Petition — Thibadeau v. United States

Oifites Sensrsrts Court, US.

Ki Liz

81-990. |

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ALEXANDER L. STEVAA,

CLERK :

No. na pe

In The

Supreme Court of the United States

OCTOBER TERM, 1981

WILLIAM THIBADEAU

Petitioner

vs.

UNITED STATES OF AMERICA

Respondent

* Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

HUBERT J. SANTOS

Counsel of Record

51 Russ Street

Hartford, CT 06106

(203) 249-6548

QUESTION PRESENTED

1. Whether the Federal Odometer Stat-

utes, 15 U.S.C. Sections 1984 and 1986, are

unconstitutional for the reason that they

exceed Congress’ power under the Commerce

Clause to criminalize a surely intrastate

activity absent a clear legislative record

that such intrastate activity affects or

impacts on interstate commerce?

TABLE OF CONTENTS

pe ae” Penner tt tari ar wae

PELGS DOROW Ns cc tines bbs ead S vie vee

SUBPLOGLCCAOM « 0 cic o 6'60 00 bb eww wiewre tee oe

Constitutional Provisions Involved....

BEACOMONE OF ‘ChE CASO. i bide ce cdeccss

Reasons For Granting The Writ

I. CONGRESS DOES NOT HAVE THE

POWER UNDER THE COMMERCE CLAUSE

TO CRIMINALIZE THE INTRASTATE

TAMPERING OF ODOMETERS ABSENT

A CLEAR LEGISLATIVE RECORD THAT

SUCH INTRASTATE TAMPERING

AFFECTS OR IMPACTS ON INTER-

STATE WROMPIERCE. «cc cccvccccccuee

ES oor o's has. aU BLEW ae dae wR Bide & %

APPENDIX:

(1) OPINION OF THE UNITED STATES

DISTRICT COURT (HON. JOSE

CABRANES) dated October 7, 1980.

(2) OPINION OF THE COURT OF

APPEALS FOR THE SECOND

CIRCUIT (May 15, 1981)..........

1A

TABLE OF CASES

Barrett v. United States, 423

U.S. 212 (1976)

Heart of Atlanta Motel v.

nite tates, s.

Katzenback v. McClung, 379 U.S.

“095 (1964)... 7

@e@eaeaceoeeaeeaeeeheeoneaeeee@e7e00ed88680 8

Mandina v. United States, 472 F.2d

1110 (8 Cir. 1973), cert

denied, 412 U.S. 907 (1973) A ae

Perez v. United States, 402 U.S.

~~ 146

«|, £2 9 RUC INST eT IS

Rewis v. United States, 401 U.S

808 (1971)

5.00, C28. 2) 8 60.02 6 2 6 8.8 8 0.0 8

Scarborough v. United States,

aS ROEPEDS « Webead was co's

ie bo | FEN Sect

eevee eeeeeeeeeeeeeeeee

United States v. Burroughs, 564

F.2d LIll (4 Cir. 1979) a Ae Soo

ii

co

TABLE OF CASES (continued)

United States v. Camacho, 528 F.2d

r. 1976) cert. denied,

AES. EB. OOS CROIOD ied boos ob osio co

United States v. Darby, 312 U.S.

United States v. Lopez, 459 F.2d

Rb 8 SES RRR SUES AIS a

United States v. Mennuti et al,

p. . 80-11 =.

JOnNUSTY F, USL iv ccvcsvcccscvsesecs

United States v. Sacco, 491 F.2d

MR ORS Eee

ey AO Tao asin sa panes +0

Wickard v. Filburn, 317 U.S. 111

Or AS Oa ak eee ear yee

iii

Page

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

WILLIAM THIBADEAU

Petitioner

Vv.

UNITED STATES OF AMERICA

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE UNITED

STATES:

The above-named Petitioner respect-

fully prays that a writ of certiorari issue

to review the judgment and opinion of the

United States Court of Appeals for the

Second Circuit entered in this proceeding

on May 15, 1981.

iv

OPINIONS BELOW

The opinion of the Second Circuit Court

of Appeals is unreported but is reprinted in

Petitioner's Appendix, along with the opin-

ion of the United States District Court for

the District of Connecticut (Hon. José

Cabranes) dated October 7, 1980.

JURISDICTION

The decision of the Second Circuit

Court of Appeals was rendered on May 15,

1981. This petition for a writ of certior-

ari was filed within sixty (60) days of the

judgment. This Court's jurisdiction is in-

voked under 28 U.S.C. Sec. 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

Commerce Clause (Article l, §8)

The Congress shall have power...to

regulate commerce with foreign nations, and

among the several States and with the Indian

Tribes.

STATEMENT OF THE CASE

On April 25, 1980, the Defendant,

William Thibadeau, his son, Patrick Thiba-

deau and Norman Harris were charged in a

two-count indictment with violating the

Federal Odometer Statute, 15 U.S.C. Sec.

1984, and with conspiring to violate the

Statute, 15 U.S.C. Sec. 1986.

Responding to Defendants’ Motion to Dismiss

on the grounds of duplicity, the Government

moved to dismiss the indictment without

prejudice, which motion was granted, and

on July 29, 1980, the Government filed a

seven-count information.

Each of the three co-defendants was charged

with two substantive violations of the

odometer statute and with conspiring to

violate the statute.

The Defendants moved to dismiss the

information in the trial court on the ground

that Title 15, Sections 1984 and 1986 are

unconstitutional for the reason that no

federal jurisdictional basis exists for

criminalizing intrastate odometer tampering.

The Hon. José A. Cabranes denied the

Motion to Dismiss on the foregoing ground

in a memorandum of decision filed on October

7, 1980. On December 15,

1980, Defendant William Thibadeau entered

a plea of guilty to count one of the infor-

mation. In so pleading the Defendant re-

quested permission to appeal the issues

raised by his motion to dismiss to the Court

of Appeals for the Second Circuit and to file

a petition for a writ of certiorari to this

Court. The Government consented to the

reservation of appeal and Judge Cabranes

specifically granted Defendant's request to

reserve his right of appeal.

