U.S. v. Marvin, 81-2255

• Decision Date: 03 September 1982
• Docket Number: No. 81-2255,81-2255
• Citation: 687 F.2d 1221
• Parties: 11 Fed. R. Evid. Serv. 1012 UNITED STATES of America, Appellee, v. Jack L. MARVIN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1221

687 F.2d 1221

11 Fed. R. Evid. Serv. 1012

UNITED STATES of America, Appellee, v. Jack L. MARVIN, Appellant.

No. 81-2255.

United States Court of Appeals Eighth Circuit.

Submitted April 15, 1982.

Decided Sept. 3, 1982.

Robert G. Ulrich, U. S. Atty., W. D. Mo., Richard J. Marien, Atty., U. S. Dept. of Justice, Kansas City, Mo., for appellee.

James R. Wyrsch, Charles E. Atwell, Kansas City, Mo., for appellant.

Before McMILLIAN, Circuit Judge, STEPHENSON, Senior Circuit Judge, and ARNOLD, Circuit Judge.

ARNOLD, Circuit Judge.

Defendant Jack L. Marvin was convicted of three food-stamp offenses: one count of unlawfully acquiring and possessing United States Department of Agriculture food-stamp coupons in violation of 7 U.S.C. § 2024(b), and two counts of aiding and abetting one Anthony R. Astorino in violating the same statute. ¹ The District Court ² sentenced Marvin to one year's imprisonment, with all but 90 days suspended, plus two years' probation to follow the 90 days of incarceration. This portion of the sentence was imposed concurrently on all three counts. In addition, a fine of $5,000 was imposed on Count I.

The principal question presented is what state of mind a person must have in order to be guilty of violating 7 U.S.C. § 2024(b). The Government contends, and the District Court held, that if a defendant knows that what he has acquired or is possessing is food stamps, and if the acquisition or possession is not authorized by law, a crime has been committed, even if the defendant is unaware that his acquisition or possession is unauthorized. Defendant argues, on the other hand, that the District Court should have instructed the jury that it could not convict him of the substantive offense unless it found that he knew he was violating the law. We agree and reverse the conviction on Count I. We affirm as to the two aiding-and-abetting counts, however, because as to them a proper instruction was given. The sentence imposed therefore remains intact, except for the $5,000 fine on Count I.

I.

Prior to his conviction, Marvin had been a practicing chiropractor for approximately 25 years, primarily in Kansas City, Missouri. As part of its crackdown on food-stamp fraud in the Kansas City area, the United States Department of Agriculture enlisted the aid of Jackie Clark in some of its investigations. ³ Clark knew Dr. Marvin, who had treated several members of Clark's family for a number of years. Working as an investigative aide for the government, Clark had assisted in about 42 cases concerning food-stamp fraud and abuse involving more than 60 individuals.

The basic procedure used by the government in its investigations consisted of supplying Jackie Clark with various amounts of food stamps (usually from $500 to $1,000) and then allowing Clark to solicit buyers of the stamps or coupons at less than their face value. Defendant Marvin was allegedly involved on at least four occasions when such illegal transactions occurred. In the first of these transactions, dated March 10, 1980, Clark was given $500 in food stamps by investigators from the Agriculture Department. He entered defendant's chiropractic clinic and later returned to the federal agents with $200 in cash. This transaction was the subject of Count I and the only one in which Marvin allegedly purchased the food stamps directly from Clark.

Other transactions occurred on April 9, 1980, May 22, 1980, and July 14, 1980, in which Marvin allegedly acted as an aider and abettor by either arranging the transactions or providing the necessary money for the purchases of the food coupons. The purchases on these dates constituted the substance of Counts II, III, and IV, respectively. Investigating agents conducted audio or video surveillance of the April 9 and May 22 transactions and also of a purchase of coupons on August 6, 1980, which was not the subject of any counts of the indictment. Much of the government's evidence, however, depended on the testimony of investigative aide Jackie Clark and, to a lesser degree, on that of several federal agents who supervised Clark's actions.

On appeal, defendant Marvin raises a number of issues as grounds for reversal of his convictions. He contends that the District Court erred in the following respects: (1) refusing to instruct the jury on the issue of specific intent as a requirement for a violation of 7 U.S.C. § 2024(b); (2) denying Marvin's motion to dismiss the indictment because it was not sufficiently specific and rejecting his argument that the statute is unconstitutionally vague on its face and as applied; (3) admitting evidence of a food-stamp transaction occurring on August 6, 1980; (4) admitting into evidence portions of tape-recorded conversations of April 9, 1980, and May 22, 1980; (5) limiting Marvin's cross-examination of Jackie Clark; (6) overruling defendant's objections to the prosecutor's closing argument; (7) denying his motions for acquittal; and (8) denying defendant's motion to dismiss based upon alleged improper government conduct in violation of the Due Process Clause of the Fifth Amendment.

