Appendix — United States v. RSR Corp.

la

APPENDIX A

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

V.

RSR CORPORATION, DEFENDANT-APPELLANT.

No. 80-1782

United States Court of Appeals,

Fifth Circuit. *

Unit A

Jan. 4, 1982.

Appeal from the United States District Court for the

Northern District of Texas.

Before RUBIN, RANDALL and TATE, Circuit Judges.

PER CURIAM:

This case presents the issue of whether Congress in-

advertently changed the application of certain criminal

penalty provisions for violation of federal motor safety

regulations when it recently recodified the Interstate

Commerce Act. We conclude that Congress has done

80.

The primary business of defendant RSR Corporation

is the recycling of salvaged batteries and the selling of

lead taken from these batteries. RSR operates a large

fleet of trucks in the course of its — These

trucks are not for hire, and they are used to transport

RSR's property across state lines. On April 21, 1980

the government filed an information containing eight

*Former Fifth Circuit case, Section 9/1) of Public Law

96-452— October 14, 1980.

counts against RSR a criminal violation of the

Federal Motor Carriers * *

ly, the government charged that RSR had maintained

false daily driver logs in violation of 49 C. F. R. 396.8.

It claimed that a violation of these regulations sub-

jected RSR to criminal penalties under 49 U.S.C.

§ 11909(b), which fines for willful falsification

of such records. RSR moved to dismiss the counts of

the information on the grounds that it was a private

motor carrier and that § 1190%b) did not apply criminal

es to private carriers. The trial court denied

’s motion on June 16, 1980. On June 23, 1980, RSR

entered a plea of guilty to counts 1, 3, 5, 7, and 8 of the

information. The other counts were dismissed. RSR

now appeals from the denial of its motion to dismiss the

entire information. We reverse.

Our view, simply stated, is that due to the 1978

recodification of the Interstate Commerce Act, criminal

penalties for violations of 49 C.F.R. § 395.8 no longer

apply to private motor carriers.* The language of the

present penalty provision, 49 U.S.C. § 11909(b), com-

pels this result, even though the corresponding pre-

recodification provision, 49 U.S.C. § 322(g), would

have permitted penal sanctions against private carriers.

149 C. F. R. § 395.8 (1980) provides, in pertinent part:

* The government has not contested for purposes of this

peal that RSR is a private *

the Interstate Commerce Act. See 40 U.S.C. §

3a

To understand why this is so, a discussion of the history

of the relevant statutory provisions of the Interstate

Commerce Act is necessary.

Statutory History

enacted Part II of the Interstate Com-

merce Act on August 9, 1985. Pub. L. No. 74-226, 49

Stat. 543 (originally codified at 49 U.S.C. §§ 301-327;

y codified in scattered sections of 49 U.S.C.).

e new additions to the Interstate Commer« Act em-

power I the Interstate Commerce Commission, co regu-

late various aspects of transportation of property by

motor carriers engaged in interstate commerce, de-

pending upon whether the carrier was classified as a

common, contract, or private carrier. Section 204(a)(3)

of the new Act, as gy in 49 U.S.C. § 304(a)8),

gave the ICC 3 regulations gov-

erning the safety of 9 of private motor

carriers:

(a) It shall be the duty of the Commission —

by Ne- of property

motor vehicie, if Tree: therefor is 12 reason-

aments — 22

sie requir Baal

af equipment. In the event are

estabiio:: stn a Slr ere al eo

strued to include 2

8 821, 322(a),

(b), (d), O, and (g), and 824 of

At issue in this case are a set of regulations issued un-

der authority of 49 U.S.C. § 304(a)(8) describing re-

diver logbooks. cBN 8868.

4a

The penalty provisions for failure to comply with

these regulations were originally contained in 49

U.S.C. § 322(g) (current version at 49 U.S.C.

