Subject:  MOSKAL v. UNITED STATES, Syllabus



(Slip Opinion)
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



MOSKAL v. UNITED STATES


certiorari to the united states court of appeals for the third circuit

No. 89-964.  Argued October 1, 1990 -- Decided December 3, 1990

Petitioner participated in a "title washing" scheme in which automobile
titles that had been altered to reflect rolled-back odometer mileage
figures were sent from Pennsylvania to Virginia.  After Virginia
authorities, unaware of the alterations, issued Virginia titles
incorporating the false figures, Moskal received the "washed" titles in
Pennsylvania, where they were used in connection with car sales to
unsuspecting buyers.  Moskal was convicted of receiving two washed titles
under 28 U. S. C. MDRV 2314, which prohibits the knowing transportation of
"falsely made, forged, altered, or counterfeited securities" in interstate
commerce.  (Emphasis added.)  In affirming Moskal's conviction, the Court
of Appeals rejected his contention that, because the washed titles were
genuine, inasmuch as the Virginia officials who issued them did not know of
the falsity, the titles therefore were not "falsely made."

Held: A person who receives genuine vehicle titles, knowing that they
incorporate fraudulently tendered odometer readings, receives those titles
knowing them to have been "falsely made" in violation of MDRV 2314.  Pp.
2-14.

    (a) Moskal misconstrues the doctrine of lenity when he contends that
because it is possible to read MDRV 2314 as applying only to forged or
counterfeited securities, and because some courts have so read it, this
Court should simply resolve the issue in his favor under that doctrine.
The doctrine applies only to those situations in which a reasonable doubt
persists about a statute's intended scope even after resort to the language
and structure, legislative history, and motivating policies of the statute.
Such factors demonstrate that MDRV 2314 unambiguously applies to Moskal's
conduct.  Pp. 2-4.

    (b) Both the plain meaning of the words "falsely made" and the
legislative purpose underlying them provide ample support for applying MDRV
2314 to a fraudulent scheme for washing vehicle titles.  The quoted words
are broad enough, on their face, to encompass washed titles containing
fraudulently tendered odometer readings, since such titles are made to
contain false, or incorrect, information.  The fact that the state
officials responsible for issuing such titles did not know that they were
incorporating false readings is irrelevant, since MDRV 2314 liability
depends on transporting the "falsely made" security with unlawful or
fraudulent intent and not on the scienter of the person who physically
produces the security.  Moskal's construction of MDRV 2314 as excluding any
security that is "genuine" or valid deprives the "falsely made" phrase of
any meaning independent of the statutory terms "forged" and
"counterfeited," and therefore violates the established principle that a
court should give effect, if possible, to every clause or word of a
statute.  That "falsely made" encompasses genuine documents containing
false information is also supported by MDRV 2314's purpose of curbing the
type of trafficking in fraudulent securities that depends for its success
on the exploitation of interstate commerce to avoid detection by individual
states, such as a title washing operation.  The fact that the legislative
history contains references to counterfeit securities but not to odometer
rollback schemes does not require a different conclusion, since, in
choosing the broad phrase "falsely made, forged, altered, or counterfeited
securities,"  Congress sought to reach a class of frauds that exploited
interstate commerce.  This Court has never required that every permissible
application of a statute be expressly referred to in its legislative
history.  Moreover, the Court's MDRV 2314 precedents specifically reject
constructions that limit the statute to instances of fraud rather than the
class of fraud encompassed by its language.  See United States v. Sheridan,
329 U. S. 379, 390, 391; McElroy v. United States, 455 U. S. 642, 655, 656,
658.  Pp. 4-9.

    (c) The foregoing reading of MDRV 2314 is not precluded by the
principle of statutory construction requiring that, where a federal
criminal statute uses a common-law term of established meaning without
otherwise defining it, the term must generally be given that meaning.
Although, at the time Congress enacted the relevant clause of MDRV 2314,
many courts had interpreted "falsely made" to exclude documents that were
false only in content, that interpretation was not universal, other courts
having taken divergent views.  Where no fixed usage existed at common law,
it is more appropriate to inquire which of the common-law readings of the
term best accords with the overall purpose of the statute, rather than
simply to assume, for example, that Congress adopted the reading that was
followed by the largest number of common-law courts.  Moreover, Congress'
general purpose in enacting a law may prevail over the "common-law meaning"
rule of construction.  Since the position of those common-law courts that
define "falsely made" to exclude documents that are false only in content
does not accord with Congress' broad purpose in enacting MDRV 2314 --
namely to criminalize trafficking in fraudulent securities that exploits
interstate commerce -- it is far more likely that Congress adopted the
common-law view of "falsely made" that encompasses "genuine" documents that
are false in content.  Pp. 10-14.

    (d) Moskal's policy arguments for narrowly construing "falsely made"
are unpersuasive.  First, there is no evidence to suggest that States will
deem washed titles automatically invalid -- thereby creating chaos in the
stream of automobile commerce -- simply because federal law punishes those
responsible for introducing such fraudulent securities into commerce.
Second, construing "falsely made" to apply to securities containing false
information will not criminalize a broad range of "innocent" conduct.  A
person who transports such securities in interstate commerce violates MDRV
2314 only if he does so with unlawful or fraudulent intent and if the false
information is itself material, and conduct that satisfies these tests is
not "innocent."  Pp. 13-14.

888 F. 2d 283, affirmed.

Marshall, J., delivered the opinion of the Court, in which Rehnquist, C.
J., and White, Blackmun, and Stevens, JJ., joined.  Scalia, J., filed a
dissenting opinion, in which O'Connor and Kennedy, JJ., joined.  Souter,
J., took no part in the consideration or decision of the case.

------------------------------------------------------------------------------




Subject: MOSKAL v. UNITED STATES

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-964



RAYMOND J. MOSKAL, Sr., PETITIONER v.
UNITED STATES


on writ of certiorari to the united states court of appeals for the third
circuit

[December 3, 1990]



    Justice Marshall delivered the opinion of the Court.

    The issue in this case is whether a person who knowingly procures
genuine vehicle titles that incorporate fraudulently tendered odometer
readings receives those titles "knowing [them] to have been falsely made."
18 U. S. C. MDRV 2314 (emphasis added).  We conclude that he does.

