Petitioners Brief — Garcia v. United States

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Office Supreme Court. US. |

FILED

MAY 18 1984

No. 83-6061 ALEXANDER \. STEVAS.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

JosE GARCIA AND FRANCISCO GARCIA,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Eleventh Circuit

PETITIONERS’ BRIEF ON THE MERITS

THEODORE J. SAKOWITZ

Federal Public Defender

(Attorney of Record)

CHARLES G. WHITE

Assistant Federal Public Defender

301 North Miami Avenue

Miami, Florida 33128-7787

(305) 350-6900

Counsel for Petitioners

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

BEST AVAILABLE COPY ©

QUESTIONS PRESENTED

Whether a prosecution under 18 U.S.C. § 2114 re-

quires a postal nexus in order for a conviction to be

sustained.

a) Whether the plain meaning doctrine prohibits re-

view of congressional intent when interpreting 18 U.S.C.

§ 2114.

b. Whether congressional intent requires a postal

nexus in prosecutions of 18 U.S.C. § 2114.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..--+-++-eeeerseeerreesreee i

TABLE OF AUTHORITIES ....----eeerrereressererteee” i

OPINION BELOW ....----eceereerrreeeeressere tees 1

BASIS OF JURISDICTION ..----eeeeereereresseeeeeee 1

STATEMENT OF THE CASE ..---+eeseererrsseesseee et 2

SUMMARY OF THE ARGUMENT ..------eererrserereeet 10

ARGUMENT .....ccccccccccccccesccccssoocssesoseees 10

CONCLUSION ...ccccccccccccccccccccessosscereesees 23

;

TABLE OF AUTHORITIES

CASES: Page

Barrett v. United States, 423 U.S. 212 (1976) ........ 14

Bell v. United States, 349 U.S. 81 (1955) ............ 13

a Bene & Gravel Co. v. United States, 278 U.S. 41

Browder v. United States, 312 U.S. 335 (1941) ....... 12

Cass v. United States, 417 U.S. 72 (1974) ........... 12

Commissioner v. Acker, 361 U.S. 87 (1959) .......... 15

Commissioner v. Brown, 380 U.S. 563 (1965) ...... 12, 13

Dunn v. United States, 442 U.S. 100 (1979) .......... 13

Flora v. United States, 357 U.S. 68, (1958) .......... 11

Huddleston v. United States, 415 U.S. 814 (1974) .... 14

Jones v. United States, 72 F.2d 873 (7th Cir. 1934)... 19

Kelly v. United States, 138 F.2d 489 (9th Cir. 1943) .. 19

Malat v. Riddell, 383 U.S. 569 (1966) .............-- 12

Morrissette v. United States, 342 U.S. 246 (1952) ... 138, 23

Norton v. Zerbst, 183 F.2d 677 (10th Cir. 1936) ...... 19

Perrin v. United States, 444 U.S. 37 (1979) .......... 14

Randazzo v. United States, 300 F. 794 (8th Cir. 1924) 19

Russello v. United States, __. U.S. —__, No. 82-472

(Nov. 1, 1983) ........ eee eee cere eee eeceeeees 13, 14

Scarborough v. United States, 431 U.S. 563 (1977) ... 18

Schwegman Bros. v. Calvert Group, 34% U.S. 384(1951) 912

Simpson v. United States, 435 U.S. 6 (1978) ......... 22

Train v. Col. Public Interest Research Group, 426 U.S. 1

ee eee ec ecsecesscccecccccecccces 12

TVA v. Hill, 437 U.S. 153 (1977)... 2... eee eee eee 12

United States v. American Trucking Assns’ Inc., 310

ME occ ccccccccesccccccccccces 12, 14, 15

United States v. Apfelbawm, 445 U.S. 115 (1980) ..... 14

United States v. Aragon, 366 U.S. 643, 648 (1961) .... 12

United States v. Cook, 384 U.S. 257 (1966) .......... 23

United States v. Culbert, 435 U.S. 371 (1978) ........ 13

Table of Authorities Continued

Page

United States v. Fernandez, 497 F.2d 730 (9th Cir.

BN fi oss Cave behasenaewaeseenaneeaees 9, 11, 20

United States v. Garcia, 718 F.2d 1528 (11th Cir. 1983). 11

United States v. Hanahan, 442 F.2d 649 (7th Cir. 1971) 11

United States v. Oregon, 366 U.S. 643 (1961) ........ 12

United States v. Reeves, 38 F. 404 (C.C.W.D. Tex 1889) 19

United States v. Reid, 517 F.2d 953 (2nd Cir. ten 9, rr

’ ’

United States v. Rivera, 513 F.2d 519 (2nd Cir. 1975) 9, 11

United States v. Rivera, 521 F.2dx 125 (2nd Cir. 1975) 9, 11

United States v. Spears, 449 F.2d 946 (D.C. Cir.

