Moskal v. United States – Oral Argument – October 01, 1990

Media for Moskal v. United States

Audio Transcription for Opinion Announcement – December 03, 1990 in Moskal v. United States

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But how does that help you?

Stephen L. Nightingale:

The common law term-of-art meaning was that when you go into a bank without money you have to get it by means of a scheme that involves depriving the victim of possession.

I’m sorry, go ahead.

Stephen L. Nightingale:

And I think that the same can be said of this situation.

And you assert that that helps your case by giving some different meaning to falsely made, if a different meaning is required.

Stephen L. Nightingale:

If we walked out through those doors and asked 100 people in the street whether there was a difference in substance between the documents that Mr. Moskal sent to Virginia and those that came back, 100 people would fail to perceive that.

And that is your other position, that a different meaning isn’t required anyway.

Stephen L. Nightingale:

They would all recognize that the corruption of the process of making, through the introduction of the falsity, made those documents falsely made.

Dennis M. Hart:

I couldn’t have said it better.

Stephen L. Nightingale:

Now it is true that at common law those words had a somewhat narrower meaning.

Well, but Mr. Hart, the statute itself says

Stephen L. Nightingale:

They entailed a basic distinction which, as I have indicated, was somewhat riddled with fiction, that there was a distinction between truth in the execution and truth in content.

“knowing the same to have been falsely made.”

Stephen L. Nightingale:

But I believe that there’s a situation there where we have a common ordinary meaning that can be given effect by the Court in the context of this statute.

as an additional requirement.

Stephen L. Nightingale:

Again, without harping on it, it’s fair to point out that Mr. Moskal’s confederates were paying the people in Virginia $100 to convert the altered documents into washed documents.

What is the sense of reading that language into one of the other provisions of the statute?

Stephen L. Nightingale:

They recognized that not only were they equally deceptive, but they were significantly more deceptive enough to justify the $100 a shot.

How does that help make it clear?

Stephen L. Nightingale:

And in that situation, and given the common ordinary understanding of falsely made, there is no justification for reverting back to what we submit are arcane, obsolete distinctions without meaning in this context.

Dennis M. Hart:

I am not sure that it does make it clear.

Stephen L. Nightingale:

I do want to call attention to one subsequent enactment that bears on the problem before the Court.

Well, I thought you just said that you agreed with Justice Scalia’s hypothesis?

Stephen L. Nightingale:

In 1984 Congress amended the definition of security to which this statute applies to include valid or blank automobile titles.

Dennis M. Hart:

Well, I… I do, but I don’t think that necessarily makes it clear in Mr. Moskal’s case.

Stephen L. Nightingale:

The legislative history is very sparse on this.

But the knowingly, knowing the same to have been so and so applies to the defendant in the criminal case.

Stephen L. Nightingale:

The one indicator of Congress’ intention was a committee report directed to the same bill in a prior Congress, but the indication is that Congress believed that valid titles were already covered by the statute.

Dennis M. Hart:

Certainly.

Stephen L. Nightingale:

The amendment was needed to add blank titles to those sorts of securities that could be transported.

Not to some State official who may or may not know that this instrument is falsely made.

Stephen L. Nightingale:

It is clear though that in 1984 Congress understood there to be such a thing as a falsely made, forged, counterfeited, or altered valid automobile title.

Dennis M. Hart:

Yes.

Stephen L. Nightingale:

And it is our position that one cannot conceive of a forged, counterfeited, or altered valid automobile title.

Because the Virginia people didn’t know that there was anything phony about this whole deal, did they?

Stephen L. Nightingale:

There has to be something for the… that operates on the term valid, and we believe it is falsely made.

Dennis M. Hart:

That’s correct.

Stephen L. Nightingale:

This Court has–

But if they had… what if the Virginia guy was in on it?

Did this… assuming that the statute before 1984 had meant something else, that is assuming that falsely made meant what your opponent says, or meant what the common law says, this incident in the 1984 legislation, or rather the legislative history of legislation that preceded the 1984 legislation but didn’t get passed, has the effect of altering the meaning that the statute originally had?

Then I think you would think, you would say it was falsely made.

Stephen L. Nightingale:

–Not at all, Your Honor.

Dennis M. Hart:

Yes, yes.

Stephen L. Nightingale:

This Court–

Dennis M. Hart:

But the question then would be is Mr. Moskal guilty of the transportation of those facially valid titles from Virginia to Pennsylvania.

Stephen L. Nightingale:

–Then what does it, then what is the purpose of that?

They were falsely made.

Stephen L. Nightingale:

Just to show that Congress misunderstood it or understood it correctly, one or the other.

Dennis M. Hart:

No.

Stephen L. Nightingale:

There was no alteration in 1984.

Dennis M. Hart:

No, they… because there was nothing wrong with the execution of the document.

Stephen L. Nightingale:

In 1984 Congress by action [inaudible] its position.

Dennis M. Hart:

If the document accurately reflects what its intended purpose is, and that is the ownership of the vehicle, it is a valid title, and the transportation of that across a State line should not be against the law.

Well, but the position of the 1984 Congress which did not enact this statute is totally irrelevant, isn’t it?

Even if the official preparing and issuing the document has knowledge of the falsity and intends thereby that people be deceived by it?

Stephen L. Nightingale:

Your Honor–

Dennis M. Hart:

I would say yes, Your Honor.

This statute was enacted in 1937 you told us… ’37?

Is that your position now?

Stephen L. Nightingale:

–’39, Your Honor.

Dennis M. Hart:

Yes, I would say yes.

’39.

So you have changed your position a little bit, I take it.

Of what possible relevance could be the 1984’s Congress’ misunderstanding of the law, or correct understanding, whichever one it was?

Dennis M. Hart:

Yes, but I would make one distinction, because the case… that question has arisen before.

Of what possible relevance is it, unless it is amending the law?

Dennis M. Hart:

If the intention is to deceive ultimate consumers by the identity of the vehicle or the ownership of the vehicle, then we believe that that piece of paper, even if facially fine, is invalid as a document.

Stephen L. Nightingale:

Your Honor, the Court has often indicated that subsequent interpretations of a statute by Congress, though not dispositive, are entitled to significant weight.

