United States v. Tami M. Lecoe

819 F.2d at 1516 receiving state....” 82-85) (emphasis in the (citing 21 America, U.S.T. UNITED STATES of appeals’ opinion). court of Plaintiff-Appellee, of the VCCR relied on provisions (d) (Article sections and Halvorsen Solli LeCOE, Defendant-Appellant. Tami M. hand, (e)), contain no such on the other No. 90-30156. Because the conduct of limiting language. alleged Appeals, Court of the com-

the consular officials Ninth these Circuit. squarely within sections plaint falls VCCR, correctly the district court Argued and Submitted Nov. defendants’ motions dis- granted these Decided June miss.

C. found, as an alterna- The district court dismissing complaint ground tive Solli, that the consu- against Halvorsen and immunity un- lar officials were entitled Treaty of Friend- der Article XVI Rights be- ship, and Consular Commerce Norway. the United States and We tween address that issue because we need not officials are immune under hold that the the VCCR.

IV. Conclusion properly The district court determined jurisdiction Norway over be- it lacked Norway cause in this case is immune from discretionary civil suit under the function Defendants exception to the FSIA. Solli correctly and Halvorsen were dismissed they from the action are immune because liability Article from civil sections (d) (e) of the VCCR. The dismissing

orders of the district court Nor- Solli, way, from this action and Halvorsen AFFIRMED. Wilson, Boise, Idaho, R.

Jon for defen- dant-appellant. Rodriguez, Atty.,

Joanne P. Asst. U.S. Idaho, Boise, plaintiff-appellee. TANG, Before O’SCANNLAIN and LEAVY, Judges. Circuit O’SCANNLAIN, Judge: sentencing must decide We whether provision criminalizing the statute forged endorsements of United States checks, Treasury 18 U.S.C. is suffi- ambiguous ciently application to warrant lenity.

I Joseph

Tami LeCoe is the second wife of LeCoe, Boise, Idaho. E. naval recruiter Joseph April married on two She months after his divorce from his first wife, Pamela J. LeCoe. finalizing

The decree the divorce of Jo- required Joseph make seph and Pamela to eight monthly payments of each to $400 military Pamela for her share of his retire- addition, Joseph ment. In was ordered per support payments child of $300 make minority the duration of the month for arranged couple’s Joseph children. two directly from payments these taken to have accordingly, pay; the checks his retirement issued the United States to Pamela were not relevant Treasury. For reasons to Pamela proceedings, the checks these February September 1983 to period in turn Joseph, sent to who was 1984 were forwarding them to Pamela. responsible for 1984, Joseph ar- Beginning October directly mailed ranged to have the checks to Pamela. complained to authori- eventually

