Barbee v. United States

• Decision Date: 27 May 1968
• Docket Number: No. 23822.,23822.
• Parties: Howard Wallace BARBEE and Bobby Joe Manziel, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

392 F.2d 532 (1968)

Howard Wallace BARBEE and Bobby Joe Manziel, Appellants, v. UNITED STATES of America, Appellee.

No. 23822.

United States Court of Appeals Fifth Circuit.

February 21, 1968.

Rehearing Denied March 19, 1968.

Certiorari Denied May 27, 1968.

John D. Cofer, G. Hume Cofer, Douglass D. Hearne, Austin, Tex., James Byron Saunders, Saunders & Caldwell, Tyler, Tex., Cofer, Cofer & Hearne, Austin, Tex., for appellants; Thomas H. Nation, Austin, Tex., of counsel.

Wm. Wayne Justice, U. S. Atty., Tyler, Tex., Paul C. Summitt, Atty., Dept. of Justice, Fred M. Vinson, Jr., Asst. Atty. Gen., Beatrice Rosenberg, Atty., U. S. Dept. of Justice, Washington, D. C., for appellee.

Before WISDOM, THORNBERRY and GOLDBERG, Circuit Judges.

Certiorari Denied May 27, 1968. See 88 S.Ct. 1849.

GOLDBERG, Circuit Judge.

In 1963 Howard Wallace Barbee and Bobby Joe Manziel, then gullible and motivated by avarice, lost ten thousand dollars in a confidence racket. The memory of that hoax lingered with them, and two years later, still motivated by avarice, they sought to recoup their losses by instigating the same racket for their benefit. The only difference was that their intended victim notified the police, and Barbee and Manziel were arrested. They were convicted in a federal district court for illegal possession of altered currency in violation of 18 U.S.C. § 472, which currency had been the subject of their fraud. Their appeal, unlike many criminal cases that come before us, is not burdened with significant factual disputations. Barbee and Manziel admit the facts of their scheme and even concede that it may have been morally reprehensible. They contest merely its illegality.

The confidence racket which was employed in 1963 and in 1965 involves a "stir man," a genuine federal reserve note, an altered federal reserve note, and of course a "sucker." The "stir man" contacts a "sucker" and shows him a "counterfeit" reserve note which is an exact duplicate of a genuine note and which even experts would claim to be genuine. He guarantees that a revolutionary duplication process can be put in motion for quite a reasonable investment. To the "sucker's" dismay, after contributing his share of the investment, he learns that both reserve notes were genuine and that the only process performed had been the altering of serial numbers and other markings on one note to correspond with the other.

Two facets of this confidence racket concern us on appeal: (1) The "stir man" never intends to make counterfeit notes or even to pass the altered note. He uses the note only to get the "sucker's" investment. (2) The racket can succeed only if the "sucker" is willing to participate in an illegal counterfeiting scheme. We also note that Barbee and Manziel (appellants) were convicted under 18 U.S.C. § 472, possession of altered currency, rather than under 18 U.S.C. § 471, the act of altering. Nevertheless, though the facts be somewhat unconventional even in the world of counterfeiting, we hold that such facts are harbored by Section 472 and affirm.

Section 472 of the Criminal Code reads as follows:

"Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts to pass, utter, publish, or sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined not more than $5,000 or imprisonment not more than fifteen years, or both." (Emphasis added.)

The appellants ask us to read into the statute the dual requirement of intent to defraud and intent to pass; thus, they would have us interpret the statute as if it read as follows:

"Whoever, with intent to defraud, * * * acts listed, or with like intent to defraud by passing, uttering, publishing, or selling, * * * keeps in possession * * * any * * * altered obligation or other security of the United States, shall be fined * * *." (Emphasis added.)

They would have us conclude that although they may have been guilty of swindling,¹ because of their lack of intent to pass the altered note, they did not commit a federal crime.

The government, in response, asks us to interpret the statute as if it read as follows:

"Whoever, with intent to defraud, * * * acts listed, or with like intent to defraud in any manner using altered obligations, * * * keeps in possession * * * any * * * altered obligation or other security of the United States, shall be fined * * *." (Emphasis added.)

Under such a reading the appellants clearly would be guilty of violating Section 472.

