UNITED STATES v. NOE

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 79-3474.

Attorney(S)

Herndon Inge, III, Mobile, Ala., (Court-appointed), for defendant-appellant. W. A. Kimbrough, Jr., U.S. Atty., Ginny S. Granade, Asst. U.S. Atty., Mobile, Ala., for plaintiff-appellee.

Judges

Phyllis A. Kravitch

Acts

Crimes And Criminal Procedure — Stolen Property — Crimes — Transportation Of Stolen Goods, Securities, Moneys, Fraudulent State Tax Stamps, Or Articles Used In Counterfeiting
Crimes And Criminal Procedure — Counterfeiting And Forgery — Crimes — Obligations Or Securities Of United States

See more information ...

Smart Summary

Factual and Procedural Background

Clifford Dixon Noe tendered a guilty plea, which the district court accepted, to eight counts of interstate transportation of falsely made and forged securities in violation of 18 U.S.C. § 2314. He moved for reconsideration and reduction of sentence in the district court; the motion was denied. Noe appealed from that order. The principal contested issue on appeal concerned the scope of the statutory proviso in § 2314 that excludes "any falsely made, forged, altered, counterfeited or spurious representation of an obligation or other security of the United States, or of an obligation, bond, certificate, security, treasury note, bill, promise to pay or bank note issued by any foreign government or by a bank or corporation of any foreign country." The defendant contended that this proviso excluded from § 2314's reach travelers' and cashier's checks falsely made and purportedly drawn on a private bank located in a foreign country. The district court's judgment was affirmed by the Court of Appeals.

Legal Issues Presented

Whether the proviso to 18 U.S.C. § 2314 operates to exclude from the statute's general prohibition the transporting of falsely made and forged travelers' and cashier's checks purportedly drawn on a private bank located in a foreign country.
The opinion also notes that the appellant argued that the statute is unconstitutionally vague and ambiguous on appeal; however, the Court found that this constitutional challenge was not raised in the district court and therefore would not be considered on appeal.

Arguments of the Parties

Appellant's Arguments

Noe argued that the phrase "bank or corporation of any foreign country" in the proviso means a bank or corporation located in another country, and thus the proviso excludes checks purportedly drawn on a private foreign bank from § 2314's reach (citing United States v. Smith).
Noe urged that any ambiguity in the statute must be resolved in favor of the accused under the rule of lenity (citing United States v. Bass and Rewis v. United States).
Noe also raised on appeal that Section 2314 is unconstitutionally vague and ambiguous; the Court declined to consider that point because it was not raised in the district court.

Plaintiff-Appellee's (Government's) Arguments

The Government argued the proviso excludes only those obligations, notes, bonds, certificates, securities, treasury notes, bills, promises to pay, or bank notes that are issued under the sanction of public authority (i.e., governmental or quasi-governmental instruments), citing United States v. Ortiz as supporting authority.
The Government's position was that travelers' and cashier's checks purportedly drawn on a private foreign bank are not the sort of instruments Congress intended to exclude from § 2314.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
King v. United States, 565 F.2d 356 (5th Cir. 1978)	Support for the principle that issues not raised at trial will not be considered on appeal.	The Court relied on this principle to refuse consideration of Noe's constitutional vagueness argument because it was not raised in the district court.
Anderson v. State, 507 F.2d 105 (5th Cir. 1975)	Support for the principle that issues not raised at trial will not be considered on appeal.	Used alongside King to justify the Court's refusal to address the unpreserved constitutional challenge.
United States v. Smith, 200 F. Supp. 227 (E.D.Tenn. 1961)	Authority cited by appellant for the interpretation that "bank or corporation of any foreign country" means a bank or corporation located in another country.	The Court identified this case as representative of the appellant's preferred interpretation but did not adopt it.
United States v. Ortiz, 444 F. Supp. 81 (W.D.Tex. 1977)	Authority for the Government's interpretation that the proviso excludes only obligations issued under the sanction of public authority.	The Court described Ortiz as a well-reasoned decision supporting the Government's view and used that view in its analysis of legislative intent.
Train v. Colorado Public Interest Research Group, 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976)	Principle that a court may rely on legislative history when faced with two plausible statutory interpretations.	The Court invoked this authority to justify consulting the legislative history of § 2314 to resolve the interpretive dispute.
American Tobacco Co. v. Werckmeister, 207 U.S. 284, 293, 28 S.Ct. 72, 75, 52 L.Ed. 208 (1907)	Observation that lenity should not be applied to defeat the legislature's evident purpose.	The Court cited this to explain that the rule of lenity does not override clear legislative intent.
Huddleston v. United States, 415 U.S. 814, 832, 94 S.Ct. 1262, 1272, 39 L.Ed.2d 782 (1974)	Support for the principle that courts should avoid interpretations that subvert legislative intent.	Used to reinforce the point that lenity is not a substitute for interpreting statutory purpose when the legislative intent is discernible.
United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971)	Illustrative authority for the rule that ambiguous criminal statutes should be construed in favor of the accused; also for the proposition that lenity applies only after thorough statutory analysis leaves ambiguity.	The Court acknowledged Bass as governing the lenity principle but explained that lenity is inapplicable here because legislative history resolved the ambiguity in favor of including Noe's conduct within § 2314.
Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971)	Another example of the lenity doctrine cited by appellant.	The Court cited Rewis as an example of lenity's application but declined to apply lenity here because legislative history clarified Congress's intent.
United States v. Fisher, 6 U.S. 358, 2 Cranch 358, 386, 2 L.Ed. 304 (1805)	Quoted authority concerning the point at which a court, having examined all aids to construction, may invoke lenity when left with an ambiguous statute.	Cited (via Bass) to explain that lenity is invoked only after exhaustive consideration of interpretive aids leaves a statute ambiguous; the Court found no such residual ambiguity here.
Scarborough v. United States, 431 U.S. 563, 577, 97 S.Ct. 1963, 1970, 52 L.Ed.2d 582 (1977)	Additional authority on the appropriate application of the lenity principle.	Used to support the Court's explanation of the limited circumstances in which lenity is applied.

