U.S. v. van den Berg, No. 92-10533

• Decision Date: 23 September 1993
• Docket Number: No. 92-10533
• Citation: 5 F.3d 439
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pieter VAN DEN BERG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 439

5 F.3d 439

UNITED STATES of America, Plaintiff-Appellee, v. Pieter VAN DEN BERG, Defendant-Appellant.

No. 92-10533.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 11, 1993.

Decided Sept. 23, 1993.

Daniel Barton (argued), Susan J. Wolfe (on briefs), Nolan & Armstrong, Palo Alto, CA, for defendant-appellant.

Ross W. Nadel, Asst. U.S. Atty., San Francisco, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before REINHARDT and LEAVY, Circuit Judges, and MERHIGE ^*, District Judge.

REINHARDT, Circuit Judge:

Having entered a conditional plea of guilty to violating the Anti-Apartheid Act, Pieter van den Berg appeals the denial of his motion to dismiss the prosecution on the ground of abatement. Because we conclude that the General Savings Statute applies to the Act, we affirm.

I. Facts and Proceedings

Over President Reagan's veto, Congress passed the Comprehensive Anti-Apartheid Act of 1986, codified at 22 U.S.C. section 5001 et seq. The Act established United States policy regarding South Africa and imposed significant sanctions against its white minority government. Violations of the sanctions provisions could lead to either civil or criminal liability. 22 U.S.C. Sec. 5113(b). Congress provided that the subchapter imposing the sanctions (Title III) would automatically "terminate" if the South African government took five steps towards democratization. ¹ Sec. 5061(a).

On February 15, 1991 van den Berg was indicted on two counts of importing onion seeds in violation of Title III of the Act, 22 U.S.C. section 5069(1), and one count of conspiracy to violate the Act. On July 10, 1991, while the prosecution was pending, President Bush signed Executive Order 12769, which declared that the government of South Africa had met the five conditions imposed by Congress and that the sanctions were, as of that date, terminated. Soon thereafter van den Berg filed a motion to dismiss the indictment, arguing that the termination of Title III had abated all pending prosecutions. The district judge denied the motion on the ground that the prosecution had been preserved by the General Savings Statute, 1 U.S.C. section 109.

Several months later, in accordance with Fed.R.Crim.P. 11(a)(2), van den Berg entered a conditional plea of guilty to one count of illegal importation of onion seeds, reserving his right to appeal the denial of his motion to dismiss. He was sentenced to three years probation and community service, and fined. The two remaining counts of the indictment were dismissed. Van den Berg then filed this timely appeal of the denial of his motion to dismiss. Because the issue presented in this case is one of statutory construction, our review is de novo.

II. Discussion

It is well established that when a statute is repealed or otherwise becomes inoperative no further enforcement proceedings can take place unless "competent authority" has kept the statute alive for that purpose. Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 432, 92 S.Ct. 2247, 2273, 33 L.Ed.2d 11 (1972). The issue before us is whether Title III of the Anti-Apartheid Act has been so maintained. The primary dispute between the parties is whether the General Savings Statute, 1 U.S.C. section 109, applies. The statute provides:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability. The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability. (emphasis added)

The specific question we must answer is whether Title III was a "temporary statute" within the meaning of section 109. Another way of putting the issue is to ask whether the General Savings Statute is intended to be all-encompassing.

Section 109 is derived from Revised Statutes section 13, 16 Stat. 432, which was passed in 1871 to alter the common law rule that the repeal or reenactment of a statute abates all pending prosecutions. Warden v. Marrero, 417 U.S. 653, 660, 94 S.Ct. 2532, 2536, 41 L.Ed.2d 383 (1974). As originally enacted, the General Savings Statute prevented abatement only with regard to repealed statutes. Ordinarily, the statutes that Congress repealed were permanent statutes--ones not scheduled to expire or terminate on the happening of any event or any established date. Thus, from a practical standpoint, the anti-abatement provision applied to permanent statutes exclusively.