I
    Petitioner Raymond Moskal participated in a "title washing" scheme.
Moskal's confederates purchased used cars in Pennsylvania, rolled back the
cars' odometers, and altered their titles to reflect those lower mileage
figures.  The altered titles were then sent to an accomplice in Virginia,
who submitted them to Virginia authorities.  Those officials, unaware of
the alterations, issued Virginia titles incorporating the false mileage
figures.  The "washed" titles were then sent back to Pennsylvania, where
they were used in connection with car sales to unsuspecting buyers.  Moskal
played two roles in this scheme: he sent altered titles from Pennsylvania
to Virginia; he received "washed" titles when they were returned.
    The Government indicted and convicted Moskal under 18 U. S. C. MDRV
2314 for receiving two washed titles, each recording a mileage figure that
was 30,000 miles lower than the true number.  Section 2314 imposes fines or
imprisonment on anyone who, "with unlawful or fraudulent intent, transports
in interstate . . . commerce any falsely made, forged, altered, or
counterfeited securities . . . , knowing the same to have been falsely
made, forged, altered or counterfeited."  On appeal, Moskal maintained that
the washed titles were nonetheless genuine and thus not "falsely made."
The Court of Appeals disagreed, finding that " ` "the purpose of the term
`falsely made' was to . . . prohibit the fraudulent introduction into
commerce of falsely made documents regardless of the precise method by
which the introducer or his confederates effected their lack of
authenticity." ' "  United States v. Davis, 888 F. 2d 283, 285 (CA3 1989),
quoting United States v. Mitchell, 588 F. 2d 481, 484 (CA5), cert. denied,
442 U. S. 940 (1979), quoting United States v. Huntley, 535 F. 2d 1400,
1402 (CA5 1976), cert. denied, 430 U. S. 929 (1977).
    Notwithstanding the narrowness of this issue, we granted certiorari to
resolve a divergence of opinion among the courts of appeals.  494 U. S. ---
(1990).  See United States v. Sparrow, 635 F. 2d 794 (CA10 1980) (en banc),
cert. denied, 450 U. S. 1004 (1981) (washed automobile titles are not
"falsely made" within the meaning of MDRV 2314).  We now affirm
petitioner's conviction.
II
    As indicated, MDRV 2314 prohibits the knowing transportation of
"falsely made, forged, altered or counterfeited securities" in interstate
commerce. {1}  Moskal acknowledges that he could have been charged with
violating this provision when he sent the Pennsylvania titles to Virginia,
since those titles were "altered" within the meaning of MDRV 2314.  But he
insists that he did not violate the provision in subsequently receiving the
washed titles from Virginia because, although he was participating in a
fraud (and thus no doubt had the requisite intent under MDRV 2314), the
washed titles themselves were not "falsely made."  He asserts that when a
title is issued by appropriate state authorities who do not know of its
falsity, the title is "genuine" or valid as the state document it purports
to be and therefore not "falsely made."
    Whether a valid title that contains fraudulently tendered odometer
readings may be a "falsely made" security for purposes of MDRV 2314
presents a conventional issue of statutory construction, and we must
therefore determine what scope Congress intended MDRV 2314 to have.
Moskal, however, suggests a shortcut in that inquiry.  Because it is
possible to read the statute as applying only to forged or counterfeited
securities, and because some courts have so read it, Moskal suggests we
should simply resolve the issue in his favor under the doctrine of lenity.
See, e. g., Rewis v. United States, 401 U. S. 808, 812 (1971).
    In our view, this argument misconstrues the doctrine.  We have
repeatedly "emphasized that the `touchstone' of the rule of lenity `is
statutory ambiguity.' "  Bifulco v. United States, 447 U. S. 381, 387
(1980), quoting Lewis v. United States, 445 U. S. 55, 65 (1980).  Stated at
this level of abstraction, of course, the rule

"provides little more than atmospherics, since it leaves open the crucial
question -- almost invariably present -- of how much ambiguousness
constitutes . . . ambiguity."  United States v. Hansen, 249 U. S. App. D.
C. 22, 30, 772 F. 2d 940, 948 (1985) (Scalia, J.) (emphasis added), cert.
denied, 475 U. S. 1045 (1986).


Because the meaning of language is inherently contextual, we have declined
to deem a statute "ambiguous" for purposes of lenity merely because it was
possible to articulate a construction more narrow than that urged by the
Government.  See, e. g., McElroy v. United States, 455 U. S. 642, 657-658
(1982).  Nor have we deemed a division of judicial authority automatically
sufficient to trigger lenity.  See, e. g., United States v. Rodgers, 466 U.
S. 475, 484 (1984).  If that were sufficient, one court's unduly narrow
reading of a criminal statute would become binding on all other courts,
including this one.  Instead, we have always reserved lenity for those
situations in which a reasonable doubt persists about a statute's intended
scope even after resort to "the language and structure, legislative
history, and motivating policies" of the statute.  Bifulco v. United
States, supra, at 387; see also United States v. Bass, 404 U. S. 336, 347
(1971) (court should rely on lenity only if, "[a]fter `seiz[ing] every
thing from which aid can be derived,' " it is "left with an ambiguous
statute," quoting United States v. Fisher, 2 Cranch 358, 386 (1805)
(Marshall, C. J.)).  Examining these materials, we conclude that MDRV 2314
unambiguously applies to Moskal's conduct.