DEED vec covécvesccedseuweberetevesendecesosces 19, 23

United States v. Turkette, 452 U.S. 576 (1981) ....... 14

SECONDARY SOURCES: .

Frankfurter, Some Reflections on the Reading of Statutes

47 Col. L. Rev. 527 (1947) ......-. cece eee eeeeee 16

Murphy, Old Maxims Never Die: The “Plain Meaning

ule” and Statutory Interpretations in the “Modern

Federal Courts 75 Col. L. Rev. 1299 (1975) ...... 12

Nutting, The Ambiguity of Unambiguous Statutes, 24

i. L. Rev. 409 (1940) igddckdvédecsadennenes

atom it

OPINION BELOW

Jose and Francisco Garcia were convicted after a jury

trial before the Honorable Eugene Spellman, United

States District Court Judge for the Southern District of

Florida on October 14, 1981. Trial counsel failed to raise

the Question Presented herein during his Motion for

Judgment of Acquittal made pursuant to Rule 29 of the

Federal Rules of Criminal Procedure.

On appeal before the Eleventh Circuit Court of

Appeals, the Question Presented was raised in the brief

filed with the Court and presented at oral argument. The

Eleventh Circuit affirmed the convictions of petitioners

in an opinion issued November 8, 1983 and published

under the citation 718 F.2d 1528.

BASIS OF JURISDICTION

This case was a direct appeal to the Eleventh Circuit

from a conviction after a criminal jury trial. Conviction

was affirmed by the Eleventh Circuit on November 8,

1983 in an opinion published at 718 F.2d 1528.

A Petition for a Writ of Certiorari was timely filed with

the Supreme Court. This Petition was granted on April 2,

1984.

Jurisdiction is invoked under Title 28, United States

Code, Section 1254(1).

APPLICABLE STATUTES

Title 18, United States Code, Section 2114 reads as

follows:

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, shall,

for the first sibane, be imprisoned not more than ten

years; and if in effecting or attempting to effect such

robbery he wounds the person having custody of

such mail, a or other property of the United

States, or puts his life in apeey y the use of a

dangerous weapon, or for a subsequent offense, shall

be imprisoned twenty-five years.

STATEMENT OF THE CASE

On July 22, 1981, Special Agent K. David Holmes,

posed as someone interested in buying counterfeit money

with genuine currency. Accompanied by a confidential

informant named Jorge Castro, Agent Holmes went to

Douglas Park in Miami, Florida, to meet the individuals

with whom he would conduct negotiations for the pur-

chase of counterfeit money. (T 13).' Informant Castro

introduced Agent Holmes to Ernesto Dominguez and

Petitioner Francisco Garcia (T 14) as the purchaser of the

counterfeit money (T 15). Dominguez asked Holmes

whether he had brought the genuine currency. Agent

Holmes responded affirmatively (T 15). When Agent

Holmes asked Dominguez if they had the counterfeit,

Dominguez responded that the counterfeit was in the

trunk of the white Trans-Am in which the defendants had

arrived at Douglas Park (T 15-16). The Trans-Am was

parked a few spaces away from where Agent Holmes had

parked his government vehicle.

Dominguez walked over to the Trans Am, followed

shortly thereafter by Agent Holmes (T 16). Petitioner

'The statement of facts presented here is almost taken verbatim

from the statement of facts as described by the Eleventh Circuit in

their opinion published at 718 F.2d 1528.

ee eee

Jose Garcia was seated in the driver’s seat of the Trans-

Am (T 17). When Agent Holmes told Petitioner Jose

Garcia that he wanted to do the deal, Jose Garcia stated

he was not going to count phony bills there because the

“place” (Douglas Park) was “sort of heated up” (T 18).

The defendants wanted to see the genuine currency be-

fore displaying the counterfeit (T 18). At that point,

Agent Holmes flashed the $1,800 of government money to

Dominguez, while Jose Garcia remained seated in the

Trans-Am and Francisco Garcia remained standing near

Agent Holmes’ vehicle (T 19).

Agent Holmes returned to his vehicle, followed by

Dominguez. Agent Holmes once again stated that he

wanted to do the deal there, but Dominguez reiterated

that the place was “heated up” and said they could do the

deal in another location (T 20-21). Dominguez and Fran-

cisco Garcia returned to the Trans-Am; as the vehicle

drove past, they yelled that they were going to Bryant

Park (T 21).

