UNITED STATES OF AMERICA, PETITIONER V. CHARLES NOEL WOODWARD No. 83-1947 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix OPINIONS BELOW The original opinion of the court of appeals (App., infra, 1a-19a) is unreported. An order of the court of appeals modifying that opinion and denying a petition for rehearing (App. infra, 20a-22a) is unreported. The opinion of the court of appeals as modified is reported at 726 F.2d 1320. JURISDICTION The judgment of the court of appeals was entered on August 5, 1983. A petition for rehearing was denied on February 29, 1984 (App., infra, 20a.) On April 19, 1984, Justice Rehnquist extended the time within which to file a petition for a writ of certiorari to and including May 29, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED 1. 18 U.S.C. 1001 provides. Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both. 2. 31 U.S.C. (1976 ed.) 1101 provides: (a) Persons required to file Except as provided in subsection (c) of this section, whoever, whether as principal, agent, or bailee, or by an agent or bailee, knowingly -- (1) transports or causes to be transported monetary instruments -- (A) from any place within the United States to or through any place outside the United States, or (B) to any place within the United States from or through any place outside the United States, or (2) receives monetary instruments at the termination of their transportation to the United States from or through any place outside the United States in an amount exceeding $5,000 on any one occasion shall file a report or reports in accordance with subsection (b) of this section. (b) Contents of filed report Reports required under this section shall be filed at such times and places, and may contain such of the following information and any additional information, in such form and in such detail, as the Secretary may require: (1) The legal capacity in which the person filing the report is acting with respect to the monetary instruments transported. (2) The origin, destination, and route of the transportation. (3) Where the monetary instruments are not legally and beneficially owned by the person transporting the same, or are transported for any purpose other than the use in his own behalf of the person transporting the same, the identities of the person from whom the monetary instruments are received, or to whom they are to be delivered, or both. (4) The amounts and types of monetary instruments transported. (c) Common carriers Subsection (a) of this section does not apply to any common carrier of passengers in respect to monetary instruments in the possession of its passengers, nor to any common carrier of goods in respect of shipments of monetary instruments not declared to be such by the shipper. 3. 31 U.S.C. (1976 ed.) 1058 provides: Whoever willfully violates any provision of this chapter or any regulation under this chapter shall be fined not more than $1,000, or imprisoned not more than one year, or both. 4. 31 U.S.C. (1976 ed.) 1052(k) provides: For the purposes of section 1001 of title 18 the contents of reports required under any provision of this chapter are statements and representations in matters within the jurisdiction of an agency of the United States. QUESTIONS PRESENTED 1. Whether the felony of making a false statement (18 U.S.C. 1001), arising out of a defendant's declaration on a Customs form that he is not carrying more than $5,000 into the United States, is a lesser included offense of the misdemeanor of failing to file a currency disclosure report that is required when more than $5,000 is transported into or out of the United States (31 U.S.C. (1976 ed.) 1058 and 1101). 2. Whether, if the false statement felony under 18 U.S.C. 1001 is included within the currency reporting misdemeanor under 31 U.S.C. (1976 ed.) 1058 and 1101, the court of appeals erred in concluding that it was required to vacate the Section 1001 felony conviction as the lesser included offense that merged into the Section 1101 misdemeanor conviction. STATEMENT Following a jury trial in the United States District Court for the Central District of California, respondent was convicted of making a false written statement on a United States Customs form that he had not transported more than $5,000 into the United States, in violation of 18 U.S.C. 1001, and failing to file a report disclosing that he and his wife were transporting approximately $22,000 into the United States, in violation of 31 U.S.C. (1976 ed.) 1058 and 1101. /1/ He was sentenced to a term of six month's imprisonment on the false statement count under Section 1001 and a consecutive three-year term of probation on the currency reporting count under Section 1101. /2/ The court of appeals reversed the Section 1001 conviction and affirmed the Section 1101 conviction (App., infra, 1a-19a). /3/ 1. The evidence at trial showed that on March 1, 1980, respondent and his wife arrived at Los Angeles International Airport on a flight from Brazil. In proceeding through Customs for entry into the United States, respondent filled out Customs Form 6059-B. That form, after requesting the declarant's name, address, nationality, and