Dennis M. Hart:

But that was not the case here, because ownership or identity of each vehicle was never questioned.

And you think this is an interpretation of a statute by Congress, this snippet of legislative history in ’83 pertaining to an ’84 statute?

Dennis M. Hart:

It was only the odometer.

Stephen L. Nightingale:

Your Honor, it’s not just the legislative history.

I don’t understand why that makes a difference.

Stephen L. Nightingale:

It is the action.

Dennis M. Hart:

It makes a… well–

Stephen L. Nightingale:

This is not a situation where congressmen got up in committee hearings and said we believe that this statute we passed 3 years ago meant X.

Because the odometer reading is an important material part of the piece of paper, isn’t it?

Stephen L. Nightingale:

In this case the Congress as a whole passed a statute that makes sense only if there is such a thing as a valid automobile title that can violate section 2314.

Dennis M. Hart:

–Well, I disagree with that, Your Honor.

Stephen L. Nightingale:

And I think the closest parallel that I was able to find is the Red Lion case.

You think that is just put in for the fun of it?

Stephen L. Nightingale:

That was a case in which the FCC had promulgated a rule adopting the Fairness Doctrine.

Dennis M. Hart:

No, sir, but I don’t believe it is any more important than say horsepower, or color, or make.

Stephen L. Nightingale:

There was question about whether the Commission had authority to do that, and a subsequent piece of legislation, Congress amended the FCC act and noted… provided however that this amendment is not intended to alter the obligation that in effect broadcasters have under the fairness doctrine.

Maybe not, or what about the name of the former owner?

Stephen L. Nightingale:

The Court relied very heavily on that as an indication that Congress believed the FCC had the authority before to issue the doctrine.

Why is that important to a purchaser?

Suppose… suppose you have an automobile title that is counterfeited only with the… the odometer, that that is the only thing altered.

Dennis M. Hart:

Well, it’s important for title purposes, that is you would want to know the chain of title.

Stephen L. Nightingale:

Yes.

Well, but if the statute on titles requires the odometer reading to be put in, I presume it wants an accurate one, doesn’t it?

It is issued correctly by the State, and somebody alters the odometer reading, or the color of the car.

Dennis M. Hart:

Yes, and there are laws that make that an offense to–

Is that a valid automobile title?

Well, sure, and there are separate laws that make it an offense to forge documents, too.

Stephen L. Nightingale:

Your Honor, I believe that the State that issued it would not believe it was a valid automobile title, but–

We are talking about an offense of transporting certain kinds of documents in interstate commerce, documents that are equivalent to false documentary evidence.

Because the color of the car has been altered?

And that is what this is, as I understand it.

Stephen L. Nightingale:

–It’s not the same title that was issued by the State.

Dennis M. Hart:

–Well, yes, in some respects it is, but if I can pose the question would the title pass if the odometer was completely false?

Stephen L. Nightingale:

It doesn’t validly–

Dennis M. Hart:

And the answer to that–

Would you acknowledge that as a highly debatable proposition at least?

It would pass even if you had a forged signature of the owner, you had a forged name… you have all sorts of forgery on that title and it will still pass.

Stephen L. Nightingale:

–Your Honor, the reason it’s a difficult question to answer, I don’t believe that that is what… that the situation that you have in mind is what Congress had in mind.

Dennis M. Hart:

–It will still pass, but it’s subject to challenge.

Stephen L. Nightingale:

The difficulty in answering–

Dennis M. Hart:

Whereas an odometer reading, it would not.

Well, I don’t know, but if it is you could fully explain the language Congress enacted in the 1984 statute as covering a situation where you have a title in which something quite irrelevant has been… irrelevant to the title at least, has been altered.

Dennis M. Hart:

It would be no different than the wrong color of the car.

Stephen L. Nightingale:

–Your Honor, let’s focus a little bit on what automobile titles do, and then I think it will become clear why I am having difficulty with the question.

You don’t think if someone could come in and prove that the seller lied about the odometer reading he could rescind the transaction?

Stephen L. Nightingale:

States have attached different significance to automobile titles.

Dennis M. Hart:

Not under the theory that the title did not pass.

Stephen L. Nightingale:

In some States a title is the exclusive means by which you can pass title to a car.

Are you telling me that it’s important to have the name of the person who owned the car?

Stephen L. Nightingale:

If you buy my car but I don’t give you the title, I sell it to someone else, he gets it.

Dennis M. Hart:

I believe that the State statutes usually require that.

Stephen L. Nightingale:

In other States titles are prima facie evidence of ownership, but the… the transaction involves the sale of the car, and the evidence is altered to reflect the real transaction.

But is it important to the purchaser?

Stephen L. Nightingale:

In that context, Your Honor, I believe that we are cut loose in many States from the concept that the title is needed to pass title as such.

Dennis M. Hart:

Well, I imagine that would vary from purchaser to purchaser.

Stephen L. Nightingale:

The validity of the title, it seems to me, refers to the title being in its, in the condition that it had when it is issued by State authorities.

Dennis M. Hart:

Many purchasers–

But you just said in many States.

Because my next question is the odometer interesting to the purchaser?

Stephen L. Nightingale:

Yes, Your Honor.

Dennis M. Hart:

–It certainly is.

But in order for you to run the argument you are with respect to the 1984 statute, you would have to be able to say in all States, and therefore the 1984 statute can have no meaning unless it refers to what you claim it refers to.

Dennis M. Hart:

It certainly is.

Stephen L. Nightingale:

Your Honor, I think that the way that would be handled in the rules of evidence would be to say that it would go to the weight assigned to the argument, but not to the correctness of the argument.

And that was what was changed on this one.

Stephen L. Nightingale:

I don’t believe that it’s necessary to exclude all possibilities.

Dennis M. Hart:

I am sorry, Your Honor.

No, your argument is that this ’84 statute is utterly meaningless.

That’s what was changed on this one.

And what I am suggesting is even if there are only a few States where the title would be valid even though there has been an alterization… alteration, the statute would not be utterly meaningless.

Dennis M. Hart:

Yes, yes.

