U.S. v. Hernandez, s. 683

• Decision Date: 23 March 1984
• Docket Number: Nos. 683,744,D,s. 683
• Parties: UNITED STATES of America, Appellee, v. Lorenzo Raphael HERNANDEZ and Ana Hernandez, Defendants-Appellants. ockets 83-1301, 83-1306.
• Court: U.S. Court of Appeals — Second Circuit

Page 895

730 F.2d 895

UNITED STATES of America, Appellee, v. Lorenzo Raphael HERNANDEZ and Ana Hernandez, Defendants-Appellants.

Nos. 683, 744, Dockets 83-1301, 83-1306.

United States Court of Appeals Second Circuit.

Argued Jan. 24, 1984.

Decided March 23, 1984.

Thomas E. Engel, New York City, for defendant-appellant Ana Hernandez.

Barry Bassis, New York City (The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for defendant-appellant Lorenzo Raphael Hernandez.

David S. Hammer, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Roanne L. Mann, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before MESKILL, NEWMAN, and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Lorenzo Hernandez appeals from a judgment of the United States District Court for the Southern District of New York, entered after a jury trial before Leonard B. Sand, Judge, convicting him of all counts of a nine-count indictment charging him with conspiracy under 18 U.S.C. Sec. 371 (1982) to violate 18 U.S.C. Secs. 495, 641, and 1708 (count one), forgery of treasury checks in violation of 18 U.S.C. Sec. 495 (counts two and three), receipt of stolen treasury checks in violation of 18 U.S.C. Sec. 641 (count four), possession of stolen mail in violation of 18 U.S.C. Sec. 1708 (counts five, six and seven), obstruction of justice in violation of 18 U.S.C. Sec. 1503 (count eight), and threatening a witness in violation of 18 U.S.C. Sec. 1512 (count nine). Although Lorenzo appealed from the entire judgment, the only argument he advances on appeal is that his conviction on count eight, obstruction of justice, was improper because his conduct in threatening a witness is no longer proscribed by Sec. 1503. We agree and reverse as to count eight, but affirm Lorenzo's convictions on the other counts.

Codefendant Ana Hernandez appeals from the only count on which she was convicted, count two, which charged her with forging government checks. Finding no merit in her arguments, addressed primarily to the court's charge on intent, we affirm her conviction.

I. BACKGROUND

During a two and one-half year period beginning in November 1980, Lorenzo, while operating a grocery store in New York City, turned over to various wholesalers approximately 200 government checks bearing forged endorsements of the names of the true payees and second endorsements either signed by Lorenzo, himself, or stamped with his supermarket's stamp. On eight of these checks the payee endorsements were forged by his wife, Ana.

When the wholesalers' banks learned that some of these checks had been stolen, they returned them to the wholesalers who, in turn, demanded reimbursement from Lorenzo. At first, Lorenzo was able to reimburse them, but the volume of returned checks became so great that many wholesalers ultimately refused to accept any checks from him, either as reimbursement or as payment for new supplies.

In March 1983 increasing financial pressures forced Lorenzo to sell his store. The buyer, Rafael Gomez, was one of the store's largest creditors, and had previously accepted approximately $20,000 in stolen checks from Hernandez.

On March 15, 1983, after the sale was completed, Lorenzo was arrested for handling the stolen checks and was released on bail. On a number of occasions he returned to the store and demanded that Gomez turn over to him the dishonored stolen checks that Gomez had received back from his bank. Gomez kept putting him off. Finally, Gomez turned over to the federal prosecutor photocopies of the dishonored checks he had in his possession. On the last occasion that Lorenzo appeared, Gomez told him the checks had been given to the government. The two men argued, and Lorenzo, becoming progressively more angry, stated that if Gomez did not produce the checks that night, he would kill him. Lorenzo then left the store and did not return.

Lorenzo was indicted on April 14, 1983. In a superseding indictment filed May 2, 1983, that for the first time also named his wife Ana, Lorenzo was charged with the nine counts listed above; Ana was named as a codefendant in the first five of those counts. After a six-day jury trial, Lorenzo was convicted on all nine counts and sentenced to two years on each count, to run concurrently. Ana was found guilty on count two and acquitted on the remaining four counts against her. She was sentenced under the Youth Corrections Act to thirty months' probation.

