*1 of this ac- “persistent prosecution plaintiffs’ strong catalytic was a factor
tion of America UNITED STATES JA of the Bell memorandum.” issuance had plaintiffs It also found that the Eddie Lee ALSTON a/k/a Eddie out in their policyobjective set achieved Lee, Appellant. complaint publicizing amended second — No. 77-2050. correcting Department’s the Justice rights prose- deferring prior state civil Court Appeals, United States cutions. Id. District Columbia Circuit. sure, fathoming Attorney Gen- To June Argued motives is not the easiest tasks. eral’s Decided Oct. Nevertheless, conclude, I careful after record, that the District Court review awarding
did not abuse its discretion in
attorneys’ appellees “prevailing fees to
parties.”
VI attorneys’ provisions of the fees civil encourage
rights statutes were enacted “to injured by
individuals racial discrimination * * judicial Newman to seek relief Inc., Piggie Enterprises, Park construing attorneys’ Courts these provisions must strive
fees to further this
goal. majority decision Congress’ will defeat in en-
court
acting against Section 1988insofar as suits government
the federal are concerned. An purposes, language,
examination of the provides
legislative history of Section
ample support for the conclusion Con-
gress attorneys’ intended to authorize fees against
awards under the
Act. respectfully
I dissent. *2 Tuttle, Washington, D. C.
Allan Abbot (appointed appellant. Court), by this Adams, Atty., U. S. Whitney M. Asst. C., Earl J. Sil- Washington, with whom D. bert, Peter E. Terry, Atty., John A. U. S. George, Ray- Shaughnessy Brian W. Banoun, Attys., Wash- mond Asst. U. S. brief, ington, C., appel- on D. lee. BAZELON,
Before Judge, Senior Circuit congressional intent, requiring vacation of TUTTLE,* Judge Senior Circuit for the two or Furthermore, four convictions. Circuit, ROBB, Fifth Judge. mailings at issue here cannot sustain con- victions under the mail statute be- Opinion for the filed Court Senior *3 cause occurred after scheme to Judge Circuit BAZELON. defraud Finally, had reached fruition. we Dissenting vacate opinion Judge filed on imposed sentences counts 27 through ROBB. 29 of the because they indictment maximum, exceed the statutory we and re- BAZELON, Judge: Senior Circuit mand for resentencing in accordance with Appellant was by jury convicted on all 18 U.S.C. opinion.6 1014 and this § counts thirty-five of a count indictment judgment remainder of the of the District charging violations of both federal and Dis- Court is affirmed.7 trict of Columbia statutes. offenses
stemmed from a appellant scheme in which I. paid would be accomplice to have an delete from, adverse information and add ficti- MULTIPLE CONVICTIONS UNDER to, tious favorable information the compu- FEDERAL AND D.C. LAW terized credit files of individuals who had gave Each fraudulent credit transaction difficulty obtaining credit. The altered rise multiple to charges against Alston. In credit ap- records would then be sent for transaction, applica- one an altered credit proval institutions, lending to various ulti- report tion and an altered credit sent mately allowing these individuals to by teletype (counts fraud) wire 13 and chase automobiles or other items. The in- (count to a federally savings bank insured dictment, only eight which was on based statements), applicant false transactions, credit included one count of obtained an from the bank automobile loan twenty-five conspiracy,1 counts of mail2 (count 34, and the pretenses), D.C. false (counts 22-26), wire3 fraud 2-21 and bank notified the dealer about loan three counts of false statements to a feder- telephone (count 20, fraud). wire In a ally (counts 27-29),4 insured bank and six transaction, second an individual applied for counts of felony pretenses D.C. false improvement a home from a federally loan (counts 30-35).5 (count 28, insured bank federal false state- multiple
Certain of the ments), convictions under teleeopied credit bureau an al- both federal contrary and local law are (count 14, to tered credit record to the bank * Sitting by designation pursuant posed years, to 28 U.S.C. sentences of ten months to three 294(d). § concurrent with each other but consecutive to imposed through the sentences on counts (1976). 1. 18 § U.S.C. through Counts 27 29 of the renumbered indict- ment, however, are federal false statements (1976). 2. 18 U.S.C. § charges carrying a maximum sentence of two years; thus, imposed (1976). sentences of five 3. 18 U.S.C. § years on these counts must be vacated. 4. § U.S.C. Appellant argues also court the trial 5. 22 D.C.Code declining poll jury erred both in to concern- segment during a television news broadcast sentence, imposing In the District Court inad- trial, allowing prosecutor and in vertently copy referred to a of the indictment appellant concerning plea cross-examine bar- other than the renumbered indictment returned gaining subject by appel- after the was raised Jury. opin- the Grand All references in this light lant on direct examination. In ion are to the renumbered indictment. whole, including record as a the various cau- imposed The District Court concurrent sen- tionary jury respect instructions twenty years tences of months to five on matters, these we find no abuse of discretion 29,” through eight counts “1 months to by the trial court. years through two on counts “30 32.” On 35,” through counts “33 the District Court im- pretenses false fraud), statute and either the feder- applicant obtained
wire In (count pretenses). D.C. false al false statute or the federal statements transactions, applicants obtained four other mail and wire Because of fraud statutes. company from a finance automobile loans the similar the false purposes underlying (counts 30, 31, pre- 32 and D.C. statutes, pretenses we and false statements transactions, fraud tenses); in these wire intend Congress think that did automobile charged for each time the punishments presented in the circumstances application telecopied dealer hand, we discern a here. On the other do 11), (counts 2, company the finance 9 and congressional impose multiple intent telecopied the credit bureau an altered cred- punishments when an act or transaction (counts 3, lender record to the violates both the false and the telephoned notice of and the lender mail wire statutes. or *4 17, 18, (counts loan to the dealer 21). each charged 19 and Mail fraud was A. completed
time the
mailed a
sales
dealer
(counts
through
contract
to the lender
statute, 22
The D.C. false
transactions,
26).