It doesn’t go to weight.

Dennis M. Hart:

But we–

It goes to whether your argument is valid or not.

I want to make sure that–

Stephen L. Nightingale:

Your Honor, I believe that the… again, looking at it in the context… let me say that the 1984 legislation that added this provision was designed to deal with the problem of washing and changing titles to deal with stolen cars primarily, although there was indication of odometer fraud as well.

–[inaudible].

Stephen L. Nightingale:

The committees that were dealing with the problem were told that a good way to title a stolen car would be to get a hold of an automobile title, alter the identification number to match the one of the car that had been stolen, wash that title, and then end up with an apparently valid… validly titled document.

Are you talking about material misrepresentations when you are discussing, such as you could set aside the thing that is between the buyer and the seller, or something that would enable… enable a bona fide purchaser to prevail?

Stephen L. Nightingale:

And I believe that when Congress enacted the legislation making it a… making a valid title one that could be the subject of 2314, it was intending to deal with the same aspects of that kind of fraud and scheme that we have before us today.

Dennis M. Hart:

–No, I am talking about–

Stephen L. Nightingale:

And that they had evidence before them of… Congress had evidence before it of this type of operation, altered only in the fact that the identification number was altered rather than the odometer reading.

Are you talking about materiality in the sense of is this particular representation important to a possible purchaser?

Stephen L. Nightingale:

So I believe it is a fair inference.

Dennis M. Hart:

–Yes, and our answer to that is no.

Mr. Nightingale, at the beginning of your argument you said your third point was going to be that no canon of construction interferes with your position.

Dennis M. Hart:

I am sorry, our answer to that is yes.

Would you want to discuss the rule of lenity at all?

It would have to be.

Stephen L. Nightingale:

Your Honor, I would like to do that.

That surely the representation of the odometer reading is important to a potential purchaser, if that means anything in construing the statute.

Stephen L. Nightingale:

I believe the classic statement of the rule of lenity is Justice Blackmun’s in the Huddleston case in 415 U.S. There are two reasons for the rule of lenity in effect.

Dennis M. Hart:

Yes, I certainly agree it’s important, and it may be very important.

Stephen L. Nightingale:

One reason is to give fair notice to individuals.

Dennis M. Hart:

But the question is is that… is that document which contains the false odometer reading an invalid document?

Stephen L. Nightingale:

The second is to be sure that legislatures define crimes and not courts.

Dennis M. Hart:

And the answer to that is no.

Stephen L. Nightingale:

And the rule is subject to the important qualification that although penal laws are to be strictly construed, they ought not to be construed so strictly as to defeat the obvious intention of the legislature.

Well, the statute doesn’t say invalid document.

Stephen L. Nightingale:

I submit that this is a case in which neither of the underpinnings of the rule of lenity are applicable.

Dennis M. Hart:

It does not.

Stephen L. Nightingale:

Mr. Moskal was not endowed as to the illegality of his conduct, and if he had given any attention to section 2314, I submit that looking at the common ordinary meaning of falsely made, he would not have believed that he would have been free… not free to send the documents down, but free to receive them back.

Yeah, the question is is it falsely made?

Stephen L. Nightingale:

In the context that this statute operates, I think that it’s clear that Congress was acting against an evil, the interstate transportation of falsely made securities, which fully covers this situation.

Dennis M. Hart:

Yes, yes.

Stephen L. Nightingale:

It would be highly inconsistent with Congress’ intention to exclude from this statute a scheme, the essence of which was the use of interstate transportation–

But is it your position that if in Pennsylvania they altered the certificate to show a different year of car, different odometer reading, different owner, and then it was washed in Virginia, that it is falsely made because there are some materials… misstatements?

Suppose the Virginia issuer knew that this odometer reading was false.

It seems to me you are switching your argument, that all of a sudden you conceded that materiality is the test.

That would be… this document then would be within the common law definition, wouldn’t it?

Dennis M. Hart:

No.

Stephen L. Nightingale:

–I’m sorry, Your Honor, I didn’t understand.

Dennis M. Hart:

We don’t concede that materiality is the test.

Suppose the issuer, the Virginia issuer knew that there was a false… false information in that document that he was issuing.

So that even if… suppose there’s no car at all, and you have a Pennsylvania certificate that is forged, falsely made to show that there was, and then it is washed in Virginia.

Wouldn’t that document then satisfy the common law meaning of falsely made?

And the title comes back, or the certificate comes back purporting to be an authentic Virginia certificate.

Stephen L. Nightingale:

There was dispute on that question, Your Honor.

Falsely made?

Stephen L. Nightingale:

The Goucher and Corfield cases in footnote 9 of our brief, even a corrupt official could not forge an official document.

Dennis M. Hart:

No.

Stephen L. Nightingale:

Under the Hibbs and Wilson cases–

That has to be your position.

Could he falsely make it?

Dennis M. Hart:

Yes.

Stephen L. Nightingale:

–The… those cases did not distinguish between falsely made and forgery.

So materiality has nothing to do with it.

Stephen L. Nightingale:

Under the Hibbs and Wilson cases though, that was a forgery.

Dennis M. Hart:

No, as our back-up position, if I may point that out, a number of courts, lower courts have considered the question of materiality, and they have concluded, quite frankly, that odometers are a material part of the transaction.

Stephen L. Nightingale:

It’s… it’s our belief that Congress meant not to, meant to go beyond that dispute.

Dennis M. Hart:

But they have done that in the context of stolen cars and frauds in which the identity of the owner was concealed, in which vehicle identification numbers were changed.

But assume it was a forgery and was falsely made because the fellow knew it.

Dennis M. Hart:

A traditional fraud in which cars are… are stolen, in which cars are, the parts are interchanged, in which new vehicles are made and titles are created to reflect ownership of that vehicle, which is a fraud in itself.

Will the person who sent in the false information, who sent in the false titles, if he could be prosecuted it would only be because the Virginia fellow knew it.

Dennis M. Hart:

So that is my problem with wholeheartedly embracing that position, is that the lower courts have always considered materiality as an important part, as what they call material, only in the context of stolen cars.