11909000):

Any motor carrier, broker, or other person, or

any officer, 828 or representative

thereof, who shall y fail or refuse to make a

report to the Commission as ired by this chap-

ter, or to make specific and full, true, and correct

answer to any question within thirty days from the

time it is lawfully required »y the Commission so

to do, or to keep accounts, records, and memoran-

da in the form and manner prescribed by the Com-

mission, or shall knowingly and willfully falsify, de-

stroy, mutilate, or alter any such report, account,

record, or memorandum, or shall knowingly and

willfully file with the Commission any false report,

account, record or memorandum, or shall knowing-

ly and willfully neglect or fail to make full, true,

and correct entries in such accounts, records, or

memoranda of all facts and transactions apper-

taining to the business of the carrier, or person re-

quired under this chapter to keep the same, o

knowingly and willfully keep any accounts,

records, or memoranda contrary to the rules, regu-

lations, or orders of the Commission with respect

thereto, shall be deemed guilty of a misdemeanor

and upon conviction thereof be subject to each of-

fense to a fine of not more than $5,000. As used in

this subsection the words “keep” and “kept” shall

be construed to mean made, , or compiled,

as well as retained. ( added) ,

These penalty provisions applied to private motor carri-

ers because of § 304(a)(3), which specifically mentions

§ 322(g) as a provision where the definition of “motor

On October 15, 1966, Congress created the Depart-

ment of Transportation by means of Pub.L. No. 89-670,

80 Stat. 981 (codified at 49 U.S. C. §§ 1651 et seq.)

5a

(hereinafter referred to as the “Department of Trans-

portation Act”). Congress transferred the ICC's au-

thority to regulate private motor carriers under

§ 304(a)(8) to the DOT. 49 U.S.C. § 16550) 8600) pro-

vided that:

(e) There are hereby transferred to and vested

in the Secretary [of Transportation) all functions,

powers, and duties of the Interstate Commerce

Commission, and of the Chairman, members, offi-

cers, and offices thereof, under—

(6) the following provisions of the Interstate

Commerce Act as amended—

(C) relating generally to cations and

maximum hours of service of employees and

safety of operation and wy myer Sections

204(a)(1) and (2), to the extent that they relate to

qualifications and maximum hours of service em-

ployees and safety of operation and equipment;

— sections 204(a) (3), Ga), and (5) 49 U.S.C.

).

49 U.S.C. § 1655(f) gave the DOT several functions

and administrative powers formerly held by the ICC,

including those under § 322(g):

(2A) With respect to any function which is

transferred to the by subsection (e) and

which was vested in the Interstate Commerce

Commission preceding such transfer, the Secretary

shall have the same administrative powers under

the Interstate Commerce Act as the Commission

had before such transfer with respect to such

transferred function. After such transfer, the Com-

mission may exercise its administrative un-

der the Interstate Commerce Act only with respect

3 of its functions not transferred by subsec-

e).

(B) For purposes of this paragraph—

6a

(i) the term “function” includes power and

duty, and

ch the term “administrative powers under the

Interstate Commerce Act” mean: any functions

under the following provisions of the Interstate

Commerce Act, as amended: ... section[ ] ...

[codified as 49 U.S.C. § 322] (except subsec-

tions (b)(2) and () there)

After the passage of the Department of Transporta-

tion Act, r motor carriers was no

longer under the ction of the ICC. 49 U.S.C.

§ 1655(f)(2)(A).

On October 17, 1978, in a laudatory effort to recodify

parts of the Interstate Commerce Act, Congress en-

acted Pub.L. No. 95-478, 92 Stat. 1337 (codified at 49

U.S.C. 58 10101-11916) (hereinafter referred to as the

“Recodification Act”). It is undisputed that through this

recodification, Congress intended no substantive

change in the Interstate Commerce Act and related

laws. See H. R. Rep. No. 95-1395, 95th Cong., Ist Sess.

4, 9-10 (1978), reprinted in [1978] U.S. Code Cong. &

Ad. News 3009, 3012-13, 3018. The purpose of the

recodification was merely to simplify language, replace

obsolete terms, and eliminate superseded and obsolete

material.

* The legislative history is echoed in the words of the Recodi-

fication Act itself. Section 3 of the Act, entitled “Legislative

Purpose and Construction,” stated that:

(a) Sections 1 and 2 of this Act restate, without substan-

tive , laws enacted before May 16, 1978, that were

those sections. Those sections may not be con-

!

strued as making a substantive in the laws re-

placed. Laws enacted after May 15, 1978, that are incon-

sistent with this act are considered as superseding it to the

extent of the inconsistency.

