895 F.2d 410 (7th Cir. 1990), 89-2378, United States v. Lov-It Creamery, Inc.

Docket Nº:89-2378 and 89-2388.
Citation:895 F.2d 410
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. LOV-IT CREAMERY, INC., and Roger L. Jahnke, Defendants-Appellants.
Case Date:February 12, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 410

895 F.2d 410 (7th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,


LOV-IT CREAMERY, INC., and Roger L. Jahnke, Defendants-Appellants.

Nos. 89-2378 and 89-2388.

United States Court of Appeals, Seventh Circuit

February 12, 1990

Argued Jan. 12, 1990.

Mel S. Johnson, James L. Santelle, Asst. U.S. Attys., Milwaukee, Wis., for U.S.

Robert E. Shumaker, Joan F. Kessler, Foley & Lardner, Milwaukee, Wis., for Lov-It Creamery, Inc.

Stephen M. Glynn, Robert R. Henak, Shellow, Shellow & Glynn, Milwaukee, Wis., for Jahnke.

Before COFFEY, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

The organic statute of the Commodity Credit Corporation, 15 U.S.C. Secs. 714-714p, includes a set of criminal laws distinct from those in the criminal title of the United States Code. Although one who steals from the United States or "any department or agency thereof" property worth more than $100 "[s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both", 18 U.S.C. Sec. 641, one who steals $101 from the CCC "shall ... be punished by a fine of not more than $10,000 or by imprisonment for not more than five years, or both." 15 U.S.C. Sec. 714m(b). Persons who steal less than $100 from the United States or an agency face a maximum of $1,000 and one year; those who steal so much as 1cents from the CCC must contemplate the same $10,000 plus five years.

When multiple criminal statutes apply to the same conduct, the prosecutor may choose. United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). Not so with theft from the CCC. A provision, unique in federal criminal law, limits the prosecutor to the theft statute pertaining to that agency:

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All the general penal statutes relating to crimes and offenses against the United States shall apply with respect to the Corporation, its property, money, contracts and agreements, employees, and operations: Provided, That such general penal statutes shall not apply to the extent that they relate to crimes and offenses punishable under subsections (a) to (d) of this section....

15 U.S.C. Sec. 714m(e). After a prosecutor secured a conviction under Sec. 641 for receiving property stolen from the CCC, with its higher maximum sentence of imprisonment, we held that only Sec. 714m(c) could apply, and we reduced the sentence. United States v. Ray, 514 F.2d 418 (7th Cir.1975). See also United States v. Harbour, 809 F.2d 384, 391 (7th Cir.1987). Prosecutors chafe at the paltry fine that Sec. 714m(b) fastens on substantial offenses, a galling limit when the defendant is a corporation that cannot be imprisoned or flogged. A statute enacted...

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