in effect at the time of the present crimes, the penalty for repeat violators was ten years. Arguably, the district judge should have sentenced appellant to one five-year and two ten-year consecutive terms of imprisonment for his convictions' under Counts V through VII. However, since the United States has not counter-appealed on this point, we will not address it.” United States v. Luskin, 926 F. 2d, at 374, n. 2.

       The Court also suggests that use of the word “conviction,” rather than “offense,” distinguishes this statute from the repeat offender provisions discussed in Gonzalez v. United States, 224 F. 2d 431 (CA1 1965), supra, at 138-139. Of course, the majority’s textualist approach would lead to the same result if §924(c)'s enhancement were reserved for “second or subsequent offenses”: At the time of sentencing for two violations committed on separate dates, one violation is “second or subsequent” to the other, and the conviction itself always will establish that two “offenses” have indeed been committed. See ante, at 135.
      It is true, as the Court points out in passionate defense of its reading, that the words “offense” and “conviction” are not identical. What is at issue here, however, is not whether the terms mean the same thing in all usages, but whether they mean the same thing when they are used by Congress to identify the class of repeat offenders subject to enhanced sentences. Cf. ante, at 131-132 (context gives meaning to word “conviction”). If there is any difference between the terms as so used, it only lends further support to the conclusion that § 924(e) is a recidivist provision. As discussed above, repeat offender statutes couched in terms of “offense” were understood at the time of § 924(c)’s enactment to identify offenses committed after a prior conviction. See supra, at 138-139. A fortiori, “use of the word ‘conviction’ rather than wording describing the offense suggests an intent to reach recidivists who repeat conduct after conviction in the judicial system for prior offenses.” United States v. Godwin, 758 F. Supp. 281, 283 (ED Pa. 1991).

       “However, punishing first offenders with twenty-five-year sentences does not deter crime as much as it ruins lives. If, after arrest and conviction, a first offender is warned that he will face a mandatory twenty-year sentence if he commits the same crime again, then the offender will know of the penalty. Having already served at least five years in prison, he will have a strong incentive to stay out of trouble. Discouraging recidivism by people who have already been in prison and been released serves a far more valuable purpose than deterring offenders who have yet to be arrested and have no knowledge of the law’s penalties.” United States v. Jones, 965 F. 2d 1507, 1521 (CA8 1992) (internal citation omitted).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    EL VOCERO de PUERTO RICO et al. v. PUERTO RICO et al.
    No. 92-949.
    Decided May 17, 1993
   Per Curiam.

Under the Puerto Rico Rules of Criminal Procedure, an accused felon is entitled to a hearing to determine if he shall be held for trial. P. R. Laws Ann., Tit. 34, App. II, Rule 23 (1991). A neutral magistrate presides over the hearing, People v. Opio Opio, 104 P. R. R. (4 Official Translations 231, 239) (1975), for which the defendant has the rights to appear and to counsel, Rules 23(a), (b). Both the prosecution and the defendant may introduce evidence and cross-examine witnesses, Rule 23(c), and the defendant may present certain affirmative defenses, People v. Lebrón Lebrón, 116 P. R. R. (16 Official Translations 1052, 1058) (1986). The magistrate must determine whether there is probable cause to believe that the defendant committed the offense charged. Rule 23(c) provides that the hearing “shall be held privately” unless the defendant requests otherwise.

Petitioner José Purcell is a reporter for petitioner El Vocero de Puerto Rico, the largest newspaper in the Commonwealth. By written request to respondent District Judges, he sought to attend preliminary hearings over which they were to preside. In the alternative, he sought access to recordings of the hearings. After these requests were denied, petitioners brought this action in Puerto Rico Superior Court seeking a declaration that the privacy provision of Rule 23(c) violates the First Amendment, applicable to the Commonwealth through the Fourteenth Amendment, and an injunction against its enforcement. Petitioners based their claim on Press-Enterprise Co. v. Superior Court of Cal., County of Riverside, 478 U. S. 1 (1986), which addressed a California law that allowed magistrates to close preliminary hearings quite similar in form and function to those held under Rule 23 if it was reasonably likely that the defendant’s ability to obtain a fair hearing would be prejudiced. Id., at 12, 14. Applying the “tests of experience and logic,” id., at 9, of Globe Newspaper Co. v. Superior Court of County of Norfolk, 457 U. S. 596 (1982), Press-Enterprise struck down the California privacy law on the grounds that preliminary criminal hearings have traditionally been public, and because the hearings at issue were “sufficiently like a trial,” 478 U. S., at 12, that public access was “essential to the[ir] proper functioning,” ibid.

In affirming the dismissal of petitioners’ suit, a divided Supreme Court of Puerto Rico found that Press-Enterprise did not control the outcome because of several differences between Rule 23 hearings and the California hearings at issue there. App. to Pet. for Cert. 129. It thus proceeded to determine the constitutionality of Rule 23 hearings by application anew of the Globe Newspaper tests. The court concluded that closed hearings are compatible with the unique history and traditions of the Commonwealth, which display a special concern for the honor and reputation of the citizenry, and that open hearings would prejudice defendants’ ability to obtain fair trials because of Puerto Rico’s small size and dense population.

The decision below is irreconcilable with Press-Enterprise: for precisely the reasons stated in that decision, the privacy provision of Rule 23(c) is unconstitutional. The distinctions drawn by the court below are insubstantial. In fact, each of the features cited by Press-Enterprise in support of the finding that California’s preliminary hearings were “sufficiently like a trial” to require public access is present here. Rule 23 hearings are held before a neutral magistrate; the accused is afforded the rights to counsel, to cross-examination, to present testimony, and, at least in some instances, to suppress illegally seized evidence; the accused is bound over for trial only upon the magistrate’s finding probable cause; in a substantial portion of criminal eases, the hearing provides the only occasion for public observation of the criminal justice system; and no jury is present. Cf. 478 U. S., at 12-13.

Nor are these commonalities coincidental: As the majority noted, the Rule’s drafters relied on the California law at issue in Press-Enterprise as one source of Rule 23. App. to Pet. for Cert. 93, n. 26. At best, the distinctive features of Puerto Rico’s preliminary hearing render it a subspecies of the provision this Court found to be infirm seven years ago. Beyond this, however, the privacy provision of Rule 23(c) is more clearly suspect. California law allowed magistrates to close hearings only upon a determination that there was a substantial likelihood of prejudice to the defendant, yet the Press-Enterprise Court found this standard insufficiently exacting to protect public aecess. 478 U. S., at 14-15. By contrast, Rule 23 provides no standard, allowing hearings to be closed upon the request of the defendant, without more.

