United States v. Wright, CR. 76-0-88.

• Decision Date: 19 January 1977
• Docket Number: No. CR. 76-0-88.,CR. 76-0-88.
• Parties: UNITED STATES of America, Plaintiff, v. Ervin Everett WRIGHT et al., Defendants.
• Court: U.S. District Court — District of Nebraska

425 F. Supp. 1262

UNITED STATES of America, Plaintiff, v. Ervin Everett WRIGHT et al., Defendants.

No. CR. 76-0-88.

United States District Court, D. Nebraska.

January 19, 1977.

Daniel E. Wherry, U.S. Atty., Thomas D. Thalken, Asst. U.S. Atty., Omaha, Neb., for plaintiff.

John J. Respeliers, Omaha, Neb., for defendants.

MEMORANDUM OPINION

SCHATZ, District Judge.

The issue presented by defendant Ervin Everett Wright's motion to dismiss the indictment for failure to state a crime (Filing No. 7) is whether a quit claim deed is a "certificate of interest in property, tangible or intangible," within the definition of "security contained in 18 U.S.C. § 2311.

All parties agree that there are no reported decisions construing the statute either to include or exclude quit claim deeds. We are thus confronted with the task of determining whether the statute is intended to include quit claim deeds within its scope. In so doing we must bear in mind the principles that criminal statutes are to be strictly construed, United States v. Freeman, 473 F.2d 7 (8th Cir. 1973), and that the statute must be read in pari materia.

Title 18, United States Code, Section 2314, which prohibits inter alia interstate transportation of stolen or forged securities was enacted in 1934 as an extension of the Dyer Act. Section 2311 defines security as that term is used in Section 2314 to include:

Any note, stock certificate, bond, debenture, check, draft, warrant, traveler's check, letter of credit, warehouse receipt, negotiable bill of lading, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate; certificate of interest in property, tangible or intangible; instrument or document or writing evidencing ownership of goods, wares, and merchandise, or transferring or assigning any right, title, or interest in or to goods, wares, and merchandise; or, in general, any instrument commonly known as a "security", or any certificate of interest or participation in, temporary or interim certificate for, receipt for, warrant, or right to subscribe to or purchase any of the foregoing, or any forged, counterfeited, or spurious representation of any of the foregoing.

It has been suggested that:

There is nothing (in the legislative history of Section 2311) to indicate that Congress intended to have the list of specifically named instruments and documents construed in their broadest possible senses, rather, all were intended to be "included" within the scope of the meaning of "security" in its usual financial or commercial sense.

United States v. Canton, 470 F.2d 861 (2d Cir. 1972).

It is worth noting that the term security in Section 2311 contains language which is broader than the comparable definition in the federal securities acts. Specifically the language at issue here (certificates of interest in property) is an addition beyond the definition contained in the securities acts. Thus it is reasonable to infer that Congress intended that the definition contained in Section 2311 extend beyond the strict commercial understanding of that term to include any instrument "which has value in itself, is capable of being negotiated, and hence, is of value to a forger or a thief." Beam v. United States, 364 F.2d 756 (6th Cir. 1966).

In Merrill v. United States, 338 F.2d 763 (5th Cir. 1964), the Court observed:

Each of the "securities" specified in § 2311 consists of a single document

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