in-
remaining
Two
which
(1973), provides
that
D.C.Code
§
attempts
volved unsuccessful
to obtain
in
“[wjhoever,
any
pretense, with
false
loans,
federal
false
triggered charges of
defraud,
any person
tent
obtains from
(count 29)
wire fraud
statements
value,”
any
shall be
anything
service or
of
(counts 4, 5,
8).
subjected
up to three
imprisonment
years.
stat
The federal false statements
problems
This case raises
that flow from
ute,
(1976), provides
charges against
an
a defendant.
U.S.C. §
overkill of
any false
Pyramiding charges
particularly
knowingly
is
trouble-
makes
“[w]hoever
Columbia,
some in
where
the District of
report,
statement or
.
.
for the
joined
local and
can be
in
federal offenses
action of
pose
influencing
any way
of
pursuant
one indictment
to 11 D.C.Code
can
any [federally
bank”
insured]
(1973).
years.
two
imprisoned
be
for not more than
Appellant argues
multiple
con-
separate
Congress clearly defined
victions under federal and local law denied
provision
“each
offenses in each statute:
equal protection
him
of the laws. Subse-
the other
which
requires proof of a fact
quent
submission of
case
States,
v.
Blockburger
does not.”
decision, this court has clarified the method
180,182,
299, 304,
76 L.Ed.
U.S.
challenges
which we
analyze
will
to con-
Ohio,
see Brown
victions
law
under both federal and local
(1977).
2221,
Yet some fraudulent applications of our reluctance multiply might loan, result grant of a punishments absent a clear and here,14 leg- definite occurred resulting in separate crimi- islative directive.” Simpson v. United charges nal based on the same act or acts. 6, 15-16, case, proof In this of the federal false state- Accordingly, we di- charge ments proof coincided with rect vacation of the convictions under either D.C. false pretenses charge, except for the *5 (false counts 27 and statements) or element obtaining the loan: the “false (false counts 33 pretenses) and 34 of the statement” knowingly made was a “false indictment, renumbered appropriate re- made; representation”knowingly “pur- sentencing appellant. pose of influencing the action” of the bank was the “intent to defraud” the bank to B. loan;
obtain a
and a
having
bank
federally
deposits
insured
was the
party”
“defrauded
We turn now to the multiple punish
acting in
applica-
reliance on the fraudulent
ments under the
or wire fraud
federal mail
Thus,
tion.
in the context of this case the
pretenses
statutes and the D.C. false
stat
allege
two counts
essentially the same of- ute. The mail17 and wire18 fraud statutes
g.,
Potts,
11. E.
United States v.
Knight,
U.S.App.D.C.
540 F.2d
16. United States
v.
(5th
1976);
Savatino,
1974),
Cir.
(D.C.
quot-
States v.
509 F.2d
361-62
Cir.
denied,
(2d
1973),
485 F.2d
Cir.
cert.
Canty,
United States v.
money
property
or
clearly
question
The statutes
upon
each statute
tenses. The focus of
separate
define
offenses. Conviction
instrumentality of comm
misuse of the
proof
only
wire
requires
mail or
fraud
protected
interest
to be
defraud,
unication.20
(1)
two elements:
a scheme to
clearly dis
statutes is
(2)
under these federal
wires for the
use of the mails or
Conviction for
safeguard
executing
the scheme.22
interest
property
tinct from
of several
pretenses requires proof
false
have
courts
by the local statute. Several
elements,
require
not
and does
additional
to authorize
Congress intended
found that
or wires.23 Since
proof
mails
of use of the
mail
under both the
or
multiple punishment
requires proof
each
of a fact that
other
and other federal fraud
fraud statute
wire
not,
the “same
clearly
are
does
Congress
We conclude that
like
statutes.21
Thus,
Blockburger.