The Puerto Rico Supreme Court’s reliance on Puerto Rican tradition is also misplaced. As the Court of Appeals for the First Circuit has correctly stated, the “experience” test of Globe Newspaper does not look to the particular practice of any one jurisdiction, but instead “to the experience in that type or kind of hearing throughout the United States----” Rivera-Puig v. Garcia-Rosario, 983 F. 2d 311, 323 (1992) (emphasis in original). The established and widespread tradition of open preliminary hearings among the States was canvassed in Press-Enterprise and is controlling here. 478 U. S., at 10-11, and nn. 3-4.

The concern of the majority below that publicity will prejudice defendants’ fair trial rights is, of course, legitimate. But this concern can and must be addressed on a case-by-ease basis:

“If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.” Id., at 14.

The petition for certiorari is granted and the judgment of the Supreme Court of Puerto Rico is

Reversed.

       The Free Speech Clause of the First Amendment fully applies to Puerto Rico. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U. S. 328, 831, n. 1 (1986).

       Specifically, the court addressed the Commonwealth’s burden of proof, the rules governing the parties’ access to, and presentation of, certain evidence, the fact that an indictment follows, rather than precedes, the preliminary hearing, and the ability of the prosecution to present the matter de novo before a higher court in cases where the magistrate finds no probable cause. App. to Pet. for Cert. 112-129.

       The Court of Appeals for the First Circuit has since found this provision unconstitutional. See Rivera-Puig v. Garcia-Rosario, 983 F. 2d 311 (1992).

       The admissibility of illegally seized evidence apparently is an open question in Puerto Rico law. See App. to Pet. for Cert. 107.

       See id., at 204-205 (Hernández Denton, J., dissenting).


author: Justice Blackmun Justice Stevens,

text:
    COMMISSIONER OF INTERNAL REVENUE v. KEYSTONE CONSOLIDATED INDUSTRIES, INC.
    No. 91-1677.
    Argued February 22, 1993 —
    Decided May 24, 1993

      Christopher J. Wright argued the cause for petitioner. With him on the briefs were Solicitor General Starr, Acting Solicitor General Bryson, Acting Assistant Attorney General Bruton, Deputy Solicitor General Wallace, and Steven W. Parks.

      Raymond P. Wexler argued the cause for respondent. With him on the brief were Todd F. Maynes and Ralph P. End.

        Carol Connor Flowe, William G. Beyer, and James J. Armbruster filed a brief for the Pension Benefit Guaranty Corporation as amicus curiae urging reversal.

   Justice Blackmun

delivered the opinion of the Court.

In this case, we are concerned with the legality of an employer’s contributions of unencumbered property to a defined benefit pension plan. Specifically, we must address the question whether such a contribution, when applied to the employer’s funding obligation, is a prohibited “sale or exchange” under 26 U. S. C. §4975 so that the employer thereby incurs the substantial excise taxes imposed by the statute.

I

A “defined benefit pension plan,” as its name implies, is one where the employee, upon retirement, is entitled to a fixed periodic payment. The size of that payment usually depends upon prior salary and years of service. The more common “defined contribution pension plan,” in contrast, is typically one where the employer contributes a percentage of payroll or profits to individual employee accounts. Upon retirement, the employee is entitled to the funds in his account. See 29 U. S. C. §§ 1002(34) and (35).

If either type of plan qualifies for favorable tax treatment, the employer, for income tax purposes, may deduct its current contributions to the plan; the retiree, however, is not taxed until he receives payment from the plan. See 26 U. S. C. §§ 402(a)(1) and 404(a)(1).

II

The facts that are pertinent for resolving the present litigation are not in dispute. During its taxable years ended June 30, 1983, through June 30, 1988, inclusive, respondent Keystone Consolidated Industries, Inc., a Delaware corporation with principal place of business in Dallas, Tex., maintained several tax-qualified defined benefit pension plans. These were subject to the minimum funding requirements prescribed by §302 of the Employee Retirement Income Security Act of 1974 (ERISA), Pub. L. 93-406, §302, 88 Stat. 869, as amended, 29 U. S. C. § 1082. See also 26 U. S. C. § 412. Respondent funded the plans by contributions to the Keystone Consolidated Master Pension Trust.

On March 8, 1983, respondent contributed to the Pension Trust five truck terminals having a stated fair market value of $9,655,454 at that time. Respondent credited that value against its minimum funding obligation to its defined benefit pension plans for its fiscal years 1982 and 1983. On March 13, 1984, respondent contributed to the Pension Trust certain Key West, Fla., real property having a stated fair market value of $5,336,751 at that time. Respondent credited that value against its minimum funding obligation for its fiscal year 1984. The truck terminals were not encumbered at the times of their transfers. Neither was the Key West property. Their respective stated fair market values are not challenged here.

Respondent claimed deductions on its federal income tax returns for the fair market values of the five truck terminals and the Key West property. It also reported as taxable capital gain the difference between its income tax basis in each property and that property’s stated fair market value. Thus, for income tax purposes, respondent treated the disposal of each property as a “sale or exchange” of a capital asset. See 26 U.S.C. §1222.

Section 4975 of the Internal Revenue Code, 26 U. S. C. §4975, was added by § 2003(a) of ERISA. See 88 Stat. 971. It imposes a two-tier excise tax on specified “prohibited transactions” between a pension plan and a “disqualified person.” Among the “disqualified persons” listed in the statute is the employer of employees covered by the pension plan. See § 4975(e)(2)(C). Among the transactions prohibited is “any direct or indirect . . . sale or exchange ... of any property between a plan and a disqualified person.” See § 4975(c)(1)(A).

The Commissioner of Internal Revenue, who is the petitioner here, ruled that respondent’s transfers to the Pension Trust of the five truck terminals and the Key West property were sales or exchanges prohibited under § 4975(c)(1)(A). This ruling resulted in determined deficiencies in respondent’s first-tier excise tax liability of $749,610 for its fiscal year 1984 and of $482,773 for each of its fiscal years 1983 and 1985-1988, inclusive. The Commissioner also determined that respondent incurred second-tier excise tax liability in the amount of $9,655,454 for its fiscal year 1988.

Respondent timely filed a petition for redetermination with the United States Tax Court. That court, with an unreviewed opinion on cross-motions for summary judgment, ruled in respondent’s favor. 60 TCM 1423 (1990), ¶ 90,628 P-H Memo TC.