Although there are no modifiers of the word "possession" in the statute, the appellants see in the evolutionary history of the statute the justification for their proposed construction. They admit that an addition must be made to the present words, but they claim such addition is required when we pollinate Section 472 with historical perspective. Before the present codification (enacted in 1948) the relevant statute read as follows:

18 U.S.C. § 265. (Criminal Code, section 151):

"Uttering forged obligations. — Whoever, with intent to defraud, shall pass, utter, publish, or sell, or attempt to pass, utter, publish, or sell, or shall bring into the United States or any place subject to the jurisdiction thereof, with intent to pass, publish, utter, or sell, or shall keep in possession or conceal with like intent, any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined not more than $5,000 and imprisoned not more than fifteen years." (1926) (codified from and using the exact same language as R.S. Sec. 5431; Mar. 4, 1909, c. 321, Sec. 151, 35 Stat. 1116) (Emphasis added.)

Moreover, the 1864 predecessor to Section 472 placed "intent to pass * * *" even closer in the sentence structure to "possession":

"Chap. CLXII. — An Act to provide Ways and Means for the Support of the Government, and for other Purposes.

* * * * * *

"Sec. 10. And be it further enacted, that if any person or persons shall falsely make, forge, counterfeit, or alter, or cause or procure to be falsely made, forged, counterfeited, or altered, any obligation or security of the United States, or shall pass, utter, publish, or sell, or attempt to pass, utter, publish, or sell, or shall bring into the United States from any foreign place with intent to pass, utter, publish, or sell, or shall have or keep in possession, or conceal, with intent to utter, publish, or sell, any such false, forged, counterfeited, or altered obligation, or other security, with intent to deceive or defraud, or shall knowingly aid or assist in any of the acts aforesaid, every person so offending shall be deemed guilty of felony, and shall, on conviction thereof, be punished by fine not exceeding five thousand dollars, and by imprisonment and confinement at hard labor not exceeding fifteen years, according to the aggravation of the offence" (Emphasis added.)

Appellants' able counsel have traced the history of Section 472 in their brief and have skillfully demonstrated that in no revision from 1864 to 1948 has the "intent to pass" issue been expressly considered. In 1948 for example, the only relevant comment in the revisor's notes to Section 472 was the general statement, "changes in phraseology were made."² Moreover, in an introduction to that section-by-section analysis the revisors promised to "explain in detail every change made in text."³ From such legislative history the appellants contend that the "intent to pass" requirement has remained in the statute in substance despite its terminological evanescence.

We are urged to look to the old and wear blinders on the new because the new comes to us without the credentials of change. The predicate of this argument is that statutory revisions without explications ring in no change and that recodifications without exegetical words are no more than exercises in organized numerology. If we were to consider such predicate in a vacuum, we would find the existing authority somewhat equivocal.⁴ However, in the case at bar, the old law without assistance from the new convicts the appellants. As we shall show, infra, there is no dissidence between the present wording of Section 472, the purpose of the statute, and its pre-1948 judicial interpretations.

The government does not establish services for the benefit of thieves. It does not wish to be an unwitting accessory in crime. Therefore, it has a valid interest in guarding against fraudulent misuse of its services, even if the fraud may never injure the government itself. For recent examples, see Bannister v. United States, 5 Cir. 1967, 379 F.2d 750 (conviction for use of mails in execution of a fraud); Barnett v. United States, 5 Cir. 1967, 384 F.2d 848, 854-855 (conviction for altering the dates of coins to make them "antiques"). Moreover, because attacks upon the physical integrity of currency in particular may endanger society by depleting the public trust in its economic standard, the government must establish sanctions to discourage such attacks. See United States v. Raynor, 1938, 302 U.S. 540, 58 S.Ct. 353, 82 L.Ed. 413.

These sanctions need not extend to all forms of fraud in the society where money is exchanged. Thus, the Supreme Court has held counterfeiting laws inapplicable to fraudulent transactions — even when counterfeit bills were exchanged — if the parties believed the currency to be valid. United States v. Carll, 1882, 105 U.S. 611, 26 L.Ed. 1135; Dunbar v. United States, 1895, 156 U.S. 185, 193, 15 S.Ct. 325, 39 L.Ed. 390, 393; Prussian v. United States, 1931, 282 U.S. 675, 678, 51 S.Ct. 223, 75 L.Ed. 610, 612-613. As stated in Dunbar, supra:

"The purpose of the existing counterfeiting statute is the protection of the bonds or currency of the United States, and not the punishment of any fraud or wrong upon individuals." 156 U.S. at 193, 15 S.Ct. at 528.

Nevertheless, the...