So I don’t see what difference it makes whether the Virginia fellow knew it or not as far as his liability under the statute’s concerned.

Dennis M. Hart:

And that’s not the case here.

Stephen L. Nightingale:

That is our position, Your Honor.

Dennis M. Hart:

The United States, as their final argument, believes that broad purpose of 2314 as an antifraud statute could only be upheld by a definition of the broad meaning of falsely made.

Stephen L. Nightingale:

The end product is a document which is falsely made because false information has been introduced into it in the process of its making.

Dennis M. Hart:

We don’t believe that’s the case.

And this defendant was responsible for the false information.

Dennis M. Hart:

We believe this Court has considered similar arguments, for instance when this Court considered the case of bootleg records, as whether they were counterfeit or whether they were stolen, under 2314 and rejected that.

Stephen L. Nightingale:

Right.

Dennis M. Hart:

Although this Court many years ago considered the prospect of the inclusion of aircraft as vehicles under the predecessor of the Motor Vehicle Theft Act, the statute, the language of the statute at that time said any vehicle that… any self-propelled vehicle that wasn’t on rails, if it were transported would be a violation of the Motor Vehicle Theft Act.

Stephen L. Nightingale:

The defendant in this case had intent to defraud, and made the interstate transportation knowing of the falsely made document.

Dennis M. Hart:

And the Government’s position was well, you now have airplanes, and if you steal one of those it should be included in that because the meaning was arcane and antiquated.

Stephen L. Nightingale:

Those are the two mental elements of this statute, and they are fully satisfied.

Dennis M. Hart:

This Court rejected that argument.

Mr. Nightingale, in determining whether the rule of lenity should be applied, it doesn’t seem to me it is fair to take this particular defendant as the sole example.

Dennis M. Hart:

We think similar reason should apply to this case.

Suppose somebody who intends to get his car painted, but it isn’t painted yet, and he tells the person when he is making over the title put down red.

Dennis M. Hart:

There is no indication that Congress ever considered this type, this specific type of fraud.

It isn’t red yet; it is actually green.

Dennis M. Hart:

That is… and I will admit that it’s a fraud.

And then he transports it in… in interstate commerce.

Dennis M. Hart:

But the specific conduct of sending facially valid titles from one State to another as within the gambit of 2314.

He would be in violation of this law, although, you know, if I were he reading the law I certainly wouldn’t think that it would cover anything like that.

Dennis M. Hart:

And this Court has… has long concluded that when Congress has the will it makes thing clear.

Stephen L. Nightingale:

Your Honor, I don’t think a jury could find that that gentleman had the intent to defraud that is required for this statute.

Dennis M. Hart:

When this Court has to make decisions for what Congress didn’t talk about, because it’s a criminal statute, the less broad meaning has preference, that the Government position in this case to broaden the statute is given a very careful and scrutinous eye by this Court.

Stephen L. Nightingale:

The statute prohibits… covers whoever with unlawful or fraudulent intent transports in interstate commerce, and so on and so forth.

Dennis M. Hart:

But our position is that this Court does not have to reach that… that interpretation of what Congress meant, because the plain meaning of the words falsely made, even if this Court must assign an independent meaning to those words, can be defined as conduct which does not cover Mr. Moskal’s conduct.

Stephen L. Nightingale:

I see my time is up.

Dennis M. Hart:

And of course then we reach the problem of… of notice.

Stephen L. Nightingale:

Thank you.

Dennis M. Hart:

Because if the Government has their way, they have a problem with the notice requirements of criminal statutes, and exactly what Mr. Moskal did was that effective notice to all individuals.

Thank you, Mr. Nightingale.

Dennis M. Hart:

We suggest that if the Government has its way in broadening the statute, they have that problem.

Mr. Hart, do you have rebuttal?

Dennis M. Hart:

But we suggest that–

Yes, Your Honor.

It was on notice that if he shipped these Pennsylvania titles across the State line he was subject to prosecution.

Dennis M. Hart:

If I may, I would like to make four observations.

–No question about it.

The first is the Government places great reliance on congressional action and section 2311, the amendment that they spoke about, about the valid or blank titles.

And I can tell the Court that in Pennsylvania for years dealers were given what amounted to a ticket for that activity.

I had to wade through all that congressional testimony, and I didn’t see one mention of odometer fraud, of title washing for roll-backed odometers.

In Pennsylvania it was against the law to tamper with the odometer and change the odometer documents, and I believe it was a $100 fine for each document.

What Congress was concerned with in 1984 was interstate car thefts and what they called chop shops, the assembly of vehicles from odd parts.

So he knew that that was against the law.

They were concerned with vehicle identification numbers, and there was no concern at all for odometer roll backs of title washing.

The question is when he got the facially valid Virginia titles back, did he know that was against the Federal law 2314?

The Government is in error if it tries to convince this Court that that was the purpose of the 1984 amendments.

He did not.

It does not in any way affect section 2314.

We believe he was correct in that.

The second observation I would like to make is the Court asked the United States–

Thank you.

I don’t understand that last point.

Thank you, Mr. Hart.

Why wouldn’t it affect 2314 if it affected chop shops and all that that put together different pieces–

Mr. Nightingale.

Dennis M. Hart:

–I am sorry, the Court is correct.

Stephen L. Nightingale:

Thank you, Mr. Chief Justice, and may it please the Court:

Dennis M. Hart:

It does affect it in that sense.

William H. Rehnquist:

We’ll hear argument next in No. 89-964, Raymond J. Moskal, Sr. v. United States.

Stephen L. Nightingale:

This case presents the question whether washed automobile titles constitute falsely made securities within the meaning of section 2314.

–It just doesn’t affect odometer roll backs.

Dennis M. Hart:

Mr. Chief Justice, and may it please the Court:

Stephen L. Nightingale:

Our position is that they are, for essentially three reasons.

Dennis M. Hart:

Yes.

Dennis M. Hart:

From the lofty world of holding companies to the more mundane world of a 1984 Ford, I’d like this Court to revisit section 2314 of title 18 and decide what Congress meant when it inserted two words into that statute 50 years ago.

Stephen L. Nightingale:

First, the ordinary meaning of the term falsely made securities fits those documents.