Pamela only five of the had received ties that she February from twenty-one checks due her addition, In she September received her had not complained she tax re- couple’s 1982 income share ensued, in which investigation fund. An forged Tami had was discovered of the checks name to several Pamela’s joint writing” account of with the defrauding into the intent of them deposited forged Although Tami had also States. section 495 does Tami. Joseph and check, specifically forged cashier outlaw endorse- onto a $600 Pamela’s name checks, ments of such Pamela’s share of the represented which illegal has been deemed under the “other tax refund. income writing” provision of the section. See a grand jury handed down A federal 675, Prussian v. United against Tami on indictment twelve-count 679-80, L.Ed. 610 charged 1987. She was with November (clause (1931) writing” “other was intended 495,1 U.S.C. and sev- of 18 five violations § penal provisions the “extend[] 510.2 Trial of 18 U.S.C. en violations § writings every statute to all of class if January jury commenced a before forged purpose obtaining money for the Tami’s conviction on four of resulting in States”). an from officer the United Vi- Tami found 510 counts. was the section felony, punisha- olation of section 495 is a forging Treasury checks issued to guilty of by imprisonment years, up ble for to ten a February, 1983 and in December Pamela $1,000, fine not to exceed or both.5 May Each of the first April, and 1984. 495, however, adequately did not Section $400; for the fourth was three checks was encompass culpable scope activity remain- acquitted was on all for She $300. surrounding wrongful cashing of Trea- ing counts. DeConcini, sury in- checks. Senator when Sentencing scheduled for March troducing legislation, explained: remedial Tami’s 1990. The court first considered Presently, possible it is for a thief to classify offenses as motion to the convicted Treasury by steal a check endorsed a than felonies.3 The misdemeanors rather payee, endorse his own name and obtain motion, reiterating that court denied the proceeds violating without section as convictions would be treated the four possible It a 495. is also for thief to felony The district court then convictions. steal one or more Government checks or all suspended sentence for four counts exchange bonds and sell or them to a three-year probation. term of lieu of a middle man and not violate section 495. pay restitution of Tami was also ordered require pros- These kind of situations $1,500. ecutor to “hunt around” for a statute appeal followed.4 This does fit the crime. a which often not As result, these cases are often either not II prosecuted charges or the are dismissed. (Statement forged Cong.Rec. endorse- Prior to November S9342 Sen. prosecuted DeConcini). Treasury Accordingly, ments of checks were Senator DeConci- any- penalizes sponsored rectify ni a bill to these short- 18 U.S.C. which § makes, alters, bill, “falsely forges, part or falls. The one who of what soon became deed, 98-151, attorney, any power of Public Law is now codified at 18 counterfeits order, certificate, contract, short, receipt, other U.S.C. 510. Section crimi- § essentials, during litigation, 1. Reduced to its section 495 criminal- been considered this the dis- pleading acts of made with the intent of trict court izes treated as a motion for defrauding the United States. reconsideration. forged 2. Section 510 outlaws endorsement of jurisdiction 4. The district court had over this Treasury was enacted in checks. Section 510 juris- matter under We have § 18 U.S.C. 3231. Notably, alleged November 1983. violations pursuant diction to 28 U.S.C. § prior of section enactment, occurred to section 510's purported the seven viola- whereas prior 5. For committed to November offenses after November tions of section 510 occurred felony “[a]ny pun- a offense is defined as by imprisonment a term ishable exceeding death or for 1(1). “Objec- year.” technically styled oth- § 3. The motion was 18 U.S.C. All Charges tion to Treatment of as Felonies vs. er offenses are classified as misdemeanors. 1(2). previously Misdemeanors.” Since this issue had U.S.C.

4Q1 sentencing provisions. Treasury of section 510 s forged endorsements nalizes securities, Some, here, appellant such as the maintain checks, bonds, or United States cap- clearly that section 510 does not indicate conduct including the fraudulent rule, may aggregated a checks to deter- general what 495. As tured qualifies may be mine whether one under section 510 convicted person up prosecution to misdemeanor under the sec- years, ten fined up imprisoned thought school of tion. One is that $10,000, or both. underlying value of all checks an indict- regard- law also modified the Section aggregated, if ment even ing forged endorsements charges in the indictment are unrelated and respect. Spe- important in another scheme, offenses. Under this (c) provides that viola- cifically, subsection any if the sum of or all checks in or all that do not exceed $500 of the section tions $500, counts exceeds then each individual prosecuted as misdemeanors. should violation in the indictment section 510 be- full that: provides The subsection felony. comes a Treasury check the face value of the If contrasting viewpoint suggests security of the United States or or bond value, only underlying each individual face if more than aggregate Thus, security may count be totalled. individual Treasury check or bond or one States, offenses that would otherwise be misde- does not exceed of the United transmogrified of- meanors are not into felo- of the above-mentioned fenses, simply a fine of not nies because the sum total of all penalty shall be $1,000 charged imprisonment for checks for all offenses exceeds than more year, than one or both. $500. not more date, (c)’s question of resolved several To subsection

