Petition for Writ of Certiorari — Garcia v. United States
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OFFICE OF THE CLERK
SUPREME COURT, U.S.
IN THE
SUPREME COURT OF THE UNITED STATES
83-6061
JOSE AND FRANCISCO GARCIA,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
POR THE ELEVENTH CIRCUIT
THEODORE J. SAKOWITZ
FEDERAL PUBLIC DEFENDER
BY: Charles G. White
Assistant
Pederal Public Defender
Attorney for Petitioners
14 N. EB. Ist Avenue
Miami, Florida 33132
IN THE
SUPREME COURT OF THE UNITED STATES
IN THE
SUPREME COURT OF THE UNITED STATES
JOSE AND FRANCISCO GARCIA
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.
TIFICATE OF SERVICE
I HEREBY CERTIFY that on this {| day of
January, 1984, in accordance with Rule 33 of the
Rules of the Supreme Court of the United States,
copies of the
1) Motion for Leave to Proceed in Forma
Pauperis,
2) Petition for Writ of Certiorari, and
3) Certificate of Service,
were served upon the United States Attorney for the
Southern District of Florida, 155 South Miami Ave.,
Miami, Florida 33130, by delivery, and upon the So-
licitor General, Department of Justice, Washington,
D.C. 20530, by mail.
Assistant
Federal Public Defender
Attorney for Petitioner
14 N.E. lst Avenue
Miami, Florida 33132
NUMBER
JOSE AND FRANCISCO GARCIA,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.
MOTION FOR LEAVE TO PROCEED IN PORMA PAUPERIS
COMES NOW the Petitioners, Jose and
Francisco Garcia by his undersigned counsel, pur-
suant to Rule 46.1 of the Supreme Court Rules, and
asks leave to file the accompanying Petition for a
Writ of Certiorari in the Supreme Court of the
United States without payment of costs, and to
proceed in forma pauperis.
Petitioners have previously been
adjudicated indigent and the Federal Public Defender
has been appointed to represent them pursuant to
Title 18, U.S.C., §3006A; therefore the Petitioners
rely upon Title 18, U.S.C., §3006(d)(6) and have not
attached the affidavit which would otherwise be
required by Title 28 U.S.C., §1915(a).
Assistan.
Federal Public Defender
Attorney for Petitioner
14 N.E. lst Avenue
Miami, Florida 33132
IN THE
SUPREME COURT OF THE UNITED STATES
JOSE AND FRANCISCO GARCIA,
Petitioners,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
POR THE ELEVENTH CIRCUIT
Jose and Francisco Garcia respectfully
petition the Supreme Court of the United States for
a Writ of Certiorari to review that portion of the
opinion and judgment of the United States Court of
Appeals for the Eleventh Circuit rendered and
entered in Case Number 82-5048 of that Court on
November 7, 1983, which affirms the judgment of the
United States District Court for the Southern
District of Florida.
WHETHER A PROSECUTION UNDER 18 U.S.C.
$2114 REQUIRES A POSTAL NEXUS IN ORDER
POR A CONVICTION TO BE SUSTAINED.
il — ri
t
LIST OF PARTIES TO THE PROCEEDING
The parties to this proceeding are the United
States of America and Jose and Francisco Garcia
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIVVd . 1
LIST OF PARTIES TO THE PROCEEDING. ....... 2
e ũ umu... „ 8
, ˙ ˙ „ „„ „ „ 0
F ũũ̃nunt „ „ ©
CONSTITUTIONAL PROVISION. n 4
STATEMENT OF THE caesss . 4
, ²˙ a ae ee ee „ „
CC EE ee a a ⅛ ee ee ee
tt ²ͤ UA v „ „
APPENDIX. * . . * „ . * . * * . * . * . . . * . * 23
TABLE OF AUTHORITIES
Cases Page
eee Vv. 5 — States,
U.S. 1 (1 6). * . * . * * . * . . * . * 17
B v. U tates,
— 17
* * * 14
D v. U t 7
* * * . * „ * * * „ * * * * * . 17
FE *. U *
= * „ * * * * * „ „ . * * * * * 18
H n - U St ’
U.S. 1 (1 4). * * * „ * * * 7 * 5 * * * 17
Malat v. Rid
* * 966) * * * * * * * * * * * * * * 14
TABLE OF AUTHORITIES (cont.)
Cases
Perrin v. N States:
444 U.S. (19 0) * * . * . * . * . * .
v._H ’
437 U.S. 153 (1977). . . * * * * . * . .
Page
18
14
16
18
United States v. B blett,
48 U.S. 503 (19 . * * * * * * * * . *
United States v. Cook
384 U.S. 257 (1966). * * * * . * * . * *
United States v. Dudley
581 F.2d 1193 (Sth Cir. 197)
8 8 v. Fernandez,
4 F. (9th Cir. 1974), cert. N
ed 4
420 U.S. 990 (1975), rehearing den
U.S. 1017 (1975) * — . * * . * . *
e — es v. A t a
18 F. (llth Cir. 1983) .....
United shales Vv. Banatan,
t r. 1971), vac &
remanded, 414 U.S. 807 (1973)... ...
United Stat v. Levy,
F. 2 (Sth Cir. 1980), cert. denied
440 U.S. 920 (1979)
United t 0 ny
owe 1 * * * . * * . * . *
e sates Vv. 1
PF. me Gel. 3979) « © we „ oe
U R
0 n r. 1975) cert. d ed
423 U.S. 948 (1975). * * * „ „ _ . * * *
U e ’
521 F.2 1 (1 ). * . * . . * . * . *
United Vv. ’
° t r. Unit B 1981
U
P. (
„ert. denied, 421 U.S. 912 (1975)
17
17
17
13
13
13
17
14
13
13
13
18
18
—
4 —
OPINION BELOW
A copy of the opinion of the Court of Ap-
peals, for the Eleventh Circuit rendered November 7,
1983 and entered on the same date affirming the
petitioners’ conviction has been published under the
citation 718 F.2d 1528. A copy of the opinion is
attached.