the identities of any accompanying family members, asks the declarant to answer "yes" or "no" to the following question: "Are you or any family member carrying over $5000.00 (or the equivalent value in any currency) in monetary instruments such as coin, currency, traveler's checks, money orders, or negotiable instruments in bearer form?" Immediately following that question, the form states, in italics, that "(i)f yes, you must file a report on Form 4790, as required by law"; it then advises: "Note: It is not illegal to transport over $5000 in monetary instruments; however, it must be reported." In addition, placards prominently displayed in the passenger area at Los Angeles International Airport inform travelers that they are required to file a report with Customs if they are carrying more than $5,000 into the country. Finally, Form 6059-B warns, in bold black type, that "False Statements Made To A Customs Officer Are Punishable By Law." Tr. 126-128, 140, 143, 145, 167-170; GX 1. In completing Customs Form 6059-B, respondent indicated that he was a resident and citizen of the United States and that he was accompanied by his wife. He also checked the "no" box described above, thereby stating that neither he nor any family member was carrying more that $5,000; respondent neither requested nor filled out Form 4790 to report the approximately $22,000 that he and his wife were bringing into the United States, and he did not otherwise declare that money. Respondent then signed the form in the designated space below the legend: "I certify that I have declared all items acquired abroad as required herein and that all oral and written statements which I have made are true, correct and complete" (emphasis in original). After respondent submitted Form 6059-B, he was questioned for a few minutes by Customs officials, but at no time did he state that he had more than $5,000 or ask for a copy of Form 4790 (Tr. 134-135). Customs officials decided to search respondent and his wife. /4/ As respondent was being escorted to a search room, he told a Customs official that he and his wife were carrying in excess of $20,000 (Tr. 136). Respondent later repeated that statement and, when asked why he had indicated on Form 6059-B that he did not have more than $5,000, he explained that the money was the proceeds of an insurance settlement and that he believed he did not have to disclose such funds (Tr. 144, 148). Respondent then produced approximately $12,000 in $100 bills that had been hidden in his boot (Tr. 136). In addition, approximately $10,000 in $100 bills was found in a makeshift money belt concealed under Mrs. Woodward's clothing (Tr. 153). Respondent thereafter reiterated that he had not reported the cash because it came from an insurance settlement and thus was not "personal" money that was subject to disclosure (Tr. 157-158); respondent admitted, however, that he was familiar with United States Customs currency laws (Tr. 156-157) /5/ and that he had discussed the money with an unnamed United States Embassy official in Belgium and been told to "report everything to U.S. Customs" (Tr. 158). After Customs retained all but approximately $1,500 of the unreported money pending forfeiture proceedings (see 31 U.S.C. (1976 ed.) 1102(a)), respondent sought remission of the impounded funds (see 31 U.S.C. (1976 ed.) 1104). In connection with that effort, respondent made an appointment to meet with Customs officials at his residence in late March 1980. At that meeting respondent stated that approximately $18,000 represented an insurance settlement for a burglary that occurred in Belgium. Although acknowledging that he had completed Customs declarations on a number of previous occasions, respondent said that he thought the insurance money did not have to be reported because, although belonging to him, it was "separate." Respondent also said that an unidentified official in the United States Embassy in Brussels had advised him that insurance proceeds should be orally declared (Tr. 164-178). Nine months later, in December 1980, respondent contacted the Assistant United States Attorney involved in the forfeiture proceeding and said that he had been told by an unnamed official in the United States Embassy in Johannesburg, South Africa, that insurance money could be declared orally (Tr. 193-195). App., infra, 3a-4a. 2. In the district court respondent raised no issue concerning the interrelationship of the false statement felony (18 U.S.C. 1001) and the currency reporting misdemeanor (31 U.S.C. (1976 ed.) 1058 and 1101) on which he was tried. Likewise, he presented no such issue in his brief on appeal. However, the court of appeals, acting sua sponte, ordered the parties to brief the questions "(w)hether the evidence was sufficient to establish the elements of an offense under 18 U.S.C. Section 1001" and "(w)hether (respondent's) convictions under 31 U.S.C. Sections 1058, 1059 and 1101, and 18 U.S.C. Section 1001 violate the prohibition against double jeopardy" (App., infra, 23a). Following supplemental briefing, the court of appeals affirmed respondent's conviction on the currency reporting