U.S. v. LeCoe

• Decision Date: 06 June 1991
• Docket Number: No. 90-30156,90-30156
• Citation: 936 F.2d 398
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tami M. LeCOE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 398

936 F.2d 398

UNITED STATES of America, Plaintiff-Appellee, v. Tami M. LeCOE, Defendant-Appellant.

No. 90-30156.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1990.

Decided June 6, 1991.

Jon R. Wilson, Boise, Idaho, for defendant-appellant.

Joanne P. Rodriguez, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee.

Before TANG, O'SCANNLAIN and LEAVY, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether the sentencing provision of the statute criminalizing forged endorsements of United States Treasury checks, 18 U.S.C. Sec. 510, is sufficiently ambiguous to warrant application of the rule of lenity.

I

Tami LeCoe is the second wife of Joseph E. LeCoe, a naval recruiter in Boise, Idaho. She married Joseph on April 1, 1983, two months after his divorce from his first wife, Pamela J. LeCoe.

The decree finalizing the divorce of Joseph and Pamela required Joseph to make eight monthly payments of $400 each to Pamela for her share of his military retirement. In addition, Joseph was ordered to make child support payments of $300 per month for the duration of the minority of the couple's two children. Joseph arranged to have these payments taken directly from his retirement pay; accordingly, the checks to Pamela were issued by the United States Treasury. For reasons not relevant to these proceedings, the checks to Pamela for the period February 1983 to September 1984 were sent to Joseph, who was in turn responsible for forwarding them to Pamela. Beginning in October 1984, Joseph arranged to have the checks mailed directly to Pamela.

Pamela eventually complained to authorities that she had received only five of the twenty-one checks due her from February 1983 to September 1984. In addition, she complained that she had not received her share of the couple's 1982 income tax refund. An investigation ensued, in which it was discovered that Tami had forged Pamela's name to several of the checks and deposited them into the joint account of Joseph and Tami. Tami had also forged Pamela's name onto a $600 cashier check, which represented Pamela's share of the 1982 income tax refund.

A federal grand jury handed down a twelve-count indictment against Tami on November 20, 1987. She was charged with five violations of 18 U.S.C. Sec. 495, ¹ and seven violations of 18 U.S.C. Sec. 510. ² Trial before a jury commenced in January 1990, resulting in Tami's conviction on four of the section 510 counts. Tami was found guilty of forging Treasury checks issued to Pamela in December 1983 and February, April, and May 1984. Each of the first three checks was for $400; the fourth was for $300. She was acquitted on all remaining counts.

Sentencing was scheduled for March 27, 1990. The court first considered Tami's motion to classify the convicted offenses as misdemeanors rather than felonies. ³ The court denied the motion, reiterating that the four convictions would be treated as felony convictions. The district court then suspended sentence for all four counts in lieu of a three-year term of probation. Tami was also ordered to pay restitution of $1,500.

This appeal followed. ⁴

II

Prior to November 1983, forged endorsements of Treasury checks were prosecuted under 18 U.S.C. Sec. 495, which penalizes anyone who "falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, contract, or other writing" with the intent of defrauding the United States. Although section 495 does not specifically outlaw forged endorsements of Treasury checks, such forgery has been deemed illegal under the "other writing" provision of the section. See Prussian v. United States, 282 U.S. 675, 679-80, 51 S.Ct. 223, 225, 75 L.Ed. 610 (1931) (clause "other writing" was intended to "extend[ ] the penal provisions of the statute to all writings of every class if forged for the purpose of obtaining money from an officer of the United States"). Violation of section 495 is a felony, punishable by imprisonment for up to ten years, a fine not to exceed $1,000, or both. ⁵

Section 495, however, did not adequately encompass the scope of culpable activity surrounding the wrongful cashing of Treasury checks. Senator DeConcini, when introducing remedial legislation, explained:

Presently, it is possible for a thief to steal a Treasury check endorsed by a payee, endorse his own name and obtain the proceeds without violating section 495. It is also possible for a thief to steal one or more Government checks or bonds and sell or exchange them to a middle man and not violate section 495. These kind of situations require the prosecutor to "hunt around" for a statute which often does not fit the crime. As a result, these cases are often either not prosecuted or the charges are dismissed.