On January 22, 1981, Judge Cabranes

sentenced the Defendant William Thibadeau

to the custody of the Attorney General for

one year, execution suspended, probation

for a open of three years. As a condition

of probation the Court imposed a twenty

thousand ($20,000.00) dollar fine.

On May 15, 1981 the Court of Appeals

for the Second Circuit affirmed the convic-

tion and rejected the constitutional chal-

lenge to 15 U.S.C. Secs. 1984 and 1986 in

a brief opinion.

REASONS FOR GRANTING THE WRIT

The decision rendered by the Court of

Appeals for the Second Circuit concernin

the constitutionality of 15 U.S.C. §§198

and 1986 is probably not in accord with an

applicable decision of this Court, to wit:

Perez v. United States, 402 U.S. 146 (1971).

qr.

CONGRESS DOES NOT HAVE THE POWER UNDER THE

COMMERCE CLAUSE TO CRIMINALIZE THE INTRA-

STATE TAMPERING OF ODOMETERS ABSENT A CLEAR

LEGISLATIVE RECORD THAT SUCH INTRASTATE

TAMPERING AFFECTS OR IMPACTS ON INTERSTATE

COMMERCE .

On July 29, 1980, the Government filed

a seven-count information charging William

Thibadeau, Norman Harris and Patrick

Thibadeau with substantive violations of

the Federal Odometer Statute, 15 U.S.C.

§1984, and conspiracy, 15 U.S.C. §1986.

Sections 1984 and 1986 provide as follows:

No person shall disconnect, reset,

or alter or cause to be disconnected,

reset, or altered, the odometer of any

motor vehicle with intent to change

visa) of miles indicated thereon.

1984)

No person shall conspire with any

other person to violate Sections 1983,

1984, 1985, 1987, or 1988 of this

title. (1986)

These sections are part of Subchapter

IV ("Odometer Requirements") of Chapter

46, "Motor Vehicle Information and Cost

Savings," 15 U.S.C. §1901, et seq. Prior

to July 14, 1976, violations of 15 U.S.C.

§§1984 and 1986 carried no criminal penal-

ties. On that date, however, Congress

enacted Section 1990c which provides a

penalty of not more than one year in jail

and/or a fine of $50,000.00 for a violation

of §1984 or §1986.

As is apparent from a eset of 15

U.S.C. §§1984 and 1986, both sections pur-

port to criminalize purely intrastate

activities. The Government is not requir-

ed to prove any nexus or impact upon

interstate commerce in order to sustain

its burden.

Since 1973 it has been a crime under

Connecticut State law for any person or

agent to "remove, turn back or change" the

areas on an odometer. Conn. Genh. Stat.

§14-106B(b)(d). It is Defendant's position

that by its amendment on July 14, 1976,

criminalizing the Federal Odometer statutes,

Congress has intruded into a purely state

matter over which it has no jurisdiction.

We therefore ask the Court to find §§1984

and 1986 unconstitutional.

There is no dispute that Congress has

the power to ot, page purely intrastate

activities should Congress have a rational

basis to find that those activities exert

a substantial effect on interstate

commerce. United States v. Darby, 312 U.S.

100 (1941); Wickard v. Filburn, S57 U.S.

111 (1942); Heart of Atlanta Motel v.

United States, 379 U.S. 241 (1964);

Katzenbach v. McClung, 379 U.S. 294 (1964);

Perez v. United States, 402 U.S. 146 (1971).

In Wickard, supra, the Court held that

even a small quantity of wheat grown and

consumed locally could be reached by Con-

gress since the grower satisfied his own

needs rather than purchasing the product

i joe tha auae pag pik ote held in

arby, supra, that it is within the power

of Congress to deem that an entire "class

of activities" affected interstate commerce

and therefore Congress could regulate both

intrastate and interstate incidences of

those activities. If Congress has made a

rational determination that the entire

class of activities is within the reach of

its commerce power, there is no need for

inquiry as to whether individual incidences,

whether interstate or intrastate, affect

commerce. Katzenbach v. McClung, supra;

Perez +: United States, supra. An the

ourt finds that Congress had a rational

basis for regulation of the entire class of

activities, the Court cannot "excise, as

trivial, individual instances of the class."

Maryland v. Wirtz, 392 U.S. 183, 193 (1968).

The doctrine that Congress must have a

rational basis for its finding that it is

necessary to reach intrastate matters and

that it must seek appropriate means was

articulated by Chief Justice Stone in

United States v. Wrightwood Dairy, 315 U.S.

The power of Congress over

interstate commerce is not confined

to the regulation of commerce among

the states. It extends to those

activities intrastate which so

affect interstate commerce or the

exercise of the power of Congress

over it as to make regulation of

them appropriate means to the

attainment of a legitimate end, the

exercise of the granted power of

Congress to regulate Interstate

commerce...Id. at 119.

In Heart of Atlanta Motel, supra, a two-tier

test to scrutinize Congress” exercise of

its commerce power over a class of activi-

ties was formulated. The two questions

posed by the Court were (1) did Congress

have a rational basis for finding that the

activity affected commerce; and (2) if it

had such a basis, "whether the means it

selected to eliminate that evil are reason-

able and appropriate." Id. at 258-259.

The Court has recognized that in mat-

ters of criminal activity, criminal juris-

diction is normally within the domain of

the State police power and that Congress

has "traditionally been reluctant to define

as a federal crime conduct readily denounced as

criminal by the States. This Congressional

policy is rooted in the same concepts of

American federalism that have provided the

basis for judge-made doctrines."' United

States v. Bass, 404 U.S. 336, 349

In order for Congress to reach purely intra-

state criminal activity, it must make a

clear statement of its purpose. 'Unless

NO gitar conveys its purpose clearly, it

will not be deemed to have significantly

changed the federal-state balance." Bass,

supra, at 349, Scarborough v. United

States, 431 U.S. 563, 368 (1977).

The statute challenged in Perez v.

United States, supra, was Title Il of the

Consumer Credit Protection Act (18 U.S.