The Tax Court acknowledged that “there is a potential for abuse by allowing unencumbered property transfers to plans in satisfaction of minimum funding requirements.” Id., at 1424, ¶ 90,628 P-H Memo TC, p. 90-3071. Nonetheless, it did not agree that the transfers in this case constituted sales or exchanges under §4975. It rejected the Commissioner’s attempt to analogize the property transfers to the recognition of income for income tax purposes, for it considered the issue whether a transfer is a prohibited transaction under §4975 to be “separate and distinct from income tax recognition.” Id., at 1425, ¶ 90,628 P-H Memo TC, p. 90-3071.

In drawing this distinction, the Tax Court cited 26 U. S. C. § 4975(f)(3). That section specifically states that a transfer of property “by a disqualified person to a plan shall be treated as a sale or exchange if the property is subject to a mortgage or similar lien.” The court observed: “Since section 4975(f)(3) specifically describes certain transfers of real or personal property to a plan by a disqualified person as a sale or exchange for purposes of section 4975, the definitional concerns of ‘sale or exchange’ are removed from the general definitions found in other areas of the tax law.” 60 TCM, at 1425, ¶ 90,628 P-H Memo TC, p. 90-3071. The Tax Court thus seemed to say that § 4975(f)(3) limits the reach of § 4975(c)(1)(A), so that only transfers of encumbered property-are prohibited.

The Tax Court also rejected the Commissioner’s argument that by contributing noncash property to its plan, the employer was in a position to exert unwarranted influence over the Pension Trust’s investment policy. The court’s answer was that the trustee “can dispose of” the property. Id., at 1425, ¶ 90,628 P-H Memo TC, p. 90-3072. The court noted that it earlier had rejected the Commissioner’s distinction between transfers of property that satisfy a funding obligation and transfers of encumbered property, whether or not the latter transfers fulfill a funding obligation, in Wood v. Commissioner, 95 T. C. 364 (1990) (unreviewed), rev’d, 955 F. 2d 908 (CA4), cert. granted, 504 U. S. 972, dism’d, 505 U. S. 1231 (1992). See 60 TCM, at 1425, ¶ 90,628 P-H Memo TC, p. 90-3072.

The United States. Court of Appeals for the Fifth Circuit affirmed. 951 F. 2d 76 (1992). It read § 4975(f)(3) as “implying that unless it is encumbered by a mortgage or lien, a transfer of property is not to be treated as if it were a sale or exchange.” Id., at 78. It rejected the Commissioner’s argument that § 4975(f)(3) was intended to expand the definition of “sale or exchange” to include transfers of encumbered property that do not fulfill funding obligations; in the court’s view, “there is no basis for this distinction between involuntary and voluntary transfers anywhere in the Code.” Ibid. The court reasoned: “If all transfers of property to a plan were to be treated as a sale or exchange” under § 4975(c)(1)(A), then § 4975(f)(3) “would be superfluous.” Ibid. That a transfer of property in satisfaction of an obligation is treated as a “sale or exchange” of property for income tax purposes is “irrelevant,” because “[s]eetion 4975 was not enacted to measure economic income.” Id., at 79.

The Court of Appeals ruled that the Commissioner’s views were not entitled to deference, despite the fact that both the Internal Revenue Service and the Department of Labor administer ERISA’s prohibited-transaetion provisions. This was because the Commissioner’s views had not been set out in a formal regulation, and because the Department of Labor’s views were set out in an advisory opinion that was binding only “on the parties thereto, and has no precedential effect.” Ibid.

In view of the acknowledged conflict between the Fourth Circuit’s decision in Wood, see 955 F. 2d, at 913, and the Fifth Circuit’s decision in the present litigation, cases decided within two weeks of each other, we granted certiorari. 506 U. S. 813 (1992).

Ill

The statute with which we are concerned is a complicated one. But when much of its language, not applicable to the present case, is set to one side, the issue before us comes into better focus. Respondent acknowledges that it is a “disqualified person” with respect to the Pension Trust. It also acknowledges that the trust qualifies as a plan under §4975. Our task, then, is only to determine whether the transfers of the terminals and of the Key West property were sales or exchanges within the reach of § 4975(c)(1)(A) and therefore were prohibited transactions.

A

It is well established for income tax purposes that the transfer of property in satisfaction of a monetary obligation is usually a “sale or exchange” of the property. See, e. g., Helvering v. Hammel, 311 U. S. 504 (1941). See also 2 B. Bittker & L. Lokken, Federal Taxation of Income, Estates and Gifts ¶ 40.4, p. 40-11 (2d ed. 1990). It seems clear, therefore, that respondent’s contribution of the truck terminals and the Key West property constituted, under the income tax laws, sales of those properties to the Pension Trust. The Fourth Circuit, in Wood, supra, observed: “[W]e are aware of no instance when the term ‘sale or exchange’ has been used or interpreted not to include transfers of property in satisfaction of indebtedness.” 955 F. 2d, at 913.

This logic applied in income tax cases is equally applicable under § 4975(c)(1)(A). The phrase “sale or exchange” had acquired a settled judicial and administrative interpretation over the course of a half century before Congress enacted in § 4975 the even broader statutory language of “any direct or indirect... sale or exchange.” Congress presumptively was aware when it enacted §4975 that the phrase “sale or exchange” consistently had been construed to include the transfer of property in satisfaction of a monetary obligation. See Albernaz v. United States, 450 U. S. 333, 340-343 (1981). It is a “normal rule of statutory construction,” Sorenson v. Secretary of Treasury, 475 U. S. 851, 860 (1986), that “identical words used in different parts of the same act are intended to have the same meaning,” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433 (1932). Further, “the Code must be given ‘as great an internal symmetry and consistency as its words permit.’ ” Commissioner v. Lester, 366 U. S. 299, 304 (1961). Accordingly, when we construe § 4975(c)(1)(A), it is proper to accept the already settled meaning of the phrase “sale or exchange.”

Even if this phrase had not possessed a settled meaning, it still would be clear that § 4975(c)(1)(A) prohibits the transfer of property in satisfaction of a debt. Congress barred not merely a “sale or exchange.” It prohibited something more, namely, “any direct or indirect... sale or exchange.” The contribution of property in satisfaction of a funding obligation is at least both an indirect type of sale and a form of exchange, since the property is exchanged for diminution of the employer’s funding obligation.

