256
Kennedy, J., dissenting
"(1) be fined under this title or imprisoned not more than 15 years, or both,
"(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and
"(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both." 18 U. S. C. § 2119 (1988 ed., Supp. V).
As the Court is quite fair to acknowledge, the first reading or initial look of the statute suggests that clauses (1)-(3) are sentencing provisions. Ante, at 232. In my view, this conclusion survives further and meticulous examination.
Section 2119 begins by setting forth in its initial paragraph elements typical of a robbery-type offense. For all ordinary purposes, this is a complete crime. If, for instance, there were only a single punishment, as provided in clause (1), I think there could be no complaint with jury instructions drawn from the first paragraph of § 2119, without reference to the punishment set forth in clause (1). The design of the statute yields the conclusion that the following numbered provisions do not convert each of the clauses into additional elements. These are punishment provisions directed to the sentencing judge alone. To be sure, the drafting could have been more clear, and my proffered interpretation would have been better implemented, if the word "shall" at the end of the first paragraph had been followed by a verb form (e. g., "be punished") and a period. Even as written, though, the statute sets forth a complete crime in the first paragraph. It is difficult to see why Congress would double back and insert additional elements for the jury's consideration in clauses (2) and (3). The more likely explanation is that Congress set forth the offense first and the punishment second, without intending to combine the two.
Unlike the Court, I am unpersuaded by other factors that this commonsense reading is at odds with congressional intent. As to the substance of clauses (2) and (3), the harm
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