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UNITED STATES v. GREENE

April 5, 1989

UNITED STATES OF AMERICA
v.
RODNEY GREENE



The opinion of the court was delivered by: BRODERICK

 RAYMOND J. BRODERICK, UNITED STATES DISTRICT JUDGE.

 On October 21, 1988, defendant Rodney Greene plead guilty to eight counts of bank fraud in violation of 18 U.S.C. §§ 1344 and 2, one count of possession of stolen mail in violation of 18 U.S.C. § 1708, and one count of uttering a forged United States Treasury check in violation of 18 U.S.C. § 510. On December 7, 1988, this Court sentenced defendant to seven years incarceration on the uttering a forged Treasury check charge and five years on the bank fraud charges, said sentences to run concurrently. In addition, as to the possession of stolen mail count, defendant was placed on probation for a period of five years. Finally, pursuant to 18 U.S.C. § 3013, a special assessment of $ 50.00 was imposed on each count to which defendant plead guilty, making the total assessment $ 500.00.

 Pursuant to Fed.R.Crim.P. 35(a), defendant Greene has moved this Court to correct its sentence of December 7, 1988, asserting that the special assessments are invalid because the legislation authorizing these assessments originated in the United States Senate contrary to article I, § 7 of the Constitution. Defendant relies exclusively on the Ninth Circuit decision of United States v. Munoz-Flores, 863 F.2d 654 (9th Cir. 1988) which, after determining that the purpose of the special assessment statute was to raise revenue, held that the legislation violated article I, § 7, which requires that revenue bills originate in the House of Representatives.

 Article I, § 7 of the Constitution, the origination clause, provides that "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." The government does not contend and there is no evidence to suggest either that 18 U.S.C. § 3013 originated in the House of Representatives or that it was an amendment within the meaning of the origination clause. Thus, the single contested issue is whether the special assessment statute is a revenue bill subject to the origination clause's restraints.

 We note that the fact that a statute produces governmental income is not dispositive in determining whether it is a revenue bill subject to the origination clause's restraints. Numerous Supreme Court decisions have held that origination clause restraints do not extend to bills that incidentally create revenue if those bills were enacted for purposes other than revenue raising. See, e.g., Millard v. Roberts, 202 U.S. 429, 436, 26 S. Ct. 674, 675, 50 L. Ed. 1090 (1906); Twin City National Bank v. Nebeker, 167 U.S. 196, 202, 17 S. Ct. 766, 768-69, 42 L. Ed. 134 (1897); United States v. Norton, 91 U.S. 566, 569, 23 L. Ed. 454 (1875). Indeed, a provision of a bill which levies a tax does not transform the bill into one for raising revenue if the taxing provision is designed to further a non-revenue raising objective of the bill as a whole. Twin City National Bank, 167 U.S. at 202, 17 S. Ct. at 771. Thus, based upon this clear precedent, 18 U.S.C. § 3013 is subject to the origination clause if and only if it was enacted "for the direct and avowed [and primary] purpose of creating revenue or public funds for the service of the government." Norton, 91 U.S. at 569 quoting United States v. Mayo, 26 F. Cas. 1230 (C.C.D.Mass.1813).

 Our interpretation of 18 U.S.C. § 3013 is guided by the Supreme Court's admonition that:

 
A statute . . . is to be construed, if such a construction is possible, to avoid raising doubts of its constitutionality.

 St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780, 101 S. Ct. 2142, 2147, 68 L. Ed. 2d 612 (1981). From our reading of the legislation and its history, we conclude that the primary purpose of the special assessments statute was to assist victims of crime. Moreover, we conclude that the statute's potential for raising general revenues for the government was incidental to its aforementioned primary purpose. Accordingly, we find that because the special assessments statute was not subject to the origination clause's constraints, it is constitutional.

 To determine the purpose of the special assessment, we first turn to the language of the statute, itself. Burlington Northern Railroad Company v. Oklahoma Tax Commission, 481 U.S. 454, 107 S. Ct. 1855, 1860, 95 L. Ed. 2d 404 (1987). Section 3013 provides:

 
(a) The court shall assess on any person convicted of an offense against the United States
 
(1) in the case of a misdemeanor
 
(A) the amount of $ 25 if the defendant is an ...

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