A
    "In determining the scope of a statute, we look first to its language,"
United States v. Turkette, 452 U. S. 576, 580 (1981), giving the "words
used" their "ordinary meaning," Richards v. United States, 369 U. S. 1, 9
(1962).  We think that the words of MDRV 2314 are broad enough, on their
face, to encompass washed titles containing fraudulently tendered odometer
readings.  Such titles are "falsely made" in the sense that they are made
to contain false, or incorrect, information.
    Moskal resists this construction of the language on the ground that the
state officials responsible for issuing the washed titles did not know that
they were incorporating false odometer readings.  We see little merit in
this argument.  As used in MDRV 2314, "falsely made" refers to the
character of the securities being transported.  In our view, it is
perfectly consistent with ordinary usage to speak of the security as being
"falsely made" regardless of whether the party responsible for the physical
production of the document knew that he was making a security in a manner
that incorporates false information.  Indeed, we find support for this
construction in the nexus between the actus reus and mens rea elements of
MDRV 2314.  Because liability under the statute depends on transporting the
"falsely made" security with unlawful or fraudulent intent, there is no
reason to infer a scienter requirement for the act of falsely making
itself. {2}
    Short of construing "falsely made" in this way, we are at a loss to
give any meaning to this phrase independent of the other terms in MDRV
2314, such as "forged" or "counterfeited."  By seeking to exclude from MDRV
2314's scope any security that is "genuine" or valid, Moskal essentially
equates "falsely made" with "forged" or "counterfeited."  {3}  His
construction therefore violates the established principle that a court
should " `give effect, if possible, to every clause and word of a statute.'
"  United States v. Menasche, 348 U. S. 528, 538-539 (1955), quoting
Montclair v. Ramsdell, 107 U. S. 147, 152 (1883); see also Pennsylvania
Dept. of Public Welfare v. Davenport, 495 U. S. ---, --- (1990).
    Our conclusion that "falsely made" encompasses genuine documents
containing false information is supported by Congress' purpose in enacting
MDRV 2314.  Inspired by the proliferation of interstate schemes for passing
counterfeit securities, see 84 Cong. Rec. 9412 (statement of Sen.
O'Mahoney), Congress in 1939 added the clause pertaining to "falsely made,
forged, altered or counterfeited securities" as an amendment to the
National Stolen Property Act.  53 Stat. 1178.  Our prior decisions have
recognized Congress' "general intent" and "broad purpose" to curb the type
of trafficking in fraudulent securities that often depends for its success
on the exploitation of interstate commerce.  In United States v. Sheridan,
329 U. S. 379 (1946), we explained that Congress enacted the relevant
clause of MDRV 2314  {4} in order to "com[e] to the aid of the states in
detecting and punishing criminals whose offenses are complete under state
law, but who utilize the channels of interstate commerce to make a
successful getaway and thus make the state's detecting and punitive
processes impotent."  Id., at 384.  This, we concluded, "was indeed one of
the most effective ways of preventing further frauds."  Ibid.; see also
McElroy v. United States, 455 U. S. 642, 655 (1982) (rejecting a narrow
reading of MDRV 2314 that was at odds with Congress' "broad purpose" and
that would "undercut sharply . . . federal prosecutors in their effort to
combat crime in interstate commerce").
    We think that "title washing" operations are a perfect example of the
"further frauds" that Congress sought to halt in enacting MDRV 2314.  As
Moskal concedes, his title-washing scheme is a clear instance of fraud
involving securities.  And as the facts of this case demonstrate, title
washes involve precisely the sort of fraudulent activities that are
dispersed among several States in order to elude state detection.
    Moskal draws a different conclusion from this legislative history.
Seizing upon the references to counterfeit securities, petitioner finds no
evidence that "the 1939 amendment had anything at all to do with odometer
rollback schemes."  Reply Brief for Petitioner 6.  We think petitioner mis
conceives the inquiry into legislative purpose by failing to recognize that
Congress sought to attack a category of fraud.  At the time that Congress
amended the National Stolen Property Act, counterfeited securities no doubt
constituted (and may still constitute) the most prevalent form of such
interstate fraud.  The fact remains, however, that Congress did not limit
the statute's reach to "counterfeit securities" but instead chose the
broader phrase "falsely made, forged, altered or counterfeited securities,"
which was consistent with its purpose to reach a class of frauds that
exploited interstate commerce.
    This Court has never required that every permissible application of a
statute be expressly referred to in its legis lative history.  Thus, for
example, in United States v. Turkette, 452 U. S. 576 (1981), we recognized
that "the major purpose" of the Racketeer Influenced and Corrupt
Organizations statute was "to address the infiltration of legitimate
business by organized crime."  Id., at 591.  Yet, we concluded from the
statute's broad language and legislative purpose that the key term
"enterprise" must include not only legitimate businesses but also criminal
associations.  Ibid.; see also United States v. Naftalin, 441 U. S. 768,
775 (1979) (Securities Act of 1933 covers fraud against brokers as well as
investors, since "neither this Court nor Congress has ever suggested that
investor protection was the sole purpose of [that] Act" (emphasis in
original)).
    Our precedents concerning MDRV 2314 specifically reject constructions
of the statute that limit it to instances of fraud rather than the class of
fraud encompassed by its language.  For example, in United States v.
Sheridan, supra, the defendant cashed checks at a Michigan bank, drawn on a
Missouri account, with a forged signature.  The Court found that such
conduct was proscribed by MDRV 2314.  In reaching that conclusion, the
Court noted Congress' primary objective of reaching counterfeiters of
corporate securities but nonetheless found that the statute covered check
forgeries "done by `little fellows' who perhaps were not the primary aim of
the congressional fire."  329 U. S., at 390.  "Whether or not Congress had
in mind primarily such small scale transactions as Sheridan's," we held,
"his operation was covered literally and we think purposively.  Had this
not been intended, appropriate exception could easily have been made."
Ibid.  In explaining that conclusion, we stated further:

"Drawing the [forged] check upon an out-of-state bank, knowing it must be
sent there for presentation, is an obviously facile way to delay and often
defeat apprehension, conviction and restoration of the ill-gotten gain.
There are sound reasons therefore why Congress would wish not to exclude
such persons [from the statute's reach], among them the very ease with
which they may escape the state's grasp."  Id., at 391.


    In McElroy v. United States, supra, we similarly rejected a narrow
construction of MDRV 2314.  The defendant used blank checks that had been
stolen in Ohio to buy a car and a boat in Pennsylvania.  Defendant conceded
that the checks he had thus misused constituted "forged securities" but
maintained his innocence under the federal statute because the checks were
not yet forged when they were transported across state boundaries.  The
Court acknowledged that "Congress could have written the statute to produce
this result," id., at 656, but rejected such a reading as inconsistent with
Congress' "broad purpose" since it would permit "a patient forger easily
[to] evade the reach of federal law," id., at 655.  Moreover, because we
found the defendant's interpretation to be contradicted by Congress' intent
in MDRV 2314 and its predecessors, we also rejected the defendant's plea
for lenity: "although `criminal statutes are to be construed strictly . . .
this does not mean that every criminal statute must be given the narrowest
possible meaning in complete disregard of the purpose of the legislature.'
"  Id., at 658, quoting United States v. Bramblett, 348 U. S. 503, 509-510
(1955) (footnote omitted).  We concluded that the defendant had failed to
"raise significant questions of ambiguity, for the statutory language and
legislative history . . . indicate that Congress defined the term
"interstate commerce" more broadly than the petitioner contends."  Ibid.
    Thus, in both Sheridan and McElroy, defendants who admittedly
circulated fraudulent securities among several States sought to avoid
liability by offering a reading of MDRV 2314 that was narrower than the
scope of its language and of Congress' intent, and in each instance we
rejected the proffered interpretation.  Moskal's interpretation in the
present case rests on a similarly cramped reading of the statute's words,
and we think it should likewise be rejected as inconsistent with Congress'
general purpose to combat interstate fraud.  "[F]ederal statutes that are
intended to fill a void in local law enforcement should be construed
broadly."  Bell v. United States, 462 U. S. 356, 362 (1983) (Stevens, J.,
dissenting) (citation omitted). {5}
    To summarize our conclusions as to the meaning of "falsely made" in
MDRV 2314, we find both in the plain meaning of those words and in the
legislative purpose underlying them ample reason to apply the law to a
fraudulent scheme for washing vehicle titles. {6}
B
    Petitioner contends that such a reading of MDRV 2314 is nonetheless
precluded by a further principle of statutory construction.  "[W]here a
federal criminal statute uses a common-law term of established meaning
without otherwise defining it, the general practice is to give that term
its common-law meaning."  United States v. Turley, 352 U. S. 407, 411
(1957).  Petitioner argues that, at the time Congress enacted the relevant
clause of MDRV 2314, the term "falsely made" had an established common-law
meaning equivalent to forgery.  As so defined, "falsely made" excluded
authentic or genuine documents that were merely false in content.
Petitioner maintains that Congress should be presumed to have adopted this
common-law definition when it amended the National Stolen Property Act in
1939 and that MDRV 2314 therefore should be deemed not to cover washed
vehicle titles that merely contain false odometer readings.  We disagree
for two reasons.
    First, Moskal has failed to demonstrate that there was, in fact, an
"established" meaning of "falsely made" at common law.  Rather, it appears
that there were divergent views on this issue in American courts.
Petitioner and respondent agree that many courts interpreted "falsely made"
to exclude documents that were false only in content.  The opinion in
United States v. Wentworth, 11 F. 52 (CC NH 1882), typifies that view.
There, the defendants were prosecuted for having "falsely made" affidavits
that they submitted to obtain a pension.  The defendants did sign the
affidavits, but the facts recited therein were false.  The court concluded
that this would support a charge of perjury but not false making because
"to falsely make an affidavit is one thing; to make a false affidavit is
another."  Id., at 55. {7}
    But the Wentworth view -- that "falsely made" excluded documents
"genuinely" issued by the person purporting to make them and false only in
content -- was not universal.  For example, in United States v. Hartman, 65
F. 490 (ED Mo. 1894), the defendant procured a "notary certificate"
containing falsehoods.  Finding that this conduct fell within the conduct
proscribed by a statute barring certain "falsely made, forged, altered or
counterfeited" writings, the judge stated

"I cannot conceive how any significance can be given to the words `falsely
make' unless they shall be construed to mean the statements in a
certificate which in fact are untrue.  `Falsely' means in opposition to the
truth.  `Falsely makes' means to state in a certificate that which is not
true . . . ."  Id., at 491.


    Other common-law courts, accepting the equation of "falsely making"
with "forgery," treated as "forged" otherwise genuine documents
fraudulently procured from innocent makers.  In State v. Shurtliff, 18 Me.
368 (1841), a landowner signed a deed conveying his farm under the
misapprehension that the deed pertained to a different land parcel.
Although this deed was "genuine" in the sense that the owner had signed it,
the court held it was "falsely made" by the grantee, who had tendered this
deed for the owner's signature instead of one previously agreed upon by the
parties.  Id., at 371.  In concluding that the deed was falsely made, the
court explained, "[i]t is not necessary, that the act [of falsely making]
should be done, in whole or in part, by the hand of the party charged.  It
is sufficient if he cause or procure it to be done."  Ibid.  Similarly, In
re Count de Toulouse Lautrec, 102 F. 878 (CA7 1900), upheld the extradition
on forgery charges of a defendant who misused sample copies of corporate
bond interest coupons that were printed in good faith by the company's
printers.  The court noted:

"the authorities establish numerous instances wherein forgery is found,
apart from the manual making or signing, as in the fraudulent procurement
and use of a signature or writing as an obligation when it is not so
intended or understood by the maker."  Id., at 881 (emphasis added).


See also Annot., Genuine Making of Instrument for Purpose of Defrauding as
Constituting Forgery, 41 A. L. R. 229, 247 (1926).
    This plurality of definitions of "falsely made" substantially
undermines Moskal's reliance on the "common-law meaning" principle.  That
rule of construction, after all, presumes simply that Congress accepted the
one meaning for an undefined statutory term that prevailed at common law.
Where, however, no fixed usage existed at common law, we think it more
appropriate to inquire which of the common-law readings of the term best
accords with the overall purposes of the statute rather than simply assume,
for example, that Congress adopted the reading that was followed by the
largest number of common-law courts.  " `Sound rules of statutory
interpretation exist to discover and not to direct the Congressional will.'
"  Huddleston v. United States, 415 U. S. 814, 831 (1974), quoting United
States ex rel. Marcus v. Hess, 317 U. S. 537, 542 (1943).  See also United
States v. Turley, 352 U. S. 407, 412 (1957) (declining to assume that
Congress equated "stolen" with the common-law meaning of "larceny" in light
of varying historic usages of the terms "steal" or "stolen").
    Our second reason for rejecting Moskal's reliance on the "common-law
meaning" rule is that, as this Court has previously recognized, Congress'
general purpose in enacting a law may prevail over this rule of statutory
construction.  In Taylor v. United States, 495 U. S. --- (1990), we
confronted the question whether "burglary," when used in a sentence
enhancement statute, was intended to take its commonlaw meaning.  We
declined to apply the "common-law meaning" rule, in part, because the
common-law meaning of burglary was inconsistent with congressional purpose.
"The arcane distinctions embedded in the common-law definition [of
burglary]," we noted, "have little relevance to modern law-enforcement
concerns."  Id., at --- (footnote omitted).  See also Bell v. United
States, 462 U. S. 356, 360-361 (1983) (declining to apply the common-law
meaning of "takes and carries away" as inconsistent with other provisions
of the Bank Robbery Act).
    We reach a similar conclusion here.  The position of those common-law
courts that defined "falsely made" to exclude documents that are false only
in content does not accord with Congress' broad purpose in enacting MDRV
2314 -- namely, to criminalize trafficking in fraudulent securities that
exploits interstate commerce.  We conclude, then, that it is far more
likely that Congress adopted the common-law view of "falsely made" that
encompasses "genuine" documents that are false in content.
C
    Finally, Moskal offers two policy arguments for narrowly construing
"falsely made."  First, noting that thousands of automobile titles are
"washed" every year, petitioner argues that "to invalidate all of these
automobile titles because they contain an incorrect mileage figure may well
result in havoc in the stream of automobile commerce."  Brief for
Petitioner 19 (emphasis added).  Even if we were inclined to credit this
concern as a reason for narrowing the statute, the argument -- so far as we
can discern -- rests on a faulty premise.  There is no evidence in the
record to suggest that States will deem washed titles automatically invalid
simply because federal law punishes those responsible for introducing such
fraudulent securities into the streams of commerce.
    Secondly, Moskal suggests that construing "falsely made" to apply to
securities that contain false information will criminalize a broad range of
"innocent" conduct.  This contention, too, is unfounded.  A person who
transports such a security in interstate commerce violates MDRV 2314 only
if he does so with unlawful or fraudulent intent and if the false
information is itself material. {8}  A person whose conduct satisfies these
tests will be acting no more "innocently" than was Moskal when he engaged
in the concededly fraudulent title-washing scheme at issue in this case.
    For all of the foregoing reasons, the decision of the Court of Appeals
is

Affirmed.


    Justice Souter took no part in the consideration or decision of this
case.

 
 
 
 
 


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1
    The text of 18 U. S. C. MDRV 2314 reads, in pertinent part:
    "Whoever, with unlawful or fraudulent intent, transports in interstate
or foreign commerce any falsely made, forged, altered, or counterfeited
securities or tax stamps, knowing the same to have been falsely made,
forged altered, or counterfeited; . . .

    . . . . .


    "Shall be fined not more than $10,000 or imprisoned not more than ten
years, or both."
    For purposes of MDRV 2314, "securities" are defined to include any
"valid . . . motor vehicle title."  18 U. S. C. MDRV 2311.

2
    Indeed, we offer no view on how we would construe "falsely made" in a
statute that punished the act of false making and that specified no
scienter requirement.  Cf. Morissette v. United States, 342 U. S. 246,
251-252 (1952) (implying scienter for statutory version of "common law"
offense).

3
    Moskal justifies doing so by arguing that "falsely made" was synonymous
with "forged" at common law.  We separately consider -- and reject --
Moskal's common-law argument, infra, at 10-13.

4
    The statute at issue in Sheridan was an earlier codification of MDRV
2314.  The clause governing "falsely made, forged, altered or counterfeited
securities" was at that time contained within 18 U. S. C. MDRV 415 (1946
ed.).

