United States v. Gertz

• Decision Date: 25 November 1957
• Docket Number: No. 15485.,15485.
• Citation: 249 F.2d 662
• Parties: UNITED STATES of America, Appellant, v. Barney A. GERTZ, Owner of 3,827 Coins being Likenesses of the 1847 "Hapa Haneri" Issued by the Hawaiian Government, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

249 F.2d 662 (1957)

UNITED STATES of America, Appellant, v. Barney A. GERTZ, Owner of 3,827 Coins being Likenesses of the 1847 "Hapa Haneri" Issued by the Hawaiian Government, Appellee.

No. 15485.

United States Court of Appeals Ninth Circuit.

November 25, 1957.

COPYRIGHT MATERIAL OMITTED

Louis B. Blissard, U. S. Atty., Charles R. Wichman, Asst. U. S. Atty., Honolulu, Hawaii, for appellant.

Joseph Haber, Jr., Pierce Coombes, San Francisco, Cal., for appellee.

Before BONE, LEMMON, and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

In this action, the United States seeks forfeiture of 3,827 coins which it has seized from the owner, Barney A. Gertz. It is alleged in the government's libel of information that these coins are likenesses of the hapa haneri coin of the former Kingdom of Hawaii. Their unauthorized possession by Gertz, the government contends, is unlawful under 18 U.S.C.A. § 489, and the coins are subject to forfeiture under 18 U.S.C.A. § 492.

The district court held, after trial, that possession of the coins by Gertz was not unlawful, because 18 U.S.C.A. § 489 applies only to likenesses of the coins of currently-existing countries and governments. United States v. 3,827 Coins, D. C.D.Hawaii, 144 F.Supp. 740. Judgment was therefore entered dismissing the libel of information and ordering return of the coins to Gertz. The United States appeals.

Hawaii had status as a sovereign nation from October 8, 1840, when King Kamehameha III proclaimed the first constitution, until the annexation of the Republic of Hawaii to the United States on July 8, 1898. The Hawaiian Organic Act, 48 U.S.C.A. § 491 et seq., enacted in April, 1900, established a territorial form of government in Hawaii, which continues to this day.

The hapa haneri coins were minted by the Kingdom of Hawaii in 1847, and were then placed in circulation as genuine money of the Kingdom. These coins, which had a face value of one cent, have not been in general circulation since 1900.

It is therefore established that the seized coins, if assumed to be likenesses of the hapa haneri, are not likenesses of the coins of a currently-existing country or government. The question for determination here is whether this circumstance precludes application of 18 U.S. C.A. § 489.

This statute reads as follows:

"Whoever, within the United States, makes or brings therein from any foreign country, or possesses with intent to sell, give away, or in any other manner uses the same, except under authority of the Secretary of the Treasury or other proper officer of the United States, any token, disk, or device in the likeness or similitude as to design, color, or the inscription thereon of any of the coins of the United States or of any foreign country issued as money, either under the authority of the United States or under the authority of any foreign government shall be fined not more than $100."

If this section is to be given the construction contended for by appellant, it would make unlawful the unauthorized possession of replicas of the stater of ancient Carthage, the denarius of ancient Rome, and the shekel of the ancient Kingdom of Judea. This is a result so startling that such a construction ought not to be accepted unless compelled by statutory language or legislative history. Appellant concedes that there is no helpful legislative history.

Turning first to the language of § 489, appellant points out that the section contains no language expressly limiting the terms "foreign country" or "foreign government" to currently-existing countries or governments, and that, on the other hand, each such term is preceded by the adjective "any."

The lack of express limiting language in this section does not appeal to us as a good indication that countries and governments no longer in existence are within the scope of the section. One ordinarily thinks of a foreign country or a foreign government as a presently-existing territory, nation, or institution. Without qualifying language or special context, one would not ordinarily comprehend the term to include countries and governments long since extinct. It therefore seems to us that what is significant here is not the omission of language limiting those terms to currently-existing institutions, but the omission of language expanding those terms to include countries and governments which have passed into history.

