UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Tamm, MacKinnon and Robb, Circuit Judges. Robb, Circuit Judge (concurring).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MACKINNON
MacKINNON, Circuit Judge:
At 3:05 P.M. on December 27, 1967, the President affixed his signature to an act for the District of Columbia *fn1 which, inter alia, defined the crime of burglary in the first degree, increased the minimum and maximum punishment therefor, *fn2 and increased the minimum punishment for robbery *fn3 by amending the prior laws on both crimes. *fn4 Between 10 P.M. and 11 P.M. on the same day, appellant Casson in company with another person burglarized a home, stole certain property therein and committed other offenses. The statute did not make any provision with respect to its enactment date but did provide:
Sec. 1101. Whoever, prior to the date of enactment of this Act, commits any act or engages in any conduct which constitutes an offense under provision of law amended by this Act, shall be sentenced in accordance with the law in effect on the date he commits such acts or engages in such conduct. 81 Stat. 743, D.C.Code § 22-1801 (1969).
In the absence of any provision fixing an exact time for the law to take effect, it would take effect at the same time as all congressional enactment of criminal laws. The United States Attorney interpreted the statute as having taken effect prior to Casson's crimes, and he was accordingly indicted, convicted and sentenced under the new burglary and robbery statutes, as amended. *fn5 Casson now challenges his convictions on the burglary and robbery counts on the ground that he was denied his constitutional rights by what he contends in effect is an ex post facto application of the new statutes. We dismiss his contention and affirm. I
Allowing for the difference in time zones between "The Ranch" and the District of Columbia, it is noted that the crimes were committed about six hours after the President signed the bill. Casson was subsequently indicted on four counts: I (First Degree Burglary), with entering a dwelling while persons were present therein, with intent to steal property of another; II (Robbery), by force and violence and against resistance and by putting in fear stealing and taking from the person and from the immediate actual possession of a designated person, property of other persons of a value of about $392.50; III and IV, assaulting two persons with a dangerous weapon, that is a shotgun.
The jury returned guilty verdicts on all counts and defendant was given concurrent sentences as follows: five to fifteen years on Counts I and II, and three to ten years on Counts III and IV. Under the 1967
With concurrent sentences having been adjudged on Counts I and II, we recognize the possible application of Hirabayashi v. United States, 320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943), but because of Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), we elect to deal directly with appellant's ex post facto contention. *fn8
On this appeal appellant makes two principal contentions. First, he asserts that the actual signing of the bill did not take place at 3:05 P.M. as endorsed on the bill and as stated in the Statutes at Large, but instead took place at 11 P.M. as reported in some newspapers. Secondