MOSKAL v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
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 18 U.S.C. 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."
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 2314. Pp. 106-118.
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, post, p. 119. SOUTER, J., took no part in the consideration or decision of the case.
Dennis M. Hart argued the cause and filed briefs for petitioner.
Stephen L. Nightingale argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Dennis, Deputy Solicitor General Bryson, and Joel M. Gershowitz.
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. 2314 (emphasis added). We conclude that he does.
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, [498 U.S. 103, 106] 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. 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. 1026 (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 2314). We now affirm petitioner's conviction.
As indicated, 2314 prohibits the knowing transportation of "falsely made, forged, altered or counterfeited securities" [498 U.S. 103, 107] 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 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 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 2314 presents a conventional issue of statutory construction, and we must therefore determine what scope Congress intended 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 [498 U.S. 103, 108] States, 445 U.S. 55, 65 (1980). Stated at this level of abstraction, of course, the rule
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 2314, such as "forged" or "counterfeited." By seeking to exclude from 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.'" [498 U.S. 103, 110] 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. 552, 562 (1990).
Our conclusion that "falsely made" encompasses genuine documents containing false information is supported by Congress' purpose in enacting 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 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 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 2314. As Moskal concedes, his title-washing scheme is a clear instance of fraud involving securities. And [498 U.S. 103, 111] 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 misconceives 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 legislative 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 2314 specifically reject constructions of the statute that limit it to instances of fraud, [498 U.S. 103, 112] 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 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:
Thus, in both Sheridan and McElroy, defendants who admittedly circulated fraudulent securities among several States sought to avoid liability by offering a reading of 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 [498 U.S. 103, 114]
To summarize our conclusions as to the meaning of "falsely made" in 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
Petitioner contends that such a reading of 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 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 2314 therefore should be deemed not to cover washed vehicle titles that merely contain false odometer readings. We disagree for two reasons. [498 U.S. 103, 115]
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:
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, [498 U.S. 103, 117] 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. 575 (1990), we confronted the question whether "burglary," when used in a sentence enhancement statute, was intended to take its common-law 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 593 (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 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 [498 U.S. 103, 118] made" that encompasses "genuine" documents that are false in content.
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 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
JUSTICE SOUTER took no part in the consideration or decision of this case.
[ Footnote 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).
[ Footnote 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 114-118.
[ Footnote 4 ] The statute at issue in Sheridan was an earlier codification of 2314. The clause governing "falsely made, forged, altered or counterfeited securities" was at that time contained within 18 U.S.C. 415 (1946 ed.).
[ Footnote 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 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 [498 U.S. 103, 114] 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.
[ Footnote 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 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").
[ Footnote 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 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 `genuineness 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.
[ Footnote 8 ] The Court of Appeals found that the false mileage figures on the washed vehicle title were material falsehoods. 888 F.2d 283, 285. (CA3 1989) 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. [498 U.S. 103, 119]
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 106, regarding the application of 18 U.S.C. 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.
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 extra-ordinary. 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 109. This sort of wordplay can transform virtually anything into "falsely made." Thus: "The building was falsely made in the sense that it was made to [498 U.S. 103, 120] 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 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, supra, 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 [498 U.S. 103, 121] calibrated terms, but a collection of near synonyms which describes the product of the general crime of forgery.
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):
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: [498 U.S. 103, 122]
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 292 (K. Sears & H. Weihofen, eds. 4th ed. 1938); W. Clark & W. Marshall, Law of Crimes 394 (3d ed. 1927); 2 J. Bishop, Criminal Law 523, 582 and 582a (9th ed. 1923); 1 H. Brill, Cyclopedia of Criminal Law 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:
Unsurprisingly, in light of the foregoing discussion, the lower federal courts that interpreted this language of 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 (CA7 1963); Marteney v. United States, 216 F.2d 760 (CA10 1954); Martyn v. United States, 176 F.2d 609, 610 (CA8 1949); Wright v. United States, 172 F.2d 310-312 (CA9 1949); Greathouse v. United States, 170 F.2d 512, 514 (CA4 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 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. [498 U.S. 103, 127]
Gilbert was a prosecution under 18 U.S.C. 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, 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 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:
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."
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 115. 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 [498 U.S. 103, 129] 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 124-125) - 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 117. 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 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 [498 U.S. 103, 130] how "broad" Congress' purpose in enacting 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:
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:
[ Footnote 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 [498 U.S. 103, 129] 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.
[ Footnote 2 ] Taylor v. United States, 495 U.S. 575 (1990), cited ante, at 117, 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 596. 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 117, 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 110, 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). [498 U.S. 103, 133]