B

We note, too, that this construction of the statute’s broad language is necessary to accomplish Congress’ goal. Before ERISA’s enactment in 1974, the measure that governed a transaction between a pension plan and its sponsor was the customary arm’s-length standard of conduct. This provided an open door for abuses such as the sponsor’s sale of property to the plan at an inflated price or the sponsor’s satisfaction of a funding obligation by contribution of property that was overvalued or nonliquid. Congress’ response to these abuses included the enactment of ERISA’s § 406(a)(1)(A), 29 U. S. C. § 1106(a)(1)(A), and the addition of §4975 to the Internal Revenue Code.

Congress’ goal was to bar categorically a transaction that was likely to injure the pension plan. S. Rep. No. 93-383, pp. 95-96 (1973). The transfer of encumbered property may jeopardize the ability of the plan to pay promised benefits. See Wood v. Commissioner, supra. Such a transfer imposes upon the trust the primary obligation to pay the encumbrance, and thus frees cash for the employer by restricting the use of cash by the trust. Overvaluation, the burden of disposing of the property, and the employer’s substitution of its own judgment as to investment policy, are other obvious considerations. Although the burden of an encumbrance is unique to the contribution of encumbered property, concerns about overvaluation, disposal of property, and the need to maintain an independent investment policy animate any contribution of property that satisfies a funding obligation, regardless of whether or not the property is encumbered. This is because as long as a pension fund is giving up an account receivable in exchange for property, the fund runs the risk of giving up more than it is getting in return if the property is either less valuable or more burdensome than a cash contribution would have been.

These potential harmful effects are illustrated by the facts of the present case, even though the properties at issue were unencumbered and not overvalued at the times of their respective transfers. There were exclusive sales-listing agreements respondent had made with respect to two of the truck terminals; these agreements called for sales commissions. The presence of this requirement demonstrates that it is neither easy nor costless to-dispose of such properties. The Chicago truck terminal, for example, was not sold for SVz years after it was listed for sale by the Pension Trust.

These problems are not solved, as the Court of Appeals suggested, by the mere imposition of excise taxes by §4971. It is §4975 that prevents the abuses.

C

We do not agree with the Court of Appeals’ conclusion that § 4975(f)(3) limits the meaning of “sale or exchange,” as that phrase appears in § 4975(e)(1)(A). Section 4975(f)(3) states that a transfer of property “by a disqualified person to a plan shall be treated as a sale or exchange if the property is subject to a mortgage or similar lien.” The Court of Appeals read this language as implying that unless property “is encumbered by a mortgage or lien, a transfer of property is not to be treated as if it were a sale or exchange.” 951 F. 2d, at 78. We feel that by this language Congress intended § 4975(f)(3) to expand, not limit, the scope of the prohibited-transaction provision. It extends the reach of “sale or exchange” in § 4975(e)(1)(A) to include contributions of encumbered property that do not satisfy funding obligations. See H. R. Conf. Rep. No. 93-1280, p. 307 (1974). Congress intended by § 4975(f)(3) to provide additional protection, not to limit the protection already provided by § 4975(c)(1)(A).

We feel that the Commissioner’s construction of §4975 is a sensible one. A transfer of encumbered property, like the transfer of unencumbered property to satisfy an obligation, has the potential to burden a plan, while a transfer of property that is neither encumbered nor satisfies a debt presents far less potential for causing loss to the plan.

IV

The judgment of the Court of Appeals is reversed.

It is so ordered.

Justice Stevens,

dissenting.

For the reasons stated in the opinions of the Tax Court, 60 TCM 1423 (1990), ¶ 90,628 P-H Memo TC, and the Court of Appeals, 951 F. 2d 76 (CA5 1992), I am persuaded that the transfer of unencumbered property to a pension trust is not a “sale or exchange” prohibited by 26 U. S. C. § 4975(c)(1)(A) of the Internal Revenue Code. I would merely add these two observations.

In holding that an employer’s transfer of unencumbered property to a pension fund in satisfaction of a funding obligation is a “sale or exchange” barred by § 4975(c)(1)(A), the Court draws upon the well-established rule that for income tax purposes the transfer of property to satisfy an indebtedness is a “sale or exchange.” Ante, at 158. It is equally well established, however, or at least was so at the time Congress enacted § 4975(e)(1)(A), that any contribution of property by an employer to an employee pension fund, whether done so voluntarily or pursuant to a funding obligation, is, for income tax purposes, a “sale or exchange” of that property. See Tasty Baking Co. v. United States, 393 F. 2d 992 (Ct. Cl. 1968); A. P. Smith Manufacturing Co. v. United States, 364 F. 2d 831 (Ct. Cl. 1966); United States v. General Shoe Corp., 282 F. 2d 9 (CA6 1960); see also Rev. Rul. 75-498, 1975-2 Cum. Bull. 29. If indeed our focus in answering the question presented in this case is to be congressional understanding of the term “sale or exchange” as it relates to the determination of gain or loss, it would seem to follow that Congress, in enacting § 4975(c)(1)(A), rejected the very distinction between voluntary and mandatory contributions that the Commissioner advocates and that the Court today embraces. The alternative, of course, is to recognize, as did the Tax Court and the Court of Appeals, that Congress did not intend to import into § 4975(c)(1)(A) the meaning of “sale or exchange” that has developed and been applied in the very different context of measuring a taxpayer’s gain or loss upon the disposition of property. See 951 F. 2d, at 79; 60 TCM, at 1425, ¶ 90,628 P-H Memo TC, p. 90-3071. I would so hold

The Court is properly concerned about the potential for abuse associated with an employer’s transfer of property to a pension plan. See ante, at 160. It is worth noting, however, that the risk of abuse is mitigated by the fact that the trustees of a pension plan have the right — indeed, the duty— to refuse to accept property transfers that are disadvantageous to the trust. See generally 29 U. S. C. § 1104. Indeed, there may well be situations in which a rule that disables the trustees from accepting any consideration other than cash may be contrary to the best interests of the trust. For example, one can easily imagine a situation in which the trustees, acting prudently and in the best interests of the plan beneficiaries, would prefer that an employer transfer an undervalued piece of property to the plan, as opposed to selling the property to a third party at a discount and satisfying its funding obligation in cash. Though the majority’s reading of the statute is plausible, I am not persuaded that Congress intended to so restrict employers and pension plan trustees.

I respectfully dissent.

      Justice Scalia joins all but Part III-B of this opinion.