5
    Moskal appears to concede the logic, if not the result, of this
analysis when he distinguishes -- solely on its facts -- the decision in
United States v. Daly, 716 F. 2d 1499 (CA9 1983), cert. dism'd, 465 U. S.
1075 (1984).  The defendants in Daly operated a car theft ring and were
convicted under MDRV 2314 of transporting washed vehicle titles that
falsely identified the numbers and owners of the stolen cars.
Notwithstanding the extremely similar facts in Daly, petitioner does not
ask us to disapprove the result in that case.  Rather, he seeks to
distinguish his own case on the grounds that, "[u]nlike the situation in
Daly, here the [car] ownership information was never altered."  Brief for
Petitioner 12 (emphasis in original).  We cannot fathom why the particular
information that is falsified in a washed vehicle title -- assuming that it
is material -- would be relevant to Congress' intent to criminalize the use
of such fraudulent documents, particularly when both schemes serve the same
goal of deceiving prospective car buyers.  On the contrary, we find
confirmation in the Daly court's analysis that Congress intended to reach
precisely the sort of fraudulent behavior in which petitioner engaged.

6
    Because of this conclusion, we have no trouble rejecting Moskal's
suggestion that he did not have fair notice that his conduct could be
prosecuted under MDRV 2314.  Moskal's contention that he was "entitled to
rely" on one Court of Appeals decision holding that washed titles were not
"falsely made" is wholly unpersuasive.  See United States v. Rodgers, 466
U. S. 475, 484 (1984) (existence of conflicting decisions among courts of
appeals does not support application of the doctrine of lenity where
"review of th[e] issue by this Court and decision against the position of
the [defendant are] reasonably foreseeable").

7
    The Court of Appeals for the Tenth Circuit appeared to rely on this
reasoning when it ruled that washed vehicle titles are not "falsely made"
documents within the meaning of MDRV 2314.  United States v. Sparrow, 635
F. 2d 794, 796 (1980) (en banc), cert. denied, 450 U. S. 1004 (1981).  In
that case, the court concluded that "falsely made" relates "to `genuiness
of execution and not falsity of content.' "  635 F. 2d, at 796, quoting
Marteney v. United States, 216 F. 2d 760, 763 (CA10 1954).  As noted,
supra, at 2, it was because of the direct conflict between Sparrow and the
Third Circuit's decision in the present case that we granted certiorari.

8
    The Court of Appeals found that the false mileage figures on the washed
vehicle titles were material falsehoods.  888 F. 2d, at 285.  At oral
argument, petitioner sought to challenge that finding.  Although this issue
was not presented in the petition for certiorari to this Court, we do not
doubt the correctness of the lower court's conclusion as to this matter.





Subject: MOSKAL v. UNITED STATES

 


    SUPREME COURT OF THE UNITED STATES


No. 89-964



RAYMOND J. MOSKAL, Sr., PETITIONER v.
UNITED STATES


on writ of certiorari to the united states court of appeals for the third
circuit

[December 3, 1990]



    Justice Scalia, with whom Justice O'Connor and Justice Kennedy join,
dissenting.

    Today's opinion succeeds in its stated objective of "resolv[ing] a
divergence of opinion among the courts of appeals," ante, at 2, regarding
the application of 18 U. S. C. MDRV 2314.  It does that, however, in a
manner that so undermines generally applicable principles of statutory
construction that I fear the confusion it produces will far exceed the
confusion it has removed.

I
    The Court's decision rests ultimately upon the proposition that,
pursuant to "ordinary meaning," a "falsely made" document includes a
document which is genuinely what it purports to be, but which contains
information that the maker knows to be false, or even information that the
maker does not know to be false but that someone who causes him to insert
it knows to be false.  It seems to me that such a meaning is quite
extraordinary.  Surely the adverb preceding the word "made" naturally
refers to the manner of making, rather than to the nature of the product
made.  An inexpensively made painting is not the same as an inexpensive
painting.  A forged memorandum is "falsely made"; a memorandum that
contains erroneous information is simply "false."    One would not expect
general-usage dictionaries to have a separate entry for "falsely made," but
some of them do use precisely the phrase "to make falsely" to define
"forged."  See, e. g., Webster's New International Dictionary 990 (2d ed.
(1945)); Webster's Third New International Dictionary 891 (1961).  The
Court seeks to make its interpretation plausible by the following locution:
"Such titles are `falsely made' in the sense that they are made to contain
false, or incorrect, information."  Ante, at 4.  This sort of word-play can
transform virtually anything into "falsely made."  Thus: "The building was
falsely made in the sense that it was made to contain a false entrance."
This is a far cry from "ordinary meaning."
    That "falsely made" refers to the manner of making is also evident from
the fifth clause of MDRV 2314, which forbids the interstate transportation
of "any tool, implement, or thing used or fitted to be used in falsely
making, forging, altering, or counterfeiting any security or tax stamps."
This obviously refers to the tools of counterfeiting, and not to the tools
of misrepresentation.
    The Court maintains, however, that giving "falsely made" what I
consider to be its ordinary meaning would render the term superfluous,
offending the principle of construction that if possible each word should
be given some effect.  United States v. Menasche, 348 U. S. 528, 538-539
(1955).  The principle is sound, but its limitation ("if possible") must be
observed.  It should not be used to distort ordinary meaning.  Nor should
it be applied to the obvious instances of iteration to which lawyers, alas,
are particularly addicted -- such as "give, grant, bargain, sell and
convey," "aver and affirm," "rest, residue and remainder," or "right, title
and interest."  See generally B. Garner, A Dictionary of Modern Legal Usage
197-200 (1987).  The phrase at issue here, "falsely made, forged, altered,
or counterfeited," is, in one respect at least, uncontestedly of that sort.
As the United States conceded at oral argument, and as any dictionary will
confirm, "forged" and "counterfeited" mean the same thing.  See, e. g.,
Webster's 2d, at 607 (defining to "counterfeit" as to "forge," and listing
"forged" as a synonym of the adjective "counterfeit"), id., at 990
(defining to "forge" as to "counterfeit," and listing "counterfeit" as a
synonym of "forge").  Since iteration is obviously afoot in the relevant
passage, there is no justification for extruding an unnatural meaning out
of "falsely made" simply in order to avoid iteration.  The entire phrase
"falsely made, forged, altered, or counterfeited" is self-evidently not a
listing of differing and precisely calibrated terms, but a collection of
near synonyms which describes the product of the general crime of forgery.

II
    Even on the basis of a layman's understanding, therefore, I think
today's opinion in error.  But in declaring that understanding to be the
governing criterion, rather than the specialized legal meaning that the
term "falsely made" has long possessed, the Court makes a mistake of
greater consequence.  The rigid and unrealistic standard it prescribes for
establishing a specialized legal meaning, and the justification it
announces for ignoring such a meaning, will adversely affect many future
cases.
    The Court acknowledges, as it must, the doctrine that when a statute
employs a term with a specialized legal meaning relevant to the matter at
hand, that meaning governs.  As Justice Jackson explained for the Court in
Morissette v. United States, 342 U. S. 246, 263 (1952):

"[W]here Congress borrows terms of art in which are accumulated the legal
tradition and meaning of centuries of practice, it presumably knows and
adopts the cluster of ideas that were attached to each borrowed word in the
body of learning from which it was taken and the meaning its use will
convey to the judicial mind unless otherwise instructed.  In such a case,
absence of contrary direction may be taken as satisfaction with widely
accepted definitions, not as departure from them."