And this is just another species of phony documents for getting to the same purpose, though, really.

Dennis M. Hart:

Those two words are “falsely made”.

Stephen L. Nightingale:

Second, that interpretation accords with the history and purpose of this statute.

Dennis M. Hart:

No, it’s not for the same purpose.

As petitioner sees it, the question, really the bottom line question is whether the term falsely made means false in execution versus false in content.

Stephen L. Nightingale:

And third, there are… is no canon of construction that would justify imputing an artificially narrow interpretation.

Dennis M. Hart:

It is… if the general purpose is defraud, yes, it is the same purpose.

The Government has asserted, and so far they have won that assertion, that the term should mean false in content.

Who made that… how were these Virginia certificates falsely made?

Dennis M. Hart:

But–

They call this the broader definition of the two words.

Stephen L. Nightingale:

Your Honor, the making of a automobile title involves the incorporation of information from the prior title, plus some additional information supplied by the new purchaser to State authorities.

Well, fraud and selling automobiles that are represented as having a certain history when they have quite a different history.

Dennis M. Hart:

The petitioner submits that this Court should reject that position, because in the final analysis the only good reason the Government can give for defining falsely made as false in content is that it catches more people, and we don’t think that should be good enough for a criminal statute.

Stephen L. Nightingale:

They then return a new title incorporating the information.

Dennis M. Hart:

–Yes, yes.

xxx claim that you have to give some meaning to this provision, and it hasn’t any meaning if it really… if we accept your interpretation of the statute it has really no meaning.

Stephen L. Nightingale:

A washed automobile title is falsely made because that process is corrupted through the addition of false information, and the end product, the Virginia title bearing false odometer figure, is indistinguishable in substance from the classic forgery, a situation in which you get a purportedly valid document that is capable of being used to mislead used car purchasers.

Dennis M. Hart:

But we submit there is a significant difference between an old car sold as a new car, and a car sold that was assembled from 23 other different cars or was stolen across State lines–

Yes, sir, that is their first argument, and if the tape could reflect that I am scratching my head, because I don’t know why it must have an independent meaning.

And so the same rationale would apply to the color of the car on the title?

The latter one might be a better car.

Dennis M. Hart:

Certainly courts, the lower circuit courts who have considered the question have often used the words forgery and falsely made interchangeably, and–

Stephen L. Nightingale:

There may be a limit on the statute for materiality.

[Laughter]

Don’t we usually follow the principle that each… each word or sentence or phrase of a law is supposed to be given an independent meaning so that it won’t be simply superfluous?

Stephen L. Nightingale:

I mean, if you made a mark on an automobile title that had no effect on it, whatever, that might not violate the statute.

Dennis M. Hart:

–The… secondarily we would like to make the observation that in 1979 a district court in Iowa decided the Rudge case, which decided that what Mr. Moskal did in this case wasn’t a violation of 2314.

Dennis M. Hart:

–Yes, and that is the general rule.

Stephen L. Nightingale:

But the color of the car I don’t think would fall within the de minimis situation.

Dennis M. Hart:

In 1980 I believe it was the Tenth Circuit in Sparrow made basically the same decision, that if it was a valid automobile title that passed title, even though it had alterations, it was not subject to 2314 prosecution.

I do agree with that.

Stephen L. Nightingale:

That would be a means by which, if for example it was a stolen car, someone could mislead the purchaser as to the true identity of the car.

Dennis M. Hart:

Now subsequent to that other courts have disagreed.

But that is not a rule that covers everything, because, as I think anyone who reads these statutes can find that the words falsely made, forged, altered, or counterfeited are sort of a term of art, that are contained in dozens of Federal statutes.

Stephen L. Nightingale:

But I believe that a false addition or an introduction of a falsity through this process–

Dennis M. Hart:

But since 1980 Congress has had the opportunity to clear that up, and has not.

And falsely made is never defined.

Would the name of the seller–

Dennis M. Hart:

And the reason I mention that is because in examining the history of 2314 circuit courts have concluded that 2314 did not cover certain things.

And that is why lower courts over many years have always concluded that falsely made equals forged, with the exception of one or two cases which the Government points out.

Stephen L. Nightingale:

–The name of the seller would qualify, because it would prevent the purchaser from being in touch with him to find out the history of the car.

Dennis M. Hart:

And what comes to mind specifically is travelers’ checks.

Yet the Government also agrees–

–Would you read the same sort of materiality requirement into the terms forged, altered, or counterfeited?

Dennis M. Hart:

There was a circuit court decision in the 1960’s, I believe, that said this statute doesn’t cover interstate transportation of travelers’ checks.

Like this case.

Stephen L. Nightingale:

Your Honor, I would in this sense, that if you had a valid title and the only alteration was the addition of a pencil mark on it, I guess it would be altered in some sense.

Dennis M. Hart:

When that opinion was issued Congress came back and changed the law and said put travelers’ checks into the section.

–Yes, Your Honor, like this case.

Stephen L. Nightingale:

But it would be completely immaterial.

Dennis M. Hart:

They realized they could change it, they realized it wasn’t there, and they made the effort to change it.

The Government also agrees that that is not, number one, the common law definition of falsely made, and number two, they also agree that if you are to give this the independent meaning which they advocate, it is a much broader definition than what courts have normally accepted.

Mr. Nightingale… I’m sorry.

Dennis M. Hart:

And they have never done anything since Sparrow and Rudge in 1980.

But even if we accept the United States’ position that this must have an independent meaning, the term falsely made, we believe this Court can supply that meaning, that is, give an independent meaning to the word falsely made, yet still not necessarily include the conduct for which petitioner is charged with, that is the inclusion of false information in an otherwise valid document.

Mr. Nightingale, do we normally look at the terms used in the statute in light of their common law meaning?

But we have a different history here.

Dennis M. Hart:

Now, the second position the Government advocates is that… if I can phrase this correctly… is that they agree that the common law definition of falsely made would not include what Mr. Moskal did.

Stephen L. Nightingale:

That is a general principle, yes, Your Honor, but it’s… it’s one that has some important limitations as well.

Most of the lower courts have agreed with the Government, haven’t they?