While section 510 only published clarity of its own. has resulted problems, it created some First, opinion. Taylor, v. 869 is silent as to whether See United States section 510 — Cir.), denied, 495; (5th section F.2d 812 cert. U.S. partial repeal a effected —, 171, 107 L.Ed.2d 128 question left to the 110 S.Ct. resolution of this was decision, date, Fifth con split that have In a To the circuits courts. unanimously both “common sense” and cluded that considered this issue have required “plain meaning” of the statute 510 was not intend concluded that section reading “permitting] as section 510 partial repeal. as a See United States ed 1492, (9th of all checks Edmonson, aggregate court to the value 792 F.2d 1497-98 v. 1037, matter Cir.1986), denied, the basis of a violation no 107 that form cert. of one 892, (1987); the checks form the basis L.Ed.2d 844 whether 93 United S.Ct. 260, (8th chargeable offenses.” Id. at Oliver, many 264 or of 908 F.2d v. States Barrett, that since subsec Cir.1990); 837 815. The court reasoned v. United States Cir.1988); (c) lenity provision, there (10th tion was itself a United F.2d 934-35 further lenien Cavada, (5th essentially no need for F.2d 1047 was 821 States Moreover, court denied, Cir.), cy. 108 id. at cert. 484 S.Ct. See U.S. section (1987); contrary a v. noted that 98 L.Ed.2d 263 Edwards States, “crafty” or “habitual” 510 would enable 814 F.2d 489-90 United repeated violations Cir.1987). Thus, to commit forger a criminals felony pros without fear of may prosecuted un small amounts endorsements check statute; at 815. may a defendant who ecution. Id. either der prosecution under qualify for misdemeanor He Thornberry dissented. be- Judge prosecuted therefore be 510 sufficiently am- lieved that the statute felony section 495. Ed for a See of the rule of biguous require invocation 1498; Oliver, monson, 908 792 F.2d at J., dissent- (Thornberry, lenity. Id. at 816 264; Cavada, 1047-48. F.2d at that, Moreover, matter noted as a ing). he to believe policy, it was unreasonable partial repeal question, In addition to the permit Congress intended to clarity litigants questioned have some 3579-3580). offenses remote in prosecution policy for minor U.S.C. “This of leni- §§ Thus, place. ty interpret Id. at 817. means that the Court will not time and both Thornberry adopted the federal criminal statute Judge view so as to increase chargeable places that it only amounts for each on an individual aggregated. interpretation when such an could be can be based offense guess on no more than a as to what Con- background, we turn to the With this gress States, intended.” v. United Bifulco questions appeal. We review merits of this 2247, 2252, U.S. interpretation statutory construction and (1980) (quoting L.Ed.2d 205 Ladner de novo. States v. Valencia- See United 169, 178, U.S. 79 S.Ct. 1080, 1082(9th Cir.), Roldan, 209, 214, (1958)). 3 L.Ed.2d 199 — U.S. —, L.Ed.2d 509 ideals, Despite lofty

lenity is not an automatic addendum that Ill accompanies every criminal statute that enact; rather, Congress may choose to it is A simply statutory a canon of construction. contends that subsection LeCoe Rodgers, See United U.S. and, ambiguous accordingly, must be 475, 484, 80 L.Ed.2d in under the rule of construed her favor (1984). plays 492 The rule in no role statu lenity provides lenity. The rule of that tory interpretation unless the statute is “ambiguity concerning the ambit of crimi truly ambiguous. See Moskal v. United resolved in the nal statutes should be favor — States, —, 461, 465, 111 U.S. S.Ct. States, lenity.” Rewis v. 401 United (1990). 112 L.Ed.2d 449 808, 812, 1056, 1059, U.S. 91 S.Ct. 28 Thus, we must first determine Supreme L.Ed.2d 493 The Court ambiguous. whether section 510 is A stat policies underlying has identified two this ambiguous ute is not simply because it is First, suggest rule. concerns of fairness possible narrowly. to construe a statute given “warning that should be to the world judicial Nor does a See id. division of language that the common world will authority necessarily trigger the rule. See understand, of what the law intends to do Rather, lenity id. is reserved passed. if a certain line is To make the “for those situations which a reasonable fair, warning possible so far as the line persists doubt about a statute’s intended Bass, should clear.” v. United States scope language even resort to the after 336, 348, 515, 522, 404 U.S. 92 S.Ct. 30 structure, legislative history, and motivat (1971) (quoting McBoyle L.Ed.2d 488 ing policies (emphasis of the statute.” Id. States, United 51 S.Ct. original; quotation omitted). According 340, 341, (1931) (Holmes, J.)). 75 L.Ed. 816 ly, we consider each of these factors Second, “because of the seriousness of turn. penalties, criminal and because criminal punishment usually represents the moral B community, legisla condemnation of the tures and not courts should define criminal 1 activity.” at Id. at determining scope In of a stat ute, lenity