Or as Justice Frankfurter more poetically put it: "[I]f a word is obviously
transplanted from another legal source, whether the common law or other
legislation, it brings its soil with it."  Frankfurter, Some Reflections on
the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947).
    We have such an obvious transplant before us here.  Both Black's Law
Dictionary and Ballentine's Law Dictionary contain a definition of the term
"false making."  The former reads as follows:

"False making.  An essential element of forgery, where material alteration
is not involved.  Term has reference to manner in which writing is made or
executed rather than to its substance or effect.  A falsely made instrument
is one that is fictitious, not genuine, or in some material particular
something other than it purports to be and without regard to truth or
falsity of facts stated therein."  Black's Law Dictionary 602 (6th
ed.1990).


Ballentine's is to the same effect.  See Ballentine's Law Dictionary 486
(2d ed. 1948).  "Falsely made" is, in other words, a term laden with
meaning in the common law, because it describes an essential element of the
crime of forgery.  Blackstone defined forgery as "the fraudulent making or
alteration of a writing to the prejudice of another man's right."  4 W.
Blackstone, Commentaries 245 (1769) (emphasis added).  The most prominent
19th century American authority on criminal law wrote that "[f]orgery, at
the common law, is the false making or materially altering, with intent to
defraud, of any writing which, if genuine, might apparently be of legal
efficacy or the foundation of a legal liability."  2 J. Bishop, Criminal
Law MDRV 523, p. 288 (5th ed. 1872) (emphasis added).  The distinction
between "falsity in execution" (or "false making") and "falsity of content"
was well understood on both sides of the Atlantic as marking the boundary
between forgery and fraud.

"The definition of forgery is not, as has been suggested in argument, that
every instrument containing false statements fraudulently made is a
forgery; but . . . that every instrument which fraudulently purports to be
that which it is not is a forgery . . . ."  Queen v. Ritson, L. R. 1 Cr.
Cas. Res. 200, 203 (1869)
"The term falsely, as applied to making or altering a writing in order to
make it forgery, has reference not to the contracts or tenor of the
writing, or to the fact stated in the writing . . . but it implies that the
paper or writing is false, not genuine, fictitious, not a true writing,
without regard to the truth or falsity of the statement it contains."
State v. Young, 46 N. H. 266, 270 (1865) (emphasis in original).


    In 1939, when the relevant portion of MDRV 2314 was enacted, the States
and the Federal Government had been using the "falsely made" terminolog for
more than a century in their forgery statutes.  E. g., Ky. Penal Laws MDRV
22 (1802) ("falsely make, forge or counterfeit"); Ind. Rev. Stat., ch. 53,
MDRV 26 (1843) ("falsely make, deface, destroy, alter, forge, or
counterfeit"); Del. Rev. Code, ch. 151 (passed 1852) ("falsely make, forge,
or counterfeit").  More significantly still, the most common statutory
definition of forgery had been a formulation employing precisely the four
terms that appear in MDRV 2314: falsely make, alter, forge, and
counterfeit.  See, e. g., 1 Stat. 115, MDRV 14 ("falsely make, alter, forge
or counterfeit") (1790); Act of Feb. 8, 1791, N. H. Const. and Laws, p.
268-269 (1805), ("falsely make, alter, forge or counterfeit"); Md. Acts of
1799, ch. 75 (passed Jan. 3, 1800) ("falsely make, alter, forge or
counterfeit"); Act of March 15, 1805, MDRV 1, 4 Perpetual Laws of the
Commonwealth of Mass. 277 (1807) ("falsely make, alter, forge or
counterfeit"); Ill. Crim. Code, div. 8, MDRV 73 (1827) ("falsely make,
alter, forge or counterfeit"); Act of March 8, 1831, MDRV 22, 3 Ohio Stat.,
p. 1726 (1835) ("falsely make, alter, forge or counterfeit"); Mo. Rev.
Stat. Crimes and Punishments, Art. IV, 15 15-16 (Mo. 1835) ("falsely make,
alter, forge or counterfeit"); Me. Rev. Stat., ch. 157 MDRV 1 et seq.
(1840) ("falsely make, alter, forge or counterfeit"); Iowa Code, ch. 141
MDRV 2926 (1851) ("falsely make, alter, forge, or counterfeit"); Act of
Nov. 25, 1861, Nev. Laws, ch. 28, MDRV 77 (1862) ("falsely make, alter,
forge, or counterfeit"); Fla. Rev. Stat., Tit. 2, Art. 7, MDRV 2479 (passed
1868) ("falsely makes, alters, forges or counterfeits"); Cal. Penal Code,
ch. 4, MDRV 470 (passed 1872) ("falsely makes, alters, forges, or
counterfeits"); 96 Minn. Gen. Stat., ch 96, MDRV 1 (1879) ("falsely make,
alter, forge or counterfeit"); Wyo. Rev. Stat., div. 5, Tit. 1, MDRV 5128
(1899) ("falsely make, alter, forge or counterfeit"); Act of March 3, 1899,
Alaska Crim. Code, Tit. 1, MDRV 76 ("falsely make, alter, forge,
counterfeit, print, or photograph"); Idaho Penal Code, ch. 221, MDRV 4937
(1901) ("falsely makes, alters, forges or counterfeits"); Colo. Rev. Stat.,
ch. 35, MDRV 1704 (1908) ("falsely make, alter, forge or counterfeit"); R.
I. Gen. Laws, ch. 609, MDRV 1 (1938) ("falsely make, alter, forge or
counterfeit"); Neb. Comp. Stat. MDRV 28601 (1929) ("falsely makes, alters,
forges, counterfeits, prints or photographs").  By 1939, several federal
courts and eight States had held that the formula "falsely make, alter,
forge or counterfeit" did not encompass the inclusion of false information
in a genuine document.  United States v. Davis, 231 U. S. 183, 187-188
(1913) (dictum); United States v. Staats, 8 How. 41, 46 (1850) (dictum);
United States ex rel. Starr v. Mulligan, 59 F. 2d 200 (CA 2 1932); United
States v. Smith, 262 F. 191 (Ind. 1920); United States v. Glasener, 81 F.
566 (SD Cal. 1897); United States v. Moore, 60 F. 738 (NDNY 1894); United
States v. Cameron, 3 Dak. 132, 13 N. W. 561 (1882); United States v.
Wentworth, 11 F. 52 (CCNH 1882); People v. Kramer, 352 Ill. 304, 185 N. E.
590 (1933); Goucher v. State, 113 Neb. 352, 204 N. W. 967 (1925); De Rose
v. People, 64 Colo. 332, 171 P. 359 (1918); State v. Ford, 89 Ore. 121, 172
P. 802 (1918); Territory v. Gutierrez, 13 N. M. 312, 84 P. 525 (1906);
People v. Bendit, 111 Cal. 274, 43 P. 901 (1896); State v. Corfield, 46
Kan. 207, 26 P. 498 (1890); State v. Willson, 28 Minn. 52, 9 N. W. 28
(1881).  Only one federal court had disagreed.  United States v. Hartman,
65 F. 490 (ED Mo. 1894).  (As noted in Part IV infra, this case was not
followed and has been implicitly overruled.)  Even statutes that used
"falsely made" without accompaniment of the other three terms used in MDRV
2314 were interpreted not to include falsity of content.  People v. Mann,
75 N. Y. 484 (1878); State v. Young, 46 N. H. 266 (1865).  Indeed, as far
as I am aware the only state courts that held a genuine document containing
false information to be "forged" did so under governing texts that did not
include the term "falsely made".  See Moore v. Commonwealth, 92 Ky. 630, 18
S. W. 833 (1892); Luttrell v. State, 85 Tenn. 232, 1 S. W. 886 (1886).
Even they were in the minority, however.  See Bank of Detroit v. Standard
Accident Insurance Co., 245 Mich. 14, 222 N. W. 134 (1928) ("forged");
Dexter Holton National Bank of Seattle v. United States Fidelity & Guaranty
Co., 149 Wash. 343, 270 P. 799 (1928) ("forged"); Barron v. State, 12 Ga.
App. 342, 77 S. E. 214 (1913) ("fraudulently make").
    Commentators in 1939 were apparently unanimous in their understanding
that "false making" was an element of the crime of forgery, and that the
term did not embrace false contents.  May's Law of Crimes MDRV 292 (K.
Sears & H. Weihofen, eds. 4th ed. 1938); W. Clark & W. Marshall, Law of
Crimes MDRV 394 (3d ed. 1927); 2 Bishop Criminal Law 15 523, 582 and 582a
(9th ed. 1923); 1 H. Brill, Cyclopedia of Criminal Law MDRV 557 (1922).
(Contemporary commentators remain unanimous that falsity of content does
not establish forgery.  See, e. g., R. Perkins & R. Boyce, Criminal Law
418-420 (3d ed. 1982); 4 C. Torcia, Wharton's Criminal Law 130-132 (14th
ed. 1981); W. Lafave & A. Scott, Criminal Law 671 (1972).)  An American
Jurisprudence annotation published in 1939 said:

"A definition now very generally accepted explains forgery as the false
making or material alteration, with intent to defraud, of any writing
which, if genuine, might apparently be of legal efficacy or the foundation
of a legal liability."  23 Am. Jur. 676.


It also said:

"[T]he term `falsely,' as applied to making or altering a writing in order
to make it a forgery, does not refer to the contents or tenor of the
writing or to the facts stated therein, but implies that the paper or
writing is not genuine, that in itself it is false or counterfeit."  Id.,
at 678.


    I think it plain that "falsely made" had a well-established common-law
meaning at the time the relevant language of MDRV 2314 was enacted --
indeed, that the entire formulary phrase "falsely made, forged, altered or
counterfeited" had a wellestablished common-law meaning; and that that
meaning does not support the present conviction.

III
    Unsurprisingly, in light of the foregoing discussion, the lower federal
courts that interpreted this language of MDRV 2314 for more than two
decades after its passage uniformly rejected the government's position that
a genuine document could be "falsely made" because it contained false
information.  Melvin v. United States, 316 F. 2d 647, 648 (CA 7 1963);
Marteney v. United States, 216 F. 2d 760 (CA 10

Cir. 1954); Martyn v. United States, 176 F. 2d 609, 610 (CA 8 1949); Wright
v. United States, 172 F. 2d 310-312 (CA 9 1949); Greathouse v. United
States, 170 F. 2d 512, 514 (CA 4 1948).
    The United States correctly points out that a number of later cases
hold to the contrary.  Neither it nor the Court observes, however, that the
earlier line of authority bears the endorsement of this Court.  In Gilbert
v. United States, 370 U. S. 650 (1962), a case involving a statute very
similar to MDRV 2314, we approvingly cited Greathouse, Wright, and
Marteney, supra, for the proposition that "cases construing `forge' under
other federal statutes have generally drawn a distinction between false or
fraudulent statements and spurious or fictitious makings."  370 U. S., at
658.  And we quoted Marteney for the principle that "[w]here the `falsity
lies in the representation of facts, not in the genuineness of execution,'
it is not forgery."  370 U. S., at 658, quoting from Marteney, supra, at
763-764.  As I shall proceed to explain, Gilbert's approval of these cases'
interpretation of "forge" necessarily includes an approval of their
interpretation of "false making" as well.  Moreover, the very holding of
Gilbert is incompatible with the Court's decision today.
    Gilbert was a prosecution under 18 U. S. C. MDRV 495, which punishes
anyone who "falsely makes, alters, forges, or counterfeits" any document
for the purpose of obtaining money from the United States.  The difference
between that and the phrase at issue here ("falsely made, forged, altered,
or counterfeited") is only the tense and the order of the words.  The
defendant in Gilbert had endorsed tax refund checks, made out to other
persons, as "Trustee" for them.  The Government contended that the
represented agency capacity in fact did not exist, and that by reason of
the misrepresentation MDRV 495 had been violated.  The Court rejected that
contention, and set Gilbert's conviction aside.
    The indictment in Gilbert charged that the checks had been "forged,"
and so it was only that term, and not the totality of MDRV 495, that the
Court specifically addressed.  It is plain from the opinion, however, that
the Court understood "false making" (as I do) to be merely a recitation of
the central element of forgery.  Indeed, that is the whole basis for the
decision.  Thus, the Court's discussion of the common-law meaning of
"forges" begins as follows:

    "In 1847 it was decided in the English case of Regina v. White . . .
that `indorsing a bill of exchange under a false assumption of authority to
indorse it per procuration, is not forgery, there being no false making.' "
370 U. S., at 655.


It later quotes the same case to the following effect:

"Lord East's comments . . . were: `Forgery at common law denotes a false
making (which includes every alteration of or addition to a true
instrument), a making malo animo, of any written instrument for the purpose
of fraud and deceit. . . .  [The ancient and modern authorities] all
consider the offence as consisting in the false and fraudulent making or
altering of such and such instruments.' "  Id., at 656 (emphasis in
original).


The Court found it "significant that cases construing `forge' under other
federal statutes have generally drawn a distinction between false or
fraudulent statements and spurious or fictitious makings."  Id., at 658.
    The whole rationale of the Gilbert decision, in other words, was that
inserting fraudulent content could not constitute "forgery" because
"forgery" requires "false making."  It is utterly incompatible with that
rationale to hold, as the Court does today, that inserting fraudulent
content constitutes "false making."