Court's Reasoning and Analysis

The Court framed the dispute as a choice between two plausible readings of the proviso to § 2314: (1) the appellant's reading that "bank or corporation of any foreign country" means simply a bank or corporation located in another country, and (2) the Government's reading that the phrase encompasses only banks or corporations that issue the currency or obligations of a foreign country (i.e., instruments issued under public sanction). Because two interpretations existed, the Court considered legislative history, citing Train v. Colorado Public Interest Research Group for the appropriateness of that approach.

The Court examined the statute's legislative history and found that Congress added the exclusion to the National Stolen Property Act to exempt counterfeited securities of the United States and foreign governments because such counterfeiting was already addressed by other existing statutes (the counterfeiting statutes). The legislative materials and the Attorney General's letters indicated that "the statutes relating to counterfeiting" were the alternative legal framework for governmental and quasi-governmental instruments. At the time of the amendment, counterfeiting statutes prohibited counterfeiting of governmental or quasi-governmental notes, bonds, and securities, but did not prohibit counterfeiting activities relating to purely private securities like travelers' and cashier's checks drawn on private foreign banks.

On this basis, the Court concluded that Congress did not intend the proviso to exclude from § 2314 counterfeiting activities involving purely private instruments such as the checks involved in Noe's case. The Court addressed the appellant's invocation of the lenity doctrine, explaining that lenity applies only after a court has exhausted interpretive aids and remains with an ambiguous statute; because the legislative history resolved the interpretive question, lenity did not apply. The Court therefore affirmed the district court's judgment.

Holding and Implications

HOLDING: The judgment of the district court is AFFIRMED.

Implications: The Court held that the proviso to 18 U.S.C. § 2314 does not exclude from the statute's scope falsely made and forged travelers' and cashier's checks purportedly drawn on a private bank located in a foreign country. The direct consequence is that Noe's conviction and sentence were upheld. The opinion does not purport to announce a broader doctrinal departure; it rests on its interpretation of legislative history to construe the scope of § 2314 and does not state that it establishes a new rule beyond that statutory interpretation.

Show full summary ...

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. CLIFFORD DIXON NOE, DEFENDANT-APPELLANT.

FRANK M. JOHNSON, Jr., Circuit Judge:

Clifford Dixon Noe tendered and the district court accepted a guilty plea to eight counts of interstate transportation of falsely made and forged securities in violation of 18 U.S.C. § 2314. He appeals from the trial court's order denying his motion for reconsideration and reduction of sentence. We affirm.

Section 2314 of Title 18, U.S.C. provides in part

Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; . . .

Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

This section shall not apply to any falsely made, forged, altered, counterfeited or spurious representation of an obligation or other security of the United States, or of an obligation, bond, certificate, security, treasury note, bill, promise to pay or bank note issued by any foreign government or by a bank or corporation of any foreign country.

The only issue before this Court is whether the last clause quoted above operates to exclude from the general prohibitory scope of the section the transporting of falsely made and forged travelers and cashiers checks purportedly drawn on a private bank located in a foreign country.