Dennis M. Hart:

They also say that Congress is usually presumed to know what the common law meaning was, and that it is the usual presumption that Congress used the common law definition when they wrote the words.

Well, do you, before you get to the limitations, do you concede that at common law the terms falsely made would not include the Virginia title?

Dennis M. Hart:

I disagree with that entirely, Your Honor.

Yet they then argue that Congress cannot be presumed to use the arcane, or what they call the antiquated definition of the word.

Stephen L. Nightingale:

The term falsely made at common law drew a distinction between false in execution and false in content.

Dennis M. Hart:

I believe two of the circuit courts have agreed with the Government, the Tenth Circuit has agreed with the petitioner, and what we consider a similar case, the district court in Rudge have agreed with the petitioner.

And then they argue that what we posit as falsely made is arcane and antiquated.

Right.

Dennis M. Hart:

And so I would call it at best an even split, and at worst, for the Government, it’s consideration of different factors, because no one has ever considered exactly what the petitioner did in this case.

And we submit they have never shown that.

Stephen L. Nightingale:

Now, there were fictions developed because that line was not entirely satisfactory.

Dennis M. Hart:

And finally we’d observe that the Government is going to get into problems if it talks about materiality, because what the Government didn’t mention is that one of the titles in this case was altered by a pencil mark, just a small pencil mark in the number.

We submit that the only reason they can suggest the broader definition is more modern is that it encompasses more conduct.

Stephen L. Nightingale:

I agree that none of the fictions present in 1934 would have covered the Virginia title, but it’s important to recognize that they existed.

Dennis M. Hart:

And that’s all that was done in Pennsylvania.

Yet the United States and petitioner both agree, number one, that there is nothing in the statute to indicate that Congress wanted to expand the common law definition of falsely made.

Your answer to the question is that these Virginia titles would not have been falsely made at common law?

Dennis M. Hart:

Now, if the Government is going to draw a bright line between vehicle model and vehicle make, and odometer, and put on the other side of the line a pencil mark, they are going to run into problems with this case.

There is no legislative history that indicates Congress wanted to expand the common law definition of falsely made.

Stephen L. Nightingale:

At common… under the old common law term.

Dennis M. Hart:

We suggest no such bright line can exist.

And there is no subsequent conduct by the Congress which reflects on that.

And presumably the Government could have charged Mr. Moskal with transporting altered certificates, the Pennsylvania certificates?

Dennis M. Hart:

Thank you.

Now–

Stephen L. Nightingale:

Your Honor, in this case the option was available, because Mr. Moskal was both the sender and the receiver.

William H. Rehnquist:

Thank you, Mr. Hart.

Mr. Hart, may I ask whether there is any other statutory provision under which your client could have been charged for transporting these Virginia certificates?

Stephen L. Nightingale:

He was at both ends.

William H. Rehnquist:

The case is submitted.

Dennis M. Hart:

–Certainly, Your Honor.

Stephen L. Nightingale:

But I want to add, in light of the Court’s questions about the significance of this case, that that is by no means a certainty in these cases.

What might that be?

Stephen L. Nightingale:

There are many cases in which… potential cases one can visualize in which a different person sends the altered documents one way, then receives them on the return trip.

Dennis M. Hart:

He was also charged with section 513 violation, which is the possession of forged State securities.

Stephen L. Nightingale:

And there may also be problems–

Dennis M. Hart:

There were two counts in the indictment for that.

Are there other statutes, such as the mail fraud statute and some of these others that might be available?

Dennis M. Hart:

But even if that… that were not permitted he could be charged under the mail fraud statute.

Stephen L. Nightingale:

–In some of them, right, but in this case the evidence demonstrated that the documents were sent by Federal Express, and in some cases hand carried.

Dennis M. Hart:

I think this Court last term decided a case, I am going to call it Schmuck, I can’t remember exactly how it is spelled, where the operation was nearly identical to what Mr. Moskal did.

Stephen L. Nightingale:

And the prevailing rule in the courts of appeals right now is that Federal Express does not qualify as a use of the mails.

Dennis M. Hart:

This Court affirmed that conviction.

Stephen L. Nightingale:

So that was not an available option in this case.

Dennis M. Hart:

But if this Court will remember, that man was not charged with section 2314 at all.

Mr. Nightingale, don’t you think it’s at least a reasonable meaning of falsely made, when I say a document is falsely made, that I would… assuming it means something beyond the common law meaning, don’t you think I would think that the person who made it must know that it’s false, as opposed to just having been given incorrect information and then he writes it out, and you say it is falsely made because he has written down false information that somebody else has given him?

Dennis M. Hart:

He was charged with mail fraud, criminal mail fraud.

That’s a very–

Could Mr. Moskal have been charged under section 2314 with regard to the Pennsylvania certificates?

Stephen L. Nightingale:

Your Honor, there were–

Dennis M. Hart:

Certainly, Your Honor.

–Isn’t it at least reasonable to give it the other meaning?

Just not the Virginia titles.

And if it’s reasonable, why doesn’t the rule of lenity suggest that that is the meaning we ought to give it?

Dennis M. Hart:

Certainly, and let me–

Stephen L. Nightingale:

–In the context that this statute operates it is not a reasonable interpretation.

But he wasn’t charged with transporting those?

Stephen L. Nightingale:

I would… I want to point out as well that–

Dennis M. Hart:

–No, Your Honor.

I don’t know what you mean by that, in the context in which this statute operates.

Dennis M. Hart:

And that… that really… the crux of our argument, is that the Government argues that Mr. Moskal has found a loophole in this law and he is trying to squeeze through it.

You mean–

Dennis M. Hart:

And they say this with such force that it makes me even feel guilty when I read that.

Stephen L. Nightingale:

–Let me indicate… let me refer to a case decided 8 years ago by the Court, Bell v. United States, in which the question was whether a statute that prohibits people from taking and carrying away money from a bank was designed to extend beyond common law larceny.

Dennis M. Hart:

But that is really rhetoric, because Mr. Moskal didn’t determine the charges that were placed against him.

