U.S. v. Jackson, s. 1427

• Decision Date: 10 November 1986
• Docket Number: 1428,Nos. 1427,D,s. 1427
• Citation: 805 F.2d 457
• Parties: UNITED STATES of America, Appellee, v. Isaac JACKSON and Peter Bennerson, Defendants-Appellants. ockets 86-1132, 86-1161.
• Court: U.S. Court of Appeals — Second Circuit

Page 457

805 F.2d 457

UNITED STATES of America, Appellee, v. Isaac JACKSON and Peter Bennerson, Defendants-Appellants.

Nos. 1427, 1428, Dockets 86-1132, 86-1161.

United States Court of Appeals, Second Circuit.

Argued June 19, 1986.

Decided Nov. 10, 1986.

Henriette D. Hoffman, The Legal Aid Soc., Federal Defender Services Unit, New York City, for defendants-appellants.

Adam S. Hoffinger, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. S.D.N.Y., Kenneth Roth, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before MESKILL, KEARSE, and PIERCE, Circuit Judges.

PIERCE, Circuit Judge:

Appeal from a judgment of the United States District Court for the Southern District of New York, Ward, Judge, entered March 13, 1986, convicting appellant, Isaac Jackson, of conversion of a United States Treasury check in an amount under $500 in violation of 18 U.S.C. Sec. 641, and from a judgment of the United States District Court for the Southern District of New York, Haight, Judge, entered April 1, 1986, convicting appellant, Peter Bennerson, of a similar charge.

Appellants each maintain that they were improperly charged with a felony under 18 U.S.C. Sec. 641, a general statute dealing with conversion of United States property, because a more recently enacted statute, 18 U.S.C. Sec. 510, which deals specifically with offenses relating to Treasury checks, repealed Sec. 641 insofar as their conduct was concerned and made their conduct punishable only as a misdemeanor.

The district judges, Judge Ward in an oral decision and Judge Haight in a written opinion, United States v. Bennerson, 616 F.Supp. 167 (S.D.N.Y.1985), ruled that Congress in enacting Sec. 510 did not intend to repeal Sec. 641 and thus the government could elect to charge a defendant under either statute.

We hold, in substantial agreement with Judge Haight's opinion, that the two statutory provisions in question, Secs. 641 and 510, may coexist and therefore a prosecutor has discretion to determine under which statute a defendant will be charged.

We therefore affirm the judgments of conviction.

BACKGROUND

The essential facts herein are not in dispute and were stipulated at the trial of each defendant. Those facts showed that appellant, Isaac Jackson, forged the endorsement of a United States Treasury check in the amount of $347.32 payable to another and attempted to cash it on October 2, 1985. Following his arrest, Jackson admitted that he received the check from a friend, that he endorsed it and attempted to cash it, and that he knew that the check did not belong to him and that what he was doing was wrong, but that he needed the $147 he was to receive for cashing the check. Jackson was indicted on October 16, 1985, and charged with one count of receiving a United States Treasury check, knowing it to have been stolen, with the intent to convert it to his own use in violation of 18 U.S.C. Sec. 641. Jackson moved to dismiss the indictment on the ground that he should have been charged with a misdemeanor under 18 U.S.C. Sec. 510, rather than Appellant Peter Bennerson also attempted on December 3, 1984, without authorization, to cash a United States Treasury check payable to a third party in the amount of $274.02. After being taken into custody, Bennerson stated that he found the check in his mailbox, that he took the check because he was in debt, that he secured a blank identification document and filled in the payee's name, and that he attempted to cash the check. Bennerson was indicted on June 13, 1985, and charged with a violation of Sec. 641. ¹ Bennerson also moved to have the indictment dismissed on the ground that he should have been charged with a misdemeanor under Sec. 510 instead of a felony under Sec. 641. Judge Haight denied the motion and, following a bench trial in which Bennerson was found guilty, sentenced him to a six-month prison term, suspended its execution, and placed him on two years' probation.

                a felony under Sec. 641.  Judge Ward denied the motion from the bench finding no "support for defendant's argument that Congress evidenced an express or implied affirmative intention to repeal Section 641 with respect to checks in amounts less than $500."    After a bench trial, Jackson was found guilty as charged and was subsequently sentenced to an eighteen-month prison term
                

Jackson's and Bennerson's appeals were consolidated because they involved the same issue, namely, whether the enactment of Sec. 510 under which appellants' offenses would be misdemeanors, repealed that portion of Sec. 641 under which their offenses were denominated as felonies.