§891, et seq.) which proscribed all extor-

tionate credit transactions which the Court

characterized as "loan sharking." The

issue presented to the Court was whether

Congress could reach purely intrastate .

incidences of such activities without re-

quiring proof that such activities affected

commerce. The Court, after scrutinizing

the legislative history, found that Congress

had made a thorough investigation into inter-

state organized crime and had made a deter-

mination that loan sharking was intrinsi-

cally and directly linked to the interstate

enterprise of organized crime, that loan

sharking was the second largest source of

revenue for organized crime, and that through

loan sharking the organized "underworld"

took control of legitimate businesses.

Therefore it was rational for Congress to

find that "[e]ven where extortionate credit

transactions are purely intrastate in char-

acter, they nevertheless directly affect

interstate and foreign commerce." Section

201(a), Title II, Consumer Credit Protection

Act.

The issue presented by Bass, supra,

differed in that the statute involved,

§1202(a) of the Omnibus Crime Control and

Safe Streets Act [18 U.S.C. App. §1202(a)],

contained a peeps yo requirement that the

proscribed activity have a nexus to inter-

state or foreign commerce. That statute

provided criminal sanctions for five classes

of persons who receive, possess, or trans-

port "in commerce or affecting commerce...

any firearm." The Government maintained

that it was not required to show a nexus

to commerce in individual cases involving

possession or receipt of a firearm by a con-

victed felon. The Court rejected that

claim, stating that the legislative history

did not support the contention that Congress

intended to reach mere possession or receipt

without a showing of a relationship to

commerce. Absent a clear direction from

Congress the Court refused to accept broad

reading of a statute that affected the sen-

sitive area of federal-state balance:

...In the instant case, the broad

construction urged by the Government

renders traditionally local criminal

conduct a matter for federal enforce-

ment and would also involve a substan-

tial extension of federal police

resources. Absent proof of some inter-

state commerce nexus in each case,

§1202(a) dramatically intrudes upon

traditional state criminal jurisdic-

tion. As in Lewis, the legislative

history provides scanty basis for con-

cluding that Congress faced these

serious questions and meant to affect

the federal-state balance in the way

now claimed by the Government. Absent

a clearer statement of intention from

Congress than is present here, we do

not interpret §1202(a) to reach the

a possession" of firearms. Id. at

The Court considered the Bass statute

once again in Scarborough v. United States,

supra. Although Scarborough held that the

overnment's burden of showing a nexus to

commerce was minimal and stated that the

nexus need not be "contemporaneous" with

possession, it re-articulated its position

that the legislative history and statutory

language did not support the contention

that no nexus was required:

It seems apparent from the

foregoing [legislative history] that

the purpose of Title VII was to pro-

scribe mere possession but that there

was some concern about the consti-

tutionality of such a statute. It

was that observed ambivalence that

made us unwilling in Bass to find

the clear intent necessary to con-

clude that Congress meant to dispense

with a nexus requirement...

Id. at 575. tone added. ]

The Court has discussed other criminal

statutes for which are has re! .ed on

its commerce power. en rare a ak the

Gun Control Act of 1968 (18 U.S.C. §922) in

Barrett v. United States, 423 U.S. 212 (1976),

which proscribed receipt of "any firearm or

ammunition which has been shipped or trans-

ported in interstate commerce” by certain

classes of persons, including convicted

felons, the Court relied on the legislative

history and language of the statute, and

reached a conclusion similar to that in

Scarborough, supra; that the legislative

history and language of the statute showed

that Congress intended to reach intrastate

activity and that the statute required a

nexus to commerce, albeit minimal, to sup-

port a conviction.

Section 922(d)(1) of the Gun Control

Act was challenged in Mandina v. United

States, 472 F.2d 1110 oF », cert.

denied 412 U.S. 907 (1973). Mandina

claimed that application of federal licens-

ing requirements to dealers whose business

was exclusively intrastate exceeded Congress’

power under the Commerce Clause. The Court

found that Congress had a rational basis

for requiring licenses of all dealers,

citing Congress' response to "widespread

National concern that existing Federal

control over the sale and shipment of fire-

arms [across] State lines is grossly inade-

quate,"' and that only through licensing of

all importers, dealers and manufacturers

would it be possible to control firearms

traffic. Id. at 1113. Further, the Court

heid that reasonable, appropriate and logi-

cal means to prevent interstate trafficking

in firearms for illegal foal tbe is to con-

trol its source through ming eas Id. at

1114. A similar rationale for the prohibi-

tion of sales of firearms to non-residents

[18 U.S.C. §922(b)(3)] was found by the

Court in United States v. Camacho, 528 F.2d

464 (9 Cir. 1976), cert. denied 425 U.S.

995 (1976).

It is apparent that there are twotypes

of criminal statutes emanating from Congress'

power to reach an entire class of activities

whether interstate or intrastate: (1) those

that contain a statutory requirement that

a nexus to foreign or interstate commerce

be shown; and (2) those for which no nexus

is required. The statutes subject of this

discussion (15 U.S.C. §§1984 and 1986) are

of the latter type as there is no language

requiring a nexus to commerce.

No person shall disconnect, re-

set, or alter or cause to be discon-

nected, reset, or altered, the odometer

of any motor vehicle with intent to

change the number of miles indicated

thereon. (1984)

No person shall conspire with

any other person to violate Sections

1983, 1984, 1985, 1987 or 1988 of

this title. (1986)

Section 1990c, added in 1976, provides

criminal penalties for violations of

§§1984 and 1986.

For those statutes that broadly reach

intrastate criminal activity, there must

be a rational basis for Congress' deter-

mination that in order to serve a legiti-

mate federal concern, intrastate as well as

interstate regulation is necessary. For

instance, the Perez statute (18 U.S.C. §891

et seq.) proscribing all extortionate credit

transactions, whether interstate or local,

was found to be a justifiable exercise of

the commerce power because Congress made an

informed determination, after extensive

hearings and investigations, that local

loansharking provided a foundation for and

was directly tied into organized, inter-

state crime organizations. A similar con-

clusion was reached by the 9th Circuit Court

of ref oo in United States v. Sacco, 491

F.2d 995 (9 Cir. I974) with respect tolocal

72-08 operations in violation of 18 U.S.C.