BASIS OF JURISDICTION
Jurisdiction is invoked under Title 28,
United States Code, Section 1254(1).
STATEMENT OF THE CASE
Jose and Francisco Garcia, the petitioners,
along with Ernesto Dominguez, who is not a party to
these proceedings, were charged in a five count
indictment with conspiracy to steal money belonging
to the United States valued in excess of $100, in
violation of 18 U.S.C. §371 (Count I), stealing
money belonging to the United States valued in
excess of $100, in violation of 18 U.S.C. 58641
(Count II), robbery of money belonging to the United
States with an assault involvirg the use of a
dangerous weapon, in violation of 18 U.S.C. §2114
(Count III), possession of counterfeit notes, in
violation of 18 U.S.C. §472 (Count IV), forcibly
assaulting federal officers, in violation of 18
U.S.C. 5111 (Count v).
On October 6, 1981 petitioners proceeded to
a jury trial. Petitioners’ motions for judgment of
acguittal at the close of the government's case and
at the close of all the evidence were denied. On
October 14, 1981 the jury returned a verdict of
205
guilty on all counts except Count V against Fran-
cisco Garcia.
On November 17, 1981 Jose Garcia was
sentenced to a term of incarceration of twenty-five
(25) years on Count III, five years on Count II
consecutive with count III, five years on both
Counts I and III to run concurrent with the term
imposed on Count II, and the ten (10) years on Count
Vv to run consecutive with that term imposed on Count
III and concurrent to the term in Count II. Accord-
ing to counsel's computation, the total is thirty
five (35) years and not forty (40) asserted in the
Judgment and Commitment Order.
On that same date Francisco Garcia was
sentenced to a term of incarceration of twenty-five
(25) years on Count III and five years each for
Counts I, II, and IV to run concurrently with each
other and consecutively to that term of
incarceration imposed in Count III for a total of
thirty (30) years.
Petitioners filed a timely appeal which
raised the issues that it was error for the trial
judge to a) deny petitioners’ motions for judgment
of acquittal on Count III (18 U.S.C. §2114), b)
admit the counterfeit bills, c) impose consecutive
sentences for convictions under Counts II, III and
V, and d)] deny petitioners’ motions for judgment of
acquittal based on the insufficiency of the
evidence. Oral argument was heard before a panel of
the Eleventh Circuit Court of Appeals comprised of
Judges Fay and Kravitch, with Atkins sitting by
designation. The conviction was affirmed in an
opinion published at 718 F.2d 1528.
It is the contention of the petitioners that
the first issue listed above concerning the failure
of the trial judge to enter a judgment of acquittal
as to Count III should be considered by the Supreme
Court. The Eleventh Circuit held that one could be
convicted of a violation of 18 U.S.C. §2114 without
there being a postal nexus between the money taken
or its custodian. In arriving at this conclusion
the dissenting opinion of Judge Mansfield from the
Second Circuit case of United States v. Reid, 517
P.2d 953 (2nd Cir. 1975), was specifically adopted
by the Eleventh Circuit. The Reid Court held that a
postal nexus was required to convict of a violation
of 18 U.S.C. §2114. Other cases have held the same
way. See United States v. Rivera, 521 F.2d 125 (2nd
Cir. 1975), United States v. Rivera, 513 F.2d 519
(2nd Cir. 1975) cert. denied, 423 U.S. 948 (1975).
United States v. Fernandez, 497 F.2d 730 (9th Cir.
1974). The Eleventh Circuit has clearly created a
conflict between the circuits which must be resolved
by the Supreme Court because of its great importance
to the prosecution and defense of cases of this
type. The Eleventh Circuit has authorized the use
of a statute containing a mandatory twenty-five year
prison term against all precedent, and the position
of the Solicitor General taken in United States v.
Hanahan, 442 F.2d 649 (7th Cir. 1971), vac. & rem'd,
STATEMENT OF FACTS
On July 22, 1981 Secret Service Agent David
Holmes, accompanied by a confidential informant
named Jorge Castro, met with petitioners along with
co-defendant Ernesto Domingo at Douglas Park in
Miami, Florida, purportedly to buy a quantity of
counterfeit money. Castro introduced Holmes to
Dominguez and Francisco Garcia as the purchasers,
and Dominguez asked the agent if he had the money.
The agent in turn asked Dominguez if he had the
counterfeit money and Dominguez told the agent that
the counterfeit money was in the trunk of a white
Trans-Am that the petitioners had arrived in. After
*flashing"® Dominguez the money he had with him, the
agent said he wanted to consumate the deal at
Douglas Park, but Dominguez stated that the place
was “heatec up“ and asked that the exchange take
place at another location. Dominguez then suggested
Bryant Park some five blocks away.
Once at Bryant Park, Dominguez wanted to see
the money again, but was refused. The agent told
Dominguez that he didn't think they had any money.
Dominguez responded that they did, and Francisco
Garcia showed agent Holmes a “sample” $50.00 bill.
Holmes agent again insisted on seeing the counter-
feit money. He thes turned and walked to his car.
Agent Holmes testified that suddenly Jose
Garcia jumped out of the Trans-Am, pointed a semi-
automatic pistol at him, and demanded his money.
Seconds after, back-up agents arrived on the
scene and Jose Garcia dropped the weapon on the
ground. Holmes also indicated that his car door was
open and the black leather pouch was recovered at
the scene. The key to the Trans-Am, which was
locked, and the $50.00 bill, were recovered from
Francisco Garcia, who was hit by a surveillance
agent's car.
