The opinion of the court was delivered by: MCNICHOLS
At issue is a straightforward enough question, but one that is apparently of first impression; viz., may a person be convicted of a violation of 18 U.S.C. § 495 when the amount of the check forged and/or uttered is $500 or less? The legislative occurrence giving rise to the question surrounds Congress' passage on November 14, 1983 of 18 U.S.C. § 510 which provides, in pertinent part, that the forging and/or uttering of a Treasury check with a face value of $500 or less is a misdemeanor. P.L. 98-151; 97 Stat. 976. Prior to that time, such activity was treated under 18 U.S.C. § 495 as a felony regardless of the amount involved.
Ms. Jimicum was charged with forging an endorsement on a Treasury check on May 6, 1983. A single-count indictment alleging violation of § 495 was returned on August 20, 1984. The face value of the subject check is not set forth in the indictment, but the government concedes that the amount is less than $500. Counsel was appointed and on March 29, 1985 defendant tendered a plea of guilty.
As has been standard practice in this District since mid-February of 1985,
after eliciting an admission of the transactional events supporting all essential elements of a § 495 violation,
the Court advised defendant, over the government's objection, that her conviction would be treated as a misdemeanor under the provisions of § 510(c).
This memorandum is necessitated by the apparent fact that the United States Attorney for this District has not adopted any firm policy with respect to whether the appropriate charging statute in prosecutions such as this should be § 495 or § 510; but rather, allows each individual AUSA to make his own charging decision on a case-by-case basis. In some prosecutions, an election has been made to charge § 495 and prosecute on § 495, as in the instant case. In other situations, the prosecutor has charged § 495, but thereafter agreed to take a plea based on § 510. In yet other prosecutions, § 510 has been charged regardless of whether the offense occurred before or after the effective date of the statute. It would be most understandable if the United States Attorney felt his hands tied to some extent in view of the Justice Department's continuing insistence that § 510 merely supplements and does not supplant § 495. U.S. Department of Justice, Handbook on the Comprehensive Crime Control Act of 1984 and Other Criminal Statutes Enacted by the 98th Congress (December, 1984) 215-16. Thus, for whatever value it may be to the government in formulating future policy, or in taking this matter up on appeal, the following analysis is offered.
I. Implicit Repeal of Section 495
We start with a number of well-settled propositions. First, there is no lenity requirement where two or more unambiguous charging statutes are potentially available to the prosecution, and the government is free to select any appropriate predicate statute. United States v. Batchelder, 442 U.S. 114, 121-22, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979); United States v. Ruster, 712 F.2d 409, 411 (9th Cir. 1983). Second, and conversely, "when Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, [any] ambiguity should be resolved in favor of lenity." United States v. Gann, 732 F.2d 714, 719 (9th Cir.), cert. denied, 469 U.S. 1034, 105 S. Ct. 505, 83 L. Ed. 2d 397 (1984), quoting Bell v. United States, 349 U.S. 81, 83, 99 L. Ed. 905, 75 S. Ct. 620 (1955); see also, Dixson v. United States, 465 U.S. 482, 104 S. Ct. 1172, 1177, 79 L. Ed. 2d 458 (1984) (lenity "compelled" in the face of ambiguity). Third, there is no need to construe a statute when its meaning is plain on its face. United States v. Roach, 745 F.2d 1252, 1254 (9th Cir. 1984). Fourth, and finally, while it is a court's obligation to attempt to reconcile conflicting statutes where possible, when two statutes cannot co-exist, the more specific and recent takes precedence over the more general and earlier. Chevron U.S.A. v. Hammond, 726 F.2d 483, 490 n.8 (9th Cir. 1984), appeal pending, and authorities cited therein.
Having thus set the stage in terms of controlling principles, it is necessary to examine the statutes at issue: their plain language, their history, and the interpretation placed on each by the judiciary.
Whoever falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States or any officers or agents thereof, any sum of money; or
Whoever utters or publishes as true such false, forged, altered, or counterfeited writing, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited; or
Whoever transmits to, or presents at any office or officer of the United States, any such writing in support of, or in relation to, any account or claim, with intent to defraud the United States, knowing the same to be false, altered forged, or counterfeited --
Shall be fined not more than $1,000 or imprisoned not more than ten years, or both.
(a) Whoever, with intent to defraud --
(1) falsely makes or forges any endorsement or signature on a Treasury check or bond or security of the United State; or
(2) passes, utters, or publishes, or attempts to pass, utter, or publish, any Treasury check or bond or security of the United States bearing a falsely made or forged endorsement or signature shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
(b) Whoever, with knowledge that such Treasury check or bond or security of the United States is stolen or bears a falsely made or forged endorsement or signature buys, sells, exchanges, receives, delivers, retains, or conceals any such Treasury check or bond or security of the United States that in fact is stolen or bears a forged or falsely made endorsement or signature shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
(c) If the face value of the Treasury check or bond or security of the United States or the aggregate face value, if more than one Treasury check or bond or security of the United States, does not exceed $500, in any of the above-mentioned offenses, the penalty shall be a fine of not more than $1,000 or imprisonment for not more than one year, or both.
The first and most obvious lesson to be drawn from a comparison of these two statutes is that § 495 is absolutely silent on the subject of Treasury checks, whereas such checks constitute virtually the sole subject matter of § 510. Is there a false conflict here in that § 495 does not even contemplate prosecutions for forging/uttering of Treasury checks? Alas, life is not so simple, for it has been settled for some fifty years now that congressional silence notwithstanding, government checks are "other writings" within the meaning of § 495. Prussian v. United States, 282 U.S. 675, 75 L. Ed. 610, 51 S. Ct. 223 (1931):
But we think the indictment is to be sustained as charging an offense under § 29 of the Criminal Code [now § 495], which punishes the forgery of "any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving . . . from the United States, or any of their officers or agents, any sum of money." The indictment alleges specifically and with certainty the forgery of the endorsement on the draft, for the purpose of obtaining a sum of money from the Treasurer of the United States, and charges a violation of § 29 . . . . The writings enumerated have no common characteristic from which a purpose may be inferred to restrict the statute to any particular class of writings. The addition of "other writing" to the enumeration was therefore not for the purpose of including writings of a limited class, but rather of extending the penal provisions of the statute to all writings of every class if forged for the purpose of obtaining money from an officer of the United States.
Id. at 679-80 (citation omitted); see also, De Maurez v. Squier, 144 F.2d 564 (9th Cir.), cert. denied, 323 U.S. 762, 89 L. Ed. 610, 65 S. Ct. 95 (1944).
By the same token, it can hardly escape one's attention that Prussian was not decided until 1931 -- some 108 years after enactment of the predecessor to § 495 in 1823. See United States v. Staats, 49 U.S. (8 How. 41) 41, 44, 12 L. Ed. 979 (1850). Nor can it be ignored that prior to Prussian, the circuits were wandering hither and yon on applicability of § 495 to forged and/or uttered government checks.
282 U.S. at 680. As this Court sees it, the significance of the fact that it took over a century to authoritatively devine congressional intent in enacting the 1823 forerunner of § 495, and such intervening versions as Congress adopted from time to time, is that Treasury checks, as that term is known today, were probably not expressly considered by ...