offense” under
the mail or wire
intended violations of
wise
prohibit
clause does not
jeopardy
double
separately punishable
statute to be
under these statutes.
multiple punishments
of the local
from violations
second consti
Appellant advances a
statute.
the mul
question
tutional
in his claim
estab-
analytical
Under the
framework
equal protec
tiple punishments denied him
Dorsey, supra,
we
lished in United States
tion
claim rests on
of the laws. This
inquiry:
a
next consider
constitutional
outside the
assumption that no defendant
punish
Congress
if
intends
[E]ven
subject
District of
Columbia would
violating two statu-
twice for
defendant
the De
such
because
punishment
double
jeopardy
tory provisions,
policy
the double
bars
partment of Justice’s Petite24
multiple punishment
prosecutions
clause
such
bar
successive state-federal
The Petite
“the
single
statutory pro-
the two
same act or acts.”25
at
trial if
*6
730,
(2d Cir.) (mail
obtaining money
property by
2
579 F.2d
731 & n.
and
or
means of
denied,
pretenses,
fraud), cert.
or
fraudulent
wire fraud and securities
by
991,
592,
transmits
or causes
to be transmitted
439 U.S.
99 S.Ct.
II. unmindful and other credit that installment DEFRAUD INTENT TO problems of created financial sales have evi argues that the Appellant also for consumers and proportions substantial de the intent not establish dence did are finan- Many alike. consumers creditors under the required for convictions outstanding cially incapable paying of statutes, and mail and wire fraud debts, Conse- intentions.34 despite good Conceding pretenses statute. the local false a scheme quently, we cannot sanction and credit records applications that the loan fraudulently whereby would-be borrowers appli to allow were falsified in order not otherwise be would obtain loans that credit, appellant neverthe cants to obtain them, whether regardless of available to was no intent to that there less contends repay long so they might have intended applicants intended to defraud because the doing so. capable as of retention of a and because repay the loans goods made security interest III.
loans risk free.
requisite
intent under the feder
USE OF THE MAILS
may be
al mail and wire fraud statutes
appellant asserts that his
Finally,
the circum
totality
inferred from the
of
five counts of mail fraud
convictions on the
proven by direct
stances and need not be
(counts 22-26)
Each count
cannot stand.
Where,
here,
the relevant
evidence.32
an installment
mailing
arises from the
misrepresen
documents contained material
automo
sales contract to the lender
designed
tations
to induce an extension of
that, because
Appellant argues
bile dealer.
made,
credit that would not otherwise be
mailings
applicant
these
after each
occurred
reasonably
jury
could
infer intent
automobile, they
had
an
possession
taken
addition, the misrepresenta
defraud.33 In
to defraud had
occurred after the scheme
tions in each transaction were made on two
sufficiently
were not
fruition and
reached
key
people acting
documents and
several
to fall within the
connected to the fraud
concert,
increasing
thus
the likelihood
correct,
appellant is
scope
the statute.
If
that the creditor would be deceived as to
invalid.
Unit
then
are
See
the convictions
the nature of the financial risk involved.
Maze,
S.Ct.
support
jury’s
We
believe these facts
be added to those of the state for the same act high level of of the current 34. For discussion supra. or acts. See note 29 To the extent that inability consumer debt and of the financial policy satisfactory be- strikes a balance creditors, many repay consumers to 8, 1979, vindicating tween societal interests and avoid- TIME, NEWSWEEK, 46-54; Jan. at defendants, ing may fairly unfairness to Dec. at 53. appropriate said that a similar District of Columbia?