F955 (Part C, Title VIII of the Organized

Crime Control Act of 1970). Applying the

two-tier rational basis test enunciated in

Heart of Atlanta Motel, supra, and relying

on Perez, supra, the Court held that it was

rational for Congress to find that the

local gambling operations defined by the

statute had an effect on commerce in that

they were a great source of revenue for

organized crime. The Congressional find-

ings as to the extent of the effect of the

proscribed class of activities on commerce

were explicit and detailed. Quoting from

10

the Senate Report [No. 91-617, 91st Congress,

lst Sess. 16 (1969)], the Court related:

The Congress finds that (1) illegal

gambling involves widespread use of,

and has an effect upon, interstate

commerce and the facilities thereof;

(2) illegal st is dependent

upon facilities of interstate com-

merce for such purposes as obtaining

odds, ere and accepting bets, and

laying off bets; (3) money derived

from or used in illegal gambling

moves in interstate commerce or is

handled through the facilities there-

of; (4) paraphernalia for use in il-

legal gambling moves in interstate

commerce; and (5) illegal ns

enterprises are facilitated by the

corruption and bribery of State and

local officials or employees respon-

sible for the execution or enforce-

ment of criminal laws. Id. at 999.

The Court continued by summarizing other

facts developed in the Senate investigation:

It was also found that organized

crime had developed complex channels

through which ostensibly local gambling

operations sent their revenue to

central coffers. The illicit opera-

tions were seen to distort the produc-

tion of goods for commerce and the

flow of goods in interstate commerce.

Id. at 1000.

On the basis of the legislative inves-

tigation and findings, the Court concluded

that the "means chosen by Congress were

reasonable and appropriate. The goal was

to reach large-scale operations that were

so continuous and so substantial as to be

ll

of national concern." Id. at 1001.

By contrast, the legislative history of

15 U.S.C. §§1984 and 1986, and the criminal

penalties imposed by §1990c, is meagre. The

Congressional findings and purpose set forth

in §1981 contain passing references to the

self-evident fact that motor vehicles move

in the "current of commerce":

The Congress hereby finds that

purchasers, when buying motor vehicles,

rely heavily on the odometer reading

as an index of the condition and

value of such vehicle; that purchasers

are entitled to rely on the odometer

Phegeory as an accurate reflection of

the mileage actually traveled by the

vehicle; that an accurate indication

of the mileage traveled by a motor

vehicle assists the purchaser in

determining its mega and reliabili-

i and that motor vehicles move in

the current of interstate and foreign

commerce or affect such commerce. It

is therefore the purpose of this sub-

chapter to prohibit tampering with

odometers on motor vehicles and to

establish certain safeguards for the

protection of purchasers with respect

to the sale of motor vehicles having

altered reset odometers. [Emphasis

added. ]

The majority of discussion on the

floor of the Senate when the "Motor Vehicle

Information and Cost Savings Act" was

passed in 1971 was concerned with Titles

I through III of the Act. The few remarks

directed to the odometer section (Title IV)

at that time carrying only civil penalties,

illustrate that the thrust of the bill was

12

concerned with consumer safety and savings*

and that doubt was raised as to the odometer

regulation as evidenced by the discussion

on that provision between Senators Curtis

and Griffin:

MR. CURTIS: They have a provision

here to protect the consumer from

having the odometer reading--I thought

it was speedometer, but it is odoneter

--changed, so it cannot be disconnect-

ed to defraud purchasers. That would

be $2.50 a car because if there are

10 million cars sold, there will be

that many traded in. I do not know

whether they could inspect them for

$2.50 or not.

MR. GRIFFIN: I am going to have to

come to the defense of my senior

colleague and say that the $25

million to which I referred would deal

only with Title I. The provision

about the speedometers is in another

title. There are four titles to the

bill. My ee ae argument deals only

with title I, which requires the

promulgation of these so-called prop-

erty law standarcs.

MR. CURTIS: I understand that.

MR. GRIFFIN: How much it would cost

to enforce that particular provision,

I cannot tell the Senator. I do not know.

*The stated purpose of S. 976 was...

"to promote compels 5 20e among motor vehicle

manufacturers in the design and production

of safe motor vehicles having greater re-

sistance to damage and for other purposes."

117 Cong. Rec. 39035 (1971)

zs

MR. CURTIS: But they have provided

$25 million to enforce all four

sections?

MR. GRIFFIN: I am told by the staff

that the 3 million relates only to

title I, $2 million with respect to

title II; $50 million with respect

to title III; and about a half a

million dollars with respect to the

title the Senator from Nebraska is

referring to.

117 Cong. Rec. 39037-8 (1971)

As can be seen from the foregoing

colloquy, there was even misunderstanding

as to whether the statute dealt with

speedometers or odometers. In addition,

Senator Curtis raised the question as to

the relation of odometer tampering to

vehicle safety.

MR. CURTIS: Is there any relation

between ant age consumers from

having their speedometers [sic]

changed and safety?

MR. GRIFFIN: Not a bit.

MR. CURTIS: I would think it would

be quite remote.

(Cong. Rec. at 39038)

Senator Curtis then went on to raise

doubts about the extension of federal

jurisdiction into this area:

It seems to me one of the issues

the Congress must decide is whether or

not we are going to take over and run

from Washington every human endeavor.

I represent a rural State. It seems

that one of my biggest jobs is fighting

14

the Federal Government to keep it

from closing up all the rural communi-

ties. It does not make much differ-

ence what the business activity is,

the Federal Government is harassing

it and policing it and inspecting

ae

I want to do what is properly

within the jurisdiction of the Federal

Government to do in the field of safe-

ty, but I know that I do not want to

turn the policing of every transac-

tion and every act in every type of

business and the design of every

vehicle over to the Federal Govern-

ment.

Con. Rec. at 39038

The Senate Report (92-413) and House

Conference Report (92-1476) submitted in

support of the Motor Vehicle Information

and Cost Savings Act in 1972 does not pro-

vide much more support for the necessity

of such a broad odometer statute. Again,

the bulk of the legislative history as re-

ported in U.S. Code Congressional and

Administrative News, p. et seq.

deals with other aspects of the Act.