When Agent Holmes arrived at Bryant Park, Francis-

co Garcia and Dominguez were standing outside the

Trans-Am. Jose Garcia was seated inside the vehicle

(T 37). Dominguez wanted to see the genuine currency

again, but Agent Holmes refused (T 41), commenting

that he did not think they had any counterfeit; he asked

them to show him a sample. Francisco Garcia then gave

Agent Holmes a counterfeit $50 bill to examine. Doming-

uez assured Agent Holmes they had $85,000 in counter-

feit currency to sell. Agent Holmes once again asked to

see the counterfeit and began walking to his vehicle (T 42-

43).

After Agent Holmes had walked about two paces to-

ward his vehicle, Jose Garcia jumped out of the Trans-Am

holding a semi-automatic pistol. Jose Garcia pointed the

pistol at Agent Holmes, chambered a round into the

pistol, assumed a combat stance, gripping the pistol with

both hands with his finger in the trigger, pointed the

loaded, chambered pistol at Agent Holmes and screamed.

“Enough of this bullshit, give me the money” (T 43).

Agent Holmes raised his arms in the pre-determined

distress signal and began inching his way towards his

vehicle, telling Jose Garcia that he was going to get the

money (T 44).

Surveillance Agent Null observed Agent Holmes with

his hands in the air, the prearranged distress signal which

the undercover agent was to give if his life was in danger

(T 88-89). While Agents Null and Grant were racing to

the scene, Agent Null observed Jose Garcia pointing the

pistol at Agent Holmes (T 90). Surveillance Agent Grant

also saw Jose Garcia pointing the gun at Agent Holmes

(T 97).

Within seconds, Agents Null and Grant arrived and

shouted at Jose Garcia to drop the gun. At that point, Jose

Garcia dropped the weapon (T 44). Agent Grant reco-

vered the weapon from the ground and disarmed it,

determining that one round had been chambered into the

pistol (T 99). It was registered to Francisco Garcia

(T 125). After disarming Jose Garcia and putting him

under arrest, Agent Null conducted a pat-down of de-

fendant Jose Garcia and seized a $100 counterfeit bill,

which he immediately turned over to Agent Foley (T 91,

124).

Agent Hackenberry was also on surveillance at Bryant

Park that day. Upon seeing Agent Holmes raise his hands

in the distress signal, he also raced to the scene and

observed Francisco Garcia running towards the govern-

ment vehicle (T 110). Francisco Garcia leaned into the

government vehicle through the opened door on the driv-

er’s side (T 110), exited the vehicle and, looking back over

his shoulder, ran towards Agent Hackenberry’s vehicle,

carrying the black leather pouch (T 111). As Francisco

Garcia ran away from the scene, the vehicle Agent Hack-

enberry was driving and Francisco Garcia collided, re-

sulting in the black pouch dropping out of Francisco Gar-

cia’s hand (T 113). After Jose Garcia had been disarmed,

Agent Holmes observed that the car door of the govern-

ment vehicle was open; laying next to the vehicle on the

ground was the black pouch containing the “flash roll” of

government money (T 46).

Agent Grant’s pat-down of Francisco Garcia uncovered

the trunk key to the Trans-Am and a $50 counterfeit note,

which note was turned over to Agent Foley (T 102, 118).

Agent Grant subsequently drove the Trans-Am to the

Secret Service Miami Field Office where a search of the

trunk of the vehicle revealed no counterfeit currency

(T 103-04).

The Defense Testimony

Both petitioners testified in their own defense,

essentially disputing the government witnesses’ testi-

mony as to what had happened and claiming that they had

been beaten by the agents. Jose Garcia testified that the

confidential Informant Jorge Castro had proposed that

they show a few counterfeit bills to a potential purchaser

and steal the genuine currency which the man would

bring as payment for the counterfeit (T 138, 140-141).

Jose Garcia had agreed, and Informant Jorge Castro had

given him a $100 counterfeit bill and had given Francisco

Garcia a $50 counterfeit bill (T 142). According to Jose

Garcia, the plan was simply to take the money. He denied

that a pistol was used (T 143). Jose Garcia testified that

on July 22, 1981, they had met the agent at Douglas Park

and had later moved to Bryant Park (T 145) where there °

had been an argument about who would show his money

first (T 148).

Jose Garcia said that he had never had a gun at the

scene. (T 157). Instead, he claimed that Agent Holmes,

using the agent’s own weapon, had pistol-whipped Jose

Garcia on the head (T 148-51). He also testifiec that

Agent Holmes had beaten Ernesto Dominguez to force

Dominguez to reveal the location of the counterfeit money

(T 148).