On appeal Noe urges that the statute is unconstitutionally vague and ambiguous. A careful review of the record, however, reveals that in district court Noe did not in substance or in form challenge Section 2314 on constitutional grounds. It is well settled that issues not raised at trial will not be considered on appeal. See, e. g., King v. United States, 565 F.2d 356 (5th Cir. 1978); Anderson v. State, 507 F.2d 105 (5th Cir. 1975).

Citing United States v. Smith, 200 F. Supp. 227, (E.D.Tenn. 1961), appellant Noe urges that the phrase "bank or corporation of any foreign country" means a bank or corporation located in another country. On the other hand, the Government contends that the phrase encompasses only banks or corporations that issue the currency or obligations of a foreign country. As authority the Government cites United States v. Ortiz, 444 F. Supp. 81 (W.D.Tex. 1977), a well-reasoned decision in which the court concluded that Section 2314 excludes from its scope only those obligations, bonds, certificates, securities, treasury notes, bills, promises to pay, or bank notes issued under the sanction of public authority.

When faced with two possible interpretations of a statute, it is appropriate for a court to rely on the legislative history of the statute. Train v. Colorado Public Interest Research Group, 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976). In this case the legislative history of Section 2314 clearly indicates that Congress intended to exclude from the scope of Section 2314 only those counterfeiting activities that were prohibited by existing law. At that time, the counterfeiting statutes prohibited only counterfeiting activities related to notes, bonds, and other securities that were governmental or quasi-governmental in nature. No statute prohibited counterfeiting activities relating to securities of a purely private nature such as the activity at issue in this case. It therefore follows that Congress did not intend to exclude from the scope of Section 2314 counterfeiting activities relating to travelers and cashiers checks purportedly drawn on a private bank located in a foreign country.

The statutory exclusion was enacted as an amendment to the National Stolen Property Act, see 53 Stat. 1178 (1939). In its report, the House Committee on the Judiciary referred to the exclusion, explaining that "[c]ounterfeited securities of the United States and foreign governments are exempted by a proviso because they are dealt with adequately by other provisions of existing law." H.R. Rep. No. 422, 76th Cong., 1st Sess. 1 (1939); see also H.R. Rep. No. 761, 75th Cong., 1st Sess. 1 (1937). The report also incorporated a letter from the Attorney General that identified the other provisions of existing law as being "the statutes relating to counterfeiting." Letter from the U.S. Attorney General to William Bankhead, Speaker of the House, Dec. 29, 1938, in H.R. Rep. No. 422, 76th Cong., 1st Sess. 3 (1939); see also Letter from U.S. Attorney General to William Bankhead, Speaker of the House, Mar. 16, 1937, in H.R. Rep. No. 761, 75th Cong., 1st Sess. 3 (1937).

See, e. g., Act of May 16, 1884, ch. 52, §§ 1-6, 23 Stat. 22. The current versions of the pertinent counterfeiting statutes are found at 18 U.S.C. §§ 471- 483. See generally Ortiz, supra, 444 F. Supp. at 83 (discussing judicial interpretation of the forgery statutes).

Noe argues that acceptance of his position is mandated by the doctrine of construing ambiguous criminal statutes in favor of the accused. See, e. g., United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). When applied in an appropriate case, this doctrine serves a two-fold purpose, namely, requiring legislatures to give fair warning of what conduct is proscribed and ensuring that "legislatures and not courts [define] criminal activity." Bass, supra, 404 U.S. at 348, 92 S.Ct. at 523. But what Noe fails to recognize is that this is not an appropriate case. The principle of lenient construction does not exist to "destroy the spirit and force of the law which the legislature intended to enact." American Tobacco Co. v. Werckmeister, 207 U.S. 284, 293, 28 S.Ct. 72, 75, 52 L.Ed. 208 (1907); see Huddleston v. United States, 415 U.S. 814, 832, 94 S.Ct. 1262, 1272, 39 L.Ed.2d 782 (1974). Indeed, the doctrine of lenity is not invoked until a court, "`seiz[ing] every thing from which aid can be derived', . . . [is] left with an ambiguous statute." Bass, supra, 404 U.S. at 347, 92 S.Ct. at 522 (quoting United States v. Fisher, 6 U.S. 358, 2 Cranch 358, 386, 2 L.Ed. 304 (1805)); see Scarborough v. United States, 431 U.S. 563, 577, 97 S.Ct. 1963, 1970, 52 L.Ed.2d 582 (1977). As our examination of the legislative history reveals, Congress intended to and did include within the proscriptive scope of Section 2314 the activity to which Noe confessed guilt. The judgment of the district court is AFFIRMED.