Stephen L. Nightingale:

Now, those words had a distinct common law ring to them, and the question was did… did Congress, when it enacted a statute prohibiting taking and carrying away money, mean to incorporate all of the common law limitations.

Dennis M. Hart:

The U.S. attorney for the Eastern District of Pennsylvania decided to charge him only with the Virginia titles.

Stephen L. Nightingale:

In general the common law required that the taking be from the possession of the owner rather than the acquisition of title.

Is this whole case just a tempest in a teapot then?

Stephen L. Nightingale:

And the Court found that in the context of a statute that was designed to protect banks from losing money, the distinction between title and possession made no sense whatever.

If we decide for you the Government isn’t hurt, because it could have charged him with transporting the Pennsylvania certificates.

Stephen L. Nightingale:

And essentially that is our position in this case.

Is that it?

Stephen L. Nightingale:

In the context of securities there is no difference in substance between a document run off an illicit printing press with a false odometer reading and a document prepared by means of the scheme that Mr. Moskal and his confederates followed.

Dennis M. Hart:

Well, to Mr. Moskal it’s not a tempest in a teapot.

Stephen L. Nightingale:

The question is in the context that Congress acted, did the statute… would the distinction drawn by the common law make sense.

Dennis M. Hart:

We submit that–

–Well, you could have said that about the common law, too.

And for you, if you win you are still… your client or people like him are still going to be subject to prosecution.

The very first statute wouldn’t make… I don’t know why there is anything special about this statute.

Dennis M. Hart:

–Certainly, Your Honor, but not the type of prosecution that Mr. Moskal was.

Stephen L. Nightingale:

Your Honor, in fact in the common law there was difficulty with your proposition.

Not prosecution under a… under a regiment such as Virginia’s.

Stephen L. Nightingale:

There is a case cited in our brief, Count de Toulouse Lautrec, in footnote 10 of our brief on page 17.

Dennis M. Hart:

Exactly, Your Honor.

Stephen L. Nightingale:

The facts there were that a printing company printed securities for a corporation, printed a few extra copies for its own files by way of samples of its work.

Dennis M. Hart:

Well, let me take that back.

Stephen L. Nightingale:

The defendant obtained the samples and negotiated them as valid bonds.

Dennis M. Hart:

I should add, in response to Justice O’Connor’s question, that it also is a violation of State law.

Stephen L. Nightingale:

And that defendant was convicted of forgery.

Yes, but not subject to Federal prosecution under a licensing scheme such as that of Virginia.

Stephen L. Nightingale:

The Court found that where there was no authority to use the documents in that fashion there was a forgery.

Is that correct?

Stephen L. Nightingale:

There was another case, one not cited in our brief, Commonwealth v. Foster out of Massachusetts in around the 1870’s.

Dennis M. Hart:

I am not certain I understand the Court’s question.

Stephen L. Nightingale:

In that case the defendant called in a gentleman who had the same name as a rather well known commercial firm, had him sign some notes in his Wilson & Co., by Mr. Wilson, and then that person took the… of course Mr. Wilson was not a party to the fraud.

Why can he be charged under your theory with the Pennsylvania titles but not the Virginia titles?

Stephen L. Nightingale:

The defendant took those notes out and represented them to be the notes of the large commercial outfit.

Dennis M. Hart:

That’s a… that’s an important question, I think.

Stephen L. Nightingale:

And again there the Court held that that qualified as forgery.

Dennis M. Hart:

I would be happy to answer it in detail.

Stephen L. Nightingale:

This is illustrative, Your Honor, of the sorts of distinctions and difficulties that were present in the common law at the time Congress was called upon to legislate in the area of falsely made production of securities.

Dennis M. Hart:

The Pennsylvania titles were physically altered.

Well, if at the time the statute was passed the committee report had said

Dennis M. Hart:

They were changed.

“and we expect these terms to be given their normal common law meaning.”

Dennis M. Hart:

They were changed in a number of ways.

would you still be making the same argument?

Dennis M. Hart:

They were changed in Pennsylvania by what in the title-washing business is called an artist.

Same context.

Dennis M. Hart:

The artist takes the titles, changes them, gives them to an office manager, who is Mr. Moskal.

Stephen L. Nightingale:

If there were an indication that that meaning could be attributed to Congress as a whole, yes, Your Honor.

Dennis M. Hart:

Mr. Moskal sends them to another State, and in this case it was Virginia.

Stephen L. Nightingale:

Those circumstances aren’t present here.

Dennis M. Hart:

The titles come back clean.

Stephen L. Nightingale:

Let me review, if I could, the history of the statute.

Now, in Virginia… how would you describe those washed certificates?

Yes, you would… you say you would still be making the same argument?

Forged?

Stephen L. Nightingale:

Let me… I don’t believe there is an ambiguity in this statute, in its context, for which legislative history would be helpful in clarifying, no.

Dennis M. Hart:

No, Your Honor.

When was this passed?

Falsely made?

Stephen L. Nightingale:

It was passed in 1939, Your Honor.

Dennis M. Hart:

No, Your Honor.

Stephen L. Nightingale:

Essentially the history was as follows.

Altered?

Stephen L. Nightingale:

In 1934 the Attorney General sent a series of bills–

Dennis M. Hart:

No, Your Honor.

Has the department made any effort to clarify it in Congress?

Well, how could you be prosecuted under this statute?

Stephen L. Nightingale:

–Not that I am aware of.

Dennis M. Hart:

Our belief is we could not be prosecuted under 2314 for those Virginia titles.

Stephen L. Nightingale:

There is one–

No, no, not the Virginia, the Pennsylvania titles.

You want us to clarify it.

Dennis M. Hart:

The Pennsylvania titles were altered.

Stephen L. Nightingale:

–The Justice Department has not made… the Justice Department has not made an effort to clarify it.

Yes, well all right, so he could have been charged under 2314–

Stephen L. Nightingale:

Maybe I should back up and review the history of this statute.

Dennis M. Hart:

Most certainly.

Stephen L. Nightingale:

In 1934 Attorney General, the Attorney General sent a set of bills to the Hill, all of which had as their common purpose the creation of Federal criminal penalties for criminal activity that extended across State lines.

–for sending those in interstate commerce.

