Reply Brief — Garcia v. United States

"ice - supreme Court, us

FILED

SEP BO 1984

No. 83-6061 STEVAS.

KANDER

—_—— ae —— ERK

IN THE

Supreme Court of the United States

OcTOBER TERM 1984

JOSE GARCIA AND FRANCISCO GARCTA,

Petitioners,

vy.

UnrTep STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

REPLY BRIEF

THEODORE J. SAKOWITZ

Federal Publie Defender

301 North Miami Avenue

Miami, Florida 33128-7787

CHARLES G. WHITE

100 N.W. 37th Avenue

First Floor

Miami, Florida 33125

(305) 649-1023

(Pro hac vice)

Counsel for Petitioners

atm a

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

QUESTIONS PRESENTED

WHETHER A PROSECUTION UNpberR 18 U.S.C. § 2114

Requires A PostaL NEXUS IN ORDER FOR A CONVICTION

To Be SvustTAINeED.

A) WuHeTHER THE PLAIN Merantna Doctrine Pro-

HIBITS REVIEW OF CONGRESSIONAL INTENT WHEN INTER-

PRETING 18 U.S.C. § 2114.

B) WHETHER CONGRESSIONAL INTENT REQUIRES A

PostaL Nexus in Prosecutions or 18 U.S.C. § 2114.

ii

TABLE OF CONTENTS

QuESTION PRESENTED .......-- 600 eee reece eeeeeeees

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ARGUMENT:

That Section 2114 of Title 18 requires a postal

nexus in order to sustain a conviction ..........

A.

The plain meaning doctrine does not operate

as a rule of exclusion to prevent review of legis-

lative intent, as conceded by the Government ..

A plain reading of Section 2114 reveals it is

AMbIGUOUS ....... 6c eee eee eee eee eee eeeeeee

Application of the rule of. Ejusdem Generis to

the 1935 amendment to Section 2114 resolves

any ambiguity and confirms Congressional in-

tent to include a postal nexus requirement ...

The Government’s interpretation that Con-

gress intended the amended Section 2114 to

have a wide scope would lead to absurd results

and cause problems in subsequent judicial re-

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iii

TABLE OF AUTHORITIES

CasEs:

Cleveland v. United States, 329 U.S. 14 (1946)

Gooch v. United States, 297 U.S. 124 (1936) ..

Jones v. United States, 72 F.2d 873 ..........

Randazzo v. United States, 300 F. 794 (Sth Cir. 1924) .

Standefer v. United States, 447 U.S. 10 (1979)

United States v. Birrel, 266 F. Supp. 539 (S.D.N.Y.

re

United States v. Bitty, 208 U.S. 393 (1907) ....

United States v. Chase, 135 U.S. 255 (1889) ...

United States v. Feola, 420 U.S. 671 (1975) ....

eeonded

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United States v. Fisher, 2 Cranch [6 U.S.] 358 (1805) .

United States v. Naftalin, 441 U.S. 768 (1978) .

United States v. Powell, 423 U.S. 87 (1975) ....

DTCC UGEUGEGGabsdncheeeseccocevceccs

United States v. Stever, 222 U.S. 167 (1911) ..

United States v. Yermian, 104 S. Ct. 2936 (1984)

OrHER Sources:

Black’s Law Dictionary (5th Ed. 1979) .......

SuTHERLAND Statutory Construction, 4th Ed., Vol.

es GG Geese seeded ecececroscese

United States v. Reeves, 38 F. 404 (C.C.W.D. Texas

“eer eee

United States v. Spears, 449 F.2d 996 (D.C. App. 1976)

—_—

IN THE

Supreme Court of the United States

OcToBER TERM 1984

No. 83-6061

Jose GARCIA AND FRANCISCO GARCTA,

Petitioners,

we

UnNItvTep STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

REPLY BRIEF

ARGUMENT

THAT SECTION 2114 OF TITLE 18 REQUIRES A POSTAL

NEXUS IN ORDER TO SUSTAIN A CONVICTION

The issue before the Court remains the interpreta-

tion of the scope of 18 U.S.C. § 2114 after an amend-

ment in 1935. The statute had historically applied only

to prosecutions for robberies of lawful custodians of

mail matter. See United States v. Spears, 449 F.2d

946 (D.C. App. 1971). The antecedents of this statute

extended back to 1792 and were enacted by Congress

utilizing its power over the post office. Id. at 950. U.S.

Const. art. 1, § 8, el. 7. In 1935 Congress amended the

2

statute (then found in 18 U.S.C. § 320) to include

robbing or attempting to rob lawful custodians of

mail matter ‘‘or any money or other property of the

United States.”’