Surveillance agents responding to the scene
also testified about their observations. Agent Greg
Null testified that he and his partner, Thomas
Grant, were a block from the meeting when they saw
Agent Holmes raise his hands in a pre-arranged
danger signal.
While racing te the scene Null saw Jose
Garcia with a gun pointed at Agent Holmes who had
his back to Jose Garcia. Holmes testified that he
backed away facing Jose Garcia, as did another
government witness Alex Suarez.
Agent Thomas Grant also testified that he
saw Jose Garcia with a gun, which Grant recovered at
the scene and handed over to Special Agent Kevin
Foley. Grant also testified that he found the keys
to the Trans-Am, as well as a counterfeit $50.00
bill on Francisco Garcia. This is in direct
contrast to Agent Holmes’ testimony, who testified
that the Trans-Am was locked. Agent Grant testified
that the car windows were down. Grant drove the
Trans-Am to the Secret Service office in order to
search it. Once at the office, the car and its
trunk was searched. No counterfeit money was
found. Agent Grant had been led to believe that a
great deal of counterfeit money could be found by
the confidential informant.
Agent Paul Hachenberry testified that after
seeing the distress signal, he observed Francisco
Gerccia run toward the government vehicle and then
run away from the scene of the arrest looking over
his shoulder, with the black pouch in his hand.
While the car was moving, Francisco was struck and
fell to the ground, dropping the pouch.
Agent Kevin Foley testified that he saw
Francisco Garcia run towards the Grand Prix, then,
and run away from it. Foley also testified that the
gun recovered was legally registered to Francisco
Garcia, and that the confidential informant had told
them that $80,000.00 in counterfeit money was
available.
Both petitioners testified on their own
behalf. Jose Garcia testified that two days prior
to this incident he and his brother were approached
by the confidential informant, Jorge Castro, a known
quaalude addict, about “taking” a man he knew for
his money. The scheme proposed by Castro was to
have appellants show this man counterfeit $50 and
$100.00 bills which Castro provided appellants. At
first petitioners resisted the idea, but after
Dominguez asked them to help, they agreed. Jose
Garcia understood that he, his brother, and
Dominguez were tc hold the man while the confi-
dential informant took his money.
On July 22, 1981 petitionere drove to
Douglas Park and Dominguez met the agent while the
confidential informant remained in the car.
Apparently, someone didn't like the arrangements so
they moved to Bryant Park, five blocks away. When
they arrived at Bryant Park, Dominguez and the agent
immediately began arguing about who would see whose
money first. Jose Garcia hadn't seen any money at
that time.
During the argument, Holmes raised his hands
ard then grabbed his pistol on his right leg as the
other agents swarmed over him and the suspects.
Jose Garcia was struck by Agent Holmes with a pistol
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and then his arm was twisted behind his back. Jose
Garcia strentously denied ever having a gun at the
scene.
Francisco Garcia testified that he and his
brother were approached by Jorge Castro some two
days prior to the incident about taking a man for
his money. He was given a counterfeit bill by
Castro which he accepted. On July 22, 1981 Castro
Dominguez and the petitioners met at Douglas Park
where Dominguez and Castro made arrangements to meet
at another location. While at the meeting in Bryant
Park, Dominguez asked him for the bill Castro had
given him and Francisco handed it to him. He in
turn, gave it to the agent who then returned it to
Francisco. At that point, the agents pulled into
the parking lot scaring Francisco. When he turned
to the side, he was struck by a moving vehicle.
Francisco vehemently denied ever touching the
leather pouch with the money in it. Additionally,
he testified that his brother never had a gun.
Several eyewitnesses were called to testify
by both sides. Defense witness Marta Pedrosa
testified that on July 22, 1981 she and her father
were in front of their house when two cars, speed-
ing by her, came down the block, and then came to a
screeching halt. The agents got out of their car
with guns drawn, and wrestled with the petitioners.
She also observed the agents kicking Jose Garcia.
Ms. Pedrosa further testified that Francisco Garcia
had been struck by a car, but that in contrast to
the testimony of the agents, she observed nothing in
his hand, such as a leather pouch. The agents
seemed to be interested in finding the key to the
Trans-Am, and eventually found it in Francisco
Garcia's pocket. The agent then went into the car
and came out with a pistol from which he removed the
clip. Ms. Pedrosa thought it had been removed from
the glove compartment.
The government then called Edna Benson to
testify to her observations on July 22, 1981. She
testified to the circumstances surrounding her
coming to court. From her testimony, it appeared
that she arrived too late to make any observations
relevant to the inquiry except that one of the
defendants appeared to resist arrest.
After lengthy hearings on the matter, the
defense was allowed to re-open its case to call
Rafael Pedrosa, the father of Martha Pedrosa another
eyewitness to the incident on July 22, 1981.
Mr. Pedrosa testified that on July 22, 1981,
he saw the cars speeding into Bryant Park and walked
over to see what was going on. From a distance of
twenty feet, he observed three young men handcuffed,
and one very happy agent who had found a key to an
automobile which he used to open the car. The agent
prior to going into the car was unarmed, but when he
stepped out of the car he had a pistol from which he
removed the clip, and then placed it in his belt.
Mr. Pedrosa also never saw a black leather pouch
Similar to that entered into evidence by the
government.
The government was given an extraordinary
opportunity to reopen their case for the third time
and called Alex Suarez to testify to what he saw in
- il -
the park on July 22, 1981 when the petitioners were
arrested. He testified that he observed the agent
raise his hands, back away and say “Don't shoot! to
someone, although Suarez never saw a gun. Suddenly
other agents arrived on the scene to arrest the
three men present. Suarez did not observe any
mistreatment by the agents. However, he observed
them searching the car. Suarez saw that the agent
who searched the car had a revolver in his
waistband, and like witness Pedrosa, Mr. Suarez saw
no weapon in his hand prior to the search.