IV
    The Court acknowledges the principle that common-law terms ought to be
given their established common-law meanings, but asserts that the principle
is inapplicable here because the meaning of "falsely made" I have described
above "was not universal."  Ante, at 11.  For support it cites three cases
and an ALR annotation.  The annotation itself says that one of the three
cases, United States v. Hartman, 65 F. 490 (ED Mo. 1894), "has generally
been disapproved, and has not been followed."  Annot., 41 A. L. R. 229, 249
(1926).  (That general disapproval, incidentally, was implicitly endorsed
by this Court itself in Gilbert, which interpreted the direct descendant of
the statute involved in Hartman.)  The other two cases cited by the Court
are not mentioned by the annotation, and rightly so, since they do not
discuss falsity of content but genuineness of the instrument. {1}  As for
the annotation itself, that concludes that "the better view, and that
supported by the majority opinion, is that . . . the genuine making of an
instrument for the purpose of defrauding does not constitute the crime of
forgery."  41 A. L. R., at 231 (1926).  "Majority opinion" is an
understatement.  The annotation lists 16 States and the United States as
supporting the view, and only 2 States (Kentucky and Tennessee) as opposing
it.  If such minimal "divergence" -- by States with statutes that did not
include the term "falsely made" (see supra, at 7) -- is sufficient to
eliminate a common-law meaning long accepted by virtually all the courts
and by apparently all the commentators, the principle of common-law meaning
might as well be frankly abandoned.  In Gilbert, it should be noted, we did
not demand "universal" agreement, but simply rejected "scattered federal
cases relied on by the Government" that contradicted the accepted
common-law meaning.  370 U. S. at 658.
    The Court's second reason for refusing to give "falsely made" its
common-law meaning is that "Congress' general purpose in enacting a law may
prevail over this rule of statutory construction."  Ante, at 13.  That is
undoubtedly true in the sense that an explicitly stated statutory purpose
that contradicts a common-law meaning (and that accords with another,
"ordinary" meaning of the contested term) will prevail.  The Court,
however, means something quite different.  What displaces normal principles
of construction here, according to the Court, is "Congress' broad purpose
in enacting MDRV 2314 -- namely, to criminalize trafficking in fraudulent
securities that exploits interstate commerce."  Ibid.   But that analysis
does not rely upon any explicit language, and is simply question-begging.
The whole issue before us here is how "broad" Congress' purpose in enacting
MDRV 2314 was.  Was it, as the Court simply announces, "to criminalize
trafficking in fraudulent securities"?  Or was it to exclude trafficking in
forged securities?  The answer to that question is best sought by examining
the language that Congress used -- here, language that Congress has used
since 1790 to describe not fraud but forgery, and that we reaffirmed bears
that meaning as recently as 1962 (in Gilbert).  It is perverse to find the
answer by assuming it, and then to impose that answer upon the text.
    The "Congress' broad purpose" approach is not supported by the
authorities the Court cites. {2}  There is, however, one case in which it
does appear.  It was proposed by the Government, and rejected by the Court,
in Gilbert:

"Nor are we impressed with the argument that `forge' in MDRV 495 should be
given a broader scope than its commonlaw meaning because contained in a
statute aimed at protecting the Government against fraud.  Other federal
statutes are ample enough to protect the Government against fraud and false
statements. . . .  Still further, it is significant that cases construing
`forge' under other federal statutes have generally drawn a distinction
between false or fraudulent statements and spurious or fictitious makings."
370 U. S., at 658 (footnote omitted).


We should have rejected the argument in precisely those terms today.
Instead, the Court adopts a new principle that can accurately be described
as follows: "Where a term of art has a plain meaning, the Court will divine
the statute's purpose and substitute a meaning more appropriate to that
purpose."

V
    I feel constrained to mention, though it is surely superfluous for
decision of the present case, the so-called Rule of Lenity -- the venerable
principle that "before a man can be punished as a criminal under the
federal law his case must be plainly and unmistakably within the provisions
of some statute."  United States v. Gradwell, 243 U. S. 476, 485 (1917)
(internal quotation omitted).  See also, McNally v. United States, 483 U.
S. 350, 359-360 (1987).  As Justice Marshall explained some years ago:

"This principle is founded on two policies that have long been part of our
tradition.  First, a `fair warning should be given to the world in language
that the common world will understand, of what the law intends to do if a
certain line is passed.  To make the warning fair, so far as possible the
line should be clear.'  McBoyle v. United States, 283 U. S. 25, 27 (1931)
(Holmes, J.) . . . Second, because of the seriousness of criminal
penalties, and because criminal punishment usually represents the moral
condemnation of the community, legislatures and not courts should define
criminal activity.  This policy embodies `the instinctive distaste against
men languishing in prison unless the lawmaker has clearly said they
should.'  H. Friendly, Mr. Justice Frankfurter and The Reading of Statutes,
in Benchmarks, 196, 209 (1967)."  United States v. Bass, 404 U. S. 336,
347-349 (1971).


    "Falsely made, forged, altered or counterfeited" had a plain meaning in
1939, a meaning recognized by five Circuit courts and approved by this
Court in Gilbert.  If the Rule of Lenity means anything, it means that the
Court ought not do what it does today: use an ill-defined general purpose
to override an unquestionably clear term of art, and (to make matters
worse) give the words a meaning that even one unfamiliar with the term of
art would not imagine.  The temptation to stretch the law to fit the evil
is an ancient one, and it must be resisted.  As Chief Justice Marshall
wrote:

"The case must be a strong one indeed, which would justify a Court in
departing from the plain meaning of words, especially in a penal act, in
search of an intention which the words themselves did not suggest.  To
determine that a case is within the intention of a statute, its language
must authorise us to say so.  It would be dangerous, indeed, to carry the
principle that a case which is within the reason or mischief of a statute,
is within its provisions, so far as to punish a crime not enumerated in the
statute, because it is of equal atrocity, or of kindred character, with
those which are enumerated."  United States v. Wiltberger, 5 Wheat. 76, 96
(1820).


    For the foregoing reasons, I respectfully dissent.
 
 
 
 
 
 

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1
    In re Count de Toulouse Lautrec, 102 F. 878 (CA7 1900), involved sample
interest coupons which the petitioner obtained and passed off as genuine.
The court upheld the conviction for uttering a forged instrument, because
the coupons were not "genuine obligations of the purported promisors, but
were, instead, false instruments," id., at 879, and "not genuine in fact,"
id., at 880.
    In State v. Shurtliff, 18 Me. 368 (1841), the defendant had procured a
signature upon a deed by misrepresenting the nature of the document signed
(the deed did not contain false information).  The court held that such
conduct was forgery, because the resulting deed was a "false instrument,"
"purport[ing] to be the solemn and voluntary act of the grantor," which it
was not.  Id., at 371.
    These decisions perhaps stretch the concept of what constitutes a non
genuine instrument, but neither purports to hold that the insertion of
fraudulent content constitutes "false making" or forgery.

2
    Taylor v. United States, 495 U. S. --- (1990), cited ante, at 13,
stands for the quite different proposition that a common-law meaning
obsolete when a statute is enacted, does not control the "generally
accepted contemporary meaning of a term".  Taylor, supra, at --- (Slip op.
19).  As I have discussed at length in Parts I and II, the common-law
meaning of "falsely made" was alive and well in 1939, and its then (and
now) contemporary meaning does not contradict that common-law meaning
anyway.  Bell v. United States, 462 U. S. 356, 360-361 (1983), cited ante,
at 13, turns upon the fact that the common-law term relied upon ("takes and
carries away," one of the elements of common-law larceny) was combined with
other terms and provisions that unquestionably went beyond common-law
larceny.  Here, by contrast, the entire phrase at issue is a classic
description of forgery.  McElroy v. United States, 455 U. S. 642 (1982),
and United States v. Sheridan, 329 U. S. 379 (1946), cited ante, at 6, do
not use Congress' "broad purpose" to depart from any common-law meaning,
but rather to interpret the ambiguous terms "interstate commerce" (McElroy)
and "cause to be transported" (Sheridan).
