Moskal v. United States/Dissent Scalia

by Antonin Scalia

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 word-play can transform virtually anything into "falsely made." Thus: "The building was falsely made in the sense that it was made to contain a false entrance." This is a far cry from "ordinary meaning."

That "falsely made" refers to the manner of making is also evident from the fifth clause of § 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, 75 S.Ct. 513, 519-520, 99 L.Ed. 615 (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 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, 72 S.Ct. 240, 250, 96 L.Ed. 288 (1952):

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

Or as Justice Frankfurter more poetically put it: "[I]f a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings its soil with it." Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 537 (1947).

We have such an obvious transplant before us here. Both Black's Law Dictionary and Ballentine's Law Dictionary contain a definition of the term "false making." The former reads as follows: "False making. An essential element of forgery, where material alteration is not involved. Term has reference to manner in which writing is made or executed rather than to its substance or effect. A falsely made instrument is one that is fictitious, not genuine, or in some material particular something other than it purports to be and without regard to truth or falsity of facts stated therein." Black's Law Dictionary 602 (6th ed. 1990).

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

"The definition of forgery is not, as has been suggested in argument, that every instrument containing false statements fraudulently made is a forgery; but . . . that every instrument which fraudulently purports to be that which it is not is a forgery. . . ." Queen v. Ritson, L.R. 1 Cr.Cas.Res. 200, 203 (1869).

"The term falsely, as applied to making or altering a writing in order to make it forgery, has reference not to the contracts or tenor of the writing, or to the fact stated in the writing . . . but it implies that the paper or writing is false, not genuine, fictitious, not a true writing, without regard to the truth or falsity of the statement it contains." State v. Young, 46 N.H. 266, 270 (1865) (emphasis in original).