ARGUMENT
ISSUE I
THAT A PROSECUTION UNDER 18
U.S.C. §2114 REQUIRES A POSTAL
NEXUS IN ORDER FOR A CONVICTION
TO BE SUSTAINED
Title 18 United States Code, §2114 reads in
pertinent part:
Whoever assaults any person having
lawful charge, control, or custody of
any mail matter or of any money or
other property of the United States,
with intent to rob, steal, or purloin
such mail matter, money, or other
property of the United States with
intent to rob, steal, or purloin such
mail matter, money, or other property
of the United States, or robs any such
person of mail matter, or of any money,
or other property of the United States,
shall, for the first offense, be
imprisoned not more than ten years; and
if in effecting or attempting to effect
such robbery he wounds the person
© 12 -
——
having custody of such mail, money, or
other property of the United States, or
puts his life in jeopardy by the use of
a dangerous weapon, or for a subsequent
offense, shall be imprisoned twenty
five years.
That a charge under 18 U.S.C. §2114
requires some postal nexus“ before a conviction is
warranted has been based upon careful consideration
of the intent of Congress in enacting the 1935
amendment to §2114, Act of August 26, 1935, ch. 694,
49 Stat. 867, by both the Second and Ninth Circuits
and the concession of the Solicitor General in a
Seventh Circuit case. United States v. Rivera, 521
F.2d 125 (2nd Cir. 1975). JU v. Reid,
517 F.2d 953 (2nd Cir. 1975). United States v.
Rivera, 513 F.2d 519 (2nd Cir. 1975) cert. denied
423 U.S. 948 (1975). United States v. Fernandez,
497 Fr. 2d 730 (9th Cir. 1974) cert. denied 420 U.S.
990 (1975), rehearing denied 421 U.S. 1017 (1975).
United States v. Hanahan, 442 F.2d 649 (7th Cir.
1971), vac & remanded, 414 U.S. 807 (1973).
The Eleventh Circuit in holding that prose-
cution under 18 U.S.C. §2114 did not require a
postal nexus specifically adopted the dissent of
Judge Mansfield in the Reid case. United States v.
Garcia, 718 F.2d 1528, 1533 (llth Cir. 1983). Judge
Mansfield felt that because, in his opinion, the
wording of the statute appeared clear and
unambiguous there was no need to look behind the
statute to better ascertain its meaning. Judge
Mansfield felt that even if the intent of Congress
was reviewed, there is nothing clearly indicating
that Congress intended a “postal nexus" be applied.
— 13 —
Lastly, Judge Mansfield held that the opinion of the
Solicitor General was not controlling because he
disagreed with his opinion on a matter of 12. %
Now Petitioners will present rebuttal to
these contentions.
Judge Mansfield and the panel which heard
oral argument in this case were particularly
interested in the propriety of looking behind the
Statute to determine legislative intent Citing
Malat _v. Riddell, 383 U.S. 569 (1966), Commissioner
f v. B „ 380 U.S. 563, 571-72
(1965). United States v. Oregon, 366 U.S. 643, 648
(1961). Schwegmann Bros. v. Calvert Corp., 341 U.S.
(384, 395-96 (1951), Browder v. United States, 312
U.S. 335, 338 (1941), and United States v. American
Trucking Assn's_Inc., 310 U.S. 534, 543 (1940),
language was extracted which appeared to support the
plain meaning” of the words over any other factor
when considering the scope of the statute and the
definitions to be attached to its language. Yet in
all those cases the issue before the Court was
resolved after a careful consideration of the
Congressional intention that the plain meaning, and
not some other meaning would be applied. The Court
has applied this general principle many times.
1. Petitioners raise, but leave to another time,
the propriety of the Government having sought an
indictment on this charge under the facts of this
case in the face of the Solicitor General's conces-
sion and the overwhelming precedent.
-14-
Comm
In attempting to define Sale“
in
*. a the Court, after
assigning the term its “plain meaning", went on to
rely on legislative intent to determine the scope of
a term.
Unit
it said:
Unquestionably the courts, in interpre-
ting a statute, have some scope for
adopting a restricted rather than a
literal or usual meaning of its words
where acceptance of the meaning would
lead to absurd results... or would
thwart the obvious purpose of the
statute.
380 U.S. at 571
The Supreme Court spoke more clearly
in
Vv. T "s Inc. when
In the interpretation of statutes, the
function of the courts is easily
stated. It is to construe the language
so as to give effect to the intent of
Congress. There is no invariable rule
for the discovery of that intention.
To take a few words from their context
and with them thus isolated to attempt
to determine their meaning, certainly
would not contribute greatly to the
discovery of the purpose of the drafts-
men of a statute, particularly in a law
drawn to meet many needs of a major
occupation.
There is, of course, no more persua-
sive evidence of the purpose of a
statute than the words by which the
legislature undertook to give expres-
sion to its wishes. Often these words
are sufficient in and of themselves to
determine the purpose of the legis-
lation. In such cases we have followed
their plain meaning. When that meaning
hee led to absurd or futile results,
However, this Court has looked beyond
the words to the purpose of the act.
Frequently, however, even when the
Plain meaning did not produce absurd
results but merely an unreasonable one
“plainly at variance with the policy of
the legislation as a hole“ this Court
has followed that purpose, rather than
the literal words. When aid to con-
struction of the meaning of words, as
used in the statute, is available,
there certainly can be no “rule of law*
- 15 -
.