       The first-tier tax is “5 percent of the amount involved.” 26 U. S. C. § 4975(a). The second-tier tax is ‘TOO percent of the amount involved.” § 4975(b). The “amount involved” is the greater of the amount of money and the fair market value of the other property given or the amount of money and the fair market value of the other properly received. § 4975(f)(4). The second-tier tax usually may be avoided by timely correction of the prohibited transaction upon completion of the litigation concerning the taxpayer’s liability for the tax. See §§ 4961(a), 4963(b) and (e), 6213(a), and 7481(a).

       Such expanded coverage is illustrated by the following example. An employer with no outstanding funding obligations wishes to contribute property to a pension fund to reward its employees for an especially productive year of service. Under our analysis, the property contribution is permissible if the property is unencumbered, because it will not be “exr changed” for a diminution in funding obligations and therefore does not fall within the prohibition of § 4975(c)(1)(A). On the other hand, the property contribution is impermissible if the property is encumbered, because § 4975(f)(3) specifically prohibits all contributions of encumbered property.

       We note, in passing, that the parties and the amicus have argued strenuously the issue whether we should afford deference to the interpretation of the statute by the two agencies charged with administering it. See Brief for Petitioner 29-32; Brief for Respondent 39-42; Reply Brief for Petitioner 18-20; Brief for Pension Benefit Guaranty Corporation as Amicus Curiae 10-13.
      It does appear that the Department of Labor and the Internal Revenue Service consistently have taken the position that a sponsoring employer’s transfer of unencumbered properly to a pension plan to satisfy its funding obligation is a prohibited sale or exchange. See Department of Labor Advisory Opinion 81-69A, issued July 28, 1981; Department of Labor Advisory Opinion 90-05A, issued March 29, 1990; Rev. Rule 81-40, 1981-1 Cum. Bull. 508; Rev. Rule 77-379, 1977-2 Cum. Bull. 387.
      We reach our result in this case without reliance on any rule of deference. Because of the nature and limitations of these rulings, we express no view as to whether they are or are not entitled to deference. The resolution of that issue is deferred to another day.

      In defense of his position, the Commissioner argues that there is no inconsistency in relying on the well-established meaning of “sale or exchange,” and holding that a voluntary contribution to a pension plan is not barred by § 4975(c)(1)(A). The latter, the Commissioner argues, bars the “sale or exchange” of property “between a plan” and an employer, whereas the relevant provisions of the Internal Revenue Code refer more generally to the “sale or exchange” of property. See, e. g., 26 U. S. C. §§ 1001(c), 1222. By this reasoning, a voluntary transfer of property to a pension plan is a “sale or exchange” for purposes of determining gain or loss, but is not a “sale or exchange” between the employer and the plan within the meaning of § 4975(c)(1)(A) because it was not made in satisfaction of a mandatory funding obligation.
      The Commissioner’s argument, in my view, places more weight on the words “between a plan” in § 4975(c)(1)(A) than they can reasonably bear. The Commissioner asks that we accept the hypothesis that Congress drew upon a settled body of law regarding the terms “sale or exchange” in the income tax context, but then, by the use of these three words, departed from that settled usage and drew a distinction between voluntary and involuntary contributions that had been roundly rejected in the case law and by the Internal Revenue Service itself Again, as did the Court of Appeals and the Tax Court, I find it more likely that Congress intended that we construe § 4975(c)(1)(A) in its context, and independent of the meaning attributed to the term “sale or exchange” in other parts of the Internal Revenue Code.


author: Justice O’Connor

text:
    UNITED STATES DEPARTMENT OF JUSTICE et al. v. LANDANO
    No. 91-2054.
    Argued February 24, 1993 —
    Decided May 24, 1993

      John F. Daly argued the cause for petitioners. With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Acting Solicitor General Bryson, Edwin S. Kneedler, and Leonard Schaitman.

      Neil Mullin argued the cause for respondent. With him on the brief were Nancy Erika Smith, Eric R. Neisser, and Alan B. Morrison.

   Justice O’Connor

delivered the opinion of the Court.

Exemption 7(D) of the Freedom of Information Act, 5 U. S. C. § 552 (FOIA), exempts from disclosure agency records “compiled for law enforcement purposes ... by criminal law enforcement authority in the course of a criminal investigation” if release of those records “could reasonably be expected to disclose” the identity of, or information provided by, a “confidential source.” § 552(b)(7)(D). This case concerns the evidentiary showing that the Government must make to establish that a source is “confidential” within the meaning of Exemption 7(D). We are asked to decide whether the Government is entitled to a presumption that all sources supplying information to the Federal Bureau of Investigation (FBI or Bureau) in the course of a criminal investigation are confidential sources.

I

Respondent Vincent Landano was convicted in New Jersey state court for murdering Newark, New Jersey, police officer John Snow in the course of a robbery. The crime received considerable media attention. Evidence at trial showed that the robbery had been orchestrated by Victor Forni and a motorcycle gang known as “the Breed.” There was testimony that Landano, though not a Breed member, had been recruited for the job. Landano always has maintained that he did not participate in the robbery and that Forni, not he, killed Officer Snow. He contends that the prosecution withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U. S. 83 (1963).

Although his efforts to obtain state posteonviction and federal habeas relief thus far have proved unsuccessful, see Landano v. Rafferty, 897 F. 2d 661 (CA3), cert. denied, 498 U. S. 811 (1990); Landano v. Rafferty, 856 F. 2d 569 (CA3 1988), cert. denied, 489 U. S. 1014 (1989); State v. Landano, 97 N. J. 620, 483 A. 2d 153 (1984), Landano apparently is currently pursuing a Brady claim in the state courts, see Landano v. Rafferty, 970 F. 2d 1230, 1233-1237 (CA3), cert. denied, 506 U. S. 955 (1992); Brief for Petitioners 3, n. 1. Seeking evidence to support that claim, Landano filed FOIA requests with the FBI for information that the Bureau had compiled in the course of its involvement in the investigation of Officer Snow’s murder. Landano sought release of the Bureau’s files on both Officer Snow and Forni. The FBI released several hundred pages of documents. The Bureau redacted some of these, however, and withheld several hundred other pages altogether.

Landano filed an action in the United States District Court for the District of New Jersey seeking disclosure of the entire contents of the requested files. In response, the Government submitted a declaration of FBI Special Agent Regina Superneau explaining the Bureau’s reasons for withholding portions of the files. The information withheld under Exemption 7(D) included information provided by five types of sources: regular FBI informants; individual witnesses who were not regular informants; state and local law enforcement agencies; other local agencies; and private financial or commercial institutions. Superneau Declaration, App. 28. Agent Superneau explained why, in the Government’s view, all sueh sources should be presumed confidential. The deleted portions of the files were coded to indicate which type of source each involved. The Bureau provided no other information about the withheld materials. Id., at 33-41.

