United States v. Tami M. Lecoe

936 F.2d 398 UNITED STATES of America, Plaintiff-Appellee, v. Tami M. LeCOE, Defendant-Appellant. No. 90-30156. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 5, 1990. Decided June 6, 1991. Jon R. Wilson, Boise, Idaho, for defendant-appellant. Joanne P. Rodriguez, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee. Before TANG, O'SCANNLAIN and LEAVY, Circuit Judges. O'SCANNLAIN, Circuit Judge: 1 We must decide whether the sentencing provision of the statute criminalizing forged endorsements of United States Treasury checks, 18 U.S.C. Sec. 510 , is sufficiently ambiguous to warrant application of the rule of lenity. 2 * Tami LeCoe is the second wife of Joseph E. LeCoe, a naval recruiter in Boise, Idaho. She married Joseph on April 1, 1983, two months after his divorce from his first wife, Pamela J. LeCoe. 3 The decree finalizing the divorce of Joseph and Pamela required Joseph to make eight monthly payments of $400 each to Pamela for her share of his military retirement. In addition, Joseph was ordered to make child support payments of $300 per month for the duration of the minority of the couple's two children. Joseph arranged to have these payments…

dissenting:

This case demonstrates that if you look at a statute long enough and hard enough, even the clearest language can appear to become ambiguous. Because I disagree with my learned colleagues that 18 U.S.C. § 510 (c) is ambiguous, I respectfully dissent.

In construing a statute, this court looks first to the plain meaning of the language in question. United States v. 594,464 Pounds of Salmon, 871 F.2d 824, 825 (9th Cir.1989). If a statute’s language is “unambiguous, its plain language controls unless the Congress has ‘clearly expressed’ a contrary legislative intention.” Id. at 826 (quotation omitted). Section § 510(c) of Title 18 states:

(emphasis added).

I find the underlined language unambiguous. It simply states that when the aggregate face value of checks passed in violation of 18 U.S.C. § 510 (a) or § 510(b) is less than $500, the maximum penalty is $1,000 or one year in jail. The statute does not limit the aggregation of the checks to each of the defendant’s offenses. Rather, the statute refers to the “above mentioned” offenses, meaning those defined in *406 § 510(a) and § 510(b). As stated by the majority, the legislative history is sparse. However, in that…

We must decide whether the sentencing provision of the statute criminalizing forged endorsements of United States Treasury checks, 18 U.S.C. § 510 , is sufficiently ambiguous to warrant application of the rule of lenity.

I

Tami LeCoe is the second wife of Joseph E. LeCoe, a naval recruiter in Boise, Idaho. She married Joseph on April 1, 1983, two months after his divorce from his first wife, Pamela J. LeCoe.

The decree finalizing the divorce of Joseph and Pamela required Joseph to make eight monthly payments of $400 each to Pamela for her share of his military retirement. In addition, Joseph was ordered to make child support payments of $300 per month for the duration of the minority of the couple’s two children. Joseph arranged to have these payments taken directly from his retirement pay; accordingly, the checks to Pamela were issued by the United States Treasury. For reasons not relevant to these proceedings, the checks to Pamela for the period February 1983 to September 1984 were sent to Joseph, who was in turn responsible for forwarding them to Pamela. Beginning in October 1984, Joseph arranged to have the checks mailed directly to Pamela.

Pamela eventually complained to…