In 1939, when the relevant portion of § 2314 was enacted, the States and the Federal Government had been using the "falsely made" terminology for more than a century in their forgery statutes. E.g., Ky.Penal Laws § 22 (1802) ("falsely make, forge or counterfeit"); Ind.Rev.Stat., ch. 53, § 26 (1843) ("falsely make, deface, destroy, alter, forge, or counterfeit"); Del.Rev.Code, ch. 151 (passed 1852) ("falsely make, forge, or counterfeit"). More significantly still, the most common statutory definition of forgery had been a formulation employing precisely the four terms that appear in § 2314: falsely make, alter, forge, and counterfeit. See, e.g., 1 Stat. 115, § 14 ("falsely make, alter, forge or counterfeit") (1790); Act of Feb. 8, 1791, N.H. Const. and Laws, pp. 268-269 (1805) ("falsely make, alter, forge or counterfeit"); Md. Acts of 1799, ch. 75 (passed Jan. 3, 1800) ("falsely make, alter, forge or counterfeit"); Act of March 15, 1805, § 1, 4 Perpetual Laws of the Commonwealth of Mass. 277 (1807) ("falsely make, alter, forge or counterfeit"); Ill.Crim.Code, div. 8, § 73 (1827) ("falsely make, alter, forge or counterfeit"); Act of March 8, 1831, § 22, 3 Ohio Stat., p. 1726 (1835) ("falsely make, alter, forge, or counterfeit"); Mo.Rev.Stat., Crimes and Punishments, Art. IV, §§ 15-16 (1835) ("falsely make, alter, forge or counterfeit"); Me.Rev.Stat., ch. 157 § 1 et seq. (1840) ("falsely make, alter, forge or counterfeit"); Iowa Code, ch. 141 § 2926 (1851) ("falsely make, alter, forge, or counterfeit"); Act of Nov. 25, 1861, Nev.Laws, ch. 28, § 77 (1862) ("falsely make, alter, forge, or counterfeit"); Fla.Rev.Stat., Tit. 2, Art. 7, § 2479 (passed 1868) ("falsely makes, alters, forges or counterfeits"); Cal.Penal Code, ch. 4, § 470 (passed 1872) ("falsely makes, alters, forges, or counterfeits"); Minn.Gen.Stat., ch. 96, § 1 (1879) ("falsely make, alter, forge or counterfeit"); Wyo.Rev.Stat., div. 5, Tit. 1, § 5128 (1899) ("falsely make, alter, forge or counterfeit"); Act of March 3, 1899, Alaska Crim.Code, Tit. 1, § 76 ("falsely make, alter, forge, counterfeit, print, or photograph"); Idaho Penal Code, ch. 221, § 4937 (1901) ("falsely makes, alters, forges or counterfeits"); Colo.Rev.Stat., ch. 35, § 1704 (1908) ("falsely make, alter, forge or counterfeit"); R.I.Gen.Laws, ch. 609, § 1 (1938) ("falsely make, alter, forge or counterfeit"); Neb.Comp.Stat. § 28-601 (1929) ("falsely makes, alters, forges, counterfeits, prints or photographs"). By 1939, several federal courts and eight States had held that the formula "falsely make, alter, forge or counterfeit" did not encompass the inclusion of false information in a genuine document. United States v. Davis, 231 U.S. 183, 187-188, 34 S.Ct. 112, 112-113, 58 L.Ed. 177 (1913) (dictum); United States v. Staats, 8 How. 41, 46, 12 L.Ed. 979 (1850) (dictum); United States ex rel. Starr v. Mulligan, 59 F.2d 200 (CA 2 1932); United States v. Smith, 262 F. 191 (Ind.1920); United States v. Glasener, 81 F. 566 (SD Cal.1897); United States v. Moore, 60 F. 738 (NDNY 1894); United States v. Cameron, 3 Dak. 132, 13 N.W. 561 (1882); United States v. Wentworth, 11 F. 52 (CCNH 1882); People v. Kramer, 352 Ill. 304, 185 N.E. 590 (1933); Goucher v. State, 113 Neb. 352, 204 N.W. 967 (1925); De Rose v. People, 64 Colo. 332, 171 P. 359 (1918); State v. Ford, 89 Ore. 121, 172 P. 802 (1918); Territory v. Gutierrez, 13 N.M. 312, 84 P. 525 (1906); People v. Bendit, 111 Cal. 274, 43 P. 901 (1896); State v. Corfield, 46 Kan. 207, 26 P. 498 (1890); State v. Willson, 28 Minn. 52, 9 N.W. 28 (1881). Only one federal court had disagreed. United States v. Hartman, 65 F. 490 (ED Mo.1894). (As noted in Part IV, infra, this case was not followed and has been implicitly overruled.) Even statutes that used "falsely made" without accompaniment of the other three terms used in § 2314 were interpreted not to include falsity of content. People v. Mann, 75 N.Y. 484 (1878); State v. Young, 46 N.H. 266 (1865). Indeed, as far as I am aware, the only state courts that held a genuine document containing false information to be "forged" did so under governing texts that did not include the term "falsely made." See Moore v. Commonwealth, 92 Ky. 630, 18 S.W. 833 (1892); Luttrell v. State, 85 Tenn. 232, 1 S.W. 886 (1886). Even they were in the minority, however. See Bank of Detroit v. Standard Accident Insurance Co., 245 Mich. 14, 222 N.W. 134 (1928) ("forged"); Dexter Holton National Bank of Seattle v. United States Fidelity & Guaranty Co., 149 Wash. 343, 270 P. 799 (1928) ("forged"); Barron v. State, 12 Ga.App. 342, 77 S.E. 214 (1913) ("fraudulently make").

Commentators in 1939 were apparently unanimous in their understanding that "false making" was an element of the crime of forgery, and that the term did not embrace false contents. May's Law of Crimes § 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, 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:

"A definition now very generally accepted explains forgery as the false making or material alteration, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability." 23 Am.Jur., Forgery § 2, p. 676.