In the section entitled "Background and

Need" the Senate Report stated with respect

t> Title IV:

Finally, there is a need to adopt

a national policy against odometer

tampering. Some 17 states persently

have legislation prohibiting persons

from tampering with odometers. A

national policy against such fraudu-

lent practices is needed.

1972 U.S. Code Cong. and Admin.

News 3964.

15

In support of the need for a national

policy, the report stated as follows:

Presently some seventeen States

have enacted legislation to curb this

practice. However, States without

such legislation have found this prac-

tice on the increase, especially when

a neighboring State has an odometer

law. Odometers are turned back in

States without odometer laws and then

cars are marketed at inflated values

in States with such laws. Thus, State

odometer laws are easily circumvented

and people in a State with such a law

suffer because of this practice. By

fey ge the disconnecting or turn-

ing back of odometers , title IV would

establish a national policy against

odometer tampering and prevent con-

sumers from being victimized by such

abuses. Id. at 3962.

No more evidence was offered in sup-

sgl A the title when it was first enacted

in 1972.

In 1976, amendments to the 1972 act

were proposed and passed, including an

amendment to Title IV to provide for crimi-

nal penalties for violations of the odometer-

tampering sections. In support of the crim-

inal sanctions, Senate Report 94-155 stated

as follows:

While Title IV established a

comprehensive law prohibiting odometer

tampering, it provided for enforcement

only through private civil actions or

injunctive actions. In over two years,

only one injunctive enforcement action

has been brought by the Attorney

General and few consumers have utilized

16

the private civil action provisions.

In testimony before the Senate

Commerce Committee, officials of the

Department of Transportation indicat-

ed that without additional enforce-

ment powers and sanctions, it would

be virtually impossible to put a halt

to the trafficking of vehicles in

Interstate commerce which had been

subject to odometer tampering. Both

the Department of Transportation and

the Attorney General supported addi-

tional powers and sanctions.

1976 U.S. Code Cong. and Admin.

News, 1723.

Hearings were held before the House

Committee on Interstate and Foreign Commerce

on July 28 and 30, 1975.* At that time,

testimony was heard from James B. Gregory,

Administrator, and other officials of the

National Highway Traffic Safety Administra-

tion of the Department of Transportation.

Mr. Gregory testified as to the extent of

odometer ae since the 1972 statute

was passed. In his prepared statement, Mr.

Gregory stated that his Department received

“hundreds of complaints" of odometer tamper-

ing by dealers and individuals, and that

ance yt $e og f ability was not provided

by the 1972 Act, his Department had not

been able to pursue the civil remedies avail-

able. Mr. Gregory described two types re

*The Senate Report makes reference to

hearings before the Senate Commerce Commit-

tee. The Congressional Information Service

listings for the bills in question contain

no indication of Senate Committee hearings,

although the hearings before the House Com-

mittee on Interstate and Foreign Commerce

for both the House bill (H.R. 8091) and

the Senate bill (S. 1518) are listed.

17

complaints: those of multiple violations

by organized operations and those by con-

sumers about single violations. In the

course of questioning by members of the

House Committee, Mr. Gregory was asked to

describe the nature of the organized oper-

ations. In turn, Mr. Gregory asked a

staff member of his Department's Chief

Counsel's office to respond, a Mr. ,berndt.

Mr. Berndt stated that there were "some

large scale" operations and pots of

"individual" ey eae and he did not

provide much by way of actual statistics:

MR. VAN DEERLIN: What would be the

nature of organized tampering opera-

tions to which you refer in your

testimony?

MR. GREGORY: Since our Chief Counsel's

office had the most direct exposure

to that, I would like to ask Mr. Berndt

to discuss some of the examples of this

we have seen.

MR. BERNDT: Well, we are very frus-

trated. We have had a lot of reports

of both individual dealer type tamper-

ing and some large-scale operations.

I can recall one where we had an infor-

mant that began to tell us about a

large leasing company that was system-

atically rolii ack the odometers and

then selling those vehicles. Those

vehicles were then sold by an auction

company which was corporately related

to the leasing company, then those

vehicles were purchased by people from

all over, dealers and so on. I think

that is a typical example.

kke*K*

18

MR. BERNDT: I think I was about to

come forward with at least one more

case of odometer tampering. If I

may, Mr. Chairman, I would be pleased

to provide for the record some other

examples, if the committee so wishes,

to get the flavor of what the problem

is.

MR. VAN DEERLIN: I was interested in

the idea of organized tampering. Is

there a little Mafia at work here?

MR. BEKNDT: I think we have evidence

it is organized. Now any other impli-

cations, I think, would have to be

only allegations on anybody's part.

In the State of Washington, as an

example, two men were recently convict-

ed on charges of grand larceny for

sale of vehicles whose odometers had

been altered.

Id. at 64. :

As is apparent, although some opera-

tions might have been characterized as

"organized,"' there was no evidence to show

that odometer tampering was linked to inter-

state organized crime. With respect to the

Washington example, Mr. Van Deerlin was quick

to point out that Washington had its own

odometer statute. Yet Mr. Berndt used the

Washington prosecution as an illustration

for the need of a federal criminal law:

MR. VAN DEERLIN: They had a State law.

MR. BERNDT: Evidence introduced at

the trial demonstrated the men had

been purchasing high mileage cars in

California and transporting them to

Washington for odometer resetting. It

appears that certain persons in Cali-

fornia were part of the tampering scheme

19

and were aware of the plans for the

vehicle. In our judgment, a stronger

- Federal law would enable investiga-

tion of the interstate aspects of such

operations and of course appropriate

enforcement of the antiodometer tamper-

ing provisions. We have similar cases

in States which have no odometer

tampering statute. These States often

act as a sort of collector of cars for

tampering from surrounding States which

do have odometer tampering laws. The

State of Idaho seems to be a good

example of this.

Id. at 64-65.

