Opposition Brief — Cowan v. United States

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Supreme Court, U.S. |

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(5) JAN 21 1998

No. 97-853 CLERK

In the Supreme Court of the Gnited States

OCTOBER TERM, 1997

ROGER COWAN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

JOEL M. GERSHOWITZ

Attorney _

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

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QUESTION PRESENTED

Whether intent to defraud is an element of the

offense of forging the signature of a federal judge

under 18 U.S.C. 5065.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Bates v. United States, 118 S. Ct. 285 (1997) ........

Gustafson v. Alloyd Co., 513 U.S. 561 (19965) ........

Levinson v. United States, 47 F.2d 470 (6th Cir.

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Morissette v. United States, 342 U.S. 246 (1952) ..

Moskal v. United States, 498 U.S. 103 (1990) .......

Taylor v. United States, 495 U.S. 575 (1990) ........

United States v. Angelos, 763 F.2d 859 (7th Cir.

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United States v. Dyer, 546 F.2d 1313 (1976) .........

United States v. London, 714 F.2d 1558 (1983) .....

United States v. O’Hagan, 117 S. Ct. 2199 (1997) ..

United States v. Wells, 117 S. Ct. 921 (1997) .........

Statutes:

Act of June 25, 1948, ch. 645, § 1, 62 Stat. 714 ..........

Bankruptcy Act of Mar. 2, 1867, ch. 176, § 46,

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Statutes—Continued: Page

18 U.S.C.

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18 U.S.C.

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18 U.S.C.

18 U.S.C.

18 U.S.C.

20 U.S.C.

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In the Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-853

ROGER COWAN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-10)

is reported at 116 F.3d 1360. The order of the district

court denying petitioner’s motion to dismiss the

indictment (Pet. App. 12-21) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 7, 1997. A petition for rehearing was denied on

August 22, 1997. Pet. App. 11. The petition for a writ

of certiorari was filed on November 20, 1997. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1),

(1)

2

STATEMENT

After entering a guilty plea in the United States

District Court for the District of Wyoming, peti-

tioner was convicted of forging a federal judge’s sig-

nature, in violation of 18 U.S.C. 505. He was sen-

tenced to five months’ imprisonment, to be followed by

a two-year term of supervised release. The court of

appeals affirmed. Pet. App. 1-10.

1. The parties stipulated to the pertinent facts.

Petitioner is an attorney licensed to practice in

Wyoming. In the winter of 1991-1992, Carl Hostetter

retained petitioner under a contingent fee arrange-

ment to pursue a personal injury claim against Gen-

eral Motors Corporation arising from an automobile

accident in which Hostetter was injured. During

1992 and 1993, Hostetter repeatedly contacted peti-

tioner to determine the status of his case. Petitioner

informed Hostetter that he had filed suit when in fact

he had not. On further inquiries from Hostetter,

petitioner stated that he had submitted the case for

mediation when in fact he had not. Pet. App. 3.

Petitioner prepared a document under the heading

of the United States District Court for the District

of Wyoming entitled “Mediation Decision—Hostetter

v. G.M., et al.” The document purported to award

Hostetter $696,000 in damages. At the end of the

document, petitioner, without authorization, placed a

signature purporting to be that of United States Dis-

trict Judge Alan B. Johnson. At the time petitioner

prepared the document, he had still not filed suit on

Hostetter’s behalf. Nevertheless, petitioner informed

Hostetter of the favorable mediation “decision,” and

provided Hostetter with a copy of the document. Pet.

App. 3.

3

Eventually, when his award failed to materialize,

Hostetter contacted the district court to check on the

status of his lawsuit. The court advised Hostetter

that no such lawsuit existed. Thereafter, Hostetter

confronted petitioner with that information. Peti-

tioner continued to insist that the bogus “mediation

decision” was genuine, but stated that, notwith-

standing the successful mediation, settlement efforts

had been unsuccessful and that he would now have to

sue General Motors. On the basis of that explanation,

Hostetter agreed to allow petitioner to continue as

his attorney. Petitioner then filed a. lawsuit against

General Motors on Hostetter’s behalf, but the court

granted summary judgment against Hostetter and

dismissed the case. Pet. App. 4; Gov't C.A. Br. 6-7.