539 (1944), Supreme perpetrator the the L.Ed. 88 Court to aid the continuation or involving fraudulently held that a scheme concealment of the fraudulent scheme. 414 completed checks once the obtained was U.S. at (quoting at 650 United S.Ct. checks were cashed. The Court reasoned Sampson, States v. 83 S.Ct. the intended that defendants had to receive Thus, (1962)). the mail money, money and that the had been re- inapplicable statute was the mail- “irrevocably” ceived when cashed the ings. Thus, banks payor checks. when the mailed Appellant that, here since the argues ob- the checks to the drawee bank for collec- ject of the scheme to obtain an was automo- tion, the mailings purpose were not the bile, it once the car reached was fruition executing the scheme. See id. at driven off lot. The the dealer’s Govern- Parr v. Similarly, United ment, hand, on the other contends that the object was to obtain credit and use of the (1960), L.Ed.2d the defendants had car over the period. Under this theo- gasoline products obtained and other ry, the mailing of the conditional sales con- by services the use of a unauthorized credit tract after applicant the loan had obtained issued employer. card to their The defend- credit car and a would be within charged ants were with mail fraud for hav- the coverage of the statute. sending “caused” the of invoices to the We believe that the scheme to defraud sending employer payments and the mailing reached the fruition before of each issuer. the the The Court held convictions conditional sales contract. dealer’s ground invalid on the that defendants’ mailing contract, of the which contained the goods scheme reached fruition when the terms payment assignment of the received, and services were because “[i]t institution, lending contract neither them, any was immaterial or to consum- e., (i. furthered scheme objective of the scheme, compa- mation of the how [oil obtaining applicant) a loan nor ny] payment. would . its collect” served representa- to conceal the fraudulent at Most recently, Id. S.Ct. at 1184. Although signing tions.35 of the install- Maze, supra, in United States v. the Court ment contemplat- contract have been a mailings ruled that of credit card sales in- step obtaining possession toward bank, voices merchants to a car, we holder, subsequent believe mailing bank to the credit card could not immaterial support perpetrated upon mail to the fraud fraud convictions because the defendant, card, the lender We who had stolen the credit the borrower.36 therefore vacate the irrevocably goods had received the on counts 22 through convictions mailings grounds services before the occurred. 26 on the the mailings Nor were the subsequent mailings did executing” constitute “for “ ” ‘deliberate, planned use of mails’ by scheme to obtain loans.37 Maze, result, See impose United door to such States v. U.S. at 402- which would OS, greater penalties S.Ct. 645. repay criminal on those who intentionally loans than on those who default. (quoting See id. at Kann supra, 323 U.S. at recognize vacating 37. We these convic- length tions appellant’s will not reduce the unnecessary sentence, We believe it to decide the exact maximum since the mail fraud sen- culminated, point remaining at which tences this scheme wheth- were with the concurrent sen- approved conspiracy er it be when tences on the lender the loan or and wire fraud However, signed. appellate counts. when installment sales contract was this does not bar only and, mailings necessary, We decide that the at issue review when correction. See coverage Maryland, 784, 787-91, remote to too be within the intended Benton v. of the mail fraud statute. that, Knight, We also note under the Government’s theory, regular mailing (D.C.Cir. even the of each install- United States v. Can- *9 payment ty, U.S.App.D.C. ment could constitute a violation of 152 469 F.2d 126 & (D.C.Cir. open Hooper, the mail fraud decline n.14 statute. We to the 540 (1974); 275 v. 42 L.Ed.2d United States IV. Cir.), cert. Owen, 492 F.2d 1103 reasons, vacate the we foregoing the Por denied, 42 95 419 U.S. respect District Court
judgment of the v. Es (1974); L.Ed.2d 180 United States 33 and counts through to counts denied, Cir.), kow, (2d cert. indictment, we remand for 34 of the L.Ed.2d 544 398 U.S. with 18 resentencing accordance U.S.C. opinion. The remainder and this mailing of my opinion Furthermore in the judgment the is affirmed. promoted conceal the written contracts It is so ordered. was within of the fraud and therefore ment statute. United condemnation of the the ROBB, part: dissenting Judge, 75, 83 S.Ct. Sampson, v. States my opinion was sufficient evi- In there v. Pol mailings dence to show lack, U.S.App.D.C. 534 F.2d to contracts the lenders conditional sales denied, (1976), to de- were in furtherance of scheme (1977); United States v. L.Ed.2d Accordingly I would affirm con- fraud. Eskow, supra, at 1069. 422 F.2d through 26. on counts 22 viction of Alston holdings in the court’s I in the other concur
opinion.1 purchaser was re- of an automobile from a lender and
quired apply for credit agree would approved before a dealer When sales contract. a conditional Petitioner, KYLE, W. Richard appli- of the loan gave oral lender v. through the a contract was sent cation INTERSTATE COMMERCE assignment of the provided mails which COMMISSION, rights and warranted that dealer’s Respondent. representations appli- in the credit chaser’s Receipt the written cation were true. OSWALD, Petitioner, Robert L. regular, through the was a contract mails necessary contemplated step con- COMMERCE COMMIS- INTERSTATE transaction. These summation of Systems Protection SION and Merit to demonstrate that facts sufficient Board, Respondents. mailings were in furtherance defraud, meaning scheme to within STONE, Petitioner, Paul A. the statute. defraud of the scheme to HEALTH, OF EDUCA- DEPARTMENT was to obtain credit and use of an automo WELFARE, Respondent. TION AND period. any of the bile over the loan If 79-1307, Nos. 79-1345 and 79-1505. representations respect in the contract with history there purchaser’s financial Appeals, United States Court proved the lender free after to be false District of Columbia Circuit. demand immediate rescind the loan and Oct. short, mailing payment. of the written In As Jan. Amended in the exe step contracts was an essential defraud. See Unit cution of scheme to Marando, (2d 504 F.2d States 1000, 95
Cir.), cert. in n.31. not subscribe to dicta I do 605 & n.3 (D.C.Cir. 1970).