United States v. Casson

Citation434 F.2d 415
Decision Date24 March 1970
Docket NumberNo. 22376,22840.,22376
PartiesUNITED STATES of America v. Ronald L. CASSON, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Mr. Jacob Goldberg, Washington, D. C., with whom Mr. Norman A. Flaningam, Washington, D. C. (both appointed by this court) was on the brief, for appellant.

Mr. Philip L. Kellogg, Asst. U. S. Atty., for appellee. Messrs. David G. Bress, U. S. Atty. at the time the record was filed, Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., also entered appearances for appellee.

Before TAMM, MacKINNON and ROBB, Circuit Judges.

MacKINNON, Circuit Judge:

At 3:05 P.M. on December 27, 1967, the President affixed his signature to an act for the District of Columbia1 which, inter alia, defined the crime of burglary in the first degree, increased the minimum and maximum punishment therefor,2 and increased the minimum punishment for robbery3 by amending the prior laws on both crimes.4 Between 10 P.M. and 11 P.M. on the same day, appellant Casson in company with another person burglarized a home, stole certain property therein and committed other offenses. The statute did not make any provision with respect to its enactment date but did provide:

Sec. 1101. Whoever, prior to the date of enactment of this Act, commits any act or engages in any conduct which constitutes an offense under provision of law amended by this Act, shall be sentenced in accordance with the law in effect on the date he commits such acts or engages in such conduct. 81 Stat. 743, D.C.Code § 22-1801 (1969).

In the absence of any provision fixing an exact time for the law to take effect, it would take effect at the same time as all congressional enactment of criminal laws. The United States Attorney interpreted the statute as having taken effect prior to Casson's crimes, and he was accordingly indicted, convicted and sentenced under the new burglary and robbery statutes, as amended.5 Casson now challenges his convictions on the burglary and robbery counts on the ground that he was denied his constitutional rights by what he contends in effect is an ex post facto application of the new statutes. We dismiss his contention and affirm.

I

Allowing for the difference in time zones between "The Ranch" and the District of Columbia, it is noted that the crimes were committed about six hours after the President signed the bill. Casson was subsequently indicted on four counts: I (First Degree Burglary), with entering a dwelling while persons were present therein, with intent to steal property of another; II (Robbery), by force and violence and against resistance and by putting in fear stealing and taking from the person and from the immediate actual possession of a designated person, property of other persons of a value of about $392.50; III and IV, assaulting two persons with a dangerous weapon, that is a shotgun.

The jury returned guilty verdicts on all counts and defendant was given concurrent sentences as follows: five to fifteen years on Counts I and II, and three to ten years on Counts III and IV. Under the 1967 amendments, for the offense charged in Count I (the burglary count), the penalty of imprisonment was changed by Congress from two to fifteen years to five to thirty years; and under Count II (the robbery count), the minimum punishment was increased from six months to two years imprisonment while the maximum punishment stayed at fifteen years. Thus the actual concurrent sentences adjudged on both counts I and II (5 to 15 years) could have been given under the prior law but appellant contends that the constitutional guarantee against ex post facto laws6 were, in effect, violated because he was exposed to larger punishments.7 See Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937). It is well settled that an ex post facto law, under the constitutional guarantee here relied upon, is one "which makes more burdensome the punishment for a crime, after its commission, * * *." (Emphasis supplied) Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 70 L.Ed. 216 (1925). But the statute here in question on its face is not ex post facto since it does not expose appellant to any increased punishment for any act after its commission.