Nor, in our opinion, does the presence of the adjective "any" provide the clear indication of an expanded meaning which appellant's reading of the section requires. The adjective "any" does not necessarily serve to enlarge the noun it modifies to include objects no longer in existence. For example, the use of the term "any continent" would not, except under some special context, make clear that the so-called lost continent of Atlantis was included in the reference. "Any" animal usually means any live animal, and "any" building would not ordinarily be taken to include buildings which had been torn down or destroyed by fire.

Section 489 has some context, on the other hand, which quite definitely supports the construction adopted by the trial court. The term "foreign country" appears twice in this section. It is first used in this context: "Whoever, within the United States, makes or brings therein from any foreign country * * *." Since the verb "brings" is in the present tense, it must be that the term "foreign country," used in this context, means a currently-existing country. One cannot, in 1957, bring a coin from a country which passed out of existence more than half a century ago.

If the term "foreign country," as first used in § 489, means a currently-existing country, it is probably intended to have a like meaning when again used at a later point in the same section. It is a familiar rule of statutory construction that, where the same word or phrase is used in different parts of a statute, it will be presumed, in the absence of anything clearly indicating a contrary intent, that the word or phrase is used in the same sense throughout. Under circumstances giving application to this rule, there is a corollary that, where the meaning of the word or phrase in one instance is clear, this meaning will be attached to it elsewhere. Schooler v. United State, 8 Cir., 231 F.2d 560, 563.

Applying that rule and corollary here, it would follow that § 489 forbids only the unauthorized possession of coins of the United States or of any currently-existing foreign country.

The parties have devoted much attention to the definition of "foreign government," set out in 18 U.S.C.A. § 11.¹ This definition, which is concededly applicable to § 489, reads as follows:

"The term `foreign government\', as used in this title, includes any government, faction, or body of insurgents within a country with which the United States is at peace, irrespective of recognition by the United States."

Appellee argues that the quoted section defines a foreign government as that of "a country with which the United States is at peace * * *," (emphasis supplied) and contends that the United States could only be at peace with an existing country.

Appellant points out, however, that this statutory definition is preceded by the words, "the term `foreign government', as used in this title, includes * * *". (Emphasis supplied.)

The word "includes" is usually a term of enlargement, and not of limitation. As stated in Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100, 62 S.Ct. 1, 4, 86 L.Ed. 65, "`including' is not one of all-embracing definition, but connotes simply an illustrative application of the general principle."²

The likelihood that "includes" is used in this sense in § 11 is fortified by the fact that in one of the definitions set out in chapter 1 of title 18 (§ 9) U.S.C.A., "means" is used instead of "includes," and in another such section (§ 6) both "means" and "includes" are used. It would therefore appear that in chapter 1, "means" is used when the term and its definition are to be interchangeable equivalents, and "includes" is used when it is desired to eliminate any doubt as to the inclusion in a larger class of the particular class specifically mentioned.³

It is reasonable to conclude from this that § 11 is not intended to limit the term "foreign government" to that of a country "with which the United States is at peace," but, as appellant argues, is broad enough to also embrace the government of a country with which the United States is at war.⁴ But it is not readily apparent how this conclusion destroys the force of appellee's argument based on this definition. If "foreign government" includes not only that of a country "with which the United States is at peace," but also that of a country with which the United States is at war, the inference still remains that it is only presently-existing countries to which reference is being made. The United States could no more be at war than at peace with a nonexistent country.⁵

Adoption of appellant's construction of 18 U.S.C.A. § 489 as applying to countries and governments no longer in existence would present a grave constitutional question. In United States v. Arjona, 120 U.S. 479, 7 S.Ct. 628, 30 L.Ed. 728, the power of Congress to enact statutes making it unlawful to forge or counterfeit the securities "of any foreign government" was challenged. The Supreme Court held that Congress had such power under Art. I, § 8, clause 3, conferring power "to regulate Commerce with foreign Nations * * *," and Art. I, § 8, clause 10, conferring power "to define and punish * * * Offenses against the Law of Nations." The rationale of that decision is that, in thus protecting the securities of other nations with which the United States maintains intercourse, it is serving its own best interests.

No such rationale, of course, can be applied with regard to countries and governments no longer in existence. Making or possessing replicas of the hapa haneri of the former...