Francisco Garcia testified that Informant Jorge Castro

had given him the $50 counterfeit bill (T 180-81). Francis-

co Garcia said that Ernesto Dominguez had displayed to

Agent Holmes the $50 counterfeit and had returned it to

Francisco Garcia (T 192). He further testified that the

weapon which was introduced into evidence had been in

the glove compartment of the Trans-Am (T 182). Al-

though he agreed that a car had hit him, Francisco Garcia

denied that he had ever possessed the pouch containing

the U.S. Government money (T 193). He also testified

that his brother never had a gun (T 194).

The defense also called Marta Pedrosa, who testified

that on July 22, 1981, while standing outside her home,

she had seen two cars speeding to the park and stopping

near a white Trans-Am (T 228-30). According to Pedrosa,

she ran to the park and saw the agents jumping three men

and kicking them (T 233). She identified Jose Garcia and

Francisco Garcia as two of the men who had been arrested

and kicked (T 234). She said she had seen Francisco Gar-

cia fall after being hit by the automobile, but stated that

she had not seen any black pouch in his hand or on the

ground (T 238). She identified Agent Foley as having

twisted Jose Garcia’s arm, demanding to know where the

money was (T 239). When the agent had found the key to

the Trans-Am, he had gone into the vehicle and had come

out holding an automatic pistol (T 241-42). She thought

the gun had been removed from the glove compartment.

Rebuttal By The Government

On July 22, 1981, Edna Benson was in her house, which

faces the park. She had noticed the people and heard

screaming (T 262). She had gone to the park and saw men

being arrested one of whom was struggling to avoid being

handcuffed (T 263). The officers were trying to quiet him

(T 264). The other young men being handcuffed were

quiet. Benson saw no one hit, beat or strike those being

arrested (T 265). She had arrived too late to make any

relevant observations regarding the gun or the black

leather pouch. (T 277).

After the government’s rebuttal, the court permitted

the defense to reopen its case (T 292-337). The defense

called Rafael Pedrosa, father of Maria Pedrosa, as an

eyewitness to the events of July 22, 1981.

Pedrosa testified that he saw cars speeding to Bryant

Park and walked down to the park to see what had hap-

pened (T 341). He saw three young men handcuffed

(T 342). One of the agents found a key to the Trans-Am,

searched the car, came out of the vehicle with a pistol,

removed the clip and placed it in his belt (T 343-45). He

testified that he never saw any black leather pouch simi-

lar to that entered into evidence by the government.

(T 346). Pedrosa stated that he did not see anything that

had happened in the park before his arrival and that when

he arrived at the park the three men were already hand-

cuffed and one was on the ground hurt (T 358). In addi-

tion, he could nct tell whether the officer who searched

the Trans-Am and exited with a pistol had anything in his

hands when he entered the Trans-Am (T 364). He did not

see the officers strike any of the men arrested.

Sur-Surrebuttal By The Government

The government then called Alex Suarez who had also

been present in the park on July 22, 1981, when the

petitioners were arrested. He observed the agent raise

his hands, back away and say, “Don’t shoot!, although he

never saw the gun (T 379, 387). He saw the other agents

arrive on the scene and arrest the three men. He did not

observe any mistreatment of the three men (T 381). He,

too, observed the car being searched. He said the agent

who searched the car had a weapon in his waistband

before he entered the Trans-Am (T 382).

The petitioners, along with Ernesto Dominguez, whois

not a party to these proceedings, were charged in a five

count indictment with conspiracy to steal money belong-

ing 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. § 641 (Count II), robbery of money

belonging to the United States with an assault involving

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 assault-

ing federal officers, in violation of 18 U.S.C. § 111 (Count

V).

On October 6, 1981 petitioners proceeded to a jury

trial. Petitioners’ motions for judgment of acquittal at the

close of the government’s case and at the close of all the

evidence were denied. On October 14, 1981 the jury re-

turned a verdict of guilty of all counts except Count V as

to Francisco Garcia.

On November 17, 1981 Jose Garcia was sentenced to a

term of incarceration of twenty-five (25) hears on Count

III, five years on Count II consecutive with Count IIT,

five years on both Counts I and IV to run concurrent with

the term imposed on Count II, and the ten (10) years on

Count V to run consecutive with that term imposed on

Count III for a total of forty (40) years according to 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 consecu-

tive 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

Senior District Judge Atkins sitting by designation. The

conviction was affirmed in an opinion published at 718

F.2d 1528 and a Mandate was issued.