Hostetter subsequently retained another lawyer to

reopen the case against General Motors and sued

petitioner and his law firm for malpractice. Pet. App.

15.

2. Petitioner filed a pretrial motion to dismiss the

indictment on the ground that the stipulated facts

were insufficient to establish the element of an intent

to defraud. The district court denied the motion,

holding that intent to defraud is not an element of a

Section 505 offense. Pet. App. 15-19. The court

alternatively held that the stipulated facts were

sufficient to establish fraudulent intent. Jd. at 19-21.

Thereafter, petitioner entered a conditional plea of

guilty, reserving his right to appeal the court’s denial

of his motion to dismiss the indictment.

3. The court of appeals affirmed. Pet. App. 1-10.

The court held that an intent to defraud is not an

element of the crime of forging the signature of a

federal judge under Section 505. The court began by

Stating that “nowhere does [Section] 505 say the

4

crime of forging a federal judge’s signature requires

an intent to defraud.” Jd. at 4. To the contrary, the

court explained that the “plain language only re-

quires that a defendant charged under the statute

knowingly forge the signature of a federal judge ‘for

the purpose of authenticating any proceeding or

document.’” Jd. at 5 (quoting 18 U.S.C. 505).

The court of appeals acknowledged that the common

law crime of forgery required an intent to defraud and

that, ordinarily, a statutory term is construed in

light of its common law meaning. Pet. App. 5. The

court observed, however, that “‘Congress’ general

purpose in enacting a law may prevail over this rule of

statutory construction’ where the common law is

inconsistent with that purpose.” Jd. at 6-7 (quoting

Moskal v. United States, 498 U.S. 108, 117 (1990)).

The court further explained that “[t]he purpose of

[Section] 505 is to protect the reputation and integ-

rity of the federal courts, their official documents and

proceedings, rather than simply to outlaw a narrow

category of fraud.” Jd. at 7. Thus, the court con-

tinued, Section 505 “applies whenever someone at-

ternpts to impugn this integrity by forging a federal

judge’s signature onto a document in order to make

that document appear authentic.” Ibid.

The court of appeals also noted that, while several

other federal forgery statutes do not expressly

require proof of an intent to defraud, Pet. App. 7-8

(citing 18 U.S.C. 485, 490, 498, 496, 497, 498, 499, 501,

502, 506), Congress explicitly has required proof of

fraudulent intent in a range of federal forgery

statutes. Jd. at 8-9 (citing 18 U.S.C. 471, 478, 482,

500). The court was therefore “satisfied that if Con-

gress had intended to make the intent to defraud an

element of the crime of forging a federal judge’s

5

signature under [Section 505], it would have done so

expressly.” Id. at 9.

ARGUMENT

Petitioner renews his contention (Pet. 6-15) that an

intent to defraud is an element of a Section 505 of-

fense, and that the stipulated facts failed to establish

that he entertained such an intent when he forged a

federal judge’s signature. Those contentions lack

merit.

1. Section 505 makes it a felony to “forge[] the

signature of any judge * * * of any court of the

United States * * * for the purpose of authenticat-

ing any proceeding or document, * * * knowing such

signature * * * to be false.” There is no express

textual requirement in the statute making intent to

defraud an element of the crime. Rather, the sole

intent required by the statute is that the forgery be

committed “for the purpose of authenticating any

proceeding or document.”

Petitioner argues (Pet. 7) that the word “forge” in

Section 505 should be read to require proof of an

intent to defraud, because the common law crime of

forgery required such proof. Statutory terms do not

carry their common law meaning, however, if a

contrary legislative intent can be gleaned from the

statute. See United States v. Wells, 117 S. Ct. 921,

927 (1997); Moskal v. United States, 498 U.S. 103, 117

(1990); Taylor v. United States, 495 U.S. 575, 593-596

(1990).