On cross-motions for summary judgment, the District Court largely rejected the Government’s categorical explanations. See 751 F. Supp. 502 (NJ 1990), clarified on reconsideration, 758 F. Supp. 1021 (NJ 1991). There was no dispute that the undisclosed portions of the Snow and Forni files constituted records or information compiled for law enforcement purposes by criminal law enforcement authority in the course of a criminal investigation. The District Court concluded, however, that the Government had not met its burden of establishing that each withheld document reasonably could be expected to disclose the identity of, or information provided by, a “confidential source.” Although the court evidently was willing to assume that regular FBI informants were confidential sources, it held that the FBI had to articulate “ease-specific reasons for non-disclosure” of all other information withheld under Exemption 7(D). 751 F. Supp., at 508.

The Court of Appeals for the Third Circuit affirmed in relevant part. 956 F. 2d 422 (1992). Relying on legislative history, the court stated that a source is confidential within the meaning of Exemption 7(D) if the source received an explicit assurance of confidentiality or if there are circumstances “ ‘from which such an assurance could reasonably be inferred.’” Id., at 433 (quoting S. Rep. No. 93-1200, p. 13 (1974)). An “assurance of confidentiality,” the court said, is not a promise of absolute anonymity or secrecy, but “an assurance that the FBI would not directly or indirectly disclose the cooperation of the interviewee with the investigation unless such a disclosure is determined by the FBI to be important to the success of its law enforcement objective.” 956 F. 2d, at 434.

The court then addressed the Government’s argument that a presumption of confidentiality arises whenever any individual or institutional source supplies information to the Bureau during a criminal investigation. As the Court of Appeals phrased it, the issue was “whether the fact that the source supplied information to the FBI in the course of a criminal investigation is alone sufficient to support an inference that the source probably had a reasonable expectation that no unnecessary disclosure of his or her cooperation would occur.” Ibid. The court thought the question “close.” Ibid. On one hand, the Bureau tends to investigate significant criminal matters, and the targets of those investigations are likely to resent cooperating witnesses. This is especially so where, as here, the investigation concerns a highly publicized, possibly gang-related police shooting. Id., at 434, and n. 5. On the other hand, the court recognized that “there are undoubtedly many routine FBI interviews in the course of criminal investigations that are unlikely to give rise to similar apprehensions on the part of the interviewee.” Id., at 434.

The Court of Appeals recognized that a number of other courts had adopted the Government’s position. See, e.g., Nadler v. United States Dept. of Justice, 955 F. 2d 1479, 1484-1487 (CA11 1992); Schmerler v. FBI, 283 U. S. App. D. C. 349, 353, 900 F. 2d 333, 337 (1990); Donovan v. FBI, 806 F. 2d 55, 61 (CA2 1986); Johnson v. United States Dept. of Justice, 739 F. 2d 1514, 1517-1518 (CA10 1984); Ingle v. Department of Justice, 698 F. 2d 259, 269 (CA6 1983); Miller v. Bell, 661 F. 2d 623, 627 (CA7 1981) (per curiam), cert. denied, 456 U. S. 960 (1982). Considering itself bound by its previous decision in Lame v. United States Department of Justice, 654 F. 2d 917 (CA3 1981), however, the Court of Appeals took a different view. It declined to rely either on the Government’s proposed presumption or on the particular subject matter of the investigation. Instead, it determined that, to justify withholding information under Exemption 7(D), the Government had to provide “‘detailed explanations relating to each alleged confidential source.’ ” 956 F. 2d, at 435 (quoting Lame, supra, at 928).

We granted certiorari to resolve the conflict among the Courts of Appeals over the nature of the FBI’s evidentiary burden under Exemption 7(D). 506 U. S. 813 (1992).

II

A

Exemption 7(D) permits the Government to withhold

“records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . .. could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the ease of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation . . . , information furnished by a confidential source.” § 552(b)(7)(D).

The Government bears the burden of establishing that the exemption applies. § 552(a)(4)(B).

We have described the evolution of Exemption 7(D) elsewhere. See John Doe Agency v. John Doe Corp., 493 U. S. 146, 155-157 (1989); FBI v. Abramson, 456 U. S. 615, 621-622 (1982). When FOIA was enacted in 1966, Exemption 7 broadly protected “ ‘investigatory files compiled for law enforcement purposes except to the extent available by law to a private party.’ ” Id., at 621. Congress revised the statute in 1974 to provide that law enforcement records could be withheld only if the agency demonstrated one of six enumerated harms. The 1974 version of Exemption 7(D) protected

“‘investigatory records compiled for law enforcement purposes [the production of which] would . . . disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation,... confidential information furnished only by the confidential source.’ ” Id., at 622.

Congress adopted the current version of Exemption 7(D) in 1986. The 1986 amendment expanded “records” to “records or information,” replaced the word “would” with the phrase “could reasonably be expected to,” deleted the word “only” from before “confidential source,” and clarified that a confidential source could be a state, local, or foreign agency or a private institution. See 5 U. S. C. § 552(b)(7)(D).

Under Exemption 7(D), the question is not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential. According to the Conference Report on the 1974 amendment, a source is confidential within the meaning of Exemption 7(D) if the source “provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.” S. Rep. No. 93-1200, at 13. In this case, the Government has not attempted to demonstrate that the FBI made explicit promises of confidentiality to particular sources. That sort of proof apparently often is not possible: The FBI does not have a policy of discussing confidentiality with every source, and when such discussions do occur, agents do not always document them. Tr. of Oral Arg. 7-8, 47-48. The precise question before us, then, is how the Government can meet its burden of showing that a source provided information on an implied assurance of confidentiality. The parties dispute two issues: the meaning of the word “confidential,” and whether, absent specific evidence to the contrary, an implied assurance of confidentiality always can be inferred from the fact that a source cooperated with the FBI during a criminal investigation.

Opinion of the Court

B

Landano argues that the FBI’s sources in the Snow investigation could not have had a reasonable expectation of confidentiality because the Bureau might have been obliged to disclose the sources’ names or the information they provided under Brady, the Jencks Act, 18 U. S. C. § 3500, or federal discovery rules, see Fed. Rules Crim. Proc. 16, 26.2. He also points out that some FBI witnesses invariably will be called to testify publicly at trial. Landano apparently takes the position that a source is “confidential” for purposes of Exemption 7(D) only if the source can be assured, explicitly or implicitly, that the source’s cooperation with the Bureau will be disclosed to no one. We agree with the Court of Appeals that this cannot have been Congress’ intent.

