PETITIONS FOR REHEARING AND SUGGESTION OF REHEARING IN BANC
(October 13, 1987, 11 Cir., 1987,
Both the government and defendant-appellant Duque have moved for rehearing. We take this opportunity to explain our denial of both motions for rehearing and to correct a point in our original opinion.
The government requests rehearing based on its reading of dicta in footnote 25 of our opinion,
United States v. Castro,
Defendant Duque has also requested a rehearing, objecting to our reading of the Federal. Bill of Lading Act (“FBLA” or “Act”) as encompassing bills of lading issued abroad. While further study of the statute and its history have revealed that we were incorrect to base, in part, our analysis of 49 U.S.C. sec. 81 on the United States Code heading for that section, 1 we are convinced thаt the result reached by our previous analysis remains correct.
A general guide to statutory construction states “that the mention of one thing implies the exclusion of another; expressio unius est exclusio alterius.” 73 Am.Jur.2d,
Statutes,
sec. 211, at 405.
See, e.g., Transamerica Mortgage Advisors, Inc. v. Lewis,
As is readily acknowledged, this principle has its limits and exceptions and
*443
cannot apply when the legislative history and context are contrary to such a reading of the statute.
2
See, e.g., Herman & MacLean v. Huddleston,
Appellant Duque argues that Congress, by making no mention in section 81 of goods transported from a foreign country to a statе, deliberately meant to exclude bills of lading related to foreign imports from the ambit of the act. While it is unnecessary to decide the full scope of section 81 because our decision rests on a different point, our impression is that Du-que’s reading of the section is contradicted by the Act’s legislative history. The ex-pressio unius rule seems therefore inapplicable here.
First, there is indication in the legislative history that Congress intended to include imports under the statute. The substantive discussion of the bill in the Senate Report begins with the statement: “The total exports and imports for the year 1915 amounted to $5,329,521,248.” S.Rep. No. 149, 64th Cong., 1st Sess. 1 (1916). Elsewhere, the Senate Report speaks of the *444 pending law as applying to “interstate and foreign commerce,” id. at 1, 2, without drawing any distinction between imports and exports.
Second, we note that the Federal Bill of Lading Act was pаssed to eliminate opportunities of irregularity and fraud with regard to the issuance of such bills, so as to encourage the advance of money to businesses by banks, with the bills as security. If banks could depend on the integrity of bills of lading, they could lend money on such instruments without fear of loss. See id. at 2-5; H.Rep. No. 847, 64th Cong., 1st Sess. 2-3 (1916). As the present case illustrates, fraud and confusion can occur in relation to bills of lading issued in forеign countries as well as in relation to bills of lading covering domestic shipments and exports. There is no indication in the legislative history that Congress intended only a partial solution to the problem it was attempting to solve. We think Congress intended the full solution.
Third, our inclination to interpret Section 81 as a partial, nonexclusive listing is buttressed by consideration of the general legal climate concеrning the extent of congressional authority over interstate and foreign commerce in 1916, when section 81 was drafted and enacted. There was considerable debate and uncertainty in 1916 as to Congress’s powers under the interstate commerce clause of the Constitution.
3
On the other hand, it was beyond dispute then, as now, that Congress had plenary powers to regulate the foreign commerсe of the United States.
See, e.g., Henderson v. Mayor,
92 U.S. (2 Otto) 259,
We think the legislative history shows that Congress wished the entire Act to reach as far as it could reach constitutionally. The listing in section 81 was to emphasize that certain grey areas were definitely included. The absence of any mention of intrastate commerce or of imports is not a limitation of the categories of traffic covered but merely an implicit aсknowl-edgement of Congress’s undisputed power to reach all foreign commerce of the United States and its then presumed lack of authority to reach any purely intrastate transactions.