At the time of the House Hearings, not

only did Washington have its own odometer

statute, but a total of 36 states had

statutes in effect. At the time of the

original enactment in 1972, only 17 states

had odometer statutes. Mr. Gregory, as part

of his prepared statement said that his

department, since the original enactment,

‘had “urged the states to aid in nt

ttn At ceteee the adoption of laws

eb ibiting all efforts to defraud vehicle

ie through odometer tampering." Id. at

At this writing there are only seven

states which have made no provisions to al-

leviate odometer tampering (Idaho, Illinois,

Indiana, Montana, Oklahoma, West Virginia

and Wyoming). Forty-three states have

statutes carrying fines and terms of impri-

sonment.

It would appear that the Department of

Transportation was not only successful in

increasing the number of states with odome-

ter statutes and at the same time decreasin

the need for a national policy, but it woul

appear that the states that had complained

20

to a federal agency of trafficking of

vehicles into their borders for sale from

states with odometer statutes had an easy

remedy within their own police power--to

enact their own odometer statutes. Further-

more, Mr. Berndt's example of the shipment

into Washington, which had a statute, does

not support his argument that a federal law

was needed to prohibit shipment of vehicles

into states without statutes. Mr. Berndt

stated that his peperement was seeking a

"stronger Federal law [that] would enable

investigation of the interstate aspects of

such operations..."" Td. at 64-65. But as

enacted, §1984 exceeds his statement of need

by reaching broadly to all aspects of such

operations, intrastate as well as interstate.

A representative of the National Automo-

bile Dealers Association, Reed B. Draper,

Chairman, Governmental Relations Committee,

testified that he felt the problem did not

emanate from new car dealers due to State

regulation, but rather wholesalers of used

cars, many of which dealers, by nature, oper-

ate interstate:

I can also assure you that NADA

believes the violations by the indepen-

dent used car dealers are minimal.

The reason for that is most States

have ah iar gbaerty bodies where the dealers

are bonded and the dealer is not an in-

dividual who is operating on one corner

today and gone the next day. He is

usually a ssp oo member of his

community. He is knowledgeable about

odometer legislation.

But the problem arises in that, tak-

ing Mr. McCollister's car, his 1973

Buick, chances are during the lifetime

of that vehicle from the time it was

manufactured until the time that it goes

to the salvage yard, that car will be

wholesaled, and by wholesaled I mean

exactly this.

21

We will take a car in trade which

is a high mileage car. Because of odo-

meter legislation dealers are not set-

ting--rather new car dealers are not

setting speedometers back; they will

wholesale that vehicle to an automobile

wholesaler. An automobile wholesaler is

a very ethereal ane it is very hard

to locate them--and I am addressing my

comments to why it was necessary to in-

volve the U.S. Attorney General--he op-

erates interstate, he will purchase cars

in Michigan, one vehicle might end up in

Nebraska or California, depending upon

the market for that car.

Id. at 74.

Therefore, the problem as presented to

the House Committee was a narrow one. It is

clear from the testimony presented that there

was only a certain type of odometer tampering

that was beyond the control of the state

police power; wholesale dealers who operate

in many states, and whose base of operations

is difficult to pinpoint. The complaints

about interstate shipment of used vehicles

into states without odometer statutes could

easily be remedied by enactment of statutes

in those states. A statute could easily have

been drafted to reach the described organized

interstate trafficking within the commerce

power by requiring a nexus to commerce, i.e.,

a proscription of odometer i on on vehi-

cles shipped into or received from interstate

or foreign commerce.

Another justification for the need for

federal criminal control over intrastate ac-

tivities is when those activities are so

commingled with or related to interstate ac-

tivities that local activities "must be reg-

ulated if interstate commerce is to be

effectively controlled."' United States v.

Lopez, 459 F.2d 949 (5 Cir. I972), cert. denied

22

409 U.S. 878 (1972); United States v. Scales

we bala 371 (6 aa 1972); United States v.

arby, supra. Both Lopez and Scales chal-

enged the Comprehensive Drug Abuse Preven-

tion and Control Act of 1970, 21 U.S.C. 841

(a) (1) on the basis that the statute exceed-

ed the commerce power in that there was no

requirement of allegation or proof that the

particular activity involved in each individ-

ual case affected ,interstate commerce. Again,

as in Perez and other cases reviewing crimi-

nal statutes without statutory nexus require-

ments, the legislative intent and purpose

was scrutinized. In Lopez the court applied

the two-tier test of rationality and reason-

ableness and determined that Congress had a

rational basis for determining it was neces-

sary to proscribe purely interstate instances

of drug traffic in order to alleviate a

national problem. The findings of Congress

as to why all intrastate instances should be

proscribed were explicit:

..-Principal among these [findings and

declarations] were the findings that

intrastate incidents of the traffic in

controlled substances, such as manufac-

ture, local distributions and posses-

sion, had a substantial and direct

effect on interstate commerce; that

such intrastate incidents of the traf-

fic in controlled substances swelled

the interstate traffic in such substan-

ces; that it was impossible to distin-

guish between substances manufactured

and distributed intrastate from those

manufactured and distributed interstate

and therefore, it was not feasible to

distinguish between such substances in

terms of controls; and that control of

the intrastate incidents of traffic in

controlled substances was essential to

the control on interstate incidents of

that traffic. Lopez, supra, at 952-953.

23

The Court also pointed out that the

findings of Congress were based on "statis-

tical reports and extensive testimony" as to

the extent of drug traffic in the United

States. Id. at 953. Relying on the implicit

legislative intent and the holding in Perez,

the Court held that the statute was within

the commerce power.

In United States v. Burroughs, 564 F.2d

1111 (4 Cir. 1977), when faced with a

statute that contained no orig oe gt language

requiring a nexus to commerce [18 U.S.C.

§2511(1)(a)] the 4th Circuit Court of Appeals

3 held the judgment of acquittal granted by

e District Court. Although it did not

ep the issue of the statute's constitu-

tionality under the commerce clause, the

Court analyzed the other subsections of 18

U.S.C. §2511 which did contain a nexus re-

quirement. The Court rejected the govern-

ment's contention that once Congress estab-

lished a sufficient nexus to legislate, the

nexus would be imputed to all sections of

the statute. Relying on United States v.