A writ of certiorari was submitted by petitioners

requesting review of that portion of the Eleventh Cir-

cuit’s decision which held that no postal nexus was re-

quired to sustain a conviction under 18 U.S.C. § 2114. In

affirming the conviction a direct conflict was created with

other Courts of Appeal. See United States v. Rivera, 521

F.2d 125 (2nd Cir. 1975). United States 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 F.2d 730 (9th Cir. 1974).

This Court granted the Writ of Certiorari on April 2,

1984.

SUMMARY OF ARGUMENT

The most important function of a court when interpret-

ing a statute is to give effect to the intent of the enacting

legislature. In order to determine Congressional intent

recourse to legislative history is necessary. When a crimi-

nal statute is in issue then great care should be exercised

so that only that behavior which Congress intended to

criminalize is punished.

There is no rule which excludes consideration of Con-

gressional intent because of a supposed unambiguity in

the statutory language. Words may have a plain meaning

when read out of context, but a different meaning when

read in conjunction with the intent of Congress. The plain

meaning doctrine is not favored as a rule of exclusion.

The petitioners were convicted of violations of 18

U.S.C. § 2114. The legislative history is clear that only

offenses involving a postal nexus are proscribed by that

statute. Although the committee reports are not clear,

the statements made by Congressman Dobbins, the floor

manager of the 1935 Amendment at issue here, clearly

state what the bill intended to accomplish. There was

never any doubt among the Congressmen considering

this amendment that it was anything more than an

amendment to the Postal Robbery statute. There was

certainly no statement of any authority that the amend-

ment would apply the penalty of § 2114 (a minimum 25

year sentence if the victim is wounded or placed in jeopar-

dy by a dangerous weapon) to all lawful custodians of all

government property.

ARGUMENT

This Court has never before considered the question

presented in this Writ of Certiorari. At this point, the

great weight of authority from the various Circuit Court

of Appeals suggests that a “postal nexus” is required

before a conviction is warranted for a violation of 18

U.S.C. § 2114. United States v. Rivera, 521 F.2d 125 (2nd

Cir. 1975). United States 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. United States v. Fer-

nandez, 497 F.2d 730 (9th cir. 1974) cert. denied, 420 U.S.

990 (1975), rehearing denied 421 U.S. 1017 contra,

United States v. Garcia, 718 F.2d 1528 (11th Cir. 1983).

Back in 1974, the Solicitor General conceded that the

legislative history required a “postal nexus.” United

States v. Hanahan, 442 F.2d 649 (7th Cir. 1971). vac &

remanded, 414 U.S. 807 (1973).

The Eleventh Circuit in holding that prosecution under

18 U.S.C. § 2114 did not require a postal nexus specifical-

ly adopted the dissent of Judge Mansfield in the Reid

case.’ United States v. Garcia, 718 F.2d at 1533. It is the

reasoning of Judge Mansfield and the Eleventh Circuit

that (1) the wording of 18 U.S.C. § 2114 is clear and

unambiguous, and therefore there is no need to resort to

any legislative history and (2) the legislative history does

not clearly indicate a need for a postal nexus. Petitioner

disputes both of these contentions.

A) That The Plain Meaning Doctrine Does Not Prohibit Re-

view Of Congressional Intent.

When interpreting statutes it is the duty of the judicia-

ry to express the intent of the enacting legislative body.

Flora v. United States, 357 U.S. 63, (1958). Sometimes

? Judge Mansfield did not dissent or dispute the Government’s

concession on the inapplicability of § 2114 to the facts in United States

v. Rivera, 521 F.2d at 127, which case was heard after the Reid case

and considered the identical issue before this Court.

the intent of the legislative will be evident upon a literal

reading of a statute’s words. In almost all the cases which

have interpreted federal statutes, resort was made to

Congressional intent as evidenced by floor debates and

committee reports. Included in this list are ail the cases

cited for the applicability of the plain meaning doctrine to

the instant case. These cases are Malat v. Riddell, 383

U.S. 569 (1966); Commissioner of Internal Revenue v.

Brown, 380 U.S. 563, 571-72 (1965); United States v.

Aragon, 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).

The plain meaning doctrine is not favored by this Court

as a principle used to exclude evidence useful for the

courts when interpreting statutes. This Court has said,

“When aid to construction of the meaning of words, as

used in the statute, is available there can be no ‘rule of

law’ which forbids its use, however clear the words may

appear on ‘superficial examination.’” Train v. Colorado

Public Interest Research Group, 426 U.S. 1, 10 (1975),

quoting United States v. America Trucking Assn’s. su-

pra at 545, Cass v. United States, 417 U.S. 72 (1974). See

generally Murphy, Old Maxims Never Die: The “Plain-

Meaning Rule” and Statutory Interpretation in the

“Modern” Federal Courts, 75 Col. L. Rev. 1299 (1975).