For the above reasons we question whether Congress meant to exclude bills of lading covering imports from the general purview of the Act. Nevertheless, even if section 81 were conceded tо be an exhaustive listing and a limitation on the scope of the Act in general, the plain language of section 121 shows that section 81 was simply not meant to be limiting vis-a-vis section 121 in particular. Put differently, section 121 sets its own scope.
Assuming section 81 to be a limitation implies that there are other possible sorts of bills of lading that do not fall within the list set out in that section. 4 Furthermore, section 81 speaks only of “bills of lading issued by any common carried’ (emphasis added). The definitional section at the end of the Act defines the word “bill” as “bill of lading covered by this Act.” Consequently, throughout the sections dealing with duplicate bills, bills issued in parts, liability, responsibility for goods and so forth, the FBLA speaks of “a bill” or “the bill” or “the bill of lading.” In contrast, in section 121 the final substantive section of the Act, criminal penalties are imposed upon “any person” with regard to “any bill of lading” fraudulently *445 representing goods in intrastate or foreign commerce (emphаsis added).
The scope of section 121 is thus broader than what is expressly set out in section 81. We think Congress intended “any” in section 121 to mean “every” and “all.”
Cf. United States v. Kaercher,
Even if section 81 is a limiting section and the other provisions of the FBLA do not apply to bills of lading originating outside the United States, Congress intended to сriminalize any act by any person that results in an intentionally false bill of lading. Any other understanding of section 121 would lead to results inconsistent with common sense. Someone negotiating forged, worthless bills of lading to a bank in this country would be subject to punishment for bills purportedly dealing with a fictitious shipment from Kansas to New York or New York to Berlin, yet could escape punishment under section 121 by concocting bills оriginating in a foreign country, for example, a bill purportedly dealing with shipments from Berlin to New York. Absent a clear command from Congress expressed in the words of the Act, we are unwilling to assume that Congress intended such an unreasonable result.
See United States v. Mendoza,
Our reading of section 121 of the FBLA is not a change in the law, and it can and *446 does apply to appellant Duque. Our reading does not unduly broaden the explicit words of the statute nor does it give to them a meaning that no reasonable person would foresee upon reading them. 7 The words of the Act, themselves, are sufficiently explicit and unambiguous to have put defendant on notice that he risked prosecution for his use of false bills of lading. Title 49 U.S.C. sec. 121 expressly imposes punishment for use of any false bills of lading purporting to represent goods shipped “among the several States or with foreign nations.” In dealing with such false bills, appellant Duque took the risk that a court would reject his interpretation of 49 U.S.C. sec. 81 as limiting the reach of the criminal penalties imposed by section 121. We are aware of no opinion of any court that has held that prosecution under sectiоn 121 cannot reach false bills of lading originating abroad, purporting to represent goods shipped from abroad; there is therefore no law in this circuit or anywhere else upon which appellant Duque could reasonably rely.
For the above reasons, we therefore deny defendant Duque’s motion for rehearing. We also withdraw the last two paragraphs on p. 1049 (including accomрanying footnote 35) and the first complete paragraph on p. 1050 of our original opinion,
United States v. Castro,
No member of this panel nor other Judge in regular active service on the court having requested that the court be polled on rehearing in banc, Duque’s suggestion of rehearing in banc is denied.
Notes
. Titles and section heаdings can serve as limited interpretive aids if the statute itself is ambiguous.
See Scarborough v. Office of Personnel Management,
In the present case, however, further research has revealed that the heading to 49 U.S.C. sec. 81, "Transportation included,” was not part of the statute as passed by Congress,
see
39 Stat. 538, ch. 415, sec. 1, but was аdded subsequent to enactment by those responsible for codification of the legislation. This title cannot therefore properly be of aid in determining the intent of Congress as regards section 81.
See Hardin
v.