With concurrent sentences having been adjudged on Counts I and II, we recognize the possible application of Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), but because of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), we elect to deal directly with appellant's ex post facto contention.8

On this appeal appellant makes two principal contentions. First, he asserts that the actual signing of the bill did not take place at 3:05 P.M. as endorsed on the bill and as stated in the Statutes at Large, but instead took place at 11 P.M. as reported in some newspapers. Secondly, in the event that the bill was signed at 3:05 P.M., he alleges, in the alternative, that it was not announced publicly until around 11 P.M. and that the time of the announcement was the determinative time for fixing the application of the bill to his conduct. He thus contends that to expose him to the larger penalties contained in the amended act would, in effect, make the criminal statute applicable to him on an ex post facto basis contrary to the provisions of U.S. Const. art. I, § 9, cl. 3.9

II

We first consider when the bill was actually signed. The original signed document embodying the actual bill which is preserved in the National Archives contains a written notation that it was signed by the President at "3:05 P.M. December 27, 1967 at The Ranch."10 While no provision of the Constitution or statute requires the President to affix the time or date of signing, the notation constitutes a contemporaneous memorandum and is the best evidence of the fact that the nature of the case permits. Based upon the notation on the bill the official publication of the United States Statutes at Large, 90th Congress, 1st Session (1967), which states in its forepart that it is "Published by authority of law under the direction of the Administrator of General Services by the Office of the Federal Register, National Archives and Record Service," states that the act in question was "approved December 27, 1967, 3:05 P.M." (81 Stat. 744). Congress has declared that the United States Statutes at Large shall be "legal evidence of laws."11 We accordingly decide that the bill was approved at the time endorsed on the official document and stated in the official publication rather than at the time alleged in appellant's hearsay affidavits. Hearsay newspaper statements are not a sufficient basis for overcoming the best evidence of which the case is susceptible and the presumption of regularity.12

III

We next consider when the bill became law. On this point, the United States Constitution in art. I, § 7, provides, inter alia:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it * * *.

The inescapable conclusion from this language is that those who drafted the Constitution intended a bill to "become a law" when the President indicates his approval by signing it. The applicable United States statute buttresses this conclusion by providing, inter alia:

Whenever a bill * * * of the Senate and House of Representatives, having been approved by the President * * * it shall forthwith be received by the Administrator of General Services from the President * * *. 1 U.S.C. § 106a. Act of October 31, 1951 ch. 655, § 2(b), 65 Stat. 710.

The statute thus recognizes the legislative process as being complete when the bill is "approved by the President" because it then passes "from the President" to the Administrator of General Services who is directed to "carefully preserve the originals"13 and to publish "the United States Statutes at Large which shall contain all the laws and concurrent resolutions enacted during each regular session of Congress. * * *"14 Because of these constitutional and statutory provisions we determine that the framers thereof intended that an act such as is here involved would become a law when the President signed the bill. However, questions have arisen as to the precise time during a day that a legislative act would become effective.

Prior to 1793, where no specific effective time was designated, acts of Parliament commenced from the first day of the Parliament in which the act was passed. Thus all laws were to some extent retroactive. To correct this "great and manifest injustice," Parliament in 1793 enacted the statute, 33 Geo. III, ch. 13, providing that clerks of Parliament should endorse on every act the date, month and year it receives the royal assent and that the endorsement should be taken to be "a part of such act and to be the date of its commencement when no other is provided." See Lapeyre v. United States, 17 Wall. (84 U.S.) 191, 197, 21 L.Ed. 606 (1873). Congress has never enacted a similar statute requiring the time and date of the President's approval of a bill to be endorsed thereon.

In the United States it was early decided in an opinion by Chief Justice Marshall that a civil statute for the commencement of which no time is fixed commences from its date. Matthews v. Zane, 7 Wheat. (20 U.S.) 164, 211, 5 L.Ed. 425 (1822). Gardner v. Collector, 6 Wall. (73 U.S.) 499, 504, 18 L.Ed. 890 (1867) remarked, "The date of the President's approval of the bill is undoubtedly the date at which it became law," and Lapeyre v. United States, supra, held that a presidential proclamation (terminating civil war hostilities) took effect when he signed it, and stated the same rule applied to laws. As applied to our present situation, those decisions would make this act effective at 12:01 A.M. on the day it was signed by the President,...

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