United States v. Bell

• Decision Date: 21 November 1973
• Docket Number: No. P-73-CR-2.,P-73-CR-2.
• Citation: 371 F. Supp. 220
• Parties: UNITED STATES of America v. Fred Louis BELL.
• Court: U.S. District Court — Eastern District of Texas

371 F. Supp. 220

UNITED STATES of America v. Fred Louis BELL.

No. P-73-CR-2.

United States District Court, E. D. Texas, Paris Division.

November 21, 1973.

Roby Hadden, U. S. Atty., Dennis Lewis, Asst. U. S. Atty., Tyler, Tex., for plaintiff.

James A. Johnston, Dallas, Tex., William H. Allison, Jr., Louisville, Ky., for defendant.

MEMORANDUM OPINION AND ORDER

JUSTICE, District Judge.

The defendant's motion to dismiss the indictment in this criminal action raises issues, apparently of first impression, regarding the alleged ex post facto application of the recently enacted statute concerning false declarations before a grand jury or court.¹

In its indictment, the United States charges that the defendant, Fred Louis Bell, in statements before a federal grand jury in 1968 and a federal district court in 1971, made "irreconcilably contradictory declarations material to the point in question" in violation of the false declarations statute. 18 U.S.C.A. § 1623(c). The government alleges that the first statement was made under oath on November 12, 1968, before a federal grand jury hearing evidence concerning a bank robbery, and that the second statement was made under oath on June 10, 1971, following the defendant's indictment, in a criminal action in federal district court.² Since the statute under which he is charged did not become effective until October 15, 1970 — after his first statement in 1968 but before his second statement in 1971 — the defendant contends that its application to him in this criminal action is ex post facto and requires dismissal of the indictment. The court agrees.

The United States Constitution declares that "No Bill of Attainder or ex post facto Law shall be passed." U.S. Const. art. 1 § 9, cl. 3. Judicial construction of this constitutional provision came as early as 1798. In that year, Justice Chase in Calder v. Bull, 3 U.S. (3 Dall.) 385, 390 (1798), announced for the court that

I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive. In my opinion, the true distinction is between ex post facto laws, and retrospective laws. Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law: the former only are prohibited.

See also Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898); In re Medley, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835 (1890); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138 (1809) (Marshal, C. J.) ("An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed.").

Enacted to supplement the general criminal statute governing perjury,³ the false declaration statute is

intended to facilitate Federal perjury prosecutions and establishes a new false declaration provision applicable in Federal grand jury and court proceedings. It abandons the so-called two-witness and direct evidence rule in such prosecutions and authorizes a conviction based on irreconcilably inconsistent declarations under oath. As amended, this statute also permits recantation to be a bar to prosecution if the declaration has not substantially affected the proceeding or it has not become manifest that the declaration's falsity has been or will be exposed.

1970 U.S.Code Cong.Admin.News, pp. 4007, 4008; see also pp. 4023-4024.

In considering the effect of this statute in light of the law governing the application of ex post facto laws, the United States concedes that the false declaration statute is penal in nature; that it increases the maximum punishment previously available under the general perjury statute from imprisonment for five years and a $5,000 fine to imprisonment for five years and $10,000 fine; and that it changes the evidentiary procedure from that required under the general perjury statute, enabling the government to rely on the less onerous proof by way of irreconcilably inconsistent declarations rather than the two-witness and direct evidence rules. The government argues, however, that since the second statement was made after the new law, and the first statement was made before the new law, the operation of the false declaration statute is not entirely retrospective and thus, as applied, is not ex post facto.

In support of its argument, the government refers the court to a number of cases. The government cites, for example, Samuels v. McCurdy, 267 U.S. 188, 45 S.Ct. 264, 69 L.Ed. 568 (1925), in which the defendant acquired and possessed liquor at his home before the enactment of a statute prohibiting possession of alcoholic beverages and continued to possess the beverages after enactment of the statute. The court held that application of the statute was not ex post facto. Unlike the instant case, however, in which facts relied upon to establish one of the elements of proof occurred prior to enactment of the statute, the proof necessary to establish an offense in Samuels was based entirely on facts occurring after enactment of the statute. Thus the elements of proof required to show illegal possession were shown by post-statute conduct without reference to any pre-statute conduct.

The case of Chicago & Alton Railroad Company v. Tranbarger, 238 U.S. 67, 35 S.Ct. 678, 59 L.Ed. 1204 (1915), cited by the government, supports this court's conclusion. This court made clear that the application of the statute requiring more extensive maintenance of roadbed facilities than that required prior to enactment of the statute was not ex post facto because the defendant continued to maintain the embankment in a manner prohibited by the statute after the date of its enactment. Similarly, other cases cited by the government concerning the so-called continuing offenses such as United States v. Trans-Missouri Freight Association, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897) (punishment for an agreement continuing after the date that it has been declared illegal is not ex post facto), and Leyvas v. United States, 371 F.2d 714 (9th Cir. 1967) (punishment for a conspiracy continuing after the date of enactment of a statute increasing punishment for such crime is not ex post facto), support this interpretation.

Cases involving application of the habitual offender statutes or felon disability statutes are, however, more closely analogous to the instant case. Application of an habitual offender statute, which provides for enhanced punishment upon proof of prior convictions, has been held not to be ex post facto in cases in which the conviction relied upon for enhancement occurred prior to the date of the passage of the habitual offender statute. McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901). Similarly, application of the felon disability statute, imposing criminal sanctions on persons who, as convicted felons, engage in certain conduct such as purchasing or possessing firearms, enacted after the date of such felony conviction, has been held not to be ex post facto. Cases v. United States, 131 F.2d 916, 920-921 (1st Cir. 1942), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943). See also Cody v. United States, 460 F.2d 34 (8th Cir. 1972); Smith v. United States, 312 F.2d 119 (10th Cir. 1963).

Relying on these habitual offender and felon disability cases, the government argues that application of the false declaration statute is not rendered ex post facto by the mere fortuity that one of the elements of the offense — that is, the making of the first statement on November 12, 1968 — occurred prior to the passage of the statute. To test this argument regarding the analogy of the habitual offender and felony disability statutes, this court is aided by the distinction announced by the Supreme Court in De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1155, 4 L.Ed.2d 1109 (1960):

The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction . . . comes about as a relevant incident to a regulation of a present situation .

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