U.S. v. Ruster
| Decision Date | 02 August 1983 |
| Docket Number | No. 82-1477,82-1477 |
| Citation | 712 F.2d 409 |
| Parties | , 13 Fed. R. Evid. Serv. 1498 UNITED STATES of America, Plaintiff-Appellee, v. Gary D. RUSTER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert Dondero, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.
J. Frank McCabe, San Francisco, Cal., for defendant-appellant.
Appeal from the United States District Court for the Northern District of California.
Before BROWNING, Chief Judge, and DUNIWAY and ALARCON, Circuit Judges.
Ruster appeals from his conviction on six counts charging filing applications for Supplemental Security Income under false and fraudulent names and social security numbers, in violation of 18 U.S.C. § 287. At trial, he did not dispute the government's allegation that he had fraudulently collected a total of $134,590 in disability payments, but claimed insanity. He was fined $60,000 and sentenced to three consecutive five-year prison terms and five years probation.
Ruster appeals from the denial of his motion to dismiss the indictment on the ground that he should not have been prosecuted under 18 U.S.C. § 287, but under 42 U.S.C. § 408.
Title 18, Section 287, the general false claims statute, states:
Whoever makes or presents to any person or officer in the civil ... service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
Title 42, Section 408, provided during the relevant time period that:
Whoever--
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(b) makes ... any false statement ... of a material fact in any application for any payment or for a disability determination ...; or
(c) ... makes ... any false statement ... of a material fact for use in determining rights to payment under this subchapter; or
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(f) ... with intent to deceive the Secretary as to his true identity ... furnishes ... false information to the Secretary with respect to [the social security program] or;
(g) for the purpose of causing an increase in any payment authorized under this subchapter ... or for the purpose of causing a payment ... to be made when no payment is authorized thereunder, or for the purpose of obtaining ... any payment ... to which he ... is not entitled ...--
(1) ... with intent to deceive, uses a social security account number, assigned by the Secretary ... on the basis of false information furnished to the Secretary by him ...; or
(2) with intent to deceive, falsely represents a number to be the social security account number assigned by the Secretary to him ...;
shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or imprisoned for not more than one year, or both.
Ruster prefers the lesser penalty of § 408.
We do not infer from the enactment of a specific statute that Congress intended to preempt, supersede, or impliedly repeal a more general statute that proscribes the same conduct. United States v. Mackie, 9 Cir., 1982, 681 F.2d 1121, 1122-1123. As we said in United States v. Jones, 9 Cir., 1979, 607 F.2d 269:
The rule we apply is straightforward: "where an act violates more than one statute, the Government may elect to prosecute under either unless the congressional history indicates that Congress intended to disallow the use of the more general statute.
p. 271. We find nothing in the congressional history indicating that the Congress intended to disallow the use of § 287, the more general statute. See also United States v. Gilliland, 1941, 312 U.S. 86, 95-96, 61 S.Ct. 518, 523, 85 L.Ed. 598; Edgington v. United States, 1896, 164 U.S. 361, 362-363, 17 S.Ct. 72, 41 L.Ed. 467; Cohen v. United States, 9 Cir., 1953, 201 F.2d 386, 392-393. Kniess v. United States, 9 Cir., 1969, 413 F.2d 752, cited by Ruster, does not require a different result, for the reasons stated in Jones.
Ruster next argues that the trial judge erred in admitting in evidence references to several previous false claims and breakins in which he was involved. Government counsel referred to the previous incidents during cross-examination of Ruster's expert psychiatrist. Ruster argues that although the evidence may have been admissible under F.R.Evid. 404(b), its probative value was outweighed by its prejudice, F.R.Evid. 403.
This argument is meritless. Because of the manner in which the case was tried, the sole issue for the jury was whether Ruster was legally sane when he made the false claims for which he was charged. As the trial judge recognized, the previous similar criminal acts were relevant to the jury's evaluation of Ruster's expert's testimony as to his mental state during the later offenses. RT Vol. VII at 777-789.
"When insanity is presented as a defense, 'the trial judge should be free in his admission of all possibly relevant evidence.' " United States v. Ives, 9 Cir., 1979, 609 F.2d 930, 932, quoting United States v. Hartfield, 9 Cir., 1975, 513 F.2d 254, 260. The judge's consideration of the issue and explanation, in chambers, for his decision to admit the references to the earlier incidents demonstrate that, contrary to Ruster's contention, he properly exercised his discretion in the matter. We do not "require a mechanical recitation of Rule 403's formula on the record as a prerequisite to admitting evidence under Rule 404(b)." United States v. Bradshaw, 9 Cir., 1982, 690 F.2d 704, 709, quoting United States v. Sangrey, 9 Cir., 1978, 586 F.2d 1312, 1315. Neither, contrary to Ruster's argument, do we require in such a case as this, where there are numerous similar previous incidents, that the trial judge separately balance on the record the probative value against the prejudice that might arise from the mention of each individual incident.
Finally, Ruster argues that the trial judge relied on misinformation in sentencing him to three consecutive...
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