(b) A reference to a law replaced by sections 1 and 2 uf

this Act, including a reference in the regulation, or

other law, is deemed to refer to the corresponding provi-

5

S

:

2

7a

Nevertheless, the provision enacted by Congress to

replace 49 U.S.C. § 322(g), 49 U.S.C. 11909(b), differs

significantly from the former provision in its language:

A person required to make a report to the Com-

mission, answer a question, or make, Doh ye or

preserve a record under this subtitle trans-

portation subject to the jurisdiction of the Commis-

sion under subchapter II of chapter 105 of this ti-

tle, or an officer, agent, or employee of that

person, that (1) 1

(2) willfully does not specificall 28 completely, and

truthfully ans wer that question days from the

„ tear es ae obo

answered, (3) willfully does not make, prepare, or

preserve that record in the form and manner pre-

scribed by the Commission, (4) knowingly and will-

fully falsifies, destroys, mutilates, or that

report or record, (5) knowingly and y files a

false report or record with the Commission, (6)

knowingly and willfully makes a false or i ete

entry in that record about a business related fact

or transaction, or (7) knowingly and willfully

(c) An order, rule, or ation in effect under a law re-

placed by sections 1 and 2 of this Act continues in effect

under the corresponding provision enacted by this Act un-

til repealed, amended, or superseded.

(d) An action taken or an offense committed under a law

replaced by sections 1 and 2 of this Act is deemed to have

been taken or committed under the corresponding provi-

(f) If a provision enacted by this Act is held invalid,

ae eee eee ee ee ee ene

vision remain in effect. If a provision of this Act is in-

valid in of its applications, the provision remains valid

for all applications that are severable from any of the

invalid applications.

Pub. L. 95-478, Oct. 17, 1978, 92 Stat. 1466.

8a

es a record in violation

* r

fined not more than $5,000

(emphasis added).

By its terms 49 U.S.C. § 119090) does not apply to

private motor carriers, since these are not within the

jurisdiction of the ICC due to the 1966 Department of

tion Act.* Hence, argues RSR, the penalty

provisions of § 119090) do not apply to it and the gov-

ernment’s information against RSR under § 11909(b)

should have been dismissed.

The parties do not dispute that the information would

have been proper if RSR had been charged with a viola-

tion of 49 U.S.C. § 322(g) and if that statute were still

in effect. However, the government concedes that

§ 822(g) has been repealed by the Recodification Act

because it has been replaced by § 11909(b). The Act re-

quires that any reference to a former statute be

deemed a reference to its replacement. Thus, under the

Department of Transportation Act, 49 U.S.C. § 1655,

the DOT has the power to promulgate regulations for

private carriers under § 304(a) ), for that section has

not yet heen recodified and remains in force. However,

the DOT’s former authority under the penalty provi-

sions of § 322(g) must now be read as based instead

“Subchapter II of chapter 105 of the Interstate Commerce

Act (now codified at 49 U.S.C. §§ 10521-10529) exempts private

carriers from the ICC's jurisdiction. 40 U.S.C. § 10521 states

that the ICC has jurisdiction over “transportation by motor car-

rier.” 49 U.S.C. § 10102(14) defines a “motor private carrier” as

„j75„f/..„ . “Pat oilyed amr» abe

t of on Act, § 304(a)(3) included private

e “motor carriers” under the ICC’s

jurisdiction for certain limited purposes. The Department of

Transportation Act transferred the ICC’s powers under

$ 304(a)(3) to the DOT. 49 U.S. C. § 1655(e)(6)(C). From that

point on the ICC no longer had jurisdiction over private

carriers.

Dut

upon § 11909(b), and § 119090) only authorizes penal-

ties with respect to transportation subject to the ICC’s

jurisdiction. It is undisputed that at the time when this

replacement statute was enacted, the ICC had no juris-

diction over private motor carriers, nor does it have

that jurisdiction presently. Thus, although the DOT re-

tains its power to issue regulations for private motor

carriers, RSR argues that a congressional oversight has

robbed these regulations of any enforcement through

penal sanctions.

The government responds that the original § 322(g)

by its terms did not apply to private carriers either, but

only did so through reference to § 304(a)(3). Thus the

fact that § 304(a)(3) remains in force allows § 11909(b)

to apply to private carriers.