Even if the words are unambiguous, the courts will

sometimes look to legislative intent in order to make sure

the statute says what it is supposed to say. TVA v. Hill,

437 U.S. 153 (1977). In TVA, the Court was considering

whether strict enforcement of the Endangered Species

Act should be allowed to terminate a large scale and very

expensive dam building project just before completion.

The Court first found the wording of the statute to be

plain, but still sought to investigate the legislative history

to look for confirmation that Congress had intended the

conflicting interests of environmental concern and eco-

nomic development to be balanced as they were in the

statute.

The scope of a term, not its definition is sometimes at

issue. Commissioner v. Brown, supra. In Brown the

Court assigned a plain meaning to the word “sale,” but

went on to investigate legislative intent.

Unquestionably the courts in interpreting 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 re-

sults. . . or would thwart the obvious purpose of the

statute.

380 U.S. at 571.

The need to determi~ie the intent of Congress becomes

more pressing when a criminal statute is involved. A

federal criminal statute should be construed narrowly in

order to encompass only that conduct which Congress

intended to criminalize. Dunn v. United States, 442 U.S.

100, 112 (1979). If the ambit of the statute is ambiguous

the rule of lenity ought to be applied. Bell v. United

States, 349 U.S. 81, 83 (1955). Naturally, the rule of lenity

should “not be used in complete disregard of the purpose

ot the legislature.” United States v. Culbert, 435 U.S.

371, 379 (1978), quoting Scarborough v. United States,

431 U.S. 563, 577 (1977). The rule of lenity is often dis-

regarded when an ambiguity in the scope of particular

words in a statute is in conflict with clearly expressed

Congressional intent to battle a particular evil or give

presecutors more effective tools for combating organized

crime. Russello v. United States, __. U.S. ___ No.

82-472 (Nov. 1, 1983). United States v. Turkette, 452 U.S.

576 (1981). United States v. Apfelbaum, 445 U.S. 115

(1980). Perrin v. United States, 444 U.S. 37 (1979). Bar-

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

United States, 415 U.S. 814 (1974). In all the above cited

cases, the Court was interpreting criminal statutes which

were comprehensive and clearly intended to be given

broad application. Consideration was always given the

Congressional intent.

In American Trucking, supra, the plain meaning rule

as an exclusion of evidence was repudiated. As the Court

stated:

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, ete 7 | would not contribute greatly to

the discovery of the purpose of the draftsmen of a

statute, particularly in a law drawn to meet many

needs of a major occupation.

There is, of course, no more persuasive evidence of

the purpose of a statute than the words by which the

legislature undertook to give expression to its

wishes. Often these words are sufficient in and of

themselves to determine the gk yam of the legisla-

tion. In such cases we have followed their plain

meaning. When that meaning has 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 un-

reasonable one “plainly at variance with the policy of

the legislation as a whole” this Court has ollowed

that purpose, rather than the literal words. When aid

to construction of the meaning of words, as used in

the statute, is available, there certainly can be no

“rule of law” which forbids its use, however clear

words may appear on “superficial examination.” The

interpretation of the meaning of statutes, as applied

to justiciable controversies, is exclusively a judicial

function. This duty requires one body of public ser-

vants, the judges, to construe the meaning of what

another body, the legislators, has said. Obviously

there is danger that the courts’ conclusion as to

ees purpose will be unconsciously influenced

by the judges’ own views or by factors not considered

by the enacting body. A lively appreciation of the

anger is the best assurance of escape from its threat

but hardly justifies an a of a literal in-

terpretation dogma which withholds from the courts

available information for reaching a correct con-

clusion. Emphasis should be laid, too, upon the ne-

cessity for appraisal of the purposes as a whole of

Congress in analyzing the meaning of clauses or sec-

tions of general acts. A few words of general connota-

tion appearing in the test of statutes should not be

ven a wide meaning, contrary to a settled policy

excepting as a different purpose is plainly shown.”

310 U.S. at 542-44

It is interesting that Judge Mansfield quoted out of

context a small section of the above holding, and used it to

proclaim that the plain meaning must always prevail de-

spite legislative intent to the contrary. This irony was

noted by the majority in Reid, 517 F.2d at 957 n.3a.