II. DISCUSSION

A. Lorenzo Hernandez

Lorenzo's sole contention on appeal is that he was improperly convicted on count eight of violating 18 U.S.C. Sec. 1503. While he concedes that he was properly convicted on count nine of violating the Victim and Witness Protection Act, 18 U.S.C. Sec. 1512, he contends that the conduct underlying both convictions, threatening a witness in order to obtain documentary evidence, no longer falls within the proscriptions of Sec. 1503.

Chapter 73 of Title 18 of the United States Code, 18 U.S.C. Secs. 1501-1515, proscribes conduct and prescribes penalties under the general heading "Obstruction of Justice". Until 1982, Sec. 1503 of that chapter, entitled "Influencing or injuring officer, juror or witness generally", prohibited influencing or intimidating "any witness, * * * any grand or petit juror, or [court] officer" in the discharge of his duty, or injuring any of them for having discharged his duty. The section also contained a residual clause prohibiting anyone from obstructing "the due administration of justice". Under that former version of Sec. 1503 Lorenzo's prosecution under count eight would unquestionably have been proper.

In 1982, however, congress enacted the Victim and Witness Protection Act, Pub.L. No. 97-291, 96 Stat. 1248 (1982), reprinted in 1982 U.S.Code Cong. & Ad.News (96 Stat.) 1248, to "strengthen existing legal protections for victims and witnesses of federal crimes". S.Rep. No. 532, 97th Cong., 2d Sess. 9, reprinted in 1982 U.S.Code Cong. & Ad.News 2515. By the new statute congress removed from Sec. 1503 all references to witnesses, leaving that section to protect jurors and court officers, and enacted a new section, Sec. 1512, addressed specifically and in more detail to the protection of witnesses, informants, and crime victims from intimidation. By enacting Sec. 1512 congress intended to remedy perceived inadequacies in the existing Sec. 1503 by providing more extensive protection for witnesses and others. Id. at 2515, 2520-21. For example, Sec. 1512 explicitly covers "potential" witnesses and those witnesses whose testimony might not be admissible at trial, whereas Sec. 1503 did not necessarily cover such witnesses. Moreover, unlike Sec. 1503 which proscribed influencing witnesses by corruption, threats, or force, Sec. 1512 extends as well to intimidation and harassment, thereby establishing a lower threshold of criminal activity. Id. at 2521.

Hernandez argues that by enacting Sec. 1512 specifically to cover witness intimidation and, at the same time, by deleting from Sec. 1503 all references to witnesses, congress clearly intended that threats against witnesses to induce them to withhold evidence would fall solely under Sec. 1512. On the other hand, the government contends that although Sec. 1512 absorbs some of the jurisdiction previously given to Sec. 1503, congress intended, in effect, to create two crimes, making witness intimidation and harassment punishable not only under Sec. 1512, but also under the residual clause of Sec. 1503, which provides that "[w]hoever * * * corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice shall be [guilty of a crime]."

Viewing the actions of congress and the plain language of both statutes realistically, we agree with Lorenzo and conclude that congress affirmatively intended to remove witnesses entirely from the scope of Sec. 1503. That intent is graphically demonstrated by examining those portions of Sec. 1503 that congress expressly deleted, which are bracketed and underscored below:

Sec. 1503 Influencing or injuring officer, juror [or witness ] generally

Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any [witness, in any court of the United States or before any United States Commissioner or other committing magistrate, or any] grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States Commissioner or other committing magistrate, in the discharge of his duty, or [injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing magistrate, or on account of his testifying or having testified to any matter pending therein, or ] injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

We are unpersuaded by the government's argument that the residual clause of Sec. 1503 still covers witness harassment. Not only does the argument defy common sense, but it is also contrary to the legislative history of Pub.L. No. 97-291. Senator Heinz, a prime mover of the bill, explained that the version of ...