In 1943 then-Attorney General Biddle, recognizing the shortcomings of the General Savings Statute, wrote to the Speaker of the House of Representatives requesting legislation to deal with abatement in the context of a statute "that expires by its own terms." H.R.Rep. No. 261, 78th Cong. 1st Sess. 1 (1943). The suggested amendment was enacted "to make applicable to violations of temporary statutes the same rule that is now in effect with respect to offenses against statutes that have been repealed." Id. Thus, after the 1944 amendments, the General Savings Statute prevented abatement with regard to both "repealed" and "expired" statutes. In other words, the post-amendment statute covered both "permanent" and "temporary" legislation.

Unfortunately, Congress did not see fit to provide a definition for the phrase "temporary statute". When a term is not defined by a statute, it is to be construed in accord with its ordinary or natural meaning. Smith v. United States, --- U.S. ----, ----, 113 S.Ct. 2050, 2054, 124 L.Ed.2d 138 (1993). Van den Berg argues that Title III was not a "temporary statute" because it did not have a definite end date. He points out that the South African government might never have fulfilled the conditions imposed by Congress and the sanctions might thus have become permanent. He also argues that the language of section 109 demonstrates that temporary statutes "expire" and that by providing that Title III of the Anti-Apartheid Act would "terminate" Congress intended it to fall within a different class of statute. He urges that Title III was an "indefinite" or "conditional" provision rather than a "temporary" one. The government responds that Title III was a "temporary statute" because it was intended to last only for a limited time--until certain conditions were met. The government also contends that there is no difference between a statute that "expires" and one that "terminates". Implicit in the government's argument is the view that there are only permanent and temporary statutes, and that there is no third class of statutes, called "indefinite" or "conditional". ²

As an initial matter, we reject van den Berg's argument that a temporary statute "expires" rather than "terminates". On several occasions Congress has provided for the "termination" of a statute that would be classified as "temporary" even under van den Berg's definition--one that becomes inoperative on a specific date. E.g., The Emergency Price Control Act of 1942, 56 Stat. 23, 24; The Veterans' Emergency Housing Act of 1946, 60 Stat. 207, 208. Moreover, case law discussing the end dates of "temporary statutes" often uses "terminated" and "expired" interchangeably. See, e.g., Allen v. Grand Central Aircraft Co., 347 U.S. 535, 542 n. 7, 549 n. 16, 553-55, 74 S.Ct. 745, 749 n. 7, 753 n. 16, 755-57, 98 L.Ed. 933 (1954); Stillman v. United States, 177 F.2d 607, 612, 613 & n. 5 (9th Cir.1949). Thus, we find no significance to Congress' use of one term rather than another in the Anti-Apartheid Act.

We next consider van den Berg's argument that Title III represents a third category of statutes: one that is neither "temporary" nor "permanent". He correctly notes that Title III differs in one important respect from every other statute that has been held to be "temporary" within the meaning of section 109. Every decision cited to us, or of which we are otherwise aware, involves a law that contained a specific date on which the statute was set to "expire" or "terminate". ³ Although Congress has in certain instances provided that "temporary statutes" would terminate before a given date if certain conditions were fulfilled, ⁴ Congress also established an expiration date in those statutes, beyond which the legislation could not continue in effect. Thus, there was simply no possibility that the acts in question could have remained in effect indefinitely. Accordingly, the critical question is whether a statute, like Title III of the Anti-Apartheid Act, that is designed to become inoperative only upon the happening of conditions that may never occur is a "temporary statute" for purposes of the General Savings Statute. ⁵

In interpreting a statutory provision we must begin with its language. Pennsylvania Public Welfare Dept. v. Davenport, 495 U.S. 552, 557, 110 S.Ct. 2126, 2130, 109 L.Ed.2d 588 (1990). In attempting to define the term "temporary statute" both parties rely heavily upon Black's Law Dictionary 1411, 1464 (6th ed. 1990). There, "temporary" is defined as:

That which is to last for a limited time only, as distinguished from that which is perpetual, or indefinite, in its duration. Opposite of permanent. Thus, temporary alimony is granted for the support of the wife pending the action for divorce; a temporary receiver is one appointed to take charge of property until a hearing is had and an adjudication made.

According to Black's a "temporary statute" is

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