FOIA does not define the word “confidential.” In common usage, confidentiality is not limited to complete anonymity or secrecy. A statement can be made “in confidence” even if the speaker knows the communication will be shared with limited others, as long as the speaker expects that the information will not be published indiscriminately. See Webster’s Third New International Dictionary 476 (1986) (defining confidential to mean “communicated, conveyed, [or] acted on ... in confidence: known only to a limited few: not publicly disseminated”). A promise of complete secrecy would mean that the FBI agent receiving the source’s information could not share it even with other FBI personnel. See Dow Jones & Co. v. Department of Justice, 286 U. S. App. D. C. 349, 357, 917 F. 2d 571, 579 (1990) (Silberman, J., concurring in denial of rehearing en bane). Such information, of course, would be of little use to the Bureau.

We assume that Congress was aware of the Government’s disclosure obligations under Brady and applicable procedural rules when it adopted Exemption 7(D). Congress also must have realized that some FBI witnesses would testify at trial. We need not reach the question whether a confidential source’s public testimony “waives” the FBI’s right to withhold information provided by that source. See, e. g., Irons v. FBI, 880 F. 2d 1446 (CA1 1989) (en banc). For present purposes, it suffices to note that, at the time an interview is conducted, neither the source nor the FBI agent ordinarily knows whether the communication will be disclosed in any of the aforementioned ways. Thus, an exemption so limited that it covered only sources who reasonably could expect total anonymity would be, as a practical matter, no exemption at all. Cf. John Doe, 493 U. S., at 152 (FOIA exemptions “are intended to have meaningful reach and application”). We therefore agree with the Court of Appeals that the word “confidential,” as used in Exemption 7(D), refers to a degree of confidentiality less than total secrecy. A source should be deemed confidential if the source furnished information with the understanding that the FBI would not divulge the communication except to the extent the Bureau thought necessary for law enforcement purposes.

C

The Government objects to the Court of Appeals’ requirement that it make an individualized showing of confidentiality with respect to each source. It argues that an assurance of confidentiality is “ ‘inherently implicit’ ” whenever a source cooperates with the FBI in a criminal investigation. Brief for Petitioners 18-20 (quoting Miller v. Bell, 661 F. 2d, at 627). The Government essentially contends that all FBI sources should be presumed confidential; the presumption could be overcome only with specific evidence that a particular source had no interest in confidentiality.

This Court previously has upheld the use of evidentiary presumptions supported by considerations of “fairness, public policy, and probability, as well as judicial economy.” Basic Inc. v. Levinson, 485 U. S. 224, 245 (1988). We also have recognized the propriety of judicially created presumptions under federal statutes that make no express provision for their use. See, e. g., ibid. But we are not persuaded that the presumption for which the Government argues in this case is warranted.

Although the Government sometimes describes its approach as “categorical,” see, e.g., Superneau Declaration, App. 33-41, the proposed rule is not so much categorical as universal, at least with respect to FBI sources. The Government would have us presume that virtually every source is confidential: the paid informant who infiltrates an underworld organization; the eyewitness to a violent crime; the telephone company that releases phone records; the state agency that furnishes an address. The only “sources” that the Government is willing to state are not presumptively confidential (though they may be exempt from disclosure under other FOIA provisions) are newspaper clippings, wiretaps, and witnesses who speak to an undercover agent and therefore do not realize they are communicating with the FBI. Although we recognize that confidentiality often will be important to the FBFs investigative efforts, we cannot say that the Government’s sweeping presumption comports with “common sense and probability.” Basic Inc., supra, at 246.

The FBI collects information from a variety of individual and institutional sources during the course of a criminal investigation. See, e. g., Superneau Declaration, App. 35-41. The Bureau’s investigations also cover a wide range of criminal matters. See 28 U. S. C. § 533 (FBI authorized to investigate “crimes against the United States” and to conduct other investigations “regarding official matters under the control of the Department of Justice and the Department of State”); § 540 (FBI authorized to investigate certain felonious killings of state and local law enforcement officers). In this case, the Bureau participated in the investigation of a state crime in part because of the need for interstate “unlawful flight” warrants to apprehend certain suspects. Brief for Petitioners 2, n. 1. The types of information the Bureau collects during an investigation also appear to be quite diverse. Although the Government emphasizes the difficulty of anticipating all the ways in which release of information ultimately may prove harmful, it does not dispute that the communications the FBI receives can range from the extremely sensitive to the routine.

The Government maintains that an assurance of confidentiality can be inferred whenever an individual source communicates with the FBI because of the risk of reprisal or other negative attention inherent in criminal investigations. See Superneau Declaration, App. 37-38. It acknowledges, however, that reprisal may not be threatened or even likely in any given case. Id., at 38. It may be true that many, or even most, individual sources will expect confidentiality. But the Government offers no explanation, other than ease of administration, why that expectation always should be presumed. The justifications offered for presuming the confidentiality of all institutional sources are less persuasive. The Government “is convinced” that the willingness of other law enforcement agencies to furnish information depends on a “traditional understanding of confidentiality.” Id., at 40. There is no argument, however, that disclosure ordinarily would affect cooperating agencies adversely or that the agencies otherwise would be deterred from providing even the most nonsensitive information. The Government does suggest that private institutions might be subject to “possible legal action or loss of business” if their cooperation with the Bureau became publicly known. Id., at 41. But the suggestion is conclusory. Given the wide variety of information that such institutions may be asked to provide, we do not think it reasonable to infer that the information is given with an implied understanding of confidentiality in all eases.

Considerations of “fairness” also counsel against the Government's rule. Basic Inc., supra, at 245. The Government acknowledges that its proposed presumption, though rebuttable in theory, is in practice all but irrebuttable. Tr. of Oral Arg. 22-23. Once the FBI asserts that information was provided by a confidential source during a criminal investigation, the requester — who has no knowledge about the particular source or the information being withheld — very rarely will be in a position to offer persuasive evidence that the source in fact had no interest in confidentiality. See Dow Jones & Co. v. Department of Justice, 286 U. S. App. D. C., at 355, 917 F. 2d, at 577.