The doctrine has been extend a court must look first to the statute’s beyond ed interpretations language of the substan 111 and structure. See id. S.Ct. 465; prohibitions; 594,464 tive ambit of criminal the doc at see also United States encompasses penalties Salmon, trine im also 871 F.2d Pounds 825 Cir.1989). posed criminal statutes. Hughey language See If the statute’s is un — —, States, ambiguous, plain language United U.S. its ex controls (1990) (apply cept exceptional 408 L.Ed.2d rare and circumstances. ing 594,464 Salmon, lenity provision rule of to restitution of See Pounds Act, 826; Smith, Victim Witness Protection 18 at also Howe v. see U.S. then, 69 L.Ed.2d that further lenient S.Ct. of the in the statute and, The words used unnecessarily subsection would pre- meaning. Moskal, given ordinary their sumably, wrongfully expand congressional beyond generosity scope. intended portion contentious The The Fifth superfi- Circuit’s rationale is “If the face value reads: However, cially appealing. the court’s con- security of the or bond or check grounded unspoken clusions are in two as- value, or the more aggregate first, sumptions: Congress face if that would have or bond or se- Treasury cheek than expressly provided so if it intended less curity does not ex- the United “all” than checks in an indictment to be $500_” added). (emphasis The ceed and, second, aggregated Congress’ ap- “plain Fifth Circuit concluded parent leniency pre- motivation towards clear; meaning” provision of this cludes further review of its motiva- the value of all “aggregate could court in construing tions the subsection. It of a that form the basis violation checks premature adopt would for us to matter whether the form the no Taylor majority’s reasoning without exam- many chargeable of one or of of- basis ining the validity underlying of these as- Taylor, (empha- F.2d at 815 fenses.” sumptions. added). reasoning Taylor Court’s sis assumption stemmed from apparently qualified would have begin Taylor We with the Court’s first had aggregation clause if it intended a assumption. every than aggregate less court case, particular before it in the re- value “[ejach It is axiomatic that count in gardless of the actual number of regarded indictment is as if it was a alleged Simply put, counts. the “whole” Dunn indictment.” v. United presumed unless a subset is should be States, 393, 390, 189, 190, 284 U.S. clearly specified. J.); (1932) (Holmes, 76 L.Ed. 356 see also upon The Fifth Circuit also relied the 262, v. 170 Selvester United U.S. reaching the structure of statute in its con- 267, 18 42 L.Ed. S.Ct. 1029 (a) section 510 clusion. Subsection of both Accordingly, it held that has been each by the the sub- describes conduct outlawed count an indictment must stand on its of, alia, section—forged endorsement inter own, validity and cannot on base Treasury checks—and, same sen- allegations any specifi other count not tence, penalty general establishes the cally incorporated. See, e.g., United States conduct, committing e.g., such outlawed 1161, (3d Olatunji, 872 1166 F.2d Cir. up years, up a fine imprisonment for to ten 1989); Winter, $10,000, (c), in con- to both. Subsection (1st Cir.1981), denied, 1138 cert. 460 trast, purport any pro- does not describe 1011, 103 75 L.Ed.2d U.S. 479 Rather, conduct. it sets forth an scribed (1983); Fulcher, 626 F.2d United States v. exception provisions to the of the penalty (D.C.Cir.), two if the face value of prior subsections: L.Ed.2d 46 check or does not ex- checks involved is, course, Congress presumed per- then the maximum sentence ceed existing pertinent new know law up imprisonment year is to one mitted Village it enacts. Native $1,000. legislation fine not or a to exceed Subsection Alaska, then, Venetie (c), exception general is to the an Cir.1990). Thus, presume can that Con- we provisions, the Fifth penalty leading sanctity upon bestowed (c) gress knew of the is itself a to conclude that “[s]ubsection an indictment spare each individual count within lenity provision, designed to less than Court, Supreme that as a result general by and major rigors offenders the count provision.” sanctity, this each individual with- punishment Taylor, 869 F.2d of concluded, on its own. Of implicitly 814. The court indictment must stand at plea concerns course, negotiation at issue here Third. Increase flexi- the statute bility guilty pleas; and sentencing purposes of aggregation for establishing an essential rather than for Increase Fourth. use of the U.S. [magistrate judges] forgery offense and in check element of the substantive squarely cases and reduce the number of analysis in Dunn is not thus the trials, thereby reducing the burden on However, point analy- of this point. on courts; the Federal district given sanctity which the simple: is sis Court, courts, Supreme have including the Fifth. more Provide accurate convic- count, fair individual is as tion records which be useful in fu- accorded each offenders; prosecutions repeat ture would assume a to conclude proper aggre- unit for single count as the aggre-