II.

Section 2024(b) of Title 7 of the United States Code, in pertinent part, provides:

(W)hoever knowingly uses, transfers, acquires ... or possesses (food) coupons ... in any manner not authorized by this chapter or the regulations issued pursuant to this chapter shall, if such coupons are of a value of $100 or more, be guilty of a felony ....

Defendant Marvin argues that the language of the statute, reflected in the indictment, ⁴ required a jury instruction on specific intent. The District Court refused to give such an instruction proposed by the defendant and, instead, submitted to the jury an instruction offered by the government that did not require Marvin to possess the specific intent to violate the statute. ⁵ Defendant contends that this was error and that the word "knowingly" in § 2024(b) required the government to prove that he knew that his actions were in violation of the law. We must agree.

In United States v. Marshall, 683 F.2d 1212 (8th Cir. 1982), in the course of affirming convictions under both 7 U.S.C. § 2024(b) and 7 U.S.C. § 2024(c), we remarked that "knowledge that the food stamps in question had been acquired in a manner not authorized by the Act ... is an element of both offenses." At 1214. In that case, however, both sides agreed that knowledge of unlawful acquisition had to be proved by the government. The District Court had so instructed the jury. The issue in this Court was whether certain evidence said by the government to be relevant on the issue of knowledge had been properly admitted. The statement in the Marshall opinion, therefore, though certainly not inadvertently made, is, strictly speaking, only dictum. We approach the issue anew, therefore, free of the compulsion of any binding authority. Neither side has cited an appellate opinion directly in point, and we have found none.

The government argues that purchase of food stamps is only a malum prohibitum, a crime unknown to the common law, a so-called "regulatory offense," as to which no mens rea need be shown. Certainly there are such offenses. Congress may make an act criminal without regard to the actor's state of mind, subject of course to the Constitution. The question before us is simply one of statutory construction, whether Congress in 7 U.S.C. § 2024(b) has chosen to exercise its power to disregard the maxim, Actus non facit reum, nisi mens sit rea. "(C)ourts obviously must follow Congress' intent as to the required level of mental culpability for any particular offense." United States v. Bailey, 444 U.S. 394, 406, 100 S.Ct. 624, 632, 62 L.Ed.2d 575 (1980). In considering this question we are mindful that the crime involved is a felony, punishable by imprisonment in a federal penitentiary for up to five years. The normal purpose of the criminal law is to condemn and punish conduct that society regards as immoral. Usually the stigma of criminal conviction is not visited upon citizens who are not morally to blame because they did not know they were doing wrong. If Congress wishes to depart from that norm, it may do so, but in general it must manifest its intention by "affirmative instruction." Morissette v. United States, 342 U.S. 246, 273, 72 S.Ct. 240, 255, 96 L.Ed. 288 (1952). It may require less evidence to convince a court that such an "affirmative instruction" has been given when the crime involved is a "regulatory offense" with no common-law analogue. But the fact remains that we should not attribute to Congress the intention to make a felony out of a morally innocent act, unless Congress has clearly announced its desire to do so.

We begin as always with the words of the statute, quoted above. The government stresses that the adverb "knowingly" immediately precedes the verbs "uses, transfers, acquires," etc., and is some distance away from the crucial clause, "in any manner not authorized by this chapter." It contrasts the language of § 2024(c) ⁶ in order to show that Congress knew how to place the word "knowingly" in such a way as to require unambiguously that a person know he is acting contrary to law. Violation of § 2024(c), the argument runs, requires specific intent, ⁷ but violation of § 2024(b) does not. We disagree. The different placement of the words "knowingly" and "knowing" in the two subsections of the statute is too weak a reed to support the argument that Congress intended to displace a time-honored principle of criminal jurisprudence. For one thing, purely as a verbal matter, the word "knowingly" in subsection (b) may naturally be read to modify the entire remainder of the clause in which it appears, including the phrase, "in any manner not authorized," etc. To read "knowingly" as having nothing to do with the phrase, "in any manner not authorized," is, we suppose, verbally tenable, but it is not the only meaning the words will bear, nor even, we think, the more...