The Government contends that its presumption is supported by the phrase “could reasonably be expected to” and by our decision in Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749 (1989). In Reporters Committee we construed Exemption 7(C), which allows the Government to withhold law enforcement records or information the production of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). We held that certain criminal “rap sheet” information was categorically exempt from disclosure because the release of such information invariably constitutes an unwarranted invasion of privacy. 489 U. S., at 780. Our approval of a categorical approach was based in part on the phrase “could reasonably be expected to,” which Congress adopted in 1986 to ease the Government’s burden of invoking Exemption 7, see id., at 756, n. 9, and to “replace a focus on the effect of a particular disclosure ‘with a standard of reasonableness . . . based on an objective test,’” id., at 778, n. 22 (quoting S. Rep. No. 98-221, p. 24 (1983)). As explained more fully in Part III, below, we agree with the Government that when certain circumstances characteristically support an inference of confidentiality, the Government similarly should be able to claim exemption under Exemption 7(D) without detailing the circumstances surrounding a particular interview. Neither the language of Exemption 7(D) nor Reporters Committee, however, supports the proposition that the category of all FBI criminal investigative sources is exempt.

The Government relies extensively on legislative history. It is true that, when Congress debated the adoption of Exemption 7(D), several Senators recognized the importance of confidentiality to the FBI and argued that the exemption should not jeopardize the effectiveness of the Bureau’s investigations. See, e. g., 120 Cong. Rec. 17036, 17037 (May 30, 1974) (Sen. Thurmond) (“It is just such assurance [of confidentiality] that encourages individuals from all walks of life to furnish this agency information ...”). But Congress did not expressly create a blanket exemption for the FBI; the language that it adopted requires every agency to establish that a confidential source furnished the information sought to be withheld under Exemption 7(D). The Government cites testimony presented to Congress prior to passage of the 1986 amendment emphasizing that the threat of public exposure under FOIA deters potential sources from cooperating with the Bureau in criminal investigations. See, e. g., FBI Oversight: Hearings before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 96th Cong., 2d Sess., pp. 97, 99-100, 106 (1980) (FBI Dir. William Webster); see also Freedom of Information Act: Hearings before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 97th Cong., 1st Sess., pp. 990-1040 (1981). But none of the changes made to Exemption 7(D) in 1986 squarely addressed the question presented here. In short, the Government offers no persuasive evidence that Congress intended for the Bureau to be able to satisfy its burden in every instance simply by asserting that a source communicated with the Bureau during the course of a criminal investigation. Had Congress meant to create such a rule, it could have done so much more clearly.

rH HH

Although we have determined that it is unreasonable to infer that all FBI criminal investigative sources are confidential, we expect that the Government often can point to more narrowly defined circumstances that will support the inference. For example, as the courts below recognized, and respondent concedes, see Brief for Respondent 46, it is reasonable to infer that paid informants normally expect their cooperation with the FBI to be kept confidential. The nature of the informant’s ongoing relationship with the Bureau, and the fact that the Bureau typically communicates with informante “only at locations and under conditions which assure the contact will not be noticed,” Superneau Declaration, App. 36, justify the inference.

There may well be other generic circumstances in which an implied assurance of confidentiality fairly can be inferred. The Court of Appeals suggested that the fact that the investigation in this case concerned the potentially gang-related shooting of a police officer was probative. We agree that the character of the crime at issue may be relevant to determining whether a source cooperated with the FBI with an implied assurance of confidentiality. So too may the source’s relation to the crime. Most people would think that witnesses to a gang-related murder likely would be unwilling to speak to the Bureau except on the condition of confidentiality.

The Court of Appeals below declined to rely on such circumstances. But several other Court of Appeals decisions (including some of those the Government cites favorably) have justified nondisclosure under Exemption 7(D) by examining factors such as the nature of the crime and the source’s relation to it. See, e. g., Keys v. United States Dept. of Justice, 265 U. S. App. D. C. 189, 197-198, 830 F. 2d 337, 345-346 (1987) (individuals who provided information about subject’s possible Communist sympathies, criminal activity, and murder by foreign operatives would have worried about retaliation); Donovan v. FBI, 806 F. 2d, at 60-61 (on facts of this ease, in which FBI investigated murder of American churchwomen in El Salvador, “it cannot be doubted that the FBI’s investigation would have been severely curtailed, and, perhaps, rendered ineffective if its confidential sources feared disclosure”); Parton v. United States Dept. of Justice, 727 F. 2d 774, 776-777 (CA8 1984) (prison officials who provided information about alleged attack on inmate faced “high probability of reprisal”); Miller v. Bell, 661 F. 2d, at 628 (individuals who provided information about self-proclaimed litigious subject who sought to enlist them in his “anti-government crusade” faced “strong potential for harassment”); Nix v. United States, 572 F. 2d 998, 1003-1004 (CA4 1978) (risk of reprisal faced by guards and prison inmates who informed on guards who allegedly beat another inmate supported finding of implied assurance of confidentiality).

We think this more particularized approach is consistent with Congress’ intent to provide “‘“workable” rules’” of FOIA disclosure. Reporters Committee, 489 U. S., at 779 (quoting FTC v. Grolier Inc., 462 U. S. 19, 27 (1983)); see also ERA v. Mink, 410 U. S. 73, 80 (1973). The Government does not deny that, when a document containing confidential source information is requested, it generally will be possible to establish factors such as the nature of the crime that was investigated and the source’s relation to it. Armed with this information, the requester will have a more realistic opportunity to develop an argument that the circumstances do not support an inference of confidentiality. To the extent that the Government’s proof may compromise legitimate interests, of course, the Government still can attempt to meet its burden with in camera affidavits.

The Government has argued forcefully that its ability to maintain the confidentiality of all of its sources is vital to effective law enforcement. A prophylactic rule protecting the identities of all FBI criminal investigative sources undoubtedly would serve the Government’s objectives and would be simple for the Bureau and the courts to administer. But we are not free to engraft that policy choice onto the statute that Congress passed. For the reasons we have discussed, and consistent with our obligation to construe FOIA exemptions narrowly in favor of disclosure, see, e. g., John Doe, 493 U. S., at 152; Department of Air Force v. Rose, 425 U. S. 352, 361-362 (1976), we hold that the Government is not entitled to a presumption that a source is confidential within the meaning of Exemption 7(D) whenever the source provides information to the FBI in the course of a criminal investigation.

More narrowly defined circumstances, however, can provide a basis for inferring confidentiality. For example, when circumstances such as the nature of the crime investigated and the witness’ relation to it support an inference of confidentiality, the Government is entitled to a presumption. In this case, the Court of Appeals incorrectly concluded that it lacked discretion to rely on such circumstances. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.