Edwards v. U.S.

• Decision Date: 23 March 1987
• Docket Number: No. 86-2243,86-2243
• Parties: James A. EDWARDS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 486

814 F.2d 486

James A. EDWARDS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 86-2243.

United States Court of Appeals Seventh Circuit.

Argued Jan. 23, 1987.

Decided March 23, 1987.

Scott L. King, King & Meyer, Gary, Ind., for petitioner-appellant.

Kevin E. Milner, Asst. U.S. Atty., Hammond, Ind., for respondent-appellee.

Before CUMMINGS and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

POSNER, Circuit Judge.

Edwards received concurrent prison sentences of five years for having violated 18 U.S.C. Sec. 495 by (1) forging an endorsement on a United States Treasury check for $437 and then (2) uttering the check (i.e., using it as a medium of payment). Later he brought this action under 28 U.S.C. Sec. 2255 to set aside his sentences on the ground that a statute passed shortly before he was sentenced, 18 U.S.C. Sec. 510, had impliedly repealed section 495 with respect to Treasury checks for less than $500. We agree with the district court, 646 F.Supp. 42 (1986), and with the Ninth Circuit in United States v. Edmonson, 792 F.2d 1492, 1497-98 (9th Cir.1986), that there was no repeal. See also United States v. Jackson, 805 F.2d 457 (2d Cir.1986), which rejected a similar argument (that section 510 had repealed section 641 of the Criminal Code, which forbids the conversion of money or other things of value of the United States).

Section 495, under which Edwards was sentenced, reads as follows:

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 any 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.

The source of this statute is the Act of March 3, 1823, ch. 38, Sec. 1, 3 Stat. 771, which specified a maximum sentence of 10 years at hard labor. Later versions made slight wording changes, and eventually the provision for hard labor was dropped; but the consistency in both the substantive and the penalty provisions through revisions of the federal criminal code extending over a century and a half is impressive. See Rev.Stat. Sec. 5421 (1873); Crim.Code Sec. 29, 35 Stat. 1088, 1094 (1909); 18 U.S.C. Sec. 73 (1940); 18 U.S.C. Sec. 495 (1948).

Section 510 was passed in 1983. It provides:

(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 States; 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.

Had Edwards been prosecuted under section 510 rather than section 495, as well he might have been since his conduct violates both sections, he could not have been given a prison sentence of more than a year; for section 510(c) makes the forging, etc. of a Treasury check for $500 or less a misdemeanor, rather than the felony it is under section 495.

Section 495 is an old statute that deals very broadly with fraud against the United States by forgery or counterfeiting; section 510 is a recent statute that deals specifically with forged signatures and endorsements on Treasury checks--and Edwards' crimes were forging an endorsement on a Treasury check and then uttering the check. Edwards argues from these two points that section 510 supplants, and must therefore be taken to have implicitly repealed, section 495 so far as his conduct is concerned.

The government by way of counterargument lays heavy stress on the maxim of statutory interpretation that "repeals by implication are not favored." Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936). Like so many such maxims (the "canons of construction" as they are grandly called), however, this one rests on an unrealistic premise about the legislative process. The premise is that when a legislature contemplates passing a new statute it is careful to search the statute book for any statute that might overlap the new one, and if it finds any such older statute and doesn't want to continue that statute in force it repeals it explicitly when passing the new one. "The presumption against implied repeals is founded upon the doctrine that the legislature is presumed to envision the whole body of the law when it enacts new legislation." 1A Sutherland Statutory Construction Sec. 23.10, at p. 346 (4th ed. 1985). But, of course, neither Congress nor any other legislature in the United States "envision[s] the whole body of the law when it enacts new legislation." Cf. Barrett v. United States, 423 U.S. 212, 223-24, 96 S.Ct. 498, 504-05, 46 L.Ed.2d 450 (1976). How could it, given the vast expanse of legislation that has never been repealed and the even vaster expanse of judicial and administrative rulings glossing that legislation? Another objection to invoking the maxim is that the system of interpretive maxims provides no weighting of conflicting ones, which here as almost always are in play (see Llewellyn, The Common Law Tradition: Deciding Appeals 521-35 (1960)): against the maxim that implied repeals are disfavored can be set the maxim that ambiguities in criminal statutes should be resolved in favor of lenity even when the only issue is the length of sentence, see, e.g., Simpson v. United States, 435 U.S. 6, 14-15, 98 S.Ct. 909, 913-14, 55 L.Ed.2d 70 (1978).

Judge (now Justice) Scalia has offered a fresh defense of the maxim:

Without it, determining the effect of a bill upon the body of preexisting law would be inordinately difficult, and the legislative process would become distorted by a sort of blind gamesmanship, in which Members of Congress vote for or against a particular measure according to their varying estimations of whether its implications will be held to suspend the effects of an earlier law that they favor or oppose.

United States v. Hansen, 772 F.2d 940, 944 (D.C.Cir.1985). But the problem of "blind gamesmanship" exists even if the maxim is steadfastly adhered to. Legislators voting on a bill under such a regime will have varying estimations about the impact on the bill (if it is enacted) of existing statutes which they favor or oppose. And all this assumes that the legislators know the existing statutory terrain well. What is more likely is that forgotten statutes lurking in the statute book, plus remembered statutes that have acquired nonobvious meanings through a process of judicial or regulatory interpretation, will make the body of unrepealed statutes a minefield for the new law.

Our opinion of the maxim can have little weight, however, when we reflect how vigorously the modern Supreme Court enforces it in the case of overlapping criminal statutes--which is this case. In United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), the Supreme Court unanimously reversed a decision by this court, and, relying in part on the maxim against implied repeal, held that two overlapping provisions of the Criminal Code were both enforceable. Although the provisions were different from those in this case, Batchelder expresses a mood that we are not free to ignore.

It can also be argued that, whatever the objections to the maxim in other cases, it makes some sense in the present case because its application need not rest on an assumption that Congress carefully combed the statute book before enacting the new legislation. The legislative history of section 510 indicates that it was intended to plug a loophole in section 495. So, obviously, Congress was aware if not of "the whole body of the law" then at least of the body of law relevant to the new statute. The problem is that the maxim presumes not only legislative omniscience, but also a legislative preference for the earlier over the later statute to the extent that the two are inconsistent but not utterly incompatible in the sense of requiring inconsistent conduct. "[T]he drafters should expressly designate the offending provisions rather than leave the repeal to arise by implication from the later enactment." 1A Sutherland Statutory Construction, supra, Sec. 23.10, at p. 346 (footnote omitted). But what if the legislature doesn't do what Sutherland on Statutory Construction tells it it should do?

The two statutes at issue in this case do not require inconsistent conduct, as they would if section 510 provided...