As the court of appeals noted (Pet. App. 5), Section

505 already contains ‘an express mens rea require-

ment, i.¢., that a defendant falsely portray the signa-

ture of a federal judge “for the purpose of authenticat-

ing any proceeding or document.” There is accord-

6

ingly no need to read into the statute an additional

common law element of criminal intent. Cf. Moris-

sette v. United States, 342 U.S. 246, 268 (1952). More-

over, the purpose of Section 505 is not to “outlaw a

narrow category of fraud,” but “to protect the

reputation and integrity of the federal courts, their

official documents and proceedings.” Pet. App. 7.

Forgery of a federal judge’s signature for the purpose

of authenticating a document inherently threatens

the integrity of the courts, whether or not the action

is accompanied by a fraudulent intent. Thus, the

court of appeals correctly concluded that its reading

of the statute “is true to both its text and purpose.”

Ibid.

The larger statutory context in which Section 505

appears provides additional support for the conclusion

that Congress did not intend to make an intent to

defraud an element of the offense. At the same time

that Congress enacted Section 505 as part of its 1948

recodification of the federal criminal code, Act of June

25, 1948, ch. 645, §1, 62 Stat. 714, it explicitly required

proof of an “intent to defraud” in four other provisions

involving forgery. See id. at 705, 18 U.S.C. 471 (pro-

hibiting forgery of federal obligations “with intent to

defraud”); id. at 707, 18 U.S.C. 478 (prohibiting for-

gery of foreign obligations “with intent to defraud”);

id. at 708, 18 U.S.C. 482 (prohibiting forgery of for-

eign bank notes “with intent to defraud”); id. at 712,

18 U.S.C. 500 (prohibiting forgery of postal service

money orders “with intent to defraud”). The absence

of any similar “intent to defraud” language in Section

505 indicates that Congress did not mean to require

any additional element of intent when it prohibited a

person from “forg[ing]” a federal judge’s signature

7

“for the purpose of authenticating any proceeding or

document.”"

In United States v. Wells, supra, this Court held

that materiality is not an element of the crime of

knowingly making a false statement to a federally

insured bank under 18 U.S.C. 1014. Examining the

text of Section 1014, which did not “so much as

mention{] materiality,” the Court concluded that,

“ander the first criterion in the statutory interpreta-

tion hierarchy,” materiality is not an element of the

offense. 117S. Ct. at 923. Observing that the history

of Section 1014 “confirms the natural reading” of the

statute, the Court explained that Congress had

included materiality as an element in a number of

false representation provisions at the same time

Congress enacted Section 1014 in 1948. Jd. at 928.

Similarly, earlier this Term, this Court held in

Bates v. United States, 118 S. Ct. 285, 291 (1997), that

20 U.S.C. 1097(a), which prohibits the “knowing[] and

willful{} * * * misappl[ication]” of federally provided

student loan funds, does not require proof that the

defendant “aimed to injure or defraud anyone.” The

Court reasoned that “(tJhe text of [Section] 1097(a)

does not include an ‘intent to defraud’ state of mind

requirement, and we ordinarily resist reading words

or elements into a statute that do not appear on its

face.” 118 S. Ct. at 290. The Court also explained

that Section 1097(d), enacted at the same time as Sec-

1 Moreover, if Congress generally intended the word

“forge” to require proof of an intent to defraud, then language

expressly requiring an “intent to defraud” (see, ¢.g., 18 U.S.C.

471, 478, 482, 500) would be redundant. It is a cardinal rule of

statutory construction that courts should avoid construing stat-

utes in such a way as to render some words or clauses redun-

dant. See Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995).

8

tion 1097(a), expressly contains an “intent to defraud”

element. Jbid. Thus, the Court concluded that,

“(wJhere Congress includes particular language in

one section of a statute but omits it in another section

of the same Act, it is generally presumed that Con-

gress acts intentionally and purposely in the

disparate inclusion and exclusion.” Ibid.

This Court’s decisions in Wells and Bates fully

support the court of appeals’ conclusion that Section

505 does not require proof of an intent to defraud. The

express words of Section 505 do not require an

additional element of intent. Moreover, the fact that

Congress expressly has required proof of an intent to

defraud in other forgery statutes is a strong indica-

tion that Congress acted deliberately in not requiring

an “intent to defraud” element in Section 505.

