Edwards v. United States
| Decision Date | 10 July 1986 |
| Docket Number | Civ. No. H 85-1105. |
| Citation | 646 F. Supp. 42 |
| Parties | James A. EDWARDS, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Northern District of Indiana |
Scott L. King, Gary, Ind., James A. Edwards, Duluth, Minn., for petitioner.
John F. Hoehner, Asst. U.S. Atty., Hammond, Ind., for respondent.
This matter is before the court on Petitioner's Objections to the Magistrate's Recommendations, filed with this court on May 28, 1986. The Petitioner's Objections were prepared pursuant to Fed.R.Civ.P. 72(b) and the court now reviews de novo the Magistrate's recommendations. Delgado v. Bowman, 782 F.2d 79, 82 (7th Cir.1986).
The Report and Recommendation of the United States Magistrate was filed on May 15, 1986 in response to a challenge by the petitioner as to the validity of a sentence imposed by this court for petitioner's violations of 18 U.S.C. § 495. The Magistrate has recommended that the petitioner's Motion to Vacate be denied. The petitioner now objects to the following conclusions made by the Magistrate in his Report and Recommendation: (1) that United States v. Bennerson, 616 F.Supp. 167 (D.C.N.Y. 1985) correctly interpreted the relationship between 18 U.S.C. § 495 and § 510(c); (2) that Section 510 did not implicitly repeal section 495; and (3) that the legislative history of section 510(c) demonstrates a Congressional intent to supplement rather than repeal section 495.
Based on the reasons set forth below, the court finds that the Magistrate's findings are correct in all respects and that the recommendation submitted by the Magistrate is appropriate. Therefore the Petitioner's Objections are hereby DENIED.
The charging date of the offenses was November 3, 1983. On that date, 18 U.S.C. § 495 was in effect and provided:
On November 14, 1983, 18 U.S.C. § 510 went into effect and provided:
On September 20, 1984, this court accepted a plea agreement entered into between petitioner and the government and sentenced petitioner to a total of ten (10) years incarceration. Therefore, section 510(c) was not in effect on the date of the offense but was in effect on the date of sentencing. Petitioner argues that because the Treasury checks involved in his offenses were less than $500.00 that his sentencing should have been imposed under section 510(c) rather than section 495.1
The petitioner's three objections are based on one issue: whether section 510(c) implicitly repealed section 495. It is undisputed that nothing in section 510 expressly repeals or supersedes section 495. Therefore, any repeal would be by implication. The intent to repeal must be clearly evident from legislative history, since "repeals by implication are not favored". Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981).
The issue of whether section 510 repealed, implicitly or otherwise, any or all of section 495 appears to be a question of first impression in this circuit. However, two recent district court decisions discussed this very issue and reached opposite conclusions. The first, United States v. Jimicum, 608 F.Supp. 1530 (D.C.Wash.1985), found that section 510(c) implicitly repealed section 495. In the second, United States v. Bennerson, 616 F.Supp. 167 (D.C.N.Y. 1985), the court concluded that section 510 was designed to supplement rather than to supersede section 495.
In holding that section 510 implicitly repealed section 495, the court in Jimicum stated that when two statutes cannot coexist, the more specific and recent takes precedence over the more general and earlier. Jimicum, 608 F.Supp. at 1532. Because it is well settled that legislative intent to repeal a statute must be clear, the Jimicum court tried to present affirmative evidence of legislative intent by discussing the legislative histories of sections 495 and 510.
In discussing the history of section 495, the court stated that Congress expressed an intention to protect the public treasury from fraud by false writings in general. It has been settled for some fifty years that government checks are "other writings" within the meaning of section 495. Id., (citing Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610 (1931)).
The Jimicum court also discussed the legislative history of section 510. When effecting section 510, Congress looked again at the problem of false writings from a broad perspective, enhancing the penalties for violations involving more than $500, and decreasing the penalties for violations involving $500 or less. The court reasoned that because Congress spoke specifically of treasury checks, and because the treatment on the treasury-check issue was comprehensive in section 510, that section 510 should be the sole charging statute for such offenses. The court stated that because of this history, Congress did not intend for section 495 and section 510 to coexist. Id. at 1534. Therefore section 510, the more specific and recent, should take precedence over section 495. Id. at 1536.
The Jimicum court relied heavily upon the general-versus-specific distinction between these two sections. Id. at 1532-34. The difference is significant, for the very specificity of section 510 tends to imply that Congress considered the concealment of stolen Treasury checks under $500 to be a misdemeanor.
However, the Jimicum court recognized that there are very real differences in the scope of the two statutes. The court quoted from the legislative history as follows:
This passage demonstrates that the two statutes have separate and distinct areas of coverage, apart from their common coverage of Treasury checks. Therefore, not only is it possible for the statutes to coexist, but it is necessary for them to coexist in order to effectuate the intent of Congress in proscribing those separate and distinct areas of coverage in each statute respectively.
United States v. Bennerson is a better reasoned opinion on the issue of implicit repeal with regards to section 510 and a more general statute. 616 F.Supp. 167. Although Bennerson involves section 510 and 18 U.S.C. § 641, the court discusses the relationship between sections 510 and 495 at length. In Bennerson, the court held that section 510 did not implicitly repeal the general statute. The court stated that no partial repeal will be found from the mere existence of two redundant statutes carrying different penalties unless the two are positively repugnant; that is, unless they cannot coexist independently. Id. at 174-175, (citing United States v. Batchelder, 442 U.S. 114, 122, 99 S.Ct. 2198, 2203, 60 L.Ed.2d 755 (1979)). The Bennerson court recognized that Congressional intent may not be inferred from the mere existence of a specific statute carrying a lighter penalty than a more general one, and therefore the court turned to the legislative history of section 510 to determine legislative intent. Id. at 174.
The conduct covered by Section 510(a) had previously been prosecuted solely under section 495, the felony statute which prohibits the forgery of a "deed ... receipt, contract or other writing" for the purpose of obtaining money from the government. False endorsements on government checks and securities were held to be "other writings," but Congress saw this as creating gaps in the criminal law prohibiting the wrongful use of government checks. Id., (citing Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610 (1931)). The Bennerson court stated that the Congressional Report on section 510 clearly demonstrates that section...
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Edwards v. U.S.
...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......