gation as it is to assume that such Provide a Sixth. realistic counts in an gation encompass would all structure.

indictment.6 (Statement Cong.Rec. S9342 of Sen. DeConeini). policies directly None of these

Accordingly, must conclude that the we (c). support reading a harsh (c) ambiguous. language of subsection is Indeed, bespeak a application most broad provision. of the misdemeanor Three of are, particular, these benefits advanced implicit as- Taylor To test the Court’s by reading statute; a broad a broad Congress’ policy underlying sumption as to reading presumably of subsection would 510(c),and to fulfill Moskal's multi- (1) plea negotiation result in more flexibili- establishing statutory facet test for ambi- and, extension, (2) ty by guilty pleas, more legis- guity, next examine section 510’s we magistrate judges increased use of federal history. lative cases, (3) higher legislative history sparse. 510’s Section possibility penalties for realistic than would The bill that became section Senate the strict of the subsection ad- apparently an hour Bill eleventh government. vanced larger piece legis- to a much amendment is, legislative history 510’s Section Accordingly, lation. much of section 510's best, inconclusive. spon- history is the statement of the bill’s sor, is, His statement Senator DeConeini.

however, illuminating. Lurking analysis yet beneath our is an specific Senator DeConeini identified six statutory other canon of construction: with such a misdemean- benefits associated together are to be construed to “[statutes provision: or effectuate, greatest possible, to the extent forgers being First. Result in more policies legislative the of both.” Strobl attorneys; prosecuted by U.S. Exchange, New York Mercantile 768 F.2d