DISCUSSION

Appellants concede that their conduct in this case falls within the purview of both 18 U.S.C. Sec. 641 and 18 U.S.C. Sec. 510. Section 641, ² enacted in 1948, does not explicitly address the crime of forging endorsements on United States Treasury checks or passing Treasury checks with forged endorsements. Rather, that section prohibits in general terms the conversion of "any record, voucher, money, or thing of value of the United States." However, this broad language has been construed to include United States Treasury checks. See, e.g., United States v. Richardson, 755 F.2d 685, 686 (8th Cir.1985); United States v. Wyatt, 737 F.2d 1499, 1500 (9th Cir.1984). A violation of Sec. 641 is a felony unless the value of the stolen property is under $100.

On the other hand, Sec. 510, ³ enacted in 1983, explicitly proscribes forging endorsements on Treasury checks, passing of falsely endorsed Treasury checks, and receipt or concealment of stolen or falsely endorsed Treasury checks. A violation of Sec. 510 is a misdemeanor as long as the value of the check does not exceed $500.

We are thus confronted with a situation where two statutes cover the same conduct but provide different punishments. Therefore, we are called upon to resolve a question of statutory construction as to the relationship between two overlapping statutes. Consequently, our inquiry must focus on ascertaining congressional intent in enacting the later statute.

Implied Repeal

The first question we must resolve is whether an inference can be drawn that Congress in enacting a new specific statute implicitly intended to repeal an overlapping portion of an older more general statute. We conclude, as did the district court below, that no inference regarding congressional intent may be drawn from the mere existence of a specific statute carrying a lighter penalty than a more general one.

We are aided in reaching this conclusion by the holding of the Supreme Court in United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). In Batchelder, the defendant was convicted under 18 U.S.C. Sec. 922(h), a statute that prohibited receipt by convicted felons of firearms which have traveled in interstate commerce. That statute carried a maximum penalty of five years' imprisonment. However, 18 U.S.C.App. Sec. 1202(a), enacted after Sec. 922(h), also prohibited the same conduct and carried only a two year maximum sentence. The Court, in holding that the two statutes could coexist, rejected the argument that the later statute implicitly repealed the penalty provision of the earlier statute and said:

it is "not enough to show that the two statutes produce differing results when applied to the same factual situation." Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 [96 S.Ct. 1989, 1993, 48 L.Ed.2d 540] (1976). Rather, the legislative intent to repeal must be manifest in the " 'positive repugnancy between the provisions.' " United States v. Borden Co., 308 U.S. 188, 199 [60 S.Ct. 182, 188, 84 L.Ed. 181] (1939).

442 U.S. at 122, 99 S.Ct. at 2203.

While it is true that Batchelder is not dispositive of the instant case because in Batchelder neither statute could be said to prohibit the conduct more specifically than the other, other circuits have relied upon Batchelder to hold that a prosecutor has authority to proceed under either of two overlapping statutes, even when the more recent statute is far more specific in proscribing the conduct at issue, so long as there is no express congressional intent to the contrary. See United States v. Fern, 696 F.2d 1269, 1273-74 (11th Cir.1983) (upholding conviction under 18 U.S.C. Sec. 1001 for false statement to revenue agent despite arguably applicable specific prohibition of false statements to the Internal Revenue Service in 26 U.S.C. Sec. 7207); United States v. Mackie, 681 F.2d 1121, 1122 (9th Cir.1982) (upholding convictions under Migratory Bird Treaty Act, 16 U.S.C. Secs. 703 & 707(b) despite more specific and later enacted Bald and Golden Eagle Protection Act, 16 U.S.C. Sec. 668(a)); United States v. Anderez, 661 F.2d 404, 407 & n. 9 (5th Cir.1981) (upholding conviction under 18 U.S.C. Sec. 1001 despite more specific and later enacted prohibition under Currency and Foreign Transactions Reporting Act, 31 U.S.C. Secs. 1101 & 1058); United States v. Brien, 617 F.2d 299, 309-11 (1st Cir.) (more specific anti-fraud provisions of Commodity Futures Trading Act, 7 U.S.C. Sec. 6o, did not impliedly repeal pertinent portions of pre-existing general mail and wire fraud statutes, 18 U.S.C. Secs. 1341 & 1343), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980). See also United States v. Schaffner, 715 F.2d 1099, 1102 (6th Cir.1983); United States v. Computer Sciences Corp., 689 F.2d 1181, 1185-87 (4th Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983); United States v. Adler, 623 F.2d 1287, 1290 (8th Cir.1980).

In interpreting the issue presented herein, we draw upon this line of cases that relies on Batchelder to hold that absent evidence of congressional intent to repeal, when a new statute overlaps a portion of an older one, the two statutes should be permitted to coexist unless the two are mutually exclusive. Herein, both Sec. 510 and Sec. 641 can coexist. They merely provide two different alternative...