—
which forbids its use, however clear
the words may appear on “superficial
examination. The interpretation of
the meaning of statutes, as applied to
justiciable controversies, is exclu-
sively a judicial function. This duty
requires one body of public servants,
the judges, to construe the meaning of
what another body, the legislators, has
said. Obviously there is danger that
the courts’ conclusion as to legis-
lative purpose will be unconsciously
influenced by the judges’ own views or
by factors not considered dy the
enacting body. A lively appreciation of
the danger is the best assurance of
. escape from its threat but hardly
justifies an acceptance of a literal
interpretation dogma which withholds
from the courts available information
for reaching a correct conclusion.
Emphasis should be laid, too, upon the
necessity for appraisal of the purposes
as a whole of Congress in analyzing the
meaning of clauses or sections of
general acts. A few words of general
connotation appearing in the text of
statutes should not be given a wide
meaning, contrary to a settled policy,
"excepting as a different purpose is
plainly shown."
It is interesting that Judge Mansfield
quoted out of context a small section of the
foregoing holding, for the proposition that the
plain meaning” always prevails despite legislative
intent to the contrary. This irony was noticed by
the majority in Reid, 517 F.2d at 957 n. 3a.
In TVA v. Hill, 437 U.S. 153 (1977), the
Court was considering whether to terminate a $100
million federally funded dam project in order to
enforce the mandatory language of the Endangered
Species Act of 1973. In a classic analysis of
statutory construction the Court considered the
“plain meaning” of the Endangered Species Act, but
then consulted the legislative history to see if
Congress really meant what it said. Justice Powell,
in his dissent evoked the doctrine underlying the
case of Church of the Holy Trinity v. United States,
143 U.S. 457 (1892), and the lack of clear
Congressional intent for the very expensive and
destructive result the majority conceded would
derive from their holding. Justice Rehnquist wrote
in his dissent that principles of equity should be
used to obtain the best result. The attitudes of
these dissenters is appropriate to the instant case
because it is a criminal matter, not a civil
proceeding, where leniency toward defendants is
appropriate.
A federal criminal statute should be
construed narrowly in order to encompass only that
conduct that Congress so intended to criminalize.
Dunn _v. United States, 442 U.S. 100, 112 (1979);
United States v. Dudley, 581 F.2d 1193, 1197 (5th
Cir. 1978). Although a criminal statute must be
Strictly construed, it must not be construed so
Stricly as to defeat the clear intention of the
legislature. Barrett v. United States, 423 U.S.
212, 218, (1976); Huddleston v. United States, 415
U.S. 814, 831, (1974); United States v. Cook, 384
U.S. 257, 262-63, (1966). “The principle of strict
construction ‘does not mean that every criminal
statute must be given the narrowest possible meaning
in complete disregard of the purpose of the legis-
lature.'" United States _v. Levy, 579 F.2d 1332,
1337 (Sth Cir. 1980), cert. denied, 440 U.S. 920,
(1979), quoting United States v. Bramblett, 348 U.S.
503, 510, (1955).
A basic canon of statutory construction is
that words should be interpreted as taking their
“17 -
.
ordinary and plain meaning. E.g., Perrin vy. United
States, 444 U.S. 37, 42, (1980). Although in
interpretation of statutory language reference
should first be made to the plain and literal
meaning of the words, the overriding duty of a court
is to give effect to the intent of the legislature.
Flora _v. United States, 357 U.S. 63, 65, (1958);
United States v. Second National Bank of North
Miami, 502 F.2d 525, 539 (Sth Cir. 1974), cert.
denied, 421 U.S. 912, (1975). A statute should
ordinarily be interpreted according to its plain
language, unless a clear contrary legislative
intention is shown. United States v. Apfelbaum, 445
U.S. 115, 121 (1980).
The analysis of the Eleventh Circus in
following the old Fifth Circuit language in United
States v. Scrimgeour, 636 F.2d 1019 (Sth Cir. Unit B
1981) to the effect that or“ means the disjunctive
always, is curious in light of the fact that the
holding of that case was that or“ was and“ if that
was the intent of the legislature.
Therefore, inquiry should be made into the
intent of Congress when enacting the 1935 amendment
to 18 U.S.C. §2114.
b) t — a
x U.S.C. 4.
By adopting Judge Mansfield's dissent the
Eleventh Circuit was presumably adopting his
reasoning. Part of this reasoning pertained to the
effect to be given to the Solicitor General's
concession. Judge Mansfield then concluded that
undue reliance was placed on that opinion. 517 F.2d
at 970. Yet, each court that has considered this
- 18 -
matter has independently evaluated the Congressional
intent and concluded that the Solicitor General was
justified in his concession.
The 1935 amendment to 18 U.S.C. §2114
(which at that time was found at 18 U.S.C. §320
added the terms “or of any money or other property
of the United States" to the mail matter previously
covered by the statute. These changes were
requested by the Postmaster General, were referred
to the Committee on Post Offices and Post Roads of
each House. The committee reports, of which the
general language introducing the reports was quoted
sO approvingly by Judge Mansfield, consist almost
exclusively of a letter from the Postmaster General,
which is reproduced.
Post Office Department,
Office of the Postmaster General,
February 20, 1935
Hon. James M. Mead,
Chairman Committee on the Post Office and Post
Roads, House of Representatives.
My Dear Mr. Mead;
The receipt is acknowledged of your letter of
the 16th instant, requesting a report on H.R. 5360,
a bill providing for punishment for the crime of
robbing or attempting to rob custodians of Govern-
ment moneys or property.
Assaults upon custodians of mail matter are
punishable under section 197 of the Federal Penal
Code (19 U.S.C. §320), which provides a penalty of
25 years imprisonment if the custodian is wounded or
his life is put in jeopardy by the use of a danger-
ous weapon. If the person assaulted is a custodian
of Government funds (not mail) the maximum punish-
ment that can be imposed is imprisonment for not
more than 10 years and a fine of not more than
$5,000; and no penalty is provided for attempts to
commit such crimes. Recent years have witnessed a
substantial increase in crimes of the latter type
and it is believed that section 197 of the Penal
Code should be amended so as to bring within its
provisions the crime of robbing or attempting to rob
custodians of Government moneys. Legislation to
this effect was recommended in the Postmaster
General's annual report for 1933 and two bills, H.R.