Second. Eliminate the need for creat- (2d Cir.), ing “legal (1985) (em fictions” which result from 106 88 L.Ed.2d 459 prosecuting added). Here, under laws phasis misdemeanor convictions for directly not address the forged Treasury endorsements of offense; generally possible separate are under two Notably, permit requisite courts have refused to inner- vidual to achieve the count amount. aggregation aggregation count clause under Lagerquist, See United States 724 F.2d (c). closely resembles that Markus, of subsection (8th 1984); Cir. United States v. permits aggre- a to Title section 2311 court Court, (3d Cir.1983). The Markus gate goods the "value” of stolen "referred to in a citing primary authority, Dunn as its concluded single purposes establishing indictment” for of reasonably that "no matter how the indictment goods required value the threshold of such construed, fairly single it is read nor how count, is no jurisdiction. Despite "single federal the indict- indictment, considered as a can language, ment” the two circuits the to consider $5,000.” satisfy jurisdictional ... the element of government may issue have concluded that the aggregate only 721 F.2d at 444. goods the value in each indi- count, individually aggregated per or Le- statutes, and 18 U.S.C. 18 U.S.C. § noted, person properly only a could have sen- 510(a). Coe been previously As § felony provi- provision under the misdemeanor under the tenced may be convicted Accordingly, if he or she could section 495 even section 510. district court sion of imposed upon misdemeanor under sec- only tried for a erred when sentence Le- be Thus, the Fifth Circuit’s fear as if she had been convicted of four tion Coe circumventing section crafty thief felonies. in a rare in- illusory. Only largely REVERSED and REMANDED for re- crafty a thief be able stance will such sentencing. sec- felony prosecution under both avoid Thus, a broad tions 495 and 510. TANG, Judge dissenting: (c), prosecutors flexibility given maximum courts are you This case demonstrates that if look sentences, all structuring charges and long enough enough, at a statute and hard ability hampering prosecutor’s without language appear the clearest can even appropriate bring felony charges in ambiguous. disagree become Because I statutes The effectiveness of both cases. my colleagues with learned that 18 U.S.C. overlap maximized while the between is 510(c) ambiguous, respectfully is I dis- § is minimized. two statutes sent. statute, construing In a this court looks C plain meaning language first to the sum, language sub plain In 594,464 question. United States v. (c) clearly specify what does not Salmon, Pounds of not, aggregated for the may, may or Cir.1989). language If a statute’s is “un- determining eligibility for its purpose ambiguous, plain language controls un- possi provision. While it is misdemeanor ‘clearly expressed’ has less the narrowly, legis read the statute ble to contrary legislative intention.” Id. at 826 history motivating policies would lative omitted). 510(c) Ti- (quotation Section provision misdemeanor suggest tle 18 states: Likewise, broadly. read a broad should be Treasury If the face value of the check reading is warranted when section 510 security or of the United States or bond conjunction with section viewed aggregate value, face if more than or the permits felony convictions even which security or bond only a misdemeanor could be cases where States, does not exceed of the United Thus, charged under section 510. while of- of the above-mentioned dispositive, there these factors is none of fenses, shall be a fine of is, can no doubt that subsection $1,000 imprisonment more than best, legislative history ambiguous and the year, or both. not more than one Accordingly, we are com inconclusive. added). (emphasis lenity. rule of Aided pelled to invoke the construction, statutory we by this canon of unambig- language I find the underlined 510(c) authorizes that conclude that when the simply uous. It states only of those checks that com aggregation passed in of checks aggregate face value prise single charged offense.7 510(a) 510(b)is violation of 18 U.S.C. § § $500, maximum is less than IV $1,000 does year jail. in The statute or one checks to aggregation limit the of the sepa of four LeCoe was convicted Rather, offenses. violations of section 510. each rate and distinct defendant’s men- refers to the “above Treasury checks exceed the statute none of the Since in counts, offenses, meaning defined those the four either tioned” ed $500 challenges interpreted the statute if agree we (c), with LeCoe's tutional 7. Because suggested by government. consti- as we need not consider her subsection 510(b). majority position Tay- stated the fifth circuit’s 510(a) As and § § sparse. persuasive, I history respectfully is lor case is dis- legislative majority, However, history, there is no sparse sent. Congressional intent

clearly expressed meaning plain contrary to which is meaning of this Because this statute. clear, lenity no has is statute in this case. application plain language “the majority states clearly specify does not not, aggregated for may, may what America, UNITED STATES of determining eligibility for purpose of Plaintiff-Appellee, I provision.” misdemeanor submit all checks It states that the statute does. 510(a) that fall within the ambit LUJAN, § Robert Steven 510(b) No further aggregated. Defendant-Appellant. § only necessary. The other clarification is No. 89-30197. statute has come to court to examine this Appeals, Court of United States the same conclusion. United States (5th Cir.), Ninth Circuit. 815-16 Taylor, 869 — U.S. —, —, Argued and Submitted Oct. 1990. 171, 107 L.Ed.2d 128 Decided June 1991. the statute vio- argues also LeCoe rights relying on process her due lates Batchelder, 442 U.S.

United States 2198, 2203, 60 L.Ed.2d 755 argues that the statute does LeCoe clarity conse- not state with sufficient As outlined quences violating § above, that the statute is clear I believe aggregat- to be that all checks were meant the definition long they as fell within ed as aggregation If the of those § to over then checks amounted 510(c) apply and each of the does not felony subject years to ten offenses is a Therefore, $10,000 fine, jail, a or both. process challenge must fail. due LeCoe’s Taylor, 869 F.2d at 816. that this stat- argument final

LeCoe’s jeopardy clause of ute violates the double amendment did the fifth because of the checks aggregation not authorize the above, As noted from counts. Congress clearly and exactly that is what Therefore, unambiguously I would re- did. claim. ject jeopardy LeCoe’s Id. double 510(c) ambig- I believe 18 U.S.C. the due uous. It does not violate either process jeopardy clause or the double Therefore, the felo-

clause. I would affirm that the ny Because I believe convictions.

Case Details

Case Name: United States v. Tami M. Lecoe

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 6, 1991

Citation: 936 F.2d 398

Docket Number: 90-30156

Court Abbreviation: 9th Cir.