Bass, supra, the Court held that Congress

had not WoTainly and unmistakably" made the

proscribed activity a federal crime "absent

some demonstrated Federal nexus. Id. at

emphasis origina n summary, the

Court stated:

..In the instant case, the broad con-

struction urged by the government would

render purely local criminal conduct a

matter of federal enforcement and would

also involve a substantial extension

of federal police resources. Absent

proof of some federal nexus in each

case, §2511(1) (a) would dramatically

intrude upon traditional state criminal

jurisdiction. Id. at 1116.

24

The Second Circuit was confronted with

the issue of the sufficiency of the Federal

nexus for conviction under the Travel Act

(18 U.S.C. §1952) in United States v. Archer,

486 F.2d 670 (2 Cir. I973). aLenoues the

court based its finding that the Federal

nexus was insufficient since the Federal

element was tag | Sgt by the government and

did not reach the constitutional issue, it

discussed the problem of expanding Federal

jurisdiction in criminal matters: "...Today

there is widespread concern whether the

federal criminal law has not outrun reason-

able bounds...'"' Id. at 677. In his exami-

nation of the legislative history to deter-

mine Congress' intent as to the degree of

nexus required, Judge Friendly made obser-

vations that are applicable to the issue

resented herein. He was impressed with the

readth of the language of the text of the

statute as compared to its title. For

instance the title referred to a proscrip-

tion of acts "in aid of racketerring enter-

rises,"' yet the textual definition of un-

awful activities contained no such limita-

tions. The same could be said of the

statute under discussion. The 1976 version,

which amendment included criminal sanctions,

bears the title "Motor Vehicle Information

and Costs Savings" and deals largely with

improving fuel efficiency, bumper standards

and diagnostic inspections, and although

the purpose of the act as articulated when

proposed to the Senate was to "promote com-

petition in the production of safe motor

vehicles..." the act contains a criminal

provision reaching any instance of odometer

tampering providing for up to one year of

incarceration and/or a $50,000 fine. Judge

Friendly's remarks concerning the legisla-

tive history of the Travel Act are equally

applicable here:

25

...The legislative history affords

little indication of Congressional

awareness of the enormous reach the

statute could have if literally

interpreted.

Id. at 678.*

The Supreme Court also rejected an ex-

pansive reading of the Travel Act in Rewis

v. United States, 401 U.S. 808 (1971) and

issued a warning against the over-expansion

of federal criminal jurisdiction based on

the commerce power:

Given the ease with which citizens

of our Nation are able to travel and

the existence of many multi-state

metropolitan areas, substantial amounts

of criminal activity, traditionally

subject to state iin, = egy are

patronized by out-of-state customers.

In such a context, Congress would cer-

tainly recognize that an expansive

Travel Act would deter sensitive feder-

al/state relationships, could over-

extend limited federal police resources,

and might well produce situations in

which an a et origins of customers,

a matter of happenstance, would trans-

form relatively minor state offenses

into federal felonies...

Id. at 812.

Such would be the situation in the

instant case sheild the government argue a

nexus to commerce on the basis that cles

with tampered odometers might be sold to

out-of-state customers. The purely intrastate

*Judge Friendly recently reiterated

his concern with the use of federal crime

statutes to prosecute state offenses. United

States v. Mennuti, et al, Slip. Op. 80-

26

nature of the alleged rolling back of an

odometer would be transformed into a federal

crime simply because of the _Secgkapaic

origin of customers, a matter of happen-

stance."' Additionally, a governmental show-

ing of a claimed nexus not required by the

statute cannot cure a statute that exceeds

the power of Congress and therefore is uncon-

stitutional on its face.

As evidenced by the foregoing discus-

sion of the investigation and records of

Congress, there was no discussion of the

ramifications of the broad reach of the

statute, and no discussion showing that

Congress had made an informed and rational

determination that the congressional objec-

tive could not be met unless activities

traditionally subject of the state police

power were reached. Indeed, given the nature

of the problem that Congress faced, and its

goal to alleviate the interstate aspects of

that problem, Congress could have met its

objective quite simply by drafting a narrow-

er statute containing a nexus. A statute of

that nature would clearly have been within

the bounds of the commerce power. The his-

tory and reeeuaee of the findings and statute

give no indication that Congress had faced

the "serious questions and meant to affect

the federal-state balance..."' Bass, supra,

at 350; also see, United States v. Mennuti,

Slip. Op. 80-I1T74 r. January 9,

There is no dispute that Congress has

the power to reach purely local matters with-

out ge pc a nexus to commerce if there

is a rational basis for its belief that the

local incidences must be controlled in order

to regulate a class of activities that

affect commerce which cannot be effectuated

without control of the intrastate aspects,

and if Congress has chosen a reasonable means

to effectuate that control. An examination

27

of those cases which upheld statutes

without nexus requirements illustrates that

Congress dealt head-on with the issue of

whether it was necessary to reach local

activities by conducting extensive investi-

gation and discussion as to the navure of

the enterprise they were attempting to

alleviate. The record to support those

determinations--i.e., with respect to the

relationship of local activities and organ-

ized crime, the relationship of licensing

of dealers to the national problem of il-

legal gun traffic, and the difficulties of

controlling interstate drug traffic without

reaching local operations--is extensive and

specific. Additionally in each of the cases

dealing with such expansive federal juris-

dictions into intrastate activities, the

Courts have recognized that Congress was

dealing with a matter of national importance

suitable for federal involvement. e few

federal criminal statutes relying on the

commerce power that do not require a nexus

deal with those types of serious national

concerns--organized crime, gun control, drug

traffic-which are of such a deep and wide-

spread nature that they reach the very

essence of the quality of life of our nation

as a whole. If odometer tampering is tanta-

mount to those concerns and justifies the

broad reach of federal law enforcement into

an area, which by our fundamental and long-

held principles of federalism has been re-

served to the states, a major step toward

the erosion of the delicate balance of

federal-state power will be taken.

28

CONCLUSION

For the foregoing reasons Petitioner

pean srr gs requests that the writ of

certiorari be granted.

Respectfully submitted,

THE PETITIONER

By Hubert J. Santos

A Member of the Bar

of the Supreme Court

of the United States

29

NO.