misdemeanor and reversed his conviction on the false statement felony (App., infra, 1a-19a). The court characterized the indictment as charging respondent "with two separate offenses based on the exact same conduct: His false declaration that he was not carrying over $5,000 in United States currency" (id. at 4a (footnote omitted)). Applying the test of Blockburger v. United States, 284 U.S. 299 (1932), the court concluded that a "conviction under 31 U.S.C. Section 1058 necessarily entails proof of all of these elements (of a violation of 18 U.S.C. Section 1001)" (App., infra, 9a) and thus that "18 U.S.C. Section 1001 is an included offense within a conviction under 31 U.S.C. Section 1058 * * * (and) Section 1101" (id. at 13a-14a (footnote omitted)). In reaching this conclusion, the court reasoned that "a willful failure to file" a currency disclosure report is a "form of 'concealment'" under the false statement statute (App., infra, 10a) even in the absence of "some affirmative misrepresentation" (id. at 9a), and therefore that "18 U.S.C. Section 1001 could be applied to punish a traveler who willfully fails to file a report listing currency in excess of $5,000. It follows that a conviction under 31 U.S.C. Section 1058 (and Section 1101) necessarily includes all elements of an 18 U.S.C. Section 1001 violation" (id. at 10a). In addition, the court found no "'clear indication' of congressional intent to allow cumulative punishment under both statutory sections" (id. at 11a). Accordingly, the court held that "the failure to report currency in excess of $5,000 upon entry into or departure from the United States * * * constitute(s) only a single offense" (id. at 13a), and hence "double punishments (cannot be imposed) under 18 U.S.C. Section 1001 and 31 U.S.C. Section 1058 (and Section 1101)" (id. at 12a). Although recognizing "that a certain degree of incongruity inheres in the notion that 18 U.S.C. Section 1001, which carries a maximum penalty of five years in prison and $10,000 fine, is 'included' within 31 U.S.C. Section 1058 (and Section 1101), which carries a maximum penalty of one year in prison and a $1,000 fine" (id. at 14a n.11), the court "stress(ed) * * * that (it was) merely following the presumed intent of Congress" (ibid.). Based on its view that the violation of 18 U.S.C. 1001 is an "included offense" (App., infra, 13a) of the conviction and upheld the currency reporting misdemeanor conviction. It explained that this disposition "flows from the general rule that a conviction for a lesser included offense merges into a conviction for the greater offense" (id. at 14a (footnote omitted)). The court specifically declined to leave standing the conviction for the "'more serious'" offense, concluding instead that "the 'greater' as opposed to the 'lesser included' offense" should survive (id. at 14a n.12). REASONS FOR GRANTING THE PETITION The court of appeals has held that the felony of making a false statement (18 U.S.C. 1001) is a lesser included offense of the misdemeanor of failing to file a currency disclosure report (31 U.S.C. (1976 ed.) 1058 and 1101). This holding is implausible on its face and is inconsistent with settled principles established by this Court to determine whether conduct violating two statutory provisions constitutes only a single offense and thus is not subject to cumulative punishment. It also rests upon an unduly broad reading of Section 1001 that invites future felony prosecutions in cases that we believe the statute does not reach. Furthermore, even if the court were otherwise correct, its disposition of the case, by vacating the felony false statement conviction and leaving in place the misdemeanor currency reporting conviction, is entirely insupportable and contradicts both common sense and recognized legal principles. Finally, the decision below creates a conflict among the circuits. Accordingly, review by this Court is warranted. Because the court of appeals' rulings are so plainly in error and at odds with the decisions of this and other courts, the Court may wish to consider summary reversal. 1.a. In Albernaz v. United States, 450 U.S. 333 (1981), this Court recently elaborated the principles of interpretation to be followed in determining whether two statutes establish separate offenses that may be cumulatively punished. See also Missouri v. Hunter, No. 81-1214 (Jan. 19, 1983). Here, as in Albernaz, the statutes at issue prescribe "separate offenses with separate penalty provisions that are contained in distinct * * * (parts of the United States Code). The provisions are unambiguous on their face and each authorizes punishment for a violation of its terms" (450 U.S. at 336). As the Fifth Circuit concluded in United States v. Anderez, 661 F.2d 404, 406 (1981), 18 U.S.C. 1001 and 31 U.S.C. (1976 ed.) 1101 represent "two separate offenses contained in two distinct acts. Each provision is unambiguous on its face and imposes punishment for the violation of its distinct terms." Furthermore, like the statutes in Albernaz, the false statement and currency reporting statutes satisfy the "'rule of statutory construction'" of Blockburger