U.S. v. Tomeny

• Decision Date: 24 June 1998
• Docket Number: Nos. 97-3089,97-3090,s. 97-3089
• Citation: 144 F.3d 749
• Parties: 11 Fla. L. Weekly Fed. C 1513 UNITED STATES of America, Plaintiff-Appellee, v. Theodore S. TOMENY, Jr. and Steve Tomeny, Inc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 749

144 F.3d 749

11 Fla. L. Weekly Fed. C 1513

UNITED STATES of America, Plaintiff-Appellee, v. Theodore S. TOMENY, Jr. and Steve Tomeny, Inc., Defendants-Appellants.

Nos. 97-3089, 97-3090.

United States Court of Appeals, Eleventh Circuit.

June 24, 1998.

Victor L. Roy, III, Edward J. Gonzalez, III, Baton Rouge, LA, for Defendant-Appellant.

Charles R. Wilson, Linda McNamara, U.S. Attys., Tampa, FL, Peter J. Murtha, U.S. Dept. of Justice, Wildlife and Marine Resources Section, Washington, DC, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before CARNES, Circuit Judge, KRAVITCH, Senior Circuit Judge, and MILLS ^*, Senior District Judge.

KRAVITCH, Senior Circuit Judge:

Having pleaded guilty to one count each of making false statements in violation of 18 U.S.C. § 1001, Theodore S. Tomeny ("Tomeny") and Steve Tomeny, Inc. ("Tomeny, Inc.") appeal their convictions. Their sole contention is that 16 U.S.C. § 1857(1)(I), the criminal false statement provision of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1882 ("the Magnuson Act"), preempts 18 U.S.C. § 1001, the general federal criminal false statement provision. ¹ We hold that appellants did not waive the right to challenge their convictions, but we reject their preemption argument and thus affirm.

I.

In December 1992, the National Marine Fisheries Service ("NMFS"), acting pursuant to its authority under the Magnuson Act, issued an emergency interim rule establishing vessel trip limits for red snapper. See Reef Fish Fishery of the Gulf of Mexico, 57 Fed.Reg. 62,237 (1992) (emergency interim rule) (to be codified at 50 C.F.R. § 641.4(m) & (n)). ² The rule imposed a trip limit of 2,000 pounds for any vessel with a red snapper endorsement on its reef fish permit and a trip limit of 200 pounds for a permitted vessel without such an endorsement. See id. An applicant could obtain an endorsement by documenting that a particular vessel that he or she owned or operated had landed 5000 pounds or more of red snapper in at least two of the three years of 1990, 1991, and 1992. See id.

Since 1989, Tomeny, as president and owner of Tomeny, Inc., operated the F/V Southerner, a fishing vessel owned by Tomeny, Inc. In January 1993, Tomeny submitted an application for a red snapper endorsement for the F/V Southerner to the NMFS Regional Office in St. Petersburg, Florida. In the application, Tomeny certified that the vessel had met the qualifying threshold of 5000 pounds in both 1990 and 1992, even though he knew that the vessel had not met the threshold in 1990. Although the NMFS initially informed Tomeny that the F/V Southerner was eligible for a red snapper endorsement for the 1993 season, the NMFS subsequently determined that Tomeny had submitted false information to obtain the endorsement.

A grand jury indicted both Tomeny and Tomeny, Inc. on one count each of making a false statement in violation of 18 U.S.C. § 1001. Appellants filed a motion to dismiss based on the theory that, under the facts of the case, 16 U.S.C. § 1857(1)(I) preempted 18 U.S.C. § 1001. The district court denied this motion.

Appellants thereafter pleaded guilty to violating 18 U.S.C. § 1001, and appellants signed a written stipulation concerning the factual basis for the guilty plea. The district court sentenced Tomeny to six months' home confinement and three years' probation and fined him $20,000. The district court fined Tomeny, Inc. $12,000. This appeal followed.

II.

Appellants' sole argument on appeal is that 16 U.S.C. § 1857(1)(I) preempts 18 U.S.C. § 1001. The government argues that appellants waived this issue by entering a guilty plea not conditioned upon the right to appeal the district court's adverse rulings on pre-trial motions.

Although an unconditional guilty plea does waive non-jurisdictional defects in the proceedings against a defendant, see United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir.1986), it does not waive jurisdictional defects, see United States v. Meacham, 626 F.2d 503, 510 (5th Cir.1980). Whether a claim is "jurisdictional" depends on "whether the claim can be resolved by examining the face of the indictment or the record at the time of the plea without requiring further proceedings." United States v. Caperell, 938 F.2d 975, 977-78 (9th Cir.1991). Accordingly, this court has held that a claim that the indictment failed to charge an offense is a jurisdictional claim not waived by the entry of a guilty plea. See Meacham, 626 F.2d at 510.