6546 and H.R. 7214 were introduced aid referred to
- 19 -
Lim eae
the House Judiciary Committee but neither bill was
reported out by the committee. The recommendation
for the passage of this legislation is renewed.
Very truly yours,
James A. Parley
Postmaster General.
H.R. Rep No. 582, 74th Cong.,
lst Sess. (1935)
and
S Rep. No. 1440, 74th Cong.,
lst Sess. (1935)
This letter is the only input from any
federal agency contained within the committee
reports. It clearly carries with it the assumption
that the Postmaster General would be one of the few
people interested in this Act. Surely every other
agency was covered by the provisions of what is now
known as 18 U.S.C. §2112. In 1935 the predecessor
of this statute was found in 18 U.S.C. §99. Section
99 clearly made it a federal crime to rob someone of
government property. The statute had been in effect
since 1909. Clearly, the amendment to the §320 was
intended to apply only to postal matters. As the
Reid majority noted expanding the scope of §2114 to
exclude a postal nexus was a misguided effort on
any view since the robbery of any government
Property had long been covered by what is now 18
U.S.C. §2112, see e.g., Act of March 2, 1867, ch.
193, 14 Stat. 557, codified in Rev.Stat. 5456; 18
U.S.C.§99 (1946 ed.), and the real importance of
§320 was that its assault provisions covered all
postal employees whereas the only postal employees
covered in the general statute concerning assaults
on federal officers, 18 U.S.C. §§253 and 254, were
"post-office inspectors®. 517 F.2d at 951 n. 4.
On the floor of the House of Representa-
tives there was some discussion of the bill. 79
= 20 -
Cong. Rec. 8205 (1935). Congressman Truax was
questioning the propriety of making a mandatory
twenty-five year sentence for the proposed Act and
not extending the same protection to people charged
with burglary of a home. Congressman Wolcott's
response addressed the jurisdictional issue raised
by Mr. Truax. This exchange was cited. by Judge
Mansfield as evidence that Ccagress intended a broad
bill. United States v. Reid, 517 F.2d at 969.
However, after being informed by Congressman Dobbins
of the intended scope and purpose of the bill, Mr.
Truax made the following proposal to broaden its
scope which was never adopted.
Mr. Truax: Mr. Speaker, I will say to the
gentleman from Illinois that I think we ought to
have some salutory laws that will protect the
Government and its property from the Wall Street
bandits. 79 Cong. Rec. 8205
Congressman Dobbins, as previously noted
had described completely the scope of the Act in
what the Ninth Circuit characterized "as
illuminating as legislative history could possibly
de U 9 t v. Fernandez, 497 F.2d at 740.
Dobbins said:
Mr. Speaker, the gentleman from Ohio
objects to the 25-year penalty provided in this
bill. The penalty clause is not new legislation.
If this bill is not passed, the statute will still
contain the mandatory 25-year penalty.
The only purpose of the pending bill is to
extend the protection of the present law to property
of the United States in the custody of its postal
officials, the same as it now extends that pro-
tection to mail matter in the custody its postal
officials. It just includes property of the United
States in addition to mail matter which is
protected; and let me say there are many custodians
of postal stations who have a great amount of money
in their custody but little mail; for instance, in
those substations where money orders are sold. If a
bandit attacks those employees seeking that money,
there is no way to prosecute the bandit under the
- 21
present law, but if he is merely after a postal card
or a letter he can be prosecuted.
I think this makes a salutary change in the
law. It is advocated by the Post Office Department
= it seems to me there ought to be no objection to
t.
79 Cong. Rec. 8205
In 1948 the Federal Penal Code was recodi-
fied and in that context, the “unambiguous* words of
the statute were taken out of context by the
Eleventh Circuit. As the Reid majority said:
No Congressman could have supposed
that in passing an amendment to that
section proposed by the committee
dealing with the postal service, he was
creating a new crime with respect to
government property generally.
517 F. ad at 957 n.3a
CONCLUSION
For the reasons set forth above petitioners
ask this Court to vacate the conviction as to Count
III of the Indictment and enter a judgment of
acquittal as to that Count.
Counsel for petitioners heretofore has
submitted principal grounds for, and argument
butrespectfully moves this Court in its discretion
to permit additional argument and amended briefs to
be submitted as manifest in the necessity of justice.
THEODORE J. 172
PEDERAL DEFENDER
BY:
rles G. White
Assistant
Federal Public Defender
Attorney for Defendant
14 N.E. lst Avenue
Miami, Florida 33132
EDITOR'S NOTE
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13. Indictment and Information 191
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UNITED STATES +. GARCIA 415
mg Agent Holmes raise his hands in the given Francisco Garcia a $50 counterfeit
distress signal, he also raced to the scene bill T 142) According to Jose Garcia, the
i and observed Francisco Garcia running to plan was simply to take the money He
. wards the government vehicle (T 110). denied that a pistol was used (T 143). Jose
Francisco Garcia leaned into the govern Garcia testified that on July 22, 1981, they
ment vehicle through the opened door on had met the agent st Douglas Park and
the driver's side (T 110), exited the vehicle had Inter moved to Bryant Park (T 145) =
— 938 .~ dye 4d, UNITED STATES v. GARC IA
towards Agent Hackenberry's vehicle, i i
29 582 who would show his money first (T 148) and Francisco Garcia as two of the men one was on the ground hurt (T 358). In
4 1224 — até Gat ke bad never had 6 who had been arrested and kicked (T 234). addition, he could not tell whether the offi-
＋ — Cerca * gun at the scene. (T 157). Instead, he She said she had seen Francisco Garcia fall cer who searched the Trans-Am and exited
K ——— We Gimed thet Agent Holmes, using the after being hit by the automobile, but stat- with a pistol had anything in his hands
sulting in the black pouch dropping out of agent's own weapon, had pmtolwhipped ed that she had not notte: d any black pouch when he entered the Trans-Am (T 364). He
pay Ay - hn — = ee testified that Agent Holmes had beat. pay A Foley as having twisted men arrested (T 365).
