# Petition for Writ of Certiorari — Garcia v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0805%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 469 U.S. 70 ## Text ee Be ea Be RECEIVED wey 1 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 — r RR a a a rw f + A 8 Hy * 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 PAGES “|4 -hry 426 WERE POOR HARD COPY AT THE TIWE OF FILMING. IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED. i le) e e Hi 11 fit tut 10 tH 1 1 iM 14 ini. | 10 ie ö 10 e Fae. 173 : ; 123 le Shige a 11111 . 75 1114411 HEE it 11145 We ig al e 1 il eee 10 it Wi : i 4 I a lis 0 i ! ii .! 000 ie i | 11 0 10 0 110 Aal,! (i 111 f 111 LH er ue J is 417 e e UT 1 eT 1 0 % e 1 nth A Hi tide Jig ngen Me 1 1 i . 1 f TL 1 5 k IE 12 2715 714111! 147315 if 1111 iii i 22221 22% 111 115 10 1 i 57] il bil Eh When some, but not all, of elements of crime charged would support conviction of another offense, latter me be termed a Lesser offense must not require some additional element not needed to consutute 13. Indictment and Information 191 14. Indictment and Information 19) : if 11437 1244321 4 lie 1 1 He 8 3 HE 110 if 110 eel 0 iff 1100 re l ih RHE Pius il, HAE due pot eh „ Hah jeu 12 1 11 111111 111 ; “ita by af Hii wii 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 & 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- } — —„- —— ia He] „ a HI Te 0 b He Hy 11 1 ni elit HE i a Wh 10 a cides 217111 i HH i il i a Rete I! ff i Bin i l ＋ ia ; 2 Hii e ihe | Jalna ii 11 1 0 li 1 0 Et Ahe a : 12 & al 1 dl a Ee 1 n 1117110 fi ae ＋ 1 0 i 1 i 111 ifi 11 1115 , 5 2 f b 11 i hidaee 1244 3 10 Hie. : HYG 1 jal it bili ith . i ua ds 1 reg 1 eee. ilies ie 112 a . th 1 i I dy 2 11 Hi Pai af 5 k Hit 1 ie ; e — and Commitment for Fran hr 131 l 15 Rist III ere a merger for the purpose of Personalty belonging to the United States --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0805%3A2. Public record. Not legal advice.