In arguing that 16 U.S.C. § 1857(1)(I) preempts 18 U.S.C. § 1001 as applied to the facts of this case, appellants effectively claim that the indictment failed to charge a legitimate offense. We hold that this claim is jurisdictional and that appellants did not waive it upon pleading guilty.

III.

We turn, therefore, to the merits of appellants' contention. Appellants argue that the government was required to indict them under 16 U.S.C. § 1857(1)(I) rather than 18 U.S.C. § 1001 because § 1857(1)(I) preempts § 1001. Upon close examination of the relevant statutory provisions and case-law, we reject this contention.

16 U.S.C. § 1857 states in pertinent part:

It is unlawful-

(1) for any person

(I) to knowingly and willfully submit to a Council, the Secretary, or the Governor of a State false information (including but not limited to, false information regarding the capacity and extent to which a United States fish processor, on an annual basis, will process a portion of the optimum yield of a fishery that will be harvested by fishing vessels of the United States) regarding any matter that the Council, Secretary, or Governor is considering in the course of carrying out this chapter.

16 U.S.C. § 1857(1)(I) was enacted in 1986. See Pub.L. No. 99-659, § 107, 100 Stat. 3706, 3713 (1986). A violation of § 1857(1)(I) is "punishable by a fine of not more than $100,000, or imprisonment for not more than 6 months or both," 16 U.S.C. § 1859(b), and is classified as a misdemeanor, see 18 U.S.C. § 3559(a) (stating that an offense is a misdemeanor, where not otherwise specified, if the maximum authorized term of imprisonment is six months or less).

By contrast, 18 U.S.C. § 1001 is a general felony provision enacted more than one hundred years ago. See United States v. Richardson, 8 F.3d 15, 17 (9th Cir.1993) (stating that § 1001 has been in existence since at least 1871) (citing United States v. Bedore, 455 F.2d 1109, 1110-11 (9th Cir.1972)). It states in relevant part:

(a) ... [W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully-

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact (2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title or imprisoned not more than 5 years, or both.

The Supreme Court's opinion in United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), guides our analysis of appellants' claim that 16 U.S.C. § 1857(1)(I) preempts 18 U.S.C. § 1001. In Batchelder, the Court held that "when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants." See id. at 123-24, 99 S.Ct. at 2204. Explicitly rejecting the defendant's argument that the more lenient statute preempted the more severe statute, the Court stated: "[I]t is not enough to show that the two statutes produce differing results when applied to the same factual situation. Rather, the legislative intent to repeal must be manifest in the positive repugnancy between the provisions." Id. at 122, 99 S.Ct. at 2203 (citations and internal quotations omitted). Under Batchelder, therefore, appellants must prove that a "positive repugnancy" exists between the two provisions in order to show that § 1857(1)(I) preempts § 1001.

In analyzing appellants' preemption argument, we follow the two-step approach indicated by this court in United States v. Anderez, 661 F.2d 404, 406-08 (5th Cir. Unit B Nov.1981). ³ First, we must determine whether "the language of the statutes themselves," Anderez, 661 F.2d at 406, demonstrates Congress's intent that 16 U.S.C. § 1857(1)(I) preempt 18 U.S.C. § 1001. If the statutory language does not demand a finding of preemption, then we must determine whether the legislative history shows "clear and manifest" evidence of Congress's intent that § 1857(1)(I) preempt § 1001. See United States v. Gottesman, 724 F.2d 1517, 1520 (11th Cir.1984) (citations omitted); see also Anderez, 661 F.2d at 407.

Commencing with the statutory language, we find no indication that Congress intended that 16 U.S.C. § 1857(1)(I) preempt 18 U.S.C. § 1001. Indeed, the Magnuson Act itself does not even mention or implicitly refer to § 1001. Accordingly, we hold that the statutory language does not demonstrate Congress's intent to preempt § 1001. ⁴

We also reject appellants' various attempts to locate in the statutes implicit evidence of Congress's intent that 16 U.S.C. § 1857(1)(I) preempt 18 U.S.C. § 1001. For example, appellants argue that the specific nature of § 1857(1)(I) indicates Congress's intent to preempt the more general § 1001. Preemption of a criminal provision, however, occurs only where Congress "clearly intended that one statute supplant another; the fact that one statute is more specific than the other is not sufficient." United States v. Hopkins, 916 F.2d 207, 218 (5th Cir.1990). ⁵ Accordingly, this court repeatedly has upheld convictions under 18 U.S.C. § 1001 even though the defendant's conduct also fell within the scope of more specific and more recently enacted false statement...