129 Cong.Rec. S9342 (Statement of Sen. DeConcini). Accordingly, Senator DeConcini sponsored a bill to rectify these shortfalls. The bill, part of what soon became Public Law 98-151, is now codified at 18 U.S.C. Sec. 510. Section 510, in short, criminalizes forged endorsements of Treasury checks, bonds, or United States securities, including the fraudulent conduct not captured by section 495. As a general rule, a person convicted under section 510 may be imprisoned for up to ten years, fined up to $10,000, or both.

Section 510 also modified the law regarding forged endorsements of Treasury checks in another important respect. Specifically, subsection (c) provides that violations of the section that do not exceed $500 should be prosecuted as misdemeanors. The subsection provides in full that:

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.

While section 510 resolved several problems, it created some of its own. First, section 510 is silent as to whether it effected a partial repeal of section 495; resolution of this question was left to the courts. To date, the circuits that have considered this issue have unanimously concluded that section 510 was not intended as a partial repeal. See United States v. Edmonson, 792 F.2d 1492, 1497-98 (9th Cir.1986), cert. denied, 479 U.S. 1037, 107 S.Ct. 892, 93 L.Ed.2d 844 (1987); United States v. Oliver, 908 F.2d 260, 264 (8th Cir.1990); United States v. Barrett, 837 F.2d 933, 934-35 (10th Cir.1988); United States v. Cavada, 821 F.2d 1046, 1047 (5th Cir.), cert. denied, 484 U.S. 932, 108 S.Ct. 304, 98 L.Ed.2d 263 (1987); Edwards v. United States, 814 F.2d 486, 489-90 (7th Cir.1987). Thus, a forger of Treasury check endorsements may be prosecuted under either statute; a defendant who may qualify for misdemeanor prosecution under section 510 may therefore be prosecuted for a felony under section 495. See Edmonson, 792 F.2d at 1498; Oliver, 908 F.2d at 264; Cavada, 821 F.2d at 1047-48.

In addition to the partial repeal question, some litigants have questioned the clarity of section 510's sentencing provisions. Some, such as the appellant here, maintain that section 510 does not clearly indicate what checks may be aggregated to determine whether one qualifies for felony or misdemeanor prosecution under the section. One school of thought is that the value of all checks underlying an indictment may be aggregated, even if the charges in the indictment are unrelated and are separate offenses. Under this scheme, if the sum of any or all checks in any or all counts exceeds $500, then each individual section 510 violation in the indictment becomes a felony.

The contrasting viewpoint suggests that only checks underlying each individual count may be totalled. Thus, individual offenses that would otherwise be misdemeanors are not transmogrified into felonies simply because the sum total of all checks for all charged offenses exceeds $500.

To date, the question of subsection (c)'s clarity has resulted in only one published opinion. See United States v. Taylor, 869 F.2d 812 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 171, 107 L.Ed.2d 128 (1989). In a split decision, the Fifth Circuit concluded that both "common sense" and "plain meaning" of the statute required reading section 510 as "permit[ting] the court to aggregate the value of all checks that form the basis of a violation no matter whether the checks form the basis of one or of many chargeable offenses." Id. at 815. The court reasoned that since subsection (c) was itself a lenity provision, there was essentially no need for further leniency. See id. at 814. Moreover, the court noted that a contrary reading of section 510 would enable "crafty" or "habitual" criminals to commit repeated violations in small amounts without fear of felony prosecution. Id. at 815.

Judge Thornberry dissented. He believed that the statute was sufficiently ambiguous to require invocation of the rule of lenity. Id. at 816 (Thornberry, J., dissenting). Moreover, he noted that, as a matter of policy, it was unreasonable to believe that Congress intended to permit felony prosecution for minor offenses remote in both time and place. Id. at 817. Thus, Judge Thornberry adopted the view that only check amounts for each chargeable offense could be aggregated.

With this background, we turn to the merits of this appeal. We review questions of statutory construction and interpretation de novo. See United States v. Valencia-Roldan, 893 F.2d 1080, 1082 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 2181, 109 L.Ed.2d 509 (1990).

III

A

LeCoe contends that subsection (c) is ambiguous and, accordingly, must be construed in her favor under the rule of lenity. The rule of lenity provides that "ambiguity concerning the ambit of criminal statutes should be resolved in the favor of lenity." Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059...