Petitioner suggests (Pet. 8-11) that Congress in-

tended Section 505 to reach only debtors perpetrating

a fraud on the court for financial gain, because

Section 505 initially was enacted in 1867 as part of the

federal bankruptcy code.’ As the court of appeals cor-

rectly explained (Pet. App. 9), however, “[nJo elucidat-

ing legislative history” supports either that inter-

pretation or any other construction that “stray/(s]

from the plain language of the statute which notably

does not limit the statute’s effect to bankruptcy ac-

tions or require the intent to defraud.”

2. Petitioner also argues (Pet. 6-7) that this

Court’s review is warranted to resolve a conflict

among the courts of appeals on whether Section 505

requires proof of an intent to defraud. The Sixth

Circuit has concluded that Section 505 should be read

2 See Bankruptcy Act of Mar. 2, 1867, ch. 176, § 46, 14 Stat.

539 (1867).

9

to require proof of an intent to defraud because the

crime of forgery at common law required such proof.

See United States v. Bertrand, 596 F.2d 150, 151-152

(6th Cir. 1979); Levinson v. United States, 47 F.2d

470, 471 (6th Cir. 1931). In United States v. London,

714 F.2d 1558, 1563-1564 (1983), the Eleventh Circuit

stated in dictum that an intent to defraud is an

element of Section 505.° Those decisions, however,

were decided long before this Court’s decisions in

Wells and Bates. Until the Sixth and Eleventh Cir-

cuits have had an opportunity to reconsider their

position in light of Wells and Bates, review of the

issue by this Court would be premature.

Even assuming that the question whether Section

505 requires proof of an intent to defraud is an issue

of recurring importance that would warrant this

Court’s review, this case would not be an appropriate

vehicle to decide the issue. Contrary to petitioner’s

assertion (Pet. 12-15), the stipulated facts in this case

provide an adequate factual basis for the conclusion

that petitioner forged a federal judge’s signature with

fraudulent intent. Hostetter retained petitioner, a

lawyer, to pursue Hostetter’s cause of action against

General Motors arising out of an automobile accident

in which Hostetter was injured. Pet. App. 13. As the

district court below correctly observed (id. at 3, 21),

petitioner “not only failed to file a lawsuit, he also

repeatedly lied to Hostetter about the status of his

case and constantly created new and inventive stories

to cover his lies.” By presenting his client with a

forged document in furtherance of petitioner’s

3 In United States v. Dyer, 546 F.2d 1313, 1316 n.4 (1976),

the Seventh Circuit declined to reach the issue, but suggested

that Section 505 requires proof of an intent to defraud.

10

scheme to mislead his client, petitioner seriously in-

terfered with his client’s financial interest in pursu-

ing a lawsuit. Cf: Pet. App. 15 (noting that Hostetter

retained another lawyer to reopen his case after it

was dismissed and filed suit against petitioner and his

law firm).

Simultaneously, petitioner’s submission of the

forged document furthered his own financial interest

in retaining Hostetter’s business. Petitioner’s intent

to take financial advantage of a confidential relation-

ship with his client is sufficient to demonstrate

fraudulent intent. See, eg., United States v.

O’Hagan, 117 S. Ct. 2199, 2208 (1997) (a fiduciary “who

pretends loyalty to the principal * * * for personal

gain * * * defrauds the principal”) (internal quota-

tion marks and brackets omitted); United States v.

Angelos, 763 F.2d 859, 861 (7th Cir. 1985) (intent to

defraud under bank misapplication statute, 18 U.S.C.

656, shown by defendant’s breach of fiduciary obliga-

tion to bank, even though that defendant “thought

correctly[] that the bank would not be hurt”). Accord-

ingly, even assuming that Section 505 requires proof

of an intent to defraud, there is an adequate basis in

the record to support petitioner’s conviction on his

plea of guilty.

11

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

JOEL M. GERSHOWITZ

Attorney

JANUARY 1998