5 Holmes observed that the car door of the n Ernesto Dominguez to foree Dominguez —— s arm, demanding to know = Sur-surrebuttal by the Government
: to the vehicle on tre ground was the black money (T 148). —— — — — cto tat cao tam gems — :
gone into icle and had come = —
pouch containing e fen roll” of gen France Ceres reiated essentially the out holding an automatic pistol T 241-42). July 22, 1981, when the appeliants were
ment money (T 46) same story as his brocher (T 183-200) He thought removed *rrested. He observed the agent raise hi
Agent Grant's pet-down of Francisco tes ified that Informant Jorge Castro had ° — a+ thet Ae — — shoot”
Garcia uncovered the unk key to the given him the $50 counterfeit bill (T 180- — — although he never saw the gun fr 575 387)
Trans am and « $5 counterfeit nove 8 Francisco Garcis said that Ernesto : by the Gove: ’ > ab Ge che aalt Ge @ O
— Poles had — Holm i On July 22, 198:, Edaa Benson was im scene and arrest the three men. He did
162, 118) * Agent — — er — TY her house, whicn faces the park. She had not observe any mist-eatment of the three
— drove the T — why — — — — Francisco Gasen (T 192). He further testi- * noticed the peopie and heard screaming T men (T 381). He, too, observed the car
Miami Field Office where « search of the fied that the weapon which was introduced — ~ ~ 262). She had gone to the park end saw being searched. He said the agent who
trunk of the veh ese ne counter’it into evidence had been im the glove com men being arrested one of whom wus searched the car had © weapon in his waist-
(T 108-0 of the Tuns A (T 182). Al strugging to d being haudeuffed (r band before he entered the uns im (T
— 1 — — 7 — had bit hin, 263). The officers were try ir g to quiet him 382).
Both appellants -es<fied in their own de Francisco Garcia demed that he had ever ＋ 264). 22 1
= — the US. cuffed were quer Ben.on saw no one hit, No Postal Nexus Required
_ essentially disDu=ng the government — pouch containing beat or strike those doing arrested (T 265)
witnesses’ testimens a0 to what hed hap Government money (T 193) He siso test: : I. ‘The threshold issue is whether 18
pened ond claiming thet they had been fied that his brother never had « gun (T Surrebuttal by efendants U.S.C. § 2114 requires a “postal *
1 beaten by the agents. Jose Gareis testified 194) After the goverzment’s rebuttal, the an essential element. Section —
i thet the confidential Inf ' Cas The defi also called Marts Ped court permitted the defense to reopen its vides, inter alia that “[W]hoever assaults
83 who testified that on July 22, 1981, while case (T 292-337). The defense called Rafa- any person having lawful charge, control
counterfeit bills to a potential purchaser standing outside her home, she had seen el Pedrosa, father of Maria Pedrosa, as an or custody of any mail matter or of any
( and steal the genuine currency which the two cars speeding to the park and stopping eyewitness to the events of July 22, 1981. money or other property of the United
man would bring as payment for the coun near a white Trans Am (T 228-30) Accord Pedrosa testified that he speed- States, ... or robs any such person of mai’
tert (F198, 160-41) Jone Garcie hed ing to Petvese, sho run t the park end sow ing to Bryant Park and walked down to the matte oF any money or other property of
2 —— 11
Garcia saw three young nen handcuffed (T 342). Appellants contend that section 2114 lim-
; One of the agents found a key to the its the conduct punishable under its provi-
| Trans-Am, searched ‘he car, came out of sions to actions against the Postal Service's
1 the vehicle with a pistol, removed the clip property or employees. We do not gecep.
: and placed it in his belt T 343-45). Pedro the interpretation urged by appellants. To
sa stated that he did nut see anything that construe section 2114 as requiring proof of
had happened in the park before his arrival a postal nexus” defies the section's unam-
and that when he arrived at the park the biguous wording that it encompasses the
three men were already handcuffed and robbery of “mail matter, or any money or
SE aie 22
— 2
UNITED STATES v. GARCIA
other property of the United States (em-
phasis added)
tended. United States v Scrimgeour, 636
F.2d 1019, 1024 (Sth Cir.1981) (Unit B).
If Congress had wanted to limit the of-
fenses prohibited by section 2114 to rot
bery of mail matter or an assault upon
ters” or “packet: See Judge Mansficid’s
dissent in Unitec States v. Reid, 517 Fa
953, 967 (2d Cir.1975).
191 15
1417875
1757705
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U
421 UNITED STATES v. GARCIA
requires proof of a “postal nexus” as an
essential element. See United States v.
Rivera, 521 F.2d 125 (2d Cir.1975); United
States v. Reid, 517 F.2d 953 (2d Cir.1975);_
United States v. Fernandez, 497 F.2d 730
(9th Cir.1974). We embrace, however, the
well reasoned dissent by Judge Mansfield
in Reid and we hold that a postal nexus is
not an essential element of a crime charged
under section 2714.