This argument is tempting but it does not prove the

government’s desired conclusion. If we substitute the

new statute for the old in § 304(a)(8) as required by the

Recodification Act, we obtain the following:

(a) It shall be the duty of the Commission—

12 To establish for private carriers of property

— vehiele, if need therefor is found, reason-

cory to promote safety of operation,

end prescribe qualifications and maxi-

A — of service of employees, and standards

of equipment. In the event such —

. +

to e of property y

motor vehicle in —— —— subsection

— . — section and section } .. . 119090 ... of

e.

However, the term motor carrier, which was the

1 F 11960). 7 8805 to any

90 0b alny motor carrier

. who shall willfully n

the Commission as required b y this chapter. Thus

10a

read in conjunction with § 304(a)(3), it is clear that

322(g) would apply to private carriers to the extent

at the ICC (or later, the DOT) issued regulations au-

orized by § 304(a)(83). On the other hand, § 11909(b)

does not refer to “motor carriers” as defined in

§ 304(a)(3); rather, its scope is limited to personls] re-

quired to make a report to the Commission ... about

transportation subject to the jurisdiction of the Com-

mission under subchapter II of chapter 105 of this ti-

tle.” The ICC, however, has had no jurisdiction over

private carriers since 1966. Its powers under

§ 304(aX(3), which might have given it jurisdiction, have

been transferred to the Department of Transportation.

Hence § 304(a)(3) cannot help the government get

around the clear language of § 11909%b).

To this it may be objected that what Congress clearly

meant. to say in § 11909(b) was “subject to the jurisdic-

tion of the Commission prior to the Department of

Transportation Act.” We then would look to § 304(a) 3)

to see what the jurisdiction of the ICC was before 1966

and, finding that it included private motor carriers, all

would be well. The problem is that although this is

what Congress clearly meant to say, intended to say,

and wanted to say, still Congress did not say it. It said

something which, on its face, appears very different:

we are instructed instead to look to the present juris-

diction of the ICC, which does not govern private

carriers.

The government poses a second argument, based

upon the Department of Transportation Act itself. If

we substitute the new statute for the old in

$§ — and (B) we obtain:

ow With respect to any function yer is

_ Which. was Seen er

shall have the same administrativ N

Soo

lla

the Interstate Commerce Act as the Commission

had before such transfer with respect to such

transferred function. After such , the Com-

mission may exercise its administrative powers un-

der the Interstate Commerce Act only with respect

to those of its functions not transferred by subsec-

ad pp

or purposes —

(i) the term “function” i es power and

duty, and

5 the term administrative powers under the

Interstate Commerce Act“ means any functions

The government’s argument then goes as follows:

Section 1655(e)(6)(C) transferred the ICC’s functions

under § 304(a)(3) to the DOT. These functions are what

give enforcement power to the provisions of the former

§ 322(g) and the present § 11909(b). According to

§ 1655(f) then, with respect to powers under

§ 304(a)(8), the Secretary of the DOT now has the same

administrative powers under § 11909(b) as the ICC had

before the transfer. Before the transfer, the ICC had

regulatory powers over private carriers under

§ 304(aX3). It thus had jurisdiction over this sort of

tion. Thus the penalty provisions of

12a

The government may be arguing that the inquiry re-

quired by § 1656 should be what the ICC's powers

would have been if § 119090) were in effect in 1966.

But this is a strained construction of the statute and is

not implied by its language. Neither § 11909(b) nor the

Department of Transportation Act indicates why

changes in the Interstate Commerce Act subsequent to

the transfer should affect or relate back to an inquiry

into what the ICC’s powers were prior to the transfer.

In reality, this argument suffers from the same prob-

lem as the first one: Congress should have made clear

be so read. But we think it improper to stretch the lan-

guage of the statute to that extent. We are especially

mindful of the fact that we are dealing with a penal

statute, and such statutes should be strictly construed.

Strict Construction

“The rule that penal laws are to be construed strictly,

is 9 much less old than construction itself.”

United v. Wiltberger, 5 Wheat. 76, 5 L.Ed. 37

1262, 39 L.Ed.2d 782 (1974); United States v.

Bramblett, 348 U.S. 508, 75 S.Ct. 504, 99 L.Ed. 594

(1965); American Fur Co. v. United States, 2 Pet. 358,

7 L.Ed. 450 (1829); United States v. Wiltberger, supra;

United States v. Scrimgeour, 686 F.2d 1019 (5th Cir.