Despite the American Trucking case, there are some

cases for which statutory wording may not appear to be

ambiguous, yet needs to be clarified.* There are cases

3See Commissioner v. Acker, 361 U.S 87 (1959) j

b 3 5. , particular]

Frankfurter’s dissent. The case involved a seeming direct suieaiiy

tion between the plain meeting of the statute and congressional

intent. Frankfurter spoke about how the British system excluded

where a court can find no need to look at legislative intent.

Before deciding that such a course ought apply in the

instant case, consideration should be given to the words

of Felix Frankfurter:

Anything that is written may present a roblem of

meaning, and that is the essence of the business of

judges in construing legislation. The problem de-

rives from the very nature of words. They are sym-

bols of meaning . . . If individual words are inexact

symbols, with shifting variables, their configuration

can hardly achieve invariant meaning or assured

definiteness.

Frankfurter, Some Reflections

on the Reading of Statutes, 47

Col. L. Rev. 527, 528 (1947)

In the instant case, petitioners are entitled to have this

Court consider their claim that Congress never intended

to bring their actions within the ambit of § 2114.* The

plain meaning doctrine as a means of ignoring Con-

gressional intent is no longer the law.

evidence of Parliamentary intent from its statutory interpretations

and quoting from Boston Sand & Gravel Co. v. United States, 278

U.S. 41, 48 (1928) said:

It is said that when the meaning of lan is piain we are not to

resort to evidence in order to raise doubts. t is rather an

axiom of experience than a rule of law, and does not preclude

consideration of persuasive evidence if it exists.

361 U.S. at 95

‘ Petitioners do not concede the nonambiguity of 18 U.S.C. § 2114.

While the appearance of the disjunctive may appear to clearly mean

two separate concepts it is necessary to study Congress’ limitations

intended on those meanings. See Nutting, The Ambiguity of Un-

ambiguous Statutes, 24 Minn. L. Rev. 509 (1940).

B) That Congressional Intent Requires A Postal Nexus In

Prosecutions Of 18 U.S.C. § 2114

Prior to 1935, the predecessor statute t

§ 2114 read as follows: eases

Whoever shall assault an rson having |

charge, control or custody of = mail ati eet

intent to rob, steal or purloin waeh mail matter or any

part thereof, or shall rob any person of such mail or

— thereof, shall for a first offense, be impris-

oned not more than ten ears; and if in effecting or

attempting to effect such robbery, he shall wound

the person having 7 of the mail, or put his life

in jeopardy by the use of a deadly weapon, or for a

subsequent offense, shall be imprisoned twenty-five

years. Act of March 4, 1909, Ch. 321, § 197, 35 Stat.

1126.

/ 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 Post Office Committees of each

House. The committee reports, of which the general lan-

guage 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 Government moneys or property.

Assaults upon custodians of mail matter are punishable

under section 197 of the Federal Penal Code (18 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 dangerous weapon. If the person assaulted is

a custodian of Government funds (not mail) the maximum

punishment 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 in-

crease in crimes of the latter type and it is believed that

section 197 of the Penal provisions the crime of robbing or

attempting to rob custodians of Government moneys.

Legislation to this effect was recommended in the Post-

master General’s annual report for 1933 and two bills,

H.R. 6546 and H.R. 7214 were introduced and referred to

the House Judiciary Committee but neither bill was re-

ported out by the committee. The recommendation for

the passage of this legislation is renewed.

Very truly yours,

James A. Farley

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 offic-

ers, 18 U.S.C. §§ 253 and 254, were “post-office in-

spectors”. 517 F.2d at 951 n.4.

Prior to 1935 there was absolutely no doubt that 1

U.S.C. § 320 applied only to postal ee and its wf

custodians. The ancestors to § 2114 go all the way back to

1792.° There has been litigation over whether in certain

cases the government had proven that the victim was an

authorized custodian of mail matter sufficient to bring his

actions within the statute. Jones v. United States, 72

F.2d 873 (7th Cir. 1934). Randazzo v. United States, 300

F. 794 (8th Cir. 1924). United States v. Reeves, 38 F. 404

(C.C.W.D. Texas 1889). Likewise, there has been litiga-

tion on whether money and postage stamps constituted

mail matter before the 1935 Amendment. Kelly v. United

States, 138 F.2d 489 (9th Cir. 1943). Norton v. Zerbst, 183

F.2d 677 (10th Cir. 1936). Obviously, when the Postmas-

5 See United States v. Spears, 449 F.2d 946, 950-54 (D.C. Cir. 1971)

for excellent history of rostal robbery statute.

ter General wrote to Congressman Mead, he wanted a

statute which protected all his employees with those ex-

traordinary protections historically afforded to postal

employees and the Post Office.