v. United States, 284 U.S. 299 (1932), that "is to be used 'to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively'" (Albernaz, 450 U.S. at 337, quoting Whalen v. United States, 445 U.S. 684, 691 (1980)). Under Blockburger, (t)he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Albernaz, 450 U.S. at 337, quoting Blockburger, 284 U.S. at 304. Here, 18 U.S.C. 1001 and 31 U.S.C. (1976 ed.) 1101 each requires proof of a fact that the other does not. The crux of Section 1001 is the making of a false statement, but such a statement is not an element of the Section 1101 offense. Conversely, Section 1101 -- but not Section 1001 -- involves the failure to file a currency disclosure report required by law. It simply blinks reality to conclude, as the court of appeals did, that making a false statement is a lesser included offense of failing to submit a required report and thus, in effect, that the failure to file is an enhanced or aggravated form of false statement. /6/ It is therefore clear, as the Fifth Circuit has recognized, that Section 1001 and Section 1101 meet the Blockburger standard. See United States v. Anderez, 661 F.2d at 407, 408 n.12. /7/ In addition, as in Albernaz, there is no "clear indication" (450 U.S. at 340) in the legislative history of the statutes -- indeed, there is no indication at all -- that, contrary to the presumption that cumulative punishments are authorized for separate offenses under Blockburger, Congress intended that consecutive penalties not be imposed pursuant to Section 1001 and Sections 1058 and 1101. See United States v. Anderez, 661 F.2d at 407-408 and n.12; compare App., infra, 13a n.10. In fact, the language and history of the currency reporting statute -- which was enacted and recodified subsequent to the false statement statute -- indicate that Congress contemplated the applicability of both provisions and did not preclude aggregate sentences. Section 1101 is part of the Currency and Foreign Transactions Reporting Act, Pub. L. No. 91-508, Tit. II, 84 Stat. 1118 et seq. /8/ In 31 U.S.C. (1976 ed.) 1052(k), the Act expressly provided: For the purposes of section 1001 of title 18, the contents of reports required under any provision of this chapter are statements and representations in matters within the the jurisdiction of an agency of the United States. Hence, in passing 31 U.S.C. (1976 ed.) 1101, Congress's attention was drawn to the application of 18 U.S.C. 1001, yet nowhere did it suggest that the two statutes could not be invoked together. For this reason, the natural inference is that Congress did not intend to restrict the application of Section 1001. See United States v. Grotke, 702 F.2d 49, 54 (2d Cir. 1983); United States v. Anderez, 661 F.2d at 406; United States v. Fitzgibbon, 576 F.2d 279, 283 (10th Cir.), cert. denied, 439 U.S. 910 (1978). This understanding is confirmed by the 1982 recodification of Title 31. This recodification, which was "without substantive change," /9/ deleted Section 1052(k) (see H.R. Rep. 97-651, 97th Cong., 2d Sess. 251 (1982) as "(u)nnecessary" because "Section 1001 (of Title 18) applies unless otherwise provided" (id. at 301 (emphasis added)). Thus, the 1982 legislative history makes clear that 18 U.S.C. 1001 remains fully applicable to false statements made in the course of currency transportation offenses and was not intended to be limited by the currency reporting statute. /10/ Finally, the statutes involved in this case, like those in Albernaz (450 U.S. at 343), serve different congressional policies and are directed at different misconduct. The false statement statute was designed "'to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described'" (United States v. Rodgers, No. 83-620 (Apr. 30, 1984), slip op. 5, quoting United States v. Gilliland, 312 U.S. 86, 93 (1941)) and hence to ensure "'the integrity of official inquiries'" (Rodgers, slip op. 6, quoting Bryson v. United States, 396 U.S. 64, 70 (1969)). In this case respondent was indicted and convicted under 18 U.S.C. 1001 for the false written statement he made on Customs Form 6059-B. On the other hand, the currency statute was intended to require the preparation and submission of reports that "have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings" (31 U.S.C. (1976 ed.) 1051); as this Court has explained: (The Bank Secrecy Act, which contained the curreny reporting provisions,) was enacted by Congress in 1970 following extensive hearings concerning the unavailability of foreign and domestic bank records of customers thought to be engaged in activities entailing criminal or civil liability. * * * * * * The legislative history of (the currency) reporting provisions indicates that the Congress was concerned with the circumvention of United States regulatory, tax, and criminal laws which United States citizens and residents were accomplishing through the medium of secret foreign bank transactions. California Bankers Ass'n v. Shultz, 416 U.S. 21, 26, 35 (1974). Thus, the currency statute seeks "the acquisition of information to assist in the enforcement" of criminal and civil laws (id. at 76). /11/ Here, respondent violated