"[T]he term 'falsely,' as applied to making or altering a writing in order to make it a forgery, does not refer to the contents or tenor of the writing or to the facts stated therein, but implies that the paper or writing is not genuine, that in itself it is false or counterfeit." Id., § 7, at 678.

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

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, 82 S.Ct. 1399, 8 L.Ed.2d 750 (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, 82 S.Ct., at 1404. 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, 82 S.Ct., at 1404, quoting Marteney, supra, at 763-764. As I shall proceed to explain, Gilbert § approval of these cases' interpretation of "forge" necessarily includes an approval of their interpretation of "false making" as well. Moreover, the very holding of Gilbert is incompatible with the Court's decision today.

Gilbert was a prosecution under 18 U.S.C. § 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:

"In 1847 it was decided in the English case of Regina v. White . . . that 'indorsing a bill of exchange under a false assumption of authority to indorse it per procuration, is not forgery, there being no false making.' " 370 U.S., at 655, 82 S.Ct., at 1402.

It later quotes the same case to the following effect:

"Lord East's comments . . . were: 'Forgery at common law denotes a false making (which includes every alteration of or addition to a true instrument), a making malo animo, of any written instrument for the purpose of fraud and deceit. . . . [The ancient and modern authorities] all consider the offence as consisting in the false and fraudulent making or altering of such and such instruments.' " Id., at 656, 82 S.Ct., at 1402-1403 (emphasis in original).

The Court found it "significant that cases construing 'forge' under other federal statutes have generally drawn a distinction between false or fraudulent statements and spurious or fictitious makings." Id., at 658, 82 S.Ct., at 1404.

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 A.L.R. 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 discuss not falsityof content but genuineness of the instrument. ^[1] As for the annotation itself, that concludes that "the better view, and that supported by the majority opinion, is that . . . the genuine making of an instrument for the purpose of defrauding does not constitute the crime of forgery." 41 A.L.R., at 231. "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, 82 S.Ct., at 1403.

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 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:

"Nor are we impressed with the argument that 'forge' in § 495 should be given a broader scope than its common-law meaning because contained in a statute aimed at protecting the Government against fraud. Other federal statutes are ample enough to protect the Government against fraud and false statements. . . . Still further, it is significant that cases construing 'forge' under other federal statutes have generally drawn a distinction between false or fraudulent statements and spurious or fictitious makings." 370 U.S., at 658, 82 S.Ct., at 1403-1404 (footnote omitted).

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

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, 37 S.Ct. 407, 411, 61 L.Ed. 857 (1917) (internal quotation marks omitted). See also, McNally v. United States, 483 U.S. 350, 359-360, 107 S.Ct. 2875, 2881-2882, 97 L.Ed.2d 292 (1987). As Justice MARSHALL explained some years ago:

"This principle is founded on two policies that have long been part of our tradition. First, a 'fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.' McBoyle v. United States, 283 U.S. 25, 27 [51 S.Ct. 340, 341, 75 L.Ed. 816] (1931) (Holmes, J.) . . . Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies 'the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.' H. Friendly, Mr. Justice Frankfurter and The Reading of Statutes, in Benchmarks, 196, 209 (1967)." United States v. Bass, 404 U.S. 336, 347-349, 92 S.Ct. 515, 522-523, 30 L.Ed.2d 488 (1971).

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

"The case must be a strong one indeed, which would justify a Court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorise us to say so. It would be dangerous, indeed, to carry the principle that a case which is within the reason or mischief of a statute, is within itsprovisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated." United States v. Wiltberger, 5 Wheat. 76, 96, 5 L.Ed. 37 (1820).

For the foregoing reasons, I respectfully dissent.

Notes

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.
2. Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (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, 110 S.Ct. at 2157. 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, 103 S.Ct. 2398, 2401, 76 L.Ed.2d 638 (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, 102 S.Ct. 1332, 71 L.Ed.2d 522 (1982), and United States v. Sheridan, 329 U.S. 379, 67 S.Ct. 332, 91 L.Ed. 359 (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 ).