Stephen L. Nightingale:

Congress enacted those bills, recognizing that interstate criminal activity is more difficult to detect, it is more difficult to prosecute, threatens, in a large number of cases, more serious harm to the individuals.

Dennis M. Hart:

Most certainly, Your Honor, most certainly.

Stephen L. Nightingale:

As originally enacted that bill, the National Stolen Property Act, prohibited the interstate transportation of stolen securities; 5 years later Congress extended the prohibition by adding a separate paragraph including falsely made securities.

What you’re getting down to then is merely prosecutorial error, aren’t you?

Stephen L. Nightingale:

And it is fair to assume that Congress’ intention in enacting the extension was its recognition that… of the difficulty of detecting and apprehending offenders and prosecuting those sorts of offenses.

Dennis M. Hart:

I would be happy to call it that.

Stephen L. Nightingale:

There is no distinction in terms of that context, and I recall Bell again, where the purpose was to protect the assets of banks.

Dennis M. Hart:

But the point is that we argued that both in the trial court and the appellate court and they disagreed with us.

In your view were these certificates forged?

Dennis M. Hart:

They said it was perfectly all right to charge Mr. Moskal for those Virginia titles under 2314.

Stephen L. Nightingale:

The jury was not instructed on a theory that would have–

Maybe we’ll find out… excuse me, go ahead.

But we’re talking about questions of law here, and so–

Did you indicate at the outset that you think the terms forged and falsely made may have a different meaning?

Stephen L. Nightingale:

–Yes, it is our position that there could be jury instructions that would encompass the sort of activity I spoke of with Justice Scalia.

Dennis M. Hart:

Well, we have two positions on that.

Stephen L. Nightingale:

The last footnote in our brief indicates that we believe that were the Court to reverse the conviction, the proper disposition would be a remand for a new trial in which forgery would be defined.

Yes and no.

–So, in your view this was both forged and falsely made?

[Laughter]

Stephen L. Nightingale:

That’s true, Your Honor.

Dennis M. Hart:

Yes, they can have different meanings.

Can you give me an example of a case where a document is falsely made but not forged?

What is the different meaning?

Because if you can’t, then your argument that we have to give independent meaning to the two terms, it seems to me, fails.

Can you give me an example of where a document is not forged but it is falsely made?

Stephen L. Nightingale:

Your Honor, the one that comes to mind is as follows.

Dennis M. Hart:

Yes.

Stephen L. Nightingale:

A check signed by an agent, purportedly for a principal, in which the agent has no authority is at common law not a forgery.

Dennis M. Hart:

A document that’s obtained, for instance, through bribery.

Stephen L. Nightingale:

The reasoning behind that is that that check is made by the person purporting… is endorsed by the person purporting to make it.

Dennis M. Hart:

That is a valid vehicle title in this case, we’ll take vehicle titles.

Stephen L. Nightingale:

It contains, though, only a false representation, which is that the agent had authority to act for the principal.

Dennis M. Hart:

A vehicle title is obtained by someone passing a $50 bill to the title clerk to generate a title.

Stephen L. Nightingale:

In my judgment that would quality as a falsely made security within the meaning of the statute.

Dennis M. Hart:

We recently tried a case down the street where someone stole a drivers license making machine, and just spewed out drivers licenses that were valid in every aspect.

But if you run that analysis there, I think your answer to whether… whether this document was forged would probably come out the other way.

Well, those are forged, are they not?

But I had a similar question to Justice Kennedy’s.

Dennis M. Hart:

Well, that wasn’t the question, but they… they were valid in the sense that they contained the person’s picture, his correct name, address.

Can you tell me… give me an example of something that is forged but not counterfeited or counterfeited but not forged?

Dennis M. Hart:

Everything was valid, except it wasn’t issued by the State where they stole the license-making equipment.

Stephen L. Nightingale:

Your Honor, no.

Dennis M. Hart:

Such a situation can happen–

Stephen L. Nightingale:

Counterfeiting is a subset of forged.

I would be very surprised to see that that is not forgery.

So… so isn’t that whole thing just, you know, just a vera test?

And your bribery, I’m not quite sure how that works.

You know, lawyers use the same words to mean the same things often, and you admit that two of those words mean exactly the same thing.

Dennis M. Hart:

–Well, Your Honor, it would not be forged in the sense that anything was changed on the title.

Falsely made, forged, altered, or counterfeited.

Dennis M. Hart:

It would be a correct title.

Altered perhaps is something different, although it’s a sub… a subcategory in common law, a type of forgery, a type of counterfeiting.

Dennis M. Hart:

It may well reflect actual ownership of the vehicle.

You could either falsely make or alter.

Dennis M. Hart:

Everything on the face of the title may be correct, but the point is it wasn’t obtained through the State Secretary of State; it was obtained through illegal means, bribery or theft or something of that nature.

But once you say that counterfeit and forge mean one and the same thing I think your argument that we have to depart from the common law meaning, because otherwise falsely made would also mean the same thing, doesn’t have much force.

I think what you are arguing is that falsely made, if it does not mean the same thing as forged, altered, or counterfeited, at least means that the person who makes it must know that he is falsely making it.

Stephen L. Nightingale:

I don’t believe that we need view this statute as a series of independent boxes for the Government to prevail.

Dennis M. Hart:

Yes.

Stephen L. Nightingale:

I do believe that when you consider this statute in the context of its passing, you… you are justified in recognizing the fuzziness at the edges of the definition of forgery.

So the bribery doesn’t have anything to do with it.

I thought we’d give the fuzziness to the defendant.

The point is that if the person who makes it is not being false, if he thinks it’s accurate, you would not consider that falsely made.

That… that’s what the rule of lenity means.

Dennis M. Hart:

I would agree with that.

Stephen L. Nightingale:

Your Honor, again harkening back to the Bell case, the words take and carry away have both an ordinary meaning and, as my colleague indicates, they have a term-of-art meaning.

Whereas if the official himself knows he is writing down something that is in error, he would be making it falsely.

Stephen L. Nightingale:

The common ordinary meaning is when you go into a bank without money and you come out with money, that is taking it and carrying away.