A. The Plain Meaning Doctrine Does Not Operate As A Rule

Of Exclusion To Prevent Review Of Legislative Intent, As

Conceded By The Government

The Government contends that any inquiry into

legislative history is foreclosed because the meaning

of the added words are unambiguous. Invoking the

so-called plain meaning doctrine, the Government asks

this Court to adopt a mechanistic formula of statu-

torv construction that precludes a consideration of

the actual intent of Congress. Constantly beseeching

the Court to apply the plain meaning doctrine as a

rule of exclusion, the Government suddenly grace-

fully concedes the point. (Resp. Br. 16 n. 4).

B. A Plain Reading Of Section 2114 Reveals It Is Ambiguous

The Government then confesses a complete mis-

understanding of Petitioners’ argument. Part of this

misunderstanding consists of the claim by the Gov-

ernment that their interpretation of the literal mean-

ing of the amended statute is conceded by Petitioners.

(Resp. Br. 18). In fact, the amended statute is totally

ambiguous on its face.

The Government contends that the amended statute

contains two eategories of crime separated by the

disjunctive ‘“‘or’’. (Resp. Br. 12-14). What is missed

by the Government is that under a ‘‘plain reading”’

of the statute, the conclusion is inescapable that there

are two disjunctives separating three separate cate-

3

gories of crime: (1) mail matter, (2) money, (3) other

property of the United States. There is nothing in

the “‘plain meaning’’ of the statute that permits

‘“money’’ to be further modified to mean ‘‘money of

the United States.’’ As a matter of fact, such a mean-

ing would contradict the clear intent of Congress to

inelude money held in the lawful custody of the Post

Office, within the ambit of Section 2114. Also, such

a reading would be more restrictive than the original

statute. There is nothing strained about such an inter-

pretation, considering the Government’s apparent

position that the first ‘‘or’’ means ‘‘or’’, but the second

“or’’? means ‘‘and’’.

The meaning of the statute becomes more ambiguous

when both ‘‘or’s’’ are given the meaning normally

applied to them. See United States v. Naftalin, 441

U.S. 768 (1978) and United States v. Birrell, 266 F.

Supp. 539, 542-543 (S.D.N.Y. 1967), cited in Respond-

ent’s Brief at 13. In that event, each of the three

categories should be able to stand alone. Category One

and Three (‘‘mail matter’’) and ‘‘other property of

the United States’’) make good sense, but Category

Two (‘‘money”) is absurd standing alone. The Con-

gress would then have enacted a Federal robbery stat-

ute without any jurisdictional basis. Obviously, such

ambiguity begs for clarification by judicial interpre-

tation. It also gives credence to the complaints of the

congressmen participating in the floor debates that

the amended statute was horribly drafted. 79 Cong.

Ree. 7875.

Now that ambiguity has been documented, the road

is clear to begin the real business of judicial inter-

pretation; the determination of legislative intent.

4

United States v. Yermian, 104 S. Ct. 2936, 2944 (1984)

(Rehnquist dissent) citing United States v. Fisher,

2 Cranch [6 U.S.] 358, 386 (1805) (Marshall, C. J.).

C. Application Of The Rule Of Ejusdem Generis To The 1935

Amendment To Section 2114 Resolves Any Ambiguity And

Confirms Congressional Intent To Include A Postal Nexus

Requirement

There is one rule of statutory construction, which

makes the amended statute completely unambiguous.

This is the rule of ejusdem generis. Black’s Law Diec-

tionery (5th Ed. 1979) defines the rule:

[Where general words follow an enumeration of

persons or things, by words of a particular and

specific meaning, such general words are not to be

construed in their widest extent, but are to be

held as applying only to persons or things of the

same general kind or class as those specifically

mentioned. [citations omitted].

Applying this canon of statutory construction to the

amended Section 2114 provides the postal nexus in-

tended by Congress. Ambiguity disappears and the

“plain meaning”’ of the statute can no longer be evoked

to stretch the seope of the statute to unheard of dimen-

sions. Massive litigation is headed off instantly as

Section 2114 settles down into what it was always in-

tended to be: the Postal Robbery Statute.

The rule of ejusdem generis is not a technical ex-

ercise in semantics. It contains its own method of

analysis. Sands, SuTHERLAND Statutory ConstRUc-

TION, 4th Ed., Vol. 2A, § 47.17 et seq. Important to

the analysis is the concept of the ‘‘class’’: ‘‘generaliza-

tions which associate items for a particular purpose

5

or treatment.”’ 7d. at 110. Essential to the determina-

tion of a class remains the intent of the legislature.

It was because in other cases, defer.dants neglected

legislative intent in determining the scope of the

applicable ‘‘class,” that this Court has rejected this

argument in the recent past. Standefer v. United

States, 447 U.S. 10 (1979). United States v. Powell,

423 U.S. 87 (1975). Cleveland v. United States, 329

U.S. 14 (1946). Gooch v. United States, 297 U.S. 124

(1936). United States v. Bitty, 208 U.S. 593 (1907).

When the manifest intent of Congress is at variance

with a narrow construction of a statute using the rule

of ejusdem generis, the above cases show the manifest

purpose of Congress controls.

