On Appeal from the United States District Court for the District of New Jersey, D.C. Crim. No. 86-00357-01.
Higginbotham, Stapleton, and Greenberg, Circuit Judges.
GREENBERG, Circuit Judge.
This matter is before the court on defendant Theodore Williams' appeal from an order entered in the district court on September 11, 1987 affirming an order of a magistrate dated November 25, 1986 reinstating a jury verdict and vacating an earlier order of the magistrate under Fed. R. Crim. P. 29(c) which set aside Williams' conviction and entered a judgment of acquittal.*fn1 Judge Thompson's opinion in the district court is reported at 669 F. Supp. 111 (D.N.J. 1987). The issue in the case involves interpretation of the statute under which Williams was charged, 18 U.S.C. § 510(a)(2) (hereinafter section 510(a)(2)), which provides, in pertinent part, that any person who with intent to defraud "passes, utters, or publishes . . . any Treasury check" is guilty of an offense. Williams concedes that the evidence supports a finding that he sold a $500 United States Treasury check with a forged endorsement to an undercover agent but he correctly contends that the agent knew that the endorsement was forged. He then reasons that he cannot be convicted as, in his view, section 510(a)(2) requires a finding that he represented that the endorsement was genuine. Williams' legal contention was ultimately rejected by the magistrate and the district judge and we reject it also.*fn2 Accordingly, we will affirm the conviction.
The facts need only be briefly summarized. In April 1985, Williams was introduced by an informant to the potential purchaser of the check, a Secret Service agent working undercover. After brief negotiations, Williams sold the agent the forged check for $200 without representing it was genuine. These events led to a complaint being filed charging that Williams "knowingly and with intent to defraud the United States uttered and passed a Treasury Check of the United States, in an amount less than $500, bearing a forged endorsement, in violation of Title 18, United States Code, Sections 510(a)(2)."*fn3
In his instructions to the jury the magistrate said that Williams was charged under a section making it unlawful if a person "intending to defraud passes, utters or publishes" any Treasury check "bearing a forged endorsement or signature." He indicated that "to utter" means putting the check In circulation "by means of an assertion or misrepresentation that the instrument is genuine." The magistrate, however, did not define "passes" for the jury. In view of the evidence it may be reasonably inferred that the jury concluded chat a person could pass a check without representing it as genuine.*fn4
At the trial Williams made a motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29. The magistrate initially reserved decision on the motion but after the verdict was entered he granted it on the ground that Williams did not represent that the check was genuine. On October 1, 1986 the magistrate entered an order reflecting this decision.
The government then moved for reconsideration and on November 2, 1986 the magistrate filed an opinion and order granting its motion and reinstating the verdict. In his opinion the magistrate indicated that the word "passes" in section 510(a)(2) was unambiguous and did not include a requirement that the defendant represent that the instrument was genuine.
On appeal, Judge Thompson affirmed. In her opinion she pointed out that the parties were in agreement that to "utter" a check a defendant must represent it is genuine. 669 F. Supp. at 112. She further indicated that the legislative history of section 510(a)(2) did not clarify the meaning of "passes." She pointed out, however, that when section 510(a)(2) was enacted "passes" already had a meaning which was recognized in United States v. DeFilippis, 637 F.2d 1370 (9th Cir. 1981), under 18 U.S.C. § 472 dealing with uttering or passing counterfeit obligations of the United States. That meaning did not include a requirement that the defendant make a representation that the instrument was genuine. 669 F. Supp. at 113. She then stated that section 510(a)(2) used the concepts of passing and uttering in the disjunctive. Therefore the judge concluded that Congress adopted the then existing interpretation that uttering but not passing included a requirement that the defendant represent the item as genuine since it showed no intention that it was changing the plain meaning of passes in section 510(a)(2) or that it intended that "passes" and "utters" have the same meaning. Williams has appealed from Judge Thompson's order to this court.
Williams supports his interpretation of section 510(a)(2) with the following argument. Prior to 1983 persons passing or uttering Treasury checks with forged endorsements were prosecuted under 18 U.S.C. § 495 (hereinafter section 495) which in germane part provides:
Whoever utters or publishes as true any such false, forged, altered, or counterfeited writing [deed, power of attorney, order, certificate, receipt, contract, or other writing], with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited [is guilty of an offense].
The section, however, was not satisfactory for dealing with offenses involving checks, bonds and securities as it did not specifically mention these instruments. Further, section 495 did not cover situations in which a legitimately endorsed check was stolen and then transferred or in which the vendor sold an instrument to a middleman without endorsing it. See Edwards v. United States, 814 F.2d 486, 489 (7th Cir. 1987); 129 Cong. Rec. S9342 (daily ed. June 28, 1983) (statement of Senator DeConcini). Thus, in 1983 Congress enacted 18 U.S.C. § 510 to make specific reference to offenses involving Treasury checks, bonds and securities and to create offenses involving the transfer of legitimately endorsed or unendorsed instruments not within section 495. The offenses involving legitimately endorsed or unendorsed instruments including checks were created in 18 U.S.C. § 510(b) rather than section 510(a)(2), as § 510(b) proscribes buying, selling, exchanging, receiving, delivering, retaining or concealing a stolen Treasury check, bond or security, or such an instrument with a forged or falsely made endorsement. The purpose of section 510(a)(2) was merely to extend the existing provisions of section 495 to Treasury checks, bonds and securities.
Thus, Williams contends that the government's action in charging him with violation of section 510(a)(2) was inexplicable as that section, in his view, is "the mirror image" of section 495. Accordingly, Williams contends that the government deprived itself of the provisions of 18 U.S.C. § 510(b) as the government in the prosecution under section 510(a)(2) continued to have the burden established in ...