Section 1101 by transporting more than $5,000 into the country without filing the required currency disclosure report. The fact that lying to a government official and refusing to provide required information are different acts of misconduct (see United States v. Anderez, 661 F.2d at 407) and interfere with government operations in different ways "reinforce(s)" (Albernaz, 450 U.S. at 343) the conclusion that making a false statement, in violation of Section 1001, is not a lesser included offense of failing to file a currency disclosure report under Section 1101. In the specific factual context of this case, the currency offense and the false statement offense were part of a single transaction in which respondent sought to bring currency into the country without disclosing his action to the government. Indeed, most cases in which people entering the United States through a Customs port of entry seek to bring undeclared currency with them will involve a coincidence of the two offenses, since standard Customs forms require the making of a statement with respect to currency transportation. It is perhaps this attribute of the particular facts of this case that moved the court of appeals to treat the two statutes as covering the "same" offense for Blockburger purposes. But the fallacy of the court's approach becomes readily evident when the full reach of the currency statute is examined. That statute is designed to reach all undeclared international currency transactions in excess of $5,000. It thus applies equally not only to persons entering at a Customs port of entry, but also to persons leaving the country or sneaking into the country, who would not ordinarily be called upon to make any statement to the government and therefore would have no exposure to liability under Section 1001. Thus, in many instances proscribed under Section 1101, the violator will have made no statement of any kind to the government, nor engaged in any affirmative scheme of concealment; it is accordingly plain that acts or omissions violating the false statement statute cannot be a necessary element of the currency offense despite the contemporaneity of the two infractions on the particular facts of this case. For these reasons, as the Fifth Circuit held in United States v. Anderez, a defendant "may be convicted under both 18 U.S.C. Section 1001 and 31 U.S.C. Sections 1101, 1058" (661 F.2d at 408 (footnote omitted)). b. In reaching its holding that 18 U.S.C. 1001 is a lesser included offense of 31 U.S.C. (1976 ed.) 1058 and 1101, the court of appeals reasoned that Section 1001 does not require "some affirmative misrepresentation" (App., infra, 9a) but instead can be violated by the "concealment" entailed in merely failing to file a required currency disclosure report (id. at 10a). This analysis is erroneous and conflicts with decisions in other circuits. Section 1001 applies, inter alia, to any person who "knowingly and willfully falsifies, conceals or covers up by an trick, scheme, or device a material fact" in a matter within the jurisdiction of a department or agency of the United States (18 U.S.C. 1001). The court of appeals' conclusion that a simple failure to file "is a form of 'concealment'" under Section 1001 (App., infra, 10a) entirely ignores the requirement that there be a "trick, scheme, or device" that conceals a material fact. Merely failing to file does not violate the false statement statute. See United States v. Anderez, 661 F.2d at 408 n.12; compare App., infra, 9a-10a n.8. Contrary to the decision below, other courts of appeals have held that a simple failure to disclose does not constitute "conceal(ment) * * * by * * * trick, scheme, or device" under 18 U.S.C. 1001. For example, in United States v. London, 550 F.2d 206 (5th Cir. 1977), the court concluded that Section 1001 requires "an affirmative act" and does not "embrace mere nondisclosure" (550 F.2d at 212); as the court explained (550 F.2d at 213-214 (footnote omitted)): We therefore conclude that full effect must be given to the "trick, scheme, or device" language of the first clause of Section 1001 and that this language implies the requirement of an affirmative act by which means a material fact is concealed. * * * * * (The government) ha(s) the burden of demonstrating not merely that * * * (a defendant) passively failed to (make a required) disclo(ure) * * *, but rather that (the defendant) committed affirmative acts constituting a trick, scheme or device by which (he) sought to conceal material facts. * * * * * (T)he mere omission of failing truthfully to disclose a material fact, which is simply the negative aspect of the affirmative act of falsely stating the same material fact, does not make out an offense under the conceal or cover up clause of Section 1001. Rather, the latter clause of Section 1001 requires the government to prove something more -- that the material fact was affirmatively concealed by ruse or artifice, by scheme or device. See also, e.g., United States v. Tobon-Builes, 706 F.2d 1092, 1096, 1098, 1101 (11th Cir. 1983); United States v. Irwin, 654 F.2d 671, 678 (10th Cir. 1981), cert. denied, 455 U.S. 