1981). It is also said that the principle of strict construc-

United States v. Moore, 423 U.S. 122, 96

S. Ct. 385, 46 L.Ed.2d 333 (1975); United States v.

Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L. Ed. 2d 488

(1971); United States v. Bramblett, supra; United

States v. Brown, 333 U.S. 18, 68 S. Ct. 376, 92 L. Ed.

442 (1948); United States v. Scrimgeour, supra; United

States v. Levy, 579 F.2d 1332 (Sth Cir. 1978), cert.

te toh pane me eee

— — ny ry belie —

, “a fair warning should be given to the world

in language that the common world will under-

ee ee ee

— 2 o make the warning fair, so far as pos-

sible the line should be clear.” McBoyle v. United

States, 283 U.S. 25, 27 (51 S.Ct. 340, 341, 75 L. Ed.

816] (1981) (Holmes, J.). :

community, | and not courts should de-

fine criminal activity. This policy embodies “the in-

stinctive distaste men in

the Reading of Statutes, in Benchmarks 196, 209

(1967). Thus, where there is ambiguity in a crimi-

nal statute, doubts are resolved in favor of the

defendant.

United States v. Bass, supra, at 347-48 (footnote

omitted). Due to the recodification of the Interstate

Commerce Act, Congress has no longer “spoken in lan-

guage that is clear and definite.” Even if the govern-

ment’s arguments about the meaning of § 11909(b) and

§ 1655(e) and (f) are plausible interpretations of these

statutes in the hght of Congressional intent, these in-

terpretations cannot be accepted, for the statutes them-

selves do not give private carriers clear notice of the il-

legality of their conduct. The plain language of

§ 11909(b), if anything, indicates that the conduct of

private carriers is not subject to penal sanctions.

Hence, based upon the considerations explained in

5 See also United States v. Levy, 583 F. 2d 969, 973 & n.3 (5th

Cir. 1976) (men of common intelligence cannot be required to

guess at the meaning of a penal enactment).

1 7

United States v. Bass, we will apply the rule of strict

construction in favor of defendant with respect to

§ 11909(b) and hold that RSR, a private carrier, cannot

be punished under the statute’s provisions.

REVERSED.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT *

No. 80-1782

D.C. Docket No. CR3-80-084

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

RSR CORPORATION, DEFENDANT-APPELLANT,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

Before RUBIN, RANDALL and TATE, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for

ee ee ST

ON CONSIDERATION WHEREOF,, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby, reversed.

JANUARY 4, 1982 5

ISSUED AS MANDATE: JuLy 6, 1982

*Former Fifth Circuit case, Section 91) of Public Law

96-453-Oct. 14, 1980

Ta

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT *

UNITA

No. 80-1782

Filed June 23, 1982

UNITED STATES OF AMERICA, PLAINTIFF-APPE! LEE,

V.

RSR CORPORATION, DEFFNDANT-APPELLANT.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

ON PETITION FOR REHEARING AND SUG-

GESTION FOR REHEARING EN BANC (Opinion

January 4, 1982, 5 Gr., 1982, 664 F. 2d 1249).

(June 23, 1982)

Before RUBIN, RANDALL and TATE, Circuit Judges.

PER CURIAM:

(X) The Petition for Rehearing is DENIED and no

member of this panel nor Judge of this Administrative

Unit in regular active service having requested that the

Court be polled on rehearing en banc (Rule 35, Federal

Rules of Appellate Procedure; Local Fifth Circuit Rule

16; Fifth Circuit Judicial Council Resolution of January

14, 1981), the suggestion for Rehearing En Banc is

DENIED.

) The Petition for Rehearing is DENIED and the

judges in regular active service of this Administrative

Unit having been polled at the request of one of said

judges and a majority of said judges not having voted in

favor of it (Rule 35, Federal Rules of Appellate Proce-

dure; Local Fifth Circuit Rule 16; Fifth Circuit Judicial

Council Resolution of January 14, 1981), the suggestion

for Rehearing En Banc is also DENIED.

( ) A member of this Administrative Unit in active

service having requested a poll on the reconsideration

in this cause en banc, and a majority of the judges in ac-

tive service of said unit not having voted in favor of it,

rehearing en banc is DENIED.

ENTER FOR THE COURT:

/s/ CAROLYN DINUN RANDALL

United States Circuit Judge

*Former Fifth Circuit case, Section 9(1) of Public Law

96-452—October 14, 1980.