United States v. Young

• Decision Date: 11 July 1977
• Docket Number: No. 11183.,11183.
• Citation: 376 A.2d 809
• Parties: UNITED STATES, Appellant, v. Joseph YOUNG, Appellee.
• Court: D.C. Court of Appeals

376 A.2d 809

UNITED STATES, Appellant, v. Joseph YOUNG, Appellee.

No. 11183.

District of Columbia Court of Appeals.

Argued January 4, 1977.

Decided July 11, 1977.

Rehearing En Banc Denied October 18, 1977.

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Richard H. Saltsman, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., John A. Terry and Steven R. Schaars, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant. J. Ramsey Johnson, Asst. U.S. Atty., entered an appearance for appellant.

Paul L. Knight, appointed by this court, with whom V. Thomas Lankford, Washington, D.C., was on the brief, for appellee. Postargument, Paul L. Knight, Washington, D.C., withdrew and V. Thomas Lankford was appointed as successor counsel for appellee.

Before NEBEKER, HARRIS and MACK, Associate Judges.

NEBEKER, Associate Judge:

Appellee was indicted on April 14, 1976, for threatening to injure the person and property of Jeanette Barney in violation of D.C.Code 1973, § 22-2307. On May 3, 1976, appellee moved to dismiss the indictment claiming that it did not allege all the elements necessary to constitute the offense, that it was ambiguous, and that it was insufficiently detailed. Subsequent hearings on appellee's motion resulted in dismissal of the indictment. The United States appeals pursuant to D.C.Code 1973, § 23-104(c). We reverse.

Three central issues, as contained in appellee's motion to dismiss the indictment, are raised by this appeal. First, is specific intent to extort a necessary element of threats to injure another person under D.C. Code 1973, § 22-2307? Second, does the fact that appellee's conduct may be punishable under D.C.Code 1973, § 22-507, which provides misdemeanor characterization for conduct identical to that proscribed by part of the felony statute, D.C.Code 1973, § 22-2307, require dismissal of the indictment? Third, are the allegations of the indictment sufficient to charge an offense under § 22-2307 inasmuch as the indictment did not contain the actual words of the alleged threat, nor did it allege that the threats were made knowingly and intentionally?

We find no such ambiguity or constitutional infirmity on the face of the statute or from the fact that another provision of the Code punishes identical conduct as would cast a shadow over either provision or impute an intent to extort as an element of the offense. Moreover, a defendant has no constitutional right to elect which of two applicable statutes will be the basis of his indictment. Such a choice is properly left to prosecutorial discretion. Finally, we find the indictment to have been sufficiently worded to charge an offense.

The first two factors which prompted dismissal of the indictment center around the fact that both § 22-507, a misdemeanor statute, and § 22-2307, a later-enacted felony statute, prohibit identical conduct, i. e., threats to do bodily injury.¹ The threats-to-do-personal-injury overlap, according to appellee, is impermissible and creates an inherent ambiguity in application, necessitating an examination of legislative history to clarify what conduct was sought to be proscribed by each statute. The legislative history of § 22-2307, as interpreted by appellee, in conjunction with the fact that the statute appears in that portion of the D.C. Code which pertains to extortion, suggests to appellee that the statute was aimed at extortion. Therefore, according to appellee, the trial court correctly held that this additional element must be alleged and proved under § 22-2307.

The trial court's ruling was based on the erroneous premise that the existence of § 22-507 must mean that essentially different conduct was meant to be proscribed by § 22-2307. It was assumed that otherwise the statutes would suffer constitutional infirmity because of vagueness, ambiguity, or denial of equal protection/due process. It was also assumed that the two sections would provide disparate punishment for precisely the same offense and thus permit the prosecuting attorney to exercise unbridled discretion. Such conclusions are not warranted.

It is well established that where the evidence relied upon to prove a violation of a felony statute is identical to the evidence needed to show a violation of the misdemeanor statute, the felony statute is not rendered void for vagueness or unconstitutional in any other sense, nor does it require that the conduct be prosecuted as a misdemeanor rather than as the felony. Palmore v. United States, D.C.App., 290 A.2d 573 (1972), aff'd, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973); Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967); United States v. Coppola, 300 F.Supp. 932, 934 (D.Conn.1969). The defendant cannot complain merely because the charge against him is brought under the statute carrying the more severe penalty. United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975); Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956); Rosenberg v. United States, 346 U.S. 273, 294, 73 S.Ct. 1152, 97 L.Ed. 1607 (1953); Hutcherson v. United States, 120 U.S.App.D.C. 274, 345 F.2d 964 (1965); Ehrlich v. United States, 238 F.2d 481 (5th Cir. 1956).