Despite the tendency of the Congress to apply broad

purposes to the statutes analyzed above, an analysis

of the legislative history of the 1935 Amendment does

not reveal any broad purpose except the increased

protection over the postal function. The ‘‘class’’ re-

mains confined within the already wide variety of

mail matter originally delineated in the statute. In

essence, mail matter belongs to private individuals,

not the post office. Surely, any money in the lawful

custody of postal officials, coupled with property of

the United States in their lawful custody, expands

the areas protected by the statute without causing a

widening of the scope to create absurd results. (See

following section). In the instant case, the Court should

follow the analvsis offered by opinions in United States

v. Stever, 222 U.S. 167 (1911), and United States v.

Chase, 135 U.S. 255 (1889).

6

D. The Government’s Interpretation That Congress Intended

The Amended Section 2114 To Have A Wide Scope Would

Lead To Absurd Results And Cause Problems In Subse-

quent Judicial Review

Future litigants will have a whole range of issues

available to add to the congestion of the Federal ap-

pellate process if this Court accepts the Government’s

position in this case. For example, in the past, judicial

interpretation focused on who could have “lawful

charge, control, or custody”’ oft mail matter. See, Jones

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

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

"nited States v. Reeves, 38 F. 404 (C.C.W.D. Texas

1889). Using postal regulations as a guide, the term

had meaning, but give the statute the scope suggested

by the Government, and more questions are raised than

answered. Anyone from a confidential informant with

heroin provided by the DEA for a reverse sting to a

Government maintenance worker whose hammer is

stolen at gunpoint could be considered a “lawful eus-

todian”’ of ‘‘money or other property of the United

States.”’

The jurisdictional basis of Section 2114 changes

when the Government’s construction prevails. The

power to establish a postal system contained in the

Constitution does not automatically extend to “money

or other property of the United States,’”’ unless there

is some implied limitation. Should there have been

some legislative history concerning intent to invoke

another power?

Should it be assumed, as the Government so ap-

pears, that no scienter is required for a conviction

under this statute? In the instant case, neither of the

petitioners had any knowledge that they were attempt-

7

ing to rob “lawful custodians of. government money,”’

until they were arrested. (See Statement of Facts in

Pet. Br. 2-8). While this Court has eliminated scienter

in Section 111 offenses (United States v. Feola, 420

U.S. 671 (1975)), query whether such a course of

action is advisable when there is twenty-five vear

mandatory sentence at stake.

Finally, if the Government's position prevails, there

would be an immediate loss ef sentencing discretion

by the Federal judiciary. By manipulating the charges,

the Government could reduce the judiciary to rubber

stamping its own sentencing decisions. Consider the

potential application to undereover operations. (For

instanee, the case at bar). If a Federal law enforce-

ment ageney can plant money or drugs on an in-

formant, allow him to infiltrate some alleged ‘had

guvs,’’ and hope someone gets greedy and tries a

‘“‘rip-off,”’ they could sustain a mandatory twenty-five

vear penalty.

Contrary to the Government’s contention, under its

interpretation, Section 2114 does not “fit harmoniously

into the fabric of federal criminal law.’’ ‘Resp. Br.

36). It could easily hecome the statute of choice for

over-zealous prosecutors, swallowing whole 18 U.S.C.

§ 2112.

There is no defect ir reasoning underlying the pro-

priety of singling out postal employees or other au-

thorized custodians of the mail for special protection.

(Resp. Br. 11). Historically, letter carriers have

travelled the roads of America unarmed. Surely Con-

gress was more concerned with deterring violent

attacks (even attempted robberies) of postal em-

plovees than usually armed Federal law enforcement

officers.

8

Most importantly, application of the rule ejusdem

generis to the interpretation of Section 2114 com-

pletely comports with the legislative history. The

‘snippets’? which petitioners excised from the floor

dehates constitute the only clear expressions of Con-

gress’ intent. They were made by Congressman Dob-

bins, who was perhaps never ordained ‘‘ floor manager,”’

but whose job it was to steer Post Office legislation

through the House of Representatives. See 79 Cong.

Ree. 7874, for Dobbins leading the debate on another

bill requested by the Post Office. The Government’s

contention that the issue before this Court was never

diseussed in Congress is without merit, and to the

extent that it has merit, further discredits the Gov-

ernment’s position in light of the striet construction

of criminal statutes required by the Constitution.

CONCLUSION

For the reasons set forth above, Petitioners ask this

(‘ourt to vaeate the conviction as to Count III of the

Indictment and enter a judgment of Acquittal as to

that Count.

Respectfully submitted,

THEODORE J. SAKOWITZ

Federal Publie Defender

301 North Miami Avenue

Miami, Florida 33128-7787

CHaArLes G. WHITE

100 N.W. 37th Avenne

First Floor

Miami, Florida 33125

(305) 649-1023

(Pro hace vice)

Counsel for Petitioners *