1016 (1982); United States v. Diogo, 320 F.2d 898, 902, 805 (2d Cir. 1963). /12/ By erroneously broadening the scope of Section 1001 to reach any failure to make a required report, the court of appeals has not only excused respondent from the full consequences of his unlawful conduct in this case, but also jeopardized the interests of future criminal defendants by inviting Section 1001 prosecutions on a seemingly unsustainable basis. In addition to its erroneous legal analysis, the court of appeals also misconceived the nature of the issue presented here. The question in this case is not whether respondent's failure to file a currency disclosure report is a "concealment" that could be charged under 18 U.S.C. 1001 and, if so, whether he could be punished for that act under both Section 1001 and 31 U.S.C. (1976 ed.) 1058 and 1101. /13/ Rather, respondent was prosecuted under Section 1001 for his false written statement on Customs Form 6059-B, and the issue is whether such conduct is removed from the scope of that statute by the fact that respondent was also prosecuted, under Sections 1058 and 1101, for transporting currency into the United States without filing a currency disclosure report. The court of appeals' analysis of the failure to file as "concealment," and its conclusion that a Section 1001 violation based on such failure is a lesser included offense of a Section 1101 violation, is simply beside the point in resolving the question raised here: whether respondent was subject both to Section 1001 for making a false statement and to Sections 1058 and 1101 for failing to file a currency report. For the reasons already stated, the court of appeals plainly erred in holding that he was not. 2. If, contrary to the above argument, respondent could not be sentenced under both provisions, we submit that the ocurt of appeals erred in setting aside the felony false statement count rather than the misdemeanor currency reporting count. The court's disposition reflects its view that, because the Section 1001 felony is the lesser included offense and therefore merges into the Section 1101 misdemeanor, the Section 1001 count must be vacated. Such a wooden and formalistic theory is unprecedented and conflicts with decisions in other circuits. Moreover, it confers an unjustifiable windfall upon defendants like respondent who, despite being convicted of a Section 1001 felony, can be sentenced only for a misdemeanor. Contrary to the decision below, every other court of appeals to consider the issue has concluded that, where the greater sentence is imposed on what is technically the lesser included offense, that sentence can be upheld and need not be vacated in favor of the sentence on the more inclusive offense. /14/ As these courts have pointed out, the defendant's "'only justifiable complaint * * * was that he received two consecutive sentences for one offense, instead of a single sentence" (Holbrook v. United States, 136 F.2d 649, 651 (8th Cir. 1943), quoting Holiday v. United States, 130 F.2d 988, 989 (8th Cir. 1942)), and he has no "right to say which of the two consecutive sentences * * * contemporaneously imposed * * * shall be eliminated in order not to subject the defendant to the possibility of double punishment" (Hollbrook v. United States, 136 F.2d at 652). In these circumstances, "no sound legal reason exists why the longer sentence cannot properly be made to constitute the real punishment for the offense" (ibid.), and "'(j)ustice and common sense alike would appear to require that (the more severe sentence) be upheld'" (Coy v. United States, 156 F.2d 293, 295 (6th Cir.), cert. denied, 328 U.S. 841 (1946), quoting Coy v. Johnston, 136 F.2d 818, 821 (9th Cir.), cert. denied, 320 U.S. 788 (1943)). Indeed a contrary rule would be "inconsistent with sound judicial policy" (United States v. Corson, 449 F.2d 544, 549 (3d Cir. 1971) (en banc), overruled on other grounds, United States v. Busic, 639 F.2d 940, 953 (3d Cir.), cert. denied, 452 U.S. 918 (1981)) by allowing "the defendant to escape the heavier penalty" (Sawyer v. United States, 312 F.2d 24, 27 (8th Cir.), cert. denied, 374 U.S. 837 (1963)). The decision below conflicts with this line of authority and ignores the salutary principles to which other circuits have consistently adhered. In addition, the court of appeals' decision in this case is at odds with fundamental principles of prosecutorial discretion. As the Court recently explained in United States v. Batchelder, 442 U.S. 114, 123-124 (1979) (citations omitted): This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants. Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion. The Court expressly rejected the contention that a different rule applies in cases involving "overlapping statutes with identical standards of proof" (442 U.S. at 124), concluding that "there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements" (442 U.S. at 125). And Batchelder recognizes that "a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution * * * (or) to choose the penalty scheme under which he will be sentenced" (ibid.). See also, e.g., Berra v. United States 351 U.S. 131, 135 (1956); United States v. Gilliland, 312 U.S. 86, 95-96 (1941). These principles are equally applicable to the issue in this case, and thus, contrary to the technical and inflexible rule formulated by the court below, the prosecutor has discretion to select the counts that should remain in effect after the defendant has been tried and convicted of greater and lesser offenses. In United States v. Duncan, 693 F.2d 971, 975 (1982), the Ninth Circuit, in accord with the decisions in other circuits, /15/ held that 18 U.S.C. 1001 is not rendered inapplicable by the more specific provisions of 31 U.S.C. (1976 ed.) 1058 and 1101 and therefore that a defendant who makes a false statement in connection with the transportation of unreported currency can be indicted and sentenced under Section 1001. /16/ In light of Duncan, it is unquestionable that, in the exercise of prosecutorial discretion, respondent's false statement could have been prosecuted and punished in a single count under the felony provision of 18 U.S.C. 1001. The fact that a second count was also brought under Section 1101 for respondent's failure to file a currency disclosure report should not immunize him from Section 1001 or divest the prosecutor of discretion to choose the statutory penalty to which respondent will be subject. The court of appeals' decision erects an artificial distinction between defendants who are prosecuted under Section 1001 alone and those prosecuted under both provisions, and it improperly restricts and intrudes upon the discretion of the Executive Branch to control the charges against defendants. /17/ CONCLUSION The petition for a writ of certiorari should be granted. The Court may wish to consider summary reversal. Respectfully submitted, REX E. LEE Solicitor General STEPHEN S. TROTT Assistant Attorney General ANDREW L. FREY Deputy Solicitor General MARK I. LEVY Assistant to the Solicitor General VINCENT L. GAMBALE Attorney May 1984 /1/ 31 U.S.C. (1976 ed.) 1058 and 1101 were recently recodified without substantive change (see pages 13-14 and note 9, infra) at 31 U.S.C. 5322(a) and 5316. See Pub. L. No. 97-258, 96 Stat. 877 et seq. (1982). /2/ The district court also required that respondent inform future employers of his criminal record, but the court of appeals set aside that portion of the sentence (App., infra, 18a n.15). /3/ Respondent was initially indicted with his wife. The charges against Mrs. Woodward were subsequently dismissed on the government's motion, and a superseding indictment was returned against respondent alone. /4/ While respondent was being processed through Customs, it was determined that he was a fugitive from prosecution in Greece (C.A. Excerpt of Record IV; App., infra, 2a). In addition, Customs officials noticed an "unnatural-looking bulge" under Mrs. Woodward's clothing (Tr. 42; App., infra, 2a). /5/ Insurance proceeds are not exempt from Customs declarations, and nothing to indicate any such exemption appears on the Customs forms (Tr. 145). /6/ This point is discussed more fully at pages 17-19, infra. /7/ Justice Rehnquist also recently concluded that Section 1001 and Section 1101 satisfy the Blockburger test. In Julian v. United States, 685 F.2d 448 (1982) (Table), a divided panel of the Ninth Circuit (Fletcher, J., dissenting) held in an unpublished opinion that, contrary to its later decision in the present case, Section 1001 and Section 1101 involve separate offenses for which cumulative penalties are authorized. In denying Julian's application for bail, Justice Rehnquist explained (103 S. Ct. 3522 (1983): (Julian) contends that a conviction under both 18 U.S.C. Section 1001 and 31 U.S.C. Section 1101 violates the Double Jeopardy Clause. But under the test established in Blockburger v. United States, 284 U.S. 299, 304 (1932), cumulative punishments under separate statutes are permitted provided only that each statute requires proof of a fact not required by the other. 18 U.S.C. Section 1001 requires a finding that applicant misled a government official by material false statements. 31 U.S.C. Section 1001 requires a different finding that applicant failed to file the required currency reporting form. Thus, the Blockburger test is satisfied. The Court subsequently denied Julian's petition for certiorari, No. 82-6413 (Oct. 3, 1983). /8/ In turn, the Currency and Foreign Transactions Reporting Act is part of the Bank Secrecy Act of 1970, Pub. L. No. 91-508, 84 Stat. 1114 et seq. /9/ H.R. Rep. 97-651, 97th Cong., 2d Sess. 1 (1982). See also id. at 3; 128 Cong. Rec. H5386 (daily ed. Aug. 9, 1982) (remarks of Rep. Hall); id. at H5452 (remarks of Rep. Hall); id. at H5454 (remarks of Rep. Fish). /10/ Moreover, to our knowledge, no felony has ever been regarded as a lesser included offense of a misdemeanor. Even apart from the Blockburger analysis and the history of the Currency Reporting Act, it is most improbable that Congress intended a Section 1001 felony to be punished only as a misdemeanor on the theory that it is included within the Section 1101 offense. /11/ See also, e.g., S. Rep. 91-1139, 91st Cong., 2d Sess. 1, 3-4, 6-8 (1970); Foreign Bank