City Title & Escrow Co.,
As a final observation, not intended to excuse our own oversight, we note that it was the government, in its brief, that first argued the significance of "Transportation included” to support its position. While disputing the government’s interpretation of this language, appellant Duque did not, in either his reply brief or in his more recent motion for rehearing, point out that the heading was not рart of the original statute as passed by Congress. It was only during our consideration of Duque’s motion for rehearing that this court discovered the flaw in the government’s argument, that was inadvertently adopted by the court in its original opinion. This serves as a reminder to all participants in the adversarial legal system of our country that the quality of the decisions rendered by the judiciary depends in large part on the quality and correctness of arguments made and supported by the litigants.
. A discussion of the expressio unius idea is always necessarily accompanied by a discussion of its (imitations. The following excerpts suggest that this is perhaps a rule honored more in the breach than in the observance:
The maxim ... is not of universal, but of limited, use and application. It is an aid to construction, not a rule of law. It is not conclusive, is applicable only under certain conditions, is subject to exceptions, may not be used to create an ambiguity, and requires great caution in its application. 73 Am. Jur.2d, Statutes, sec. 212, at 405-06.
[T]he rule is a rule of statutory construction and not a rule of law. Thus, it can be overcome by a strong indication of contrary legislative intent or policy. 2A Sutherland Statutory Construction, sec. 47.23, at 194 (Sands 4th ed. 1984 rev.).
[T]he maxim is inapplicable if there is some special reason for mentioning one thing and none for mentioning another which is otherwise within the statute, so that the absence of any mention of such other will not exclude it. 82 C.J.S., Statutes, sec. 333, at 670.
Several Latin maxims masquerade as rules of interpretation while doing nothing more than describing results reached by other means. The best example is probably expres-sio unius est exclusio alterius, which is a rather elaborate, mysterious sounding, and anachronistic way of describing the negative impliсation. Far from being a rule, it is not even lexicographically accurate, because it is simply not true, generally, that the mere express conferral of a right or privilege in one kind of situation implies the denial of the equivalent right or privilege in other kinds. Sometimes it does and sometimes it does not, and whether it does or does not depends on the particular circumstances of cоntext. Without contextual support, therefore, there is not even a mild presumption here. Accordingly, this maxim is at best a description, after the fact, of what the court has discovered from context. R. Dickerson, The Interpretation and Application of Statutes 234-35 (1975).
. See S.Rep. No. 149, 64th Cong., 1st Sess., 5-9 (1916) (discussing constitutionality of pending law regulating bills of lading and concluding that as Congress can regulate instrumentalities of interstate commerce, so can it regulate the bills of lading as representatives and contracts of interstate business). We note that this discussion of constitutionality makes up over half of the Senate Report on the pending bill.
. 49 U.S.C. sec. 81 reads:
Bills of lading issued by any common carrier for the transportation of goods in any Territory of the United States, or the District of Columbia, or from a place in a State to a place in a foreign country, or from a plаce in one State to a place in another State, or from a place in one State to a place in the same State through another State or foreign country, shall be governed by this chapter.
. We acknowledge that international law may place some limitations upon Congress’s power to reach extraterritorial acts.
See, e.g., FTC v. Compagnie de Saint-Gobain-Pont-a-Mousson,
. We also note that the phrase “purporting to represent goods received for shipment among the several States or with foreign nations” of Section 121 was specifically added to prevent any dispute as to the constitutionality of that provision. See H.Rep. No. 847, 64th Cong., 1st Sess. 4 (1916) ("We deemed the criminal provision so important that we desired to leave no sort of doubt as to its constitutionality, so we have inserted by amendment the language proposed, making the section applicable to interstate and foreign commerce.”). The very language of this amendment — "with foreign nations” — again strongly supports our reading of the statute to include bills of lading dealing with exports and imports; if Congress had only intended to reach exports, the term "to foreign nations” would have been the more accurate rendering of that idea. The preposition "with” signals the reciprocity envisioned by Congress, the to and fro movement of merchandise — that is, that the issuance of false bills of lading covering imports as well as exports is subject to punishment.
.
Compare Kordel v. United States,