Iu The

Supreme Court of the United States

OCTOBER TERM, 1981

WILLIAM THIBADEAU

Petitioner

vs.

UNITED STATES OF AMERICA

Respondent

APPENDIX (1)

OPINION OF UNITED STATES

DISTRICT COURT, DISTRICT OF

CONNECTICUT (October 7, 1980)

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

CLERK

DISTRICT COURT

HARTFORD, CONN.

UNITED STATES OF AMERICA

Vv. : CRIMINAL NO. H 80-29

WILLIAM THIBADEAU , :

PATRICK THIBADEAU and

NORMAN HARRIS :

RULING ON MOTION TO DISMISS

The defendants have moved to dismiss the

information charging them with tamperin

with motor vehicle odometers, in violation

of 15 U.S.C. §§ 1984 and 1986, on the

grounds that: (1) those statutes were enact-

ed in violation of the commerce clause, U.S.

Const., art. I, § 8, cl. 3; and (2) the

provision of 15 U.S.C. § 1990c for a fine of

as much as $50,000 for a violation of 15

U.S.C. §§ 1984 or 1986 violates the Eighth

Amendment's prohibition of "excessive fines."

The court finds that the first argument is

without merit and that the second contention

is premature. Accordingly, the motion to

dismiss is denied.

The defendants’ commerce clause argument

must be rejected, since Congress may legis-

late under that clause so long as there is

a "rational basis for finding [the] regula-

tory scheme necessary to the protection of

commerce." Katzenbach v. McClung, 379 U.S.

294, 304 (1964). The statutory findings

embodied in 15 U.S.C. § 1981, as well as the

legislative history from which the defendants

2A

exhaustively quote in their brief, demon-

strate that Congress had the requisite

rational basis for proscribing odometer

tampering. Moreover, Congress' determina-

tion that criminal, as well as civil,

sanctions might be eg Teams for the

conduct with which the defendants are charg-

ed in this case may not be second-guessed

by the court; a statute is not unconstitu-

tional under the commerce clause merely

because Congress "could have pursued other

methods" to achieve the permissible goals

of the legislation. Heart of Atlanta Motel,

Inc. v. United States, % a

(1964).

The defendants’ claim that the maximum

fine provided in 15 U.S.C. § 1990c violates

the Eighth Amendment is premature. The con-

stitutionality of the penalties which a

court may prescribe after conviction is not

ripe for judicial determination where, as

here, the defendants have not been convict-

ed, much less sentenced. See Communist P

of the United States v. Subversive Rctivitio

ontro ard, ; :

United States v. Bradford, Crim. No. H 80-1,

at 1-2 (D. Conn. June 10, 1980) (alternative

holding); United States v. Williams, Crim.

No. H 78-41, at 7-8 (D. Conn. Jan. 11, 1979)

(Blumenfeld, J.) (alternative holding) ;

United States v. Maiden, 355 F. Supp. 743,

. Conn. ewman, J.) (Alternative

holding); United States v. Miller, 249 F.

Supp. 59, - A A eee d, 367

F. 2d 72 (2d Cir. 1966), cert. denied, 386

U.S. 911 (1967). Accordingly, the court

denies this part of the motion without

reaching its merits.

For the Pages Mm reasons, the motion

to dismiss the information is denied.

It is so ordered. fe

/s/ José A. Cabranes

José A. Cabranes

3A

APPENDIX (2)

OPINION OF THE COURT OF

APPEALS FOR THE SECOND COURT

UNITED STATES COURT OF APPEALS

for the

SECOND CIRCUIT

At a stated Term of the United States

Court of Appeals for the Second Circuit,

held at the United States Courthouse in the

City of New York, on the fifteenth day of

May, one thousand nine hundred and eighty-

one.

Present:

HONORABLE IRVING R. KAUFMAN,

HONORABLE WALTER R. MANSFIELD,

HONORABLE JAMES L. OAKES,

Circuit Judges, yited States Court of

FILED

MAY 15, 1981

) A. DANIEL FUSARO,

UNITED STATES OF AMERICA, CLERK - SECOND

Appellee, CIRCUIT

) 81-1030

v. ) 81-1031

) 81-1032

PATRICK THIBADEAU, WILLIAM _)

THIBADEAU and NORMAN HARRIS, )

peceNSNeNt:

NB.

not constitute a formal opinion

of this court and is not uniformly

available to all parties, it shall

not be reported, cited or other-

wise used in unrelated cases

before this or any other court.

Since this statement does

Appeal from the United States District

Court for the District of Connecticut.

5A

This cause came on to be heard on the

transcript of record from the United States

District Court for the District of Connecti-

cut, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that

the jud

ents of said District Court be and

it hereby are affirmed.

i.

The penal statutes challenged are

an appropriate exercise of

Congress's Commerce Power. The

Congressional findings set forth

in 15 U.S.C. § 1981 and the

legislative history to 15 U.S.C.

§§ 1984-1986 indicate that Congress

had a rational basis for concluding

that odometer tampering affected

interstate commerce and that the

intrastate manifestations of this

conduct fell within a class of

activities that Congress had the

power to prohibit. See Perez v.

United States, 402 U.S. 146 (1971);

Heart of Atlanta Motel, Inc. v.

United States, 379 U.S. 241 (1964).

Furthermore, the means Congress

adopted to deter this conduct were

reasonable, since its earlier

reliance on civil sanctions had

proved to be unfounded. See Heart

of Atlanta Motel, Inc., supra.

Sections 1984-1986 may also be up-

held on the basis of Congress's un-

doubted authority to protect the

instrumentalities of interstate

commerce. See Perez. supra, 402

U.S. at 150; Houston, East and West

Texas Railway Co. v. United States,

[The Shreveport Rate Case], 234

U.S. 342 CIS 14),

6A

Our application of the three

factors listed in Carmona v. Ward,

576 F.2d 405 (2d Cir. 1978), cert.

denied, 439 U.S. 1091 (1979),

Indicates that the fines imposed on

appellants were not excessive and,

accordingly, did not violate the

Eighth Amendment.

/s/ Irving R. Kaufman

/s/ Walter R. Mansfield

/s/ James L. Oakes

Circuit Judges.

7A