Both the government and the Eleventh Circuit argue

that the disjunctive “or” eliminates all ambiguity and

conclusively proves that Congress intended to signifi-

cantly increase the scope of the statute’s proscriptions.

Referral to the Congressional Record will reveal why the

disjunctive was used. Congressman Dobbins, who was

the floor manager of the bill, and had worked on it in the

House Post Office Committee said:

The trouble — the language as - — - ly —

“custody of mail matter, money, or othe

the United States” is that it might limit the offense to

mail matter of the United States, whereas it is de-

_ signed to include within the protection of the section

mail on, — it —— to = a

tes or is mail belonging to a foreign citizen and Is

ante in the oneaety of the United States while

being in the United States mails.

79 Cong. Rec. 7875

As can be seen from Congressman Dobbins’ comments,

the original bill did not use a disjunctive. A disjunctive

was only used because of the Committee's desire to in-

crease the scope of the original bill to include foreign mail

by adding the “or”. See 79 Cong. Rec. 9380, when the bill

was read with amendments and passed.

At another time, Congressman Dobbins described

completely the scope of the Act in what the N inth Circuit

characterized “as illuminating as legislative history could

possibly be”. United States v. Fernandez, 497 F.2d at

740.

Mr. Speaker, the gentleman from Ohio objects to the

sre penalty Sevided in this bill. The penalty

clause is not legislation. If this bill is not passed, the

— will still contain the mandatory 25-year

penalty.

The only p of the pending bill is to extend the

yetestion of the present law to property of the

nited States in the custody of its postal officials, the

same as it now extends that protection to mail matter

in the custody of 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 : 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 present law, but if he is merely after a

postal of a letter he can be prosecuted.

I think this makes a salu change in the law. It is

advocated by the Post ce Department and it

seems to be there ought to be no objection to it.

79 Cong. Rec. &205

There was more debate. 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 Congress

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 gentle-

man 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

While humor may be misplaced in the Halls of Congress

it certainly exists albeit in a drier form than prevails in

more colloquial settings. Mr. Truax never did submit an

amendment such as he advocated despite being invited to

do so by Mr. Dobbins. Clearly Mr. Truax’s tongue was in

his cheek during this exchange.

The comments of the floor manager of a bill in Congress

are entitled to considerable weight if the words are con-

sistent with the stated purpose of the proposed law.

Simpson v. United States, 435 U.S. 6, 13-14 (1978). In

Simpson, the bill in question never went through commit-

tee hearings and the only statement of its purpose was

offered on the floor by the Congressman who introduced

it. In the instant case, Congressman Dobbins interpreted

for his fellows congressmen what the Committee had

discussed relative to the wording of the amendment and

the intent of the Committee. He made it clear that he was

working closely with counsel from the Post Office. 79

Cong. Rec. 8205. Most of the other congressmen who

contributed to the debate agreed that the statutory con-

struction was practically the worst ever seen. 79 Cong.

Rec. 7875.

In 1935, 18 U.S.C. § 320 was located in the section of

the Code entitled Offenses Against the Post Office.

United States v. Reid, 517 F.2d at 957. In all the codifica-

tions back through to 1792 the ancestors of 18 U.S.C.

§ 2114 were considered exclusively postal crimes.

The Revisors of the Code in 1948 transferred § 320 to

the Chapter titled Robbery and Burglary. Act of June 25,

1948, ch. 645, 62 stat. 797. The 1948 Revision was not

designed to create new crimes. United States v. Reid, id.

“the general purpose of the new Code was to “codify and

revise . . . The original intent of Congress is preserved.

United States v. Cook, 384 U.S. 257, 260 (1966). Morisset-

te v. United States, 342 U.S. 246, 266-69 n.28 (1952). See

also, United States v. Reid, supra at 957-585 for a dis-

cussion of the Brown Commission comments on the pro-

posed New Federal Criminal Code and Senator McClel-

lan’s memorandum on the history of the proposed Code in

1971 which support the view that § 2114 was intended to

apply only to mail.

The 1948 Revisions may have been in error when they

took § 320 away from the other postal offenses. As the

District of Columbia Circuit ruled in United States v.

Spears, supra the gravaman of § 2114 is an assault, not a

robbery.

It was only when standing alone and out of context in

the Robbery chapter that the language of § 2114 began to

— clear and unambiguous. As the Reid majority

said: |

No Congressman could have supposed that in pass-

ing an amendment to that soctian proposed by the

committee dealing with the postal service, he was

creating a new crime with respect to government

property generally.

517 F.2d 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.