United States v. Freeman

• Decision Date: 06 February 1973
• Docket Number: No. 72-1486.,72-1486.
• Citation: 473 F.2d 7
• Parties: UNITED STATES of America, Appellee, v. Lamont Gatewood FREEMAN, Appellant, Ollie James Davis and Lee Truman Stevenson.
• Court: U.S. Court of Appeals — Eighth Circuit

473 F.2d 7 (1973)

UNITED STATES of America, Appellee, v. Lamont Gatewood FREEMAN, Appellant, Ollie James Davis and Lee Truman Stevenson.

No. 72-1486.

United States Court of Appeals, Eighth Circuit.

Submitted January 11, 1973.

Decided February 6, 1973.

Daniel J. Spellman, Perry, Iowa, for appellant.

Robert L. Fanter, Asst. U.S. Atty., Des Moines, Iowa, for appellee.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

HEANEY, Circuit Judge.

Lamont Gatewood Freeman, along with two other men, was convicted in the United States District Court for the Southern District of Iowa of violating 18 U.S.C. §§ 2314¹ and 2 (1970). The defendant made a timely motion for Arrest of Judgment on the ground that the indictment under which he was convicted was fatally defective in that it failed to allege and charge an essential element of the crime charged. The trial court denied his motion. We reverse.

The defendant was charged under the following indictment:

"On the 25th day of April, 1972, LAMONT GATEWOOD FREEMAN, OLLIE JAMES DAVIS and LEE TRUMAN STEPHENSON, with unlawful and fraudulent intent, did transport and cause to be transported in interstate commerce from Omaha, Nebraska to Council Bluffs, Iowa in the Southern District of Iowa a check, to wit: check no. 3289, dated April 24, 1972, of George H. Thomas Realty Company, Inc., Omaha, Nebraska, in the amount of $150.00 payable to Henry T. Johnson, signed George H. Thomas, drawn on Ames Plaza Bank, Omaha, Nebraska, account no. 9-077-6 to be used in forging a security.

"This is a violation of Title 18, U.S.C. §§ 2314 and 2."

The government's theory in this case is that "the paper on which the printings of check no. 3289 were placed" has an independent significance and existence of its own apart from the legal significance of the writing that was placed upon it — i. e., the fact that it was a check. As such, the government contends that the paper was a "thing to be used or fitted to be used in forging a security," and that, accordingly, the fifth paragraph of 18 U.S.C. § 2314 (1970) was violated. See, n. 1, supra. It argues that this is true even though the paper as originally stolen in Nebraska was a printed but not completed check, which was apparently filled in and signed in Nebraska and then transported to Iowa where it was fraudulently endorsed and cashed. The defendant contends that this paper was a check and by the definition in 18 U.S.C. § 2311 (1970) was itself a "security" and that it cannot simultaneously be a "thing to be used or fitted to be used in forging a security" (itself). The issue, as we see it, is whether or not Congress intended that the paper on which a check is written may be a "* * * tool, implement or thing used or fitted to be used in * * * forging * * * any security * * *" under the fifth paragraph of 18 U.S.C. § 2314 (1970). See, n. 1, supra.

As a general rule, penal statutes must be strictly construed. See, e.g., Yates v. United States, 354 U.S. 298, 304, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). It is also true that the intent of Congress is to be gleaned from the plain and ordinary meaning of the language used in the statute. See, e.g., Hanover Bank v. Commissioner, 369 U.S. 672, 687, 82 S.Ct. 1080, 8 L.Ed.2d 187 (1962). We view the plain and ordinary meaning of the language at issue here, not to include the paper on which the check was written — the article which is itself the subject of the forgery. Moreover, we believe that Congress meant by this paragraph to prohibit transportation of counterfeiting plates, printing presses and similar paraphernalia. This interpretation is strongly supported by the legislative history of this statute.

The origin of 18 U.S.C. § 2314 (1970) is the National Stolen Property Act. Act of May 22, 1934, ch. 333, 48 Stat. 794, 795. The 1934 Act did not prohibit interstate transportation of instruments to be used in forging, but a 1939 amendment added that prohibition. This amendment, in part, amended § 3 of the National Stolen Property Act to provide:

"* * * Whoever with unlawful or fraudulent intent shall transport, or cause to be transported in interstate or foreign commerce, any bed piece, bed plate, roll, plate, die, seal, stone, type, or other tool, implement, or thing used or fitted to be used in falsely making, forging, altering, or counterfeiting any security, or any part thereof, shall be punished by a fine of not more than $10,000 or by imprisonment for not more than ten years, or both * * *". (Emphasis added.)

Act of August 3, 1939, ch. 413, § 1, 53 Stat. 1178.

The doctrine of ejusdem generis provides that "when there are general words following particular and specific words, the former must be confined to things of the same kind." Sutherland, Statutory Construction, 814 (2d ed. J. Lewis 1904). See, e. g., Bumpus v. United States, 325 F.2d 264 (10th Cir. 1963); Haili v. United States, 260 F.2d 744 (9th Cir.1958). This being the rule, it is clear to us that at least in 1939, it can be said that Congress did not intend that the paper on which a check was written was a tool, implement or thing to be used in forging securities. Indeed, the specific words refer to the type of instruments which we indicated earlier was the ordinary and plain meaning of the general words.

It is, of course, true that the current statute, 18 U.S.C. § 2314 (1970), does not contain the specific words which were included in the 1939 amendment. However, the particular words remained in the statute, 18 U.S.C. § 415 (1940),...