Secrecy: Hearings on S. 3678 and H.R. 15073 Before the Subcomm. on Financial Institutions of the Senate Comm. on Banking and Currency, 91st Cong., 2d Sess. 258 (1970); Foreign Bank Secrecy and Bank Records; Hearings on H.R. 15073 Before the House Comm. on Banking and Currency, 91st Cong., 1st and 2nd sess. 92, 97-98, 104 (1969-1970). /12/ The cases cited by the court below (App., infra, 10a and n.8) do not support a contrary conclusion. In United States v. Hajecate, 683 F.2d 894 (5th Cir. 1982), the "falsification and concealment" referred to by the court (683 F.2d at 899) involved affirmative false statements on tax returns and not simply the failure to file a return. Likewise, the Ninth Circuit's own decisions in United States v. Masters, 612 F.2d 1117 (1979), cert. denied, 449 U.S. 847 (1980), and United States v. UCO Oil Co., 546 F.2d 833 (1976), cert. denied, 430 U.S. 966 (1977), also pertained to concealment involving affirmative misstatements rather than mere nondisclosure. /13/ Even in that situation, however, the felony under Section 1001 would not be a lesser included offense of the misdemeanor under Sections 1058 and 1101; instead, because the Section 1001 offense requires both a "concealment" and a "trick, scheme, or device," it is clearly not subsumed within the Section 1101 offense. /14/ See United States v. Corson, 449 F.2d 544, 547-551 (3rd Cir. 1971) (en banc), overruled on other grounds, United States v. Busic, 639 F.2d 940, 953 (3d Cir.), cert. denied, 452 U.S. 918 (1981); United States v. Ivy, 644 F.2d 479, 480 (5th Cir. 1981); United States v. Larson, 625 F.2d 67, 69 (5th Cir. 1980); United States v. Bennett, 547 F.2d 1235 (5th Cir.), cert. denied, 431 U.S. 943 (1977); Homan v. United States, 464 F.2d 555 (5th Cir. 1972); Thomas v. United States, 450 F.2d 317, 319 (5th Cir. 1971), cert. denied, 409 U.S. 859 (1972); United States v. White, 440 F.2d 978, 981 (5th Cir.), cert. denied, 404 U.S. 839 (1971); Counts v. United States, 263 F.2d 603 (5th Cir. 1959); Coy v. United States, 156 F.2d 293, 295 (6th Cir.), cert denied, 328 U.S. 841 (1946); United States v. Martin. No. 83-1017 (7th Cir. Apr. 19, 1984); United States v. Leather, 271 F.2d 80 (7th Cir. 1959), cert. denied, 363 U.S. 831 (1960); Gerberding v. United States, 471 F.2d 55, 61-63 (8th Cir. 1973); Sawyer v. United States, 312 F.2d 24 (8th Cir.), cert denied, 374 U.S. 837 (1963); Hardy v. United States, 292 F.2d 192 (8th Cir. 1961); Holbrook v. United States, 136 F.2d 649 (8th Cir. 1943); Purdom v. Untied States, 249 F.2d 822 (10th Cir. 1957), cert. denied, 355 U.S. 913 (1958); United States v. Stone, 702 F.2d 1333, 1335, 1340-1341 (11th Cir. 1983); United States v. Girst, 645 F.2d 1014, 1017 (D.C. Cir. 1979); see also United States v. Wiga, 662 F.2d 1325, 1335-1336 (9th Cir. 1981), cert. denied, 456 U.S. 918 (1982); Coy v. Johnston, 136 F. 2d 818 (9th Cir.), cert. denied, 320 U.S. 788 (1943); cf. Green v. United States, 365 U.S. 301, 305-306 (1961) (plurality opinion). /15/ See United States v. Grotke, 702 F.2d 49, 54 (2d Cir. 1983); United States v. Anderez, 661 F.2d 404, 406-408 (5th Cir. 1981); United States v. Fitzgibbon, 576 F.2d 279, 283 (10th Cir.), cert. denied, 439 U.S. 910 (1978); compare United States v. Duncan, 693 F.2d at 980 (Fletcher, J., dissenting). /16/ Indeed, Duncan recognized that where "a course of criminal conduct * * * entail(s) the violation of several statutes * * * (that) are not redundant, the prosecutor may charge the defendant with violating one or all of the statutes, and the defendant can be convicted of violating more than one statute" (693 F.2d at 975 (footnote omitted)). The court cited 18 U.S.C. 1001 and 31 U.S.C. (1976 ed.) 1101 as an example of that principle, and it expressly noted that "31 U.S.C. Sections 1058 and 1101 and 18 U.S.C. Section 1001 are not the same (offense)" (693 F.2d at 975 n.4.). /17/ The principal issue here is whether, as the court below held, there is a rule of law that requires the sentence on the lesser included offense to be vacated even though it exceeds the sentence on the "greater" offense. We recognize that other courts, in rejecting that proposition, have left the selection of the surviving counts to the discretion of the district judge (see cases cited in note 14, supra). But in general the courts have simply assumed that this is the responsibility of the judge and have not considered the role of the prosecutor and the doctrine of prosecutorial discretion. Nor can it be concluded, as the court asserted in United States v. Wiga, 662 F.2d at 1335, that there is a categorical distinction between the choice of charges to be brought in the first instance and the election of the surviving charges following conviction on greater and lesser offenses, and that prosecutorial discretion is confined to or exhausted by the initial bringing of charges. There is no reason of logic or policy that we can discern to support such a result. Of course, even under our view the district court remains free to impose the sentence that it considers to be appropriate, but that sentence should be pursuant to the charges designated by the prosecutor. APPENDIX