The Counterfeit Notes Were Properiy
14] Appellants challenge the introduc-
tion into evidence of a counterfeit $+) note
and a counterfeit $100 note in support of
their convictions for knowingly and vital.
ly and with intent to defraud, possessing
and concealing forged and counterfeit Fed.
eral Reserve Notes (ie. Count IV). We
hold that the evidence et trial met the
requi-ements for aahentication and identi-
fication as requ:rec by Rule 901(a) of the
Federal Rules of Evidence.
18. 6 The admission of exhibits into evi-
dence is predicated o a showing that the
physica! exhibit being offered is in substan-
tially the same condition as when the crime
was committed. That determination is to
be made by the trial judge, not the jury,
*
custody forges their connection with the
accused and the criminal offense.” Gass v.
United States 416 F.2d 767, 770 n. 8 (D.C.
Cir.1969). Upon considering such factors,
if the trial judge is satisfied that in reason-
also participated in the
Agent Grant testified that he had found
the counterfeit $50 bill while patting down
Francisco Garcia (T 101-0) Agent Foley
identified the
.
3
Garcia by Agent Grant, who immediately
turned the note over to Agent Foley (T
118). . The bill was admitted into evidence
(T 119) and Agent Foley testified as an
expert that the note seized from Francisco
Garcia was, in fact, counterfeit (T 119-22).
Agent Null testified that he had found the
$100 bill while patting down
Tr
to Count II; consecutive to Count III; five
(5) years as to Counts I and IV, concurrent
with each other and concurrent with Count
Il; and ten (10) years as to Count V. con
secutive to Count III (R 26).
Francisco Garcia was ser tenced to a total
of thirty (30) years incarceration: twenty
five (25) years as to Count III, five (5)
years as to Counts I, II and IV, concurrent
with each other and consecutive to Count
i
STATES v. GARCIA 423 UNITED STATES v. GARCIA
UNITED v. 422
45). When cross-examined, however, Mr.
note over to Agent Foley (T 122). The $100 and the black pouch containing the flash . rere
counterfeit bill was admitted into evidence roll of “ ” 4 searched the Trans-
government money,” on the ground whether the agent who
T 123) and Agent Foley testified that the (T 46). Other agents corroborated this tes- Am had anything in his hands when he
$100 note was, in fact, counterfeit (T 124). timony and testified to their additional ob entered the vehicle to search it (T 364).
The testimony at trial shows that the rvations. Agent Huckenberry testified Further, when Alex Suarez testified as a
' government complied with Rule 901(a) of be e Francisco Garcia leaning into the government witness, he stated that the
1 the Federal Rules of Evi ſence Through Government vehicle the agent who searched the car had a weapon
the testimony cf the various special agents, ddr on the driver's side (T 110). He fur- in bis waistband prior to entering the
the governmen: submitted evidence suffi- 1 1 ee py — Trans- Am (T 382). The evidence was suffi-
cient to support the trial judge's find vehicle carrying pouch, cient to support the appellant's conviction
sessed appellant at the time of their Hackenberry’s vehicle collided Finally, appellants contend govern
arrests 1 Garvia disputed this tes LH
The appellants’ convictions under Cour.’ to commit the offenses. Ap
IV ar? affirmed. Jose Garcia argues that the evidence was contend that their testimony a.
insufficient, because defense witnesses trial sup orte a defense of entrapment and
* The Sufficrency of Evidence contradicted the Government's version. ands that ther convictiors should be reversed
al The Corcies Agents testified that Jose Garcia, standing — because, they argue. the government failed
challenge the sufficiency of in a combat-ready stance, pointed a loaded
the evidence to support the convictions. chambered semi-automatic weapon at —
More specifically. Dey argue that (a) the Agent Holmes (T 43-44, 90, 97). Govern- The testimony presented by the govern:
money was neither stolen nor was the own- ment witness Alex Suarez testified that, mont wee cuflicien: to prove pradlapesiies
er deprived of its use. (b) Jose Garcia did although he did not see a gun, he observed beyond a reasonabie coubt on evidence
not brandish a deadiv weapon, and (c) they Agent Holmes with arms raised and back Set OS Oe ee ibe
were entrapped. This Court must consider ing away, stating, Don't shoot” (T 379, . — a :
most favorable — i the light $87). The raised arme was 2 distress sig showed that Jose Garcia refused to con-
12 — — = => & Seapanty & 48, 63-4, clude the transaction a: Douglas Park (T
96 LE 690 (1942) a reasonable trier of Mg pe Sy yy 18) and that the deal was moved to Bryant
N that no .
uct cu id tat, the evince wah sedan atthe weapon wasn the hve L
— 1 1 gg e a 1 of the Trans Am until re a removed the money from Holmes’ vehi
qs 021 08, 60 Ob LOA NSE 1s ED ' cle C 111). ‘The testimony of both appel
* 12 lants contradicted that af the agents and
sa and her father, Rafael Pedrosa, to sup 0 A —
m The Garcias contend that the evi- port the appellants’ allegations. Marta Pe —. — — aay
dence failed to prove that the money was drosa testified that an agent searched the shown inducement. However, that was 2
stolen or purloined or that the owner was Trans- Am and exited it with the pistol in jury question. The evidence supports the
deprived of its use as alleged in Count 1 bis hands (T 241-42). After re-opening the verdicts.
and II. Appellants focus on the testimony defense case, Rafael Pedrosa was called,
of witnesses as to the black pouch contain- obviously on the assumption that he would The Consecutive Sentences Were Proper
ing the money. Agent Holmes testified corroborate his daughter's testimony. He Jose Garcia was sentenced to a total of
that the black pouch was in the Govern did testify to seeing the agent who forty (40) incarceration.
ment vehicle and that, after the arrest of searched the Trans-Am holding a pistol in (25) years as to Count III. five (5) years as
Jose Garcia, he observed his car door open bis hand after exiting the vehicle (T 343-
}
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.