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United States v. Jackson

decided: November 10, 1986.

UNITED STATES OF AMERICA, APPELLEE
v.
ISAAC JACKSON AND PETER BENNERSON, DEFENDANTS-APPELLANTS



Appeal from separate judgments of the United States District Court for the Southern District of New York, Ward, Judge, and Haight, Judge, convicting appellants of converting two different United States Treasury checks in violation of 18 U.S.C. § 641. Affirmed.

Author: Pierce

Before: MESKILL, KEARSE, and PIERCE, Circuit Judges

PIERCE, Circuit Judge

Appeal from a judgment of the United States District Court for the Southern District of New York, Ward, Judge, entered March 13, 1986, convicting appellant, Isaac Jackson, of conversion of a United States Treasury check in an amount under $500 in violation of 18 U.S.C. § 641, and from a judgment of the United States District Court for the Southern District of New York, Haight, Judge, entered April 1, 1986, convicting appellant, Peter Bennerson, of a similar charge.

Appellants each maintain that they were improperly charged with a felony under 18 U.S.C. § 641, a general statute dealing with conversion of a United States property, because a more recently enacted statute, 18 U.S.C. § 510, which deals specifically with offenses relating to Treasury checks, repealed § 641 insofar as their conduct was concerned and made their conduct punishable only as a misdemeanor.

The district judges, Judge Ward in an oral decision and Judge Haight in a written opinion, United States v. Bennerson, 616 F. Supp. 167 (S.D.N.Y. 1985), ruled that Congress in enacting § 510 did not intend to repeal § 641 and thus the government could elect to charge a defendant under either statute.

We hold, in substantial agreement with Judge Haight's opinion, that the two statutory provisions in question, §§ 641 and 510, may coexist and therefore a prosecutor has discretion to determine under which statute a defendant will be charged.

We therefore affirm the judgments of conviction.

BACKGROUND

The essential facts herein are not in dispute and were stipulated at the trial of each defendant. Those facts showed that appellant, Isaac Jackson, forged the endorsement of a United States Treasury check in the amount of $347.32 payable to another and attempted to cash it on October 2, 1985. Following his arrest, Jackson admitted that he received the check from a friend, that he endorsed it and attempted to cash it, and that he knew that the check did not belong to him and that what he was doing was wrong, but that he needed the $147 he was to receive for cashing the check. Jackson was indicted on October 16, 1985, and charged with one count of receiving a United States Treasury check, knowing it to have been stolen, with the intent to convert it to his own use in violation of 18 U.S.C. § 641. Jackson moved to dismiss the indictment on the ground that he should have been charged with a misdemeanor under 18 U.S.C. § 510, rather than a felony under § 641. Judge Ward denied that motion from the bench finding no "support for defendant's argument that Congress evidenced an express or implied affirmative intention to repeal Section 641 with respect to checks in amounts less than $500." After a bench trial, Jackson was found guilty as charged and was subsequently sentenced to an eighteen-month prison term.

Appellant Peter Bennerson also attempted on December 3, 1984, without authorization, to cash a United States Treasury check payable to a third party in the amount of $274.02. After being taken into custody, Bennerson stated that he found the check in his mailbox, that he took the check because he was in debt, that the secured a blank identification document and filled in the payee's name, and that he attempted to cash the check. Bennerson was indicted on June 13, 1985, and charged with a violation of § 641.*fn1 Bennerson also moved to have the indictment dismissed on the ground that he should have been charged with a misdemeanor under § 510 instead of a felony under § 641. Judge Haight denied the motion and, following a bench trial in which Bennerson was found guilty, sentenced him to a six-month prison term, suspended its execution, and placed him on two years' probation.

Jackson's and Bennerson's appeals were consolidated because they involved the same issue, namely, whether the enactment of § 510 under which appellants' offenses would be misdemeanors, repealed that portion of § 641 under which their offenses were denominated as felonies.

Discussion

Appellants concede that their conduct in this case falls within the purview of both 18 U.S.C. § 641 and 18 U.S.C. § 510. Section 641,*fn2 enacted in 1948, does not explicitly address the crime of forging endorsements on United States Treasury checks or passing Treasury checks with forged endorsements. Rather, that section prohibits in general terms the conversion of "any record, voucher, money, or thing of value of the United States." However, this broad language has been construed to include United States Treasury checks. See, e.g., United States v. Richardson, 755 F.2d 685, 686 (8th Cir. ...


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