In Hutcherson, supra, the defendant was convicted of violating federal narcotics statutes. He argued on appeal that he was denied due process because he was indicted and convicted under federal statutes instead of under the District of Columbia Code. His point was that the offenses denounced by the federal and local statutes were identical and that he was entitled to be prosecuted under the latter because the penalty for violating it was less severe.² That court of appeals rejected this theory stating that the defendant had no constitutional right to elect which of two applicable statutes was to be the basis of his indictment and prosecution. That choice was to be made by the United States Attorney. Hutcherson v. United States, supra, 120 U.S.App.D.C. at 277, 345 F.2d at 967. Underlying this conclusion is the acknowledgment that there is no constitutional infirmity in the coexistence of statutes proscribing identical conduct. There is no substantial difference between the federal/District of Columbia statute situation posited by Hutcherson and the instant case in which the two statutes are both D.C.Code provisions.

The discretion to choose under which statute to prosecute is vested in the prosecuting attorney and the grand jury. If the facts show a violation of two or more statutes, an election may be made to prosecute under either. Berra v. United States, supra; United States v. Liddy, 542 F.2d 76 (1976); United States v. Shepard, 169 U.S. App.D.C. 353, 515 F.2d 1324 (1975); Deutsch v. Aderhold, 80 F.2d 677 (5th Cir. 1935). This discretion is necessarily broad. See Newman v. United States, supra. See also Fay v. Miller, 87 U.S.App.D.C. 168, 183 F.2d 986 (1950).

In the absence of an express statement of congressional intent, the courts are obliged to permit enforcement of both statutes. United States v. Shepard, supra, 169 U.S.App.D.C. at 365, 515 F.2d at 1336. Thus, it is not valid to argue that where the statutes cover identical conduct, the latter in time should effect a repeal of the former. Repeals by implication are not favored. The Supreme Court in Rosenberg v. United States, supra, 346 U.S. at 294-95, 73 S.Ct. at 1163, reasserted the rule that

"[w]hen there are two acts upon the same subject, the rule is to give effect to both if possible. . . . The intention of the legislature to repeal `must be clear and manifest.'. . . It is not sufficient . . . to establish that subsequent laws cover some or even all of the cases provided for by [the prior act]; for they may be merely affirmative, or cumulative, or auxiliary.' There must be `a positive repugnancy between the provisions of the new law and those of the old.'" United States v. Borden Co., 308 U.S. 188, 198 , 84 L.Ed. 181 [190 (1939)]. . . .

We find no such "positive repugnancy" as would operate to repeal the earlier statute — § 22-507.

The language of both statutes is simple and direct. The words of the statutes should be construed according to their ordinary sense and with the meaning commonly attributed to them. United States v. Thompson, D.C.App., 347 A.2d 581, 583 (1975). If the meaning of a statute is plain on its face, resort to legislative history or other extrinsic aids to assist in its interpretation is not necessary.

It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the law-making body which passed it, the sole function of the courts is to enforce it according to its terms. . . .

Where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise. . . . [Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917).]

Finally, we reject appellee's argument that § 22-2307 is in pari materia with § 22-2306 (which specifically refers to extortion), and that, therefore, the two sections should be read together as addressing extortion. It is true that subsequent to their passage both sections were placed by the codifier in the District of Columbia Criminal Code under Chapter 23, which is entitled, LIBEL — BLACKMAIL — EXTORTION. However, these sections, as passed by Congress in Title X of the Omnibus Crime Control and Safe Streets Act of 1968, were entitled, "Prohibiting Extortion and Threats in the District of Columbia". See Pub.L. No. 90-351, 82 Stat. 238 (June 19, 1968). While certainly § 22-2307 would apply to extortionate threats, this equivalent rather than subordinate reference to extortion and threats reveals that Congress was proscribing threats as an offense in and of itself without the element of extortion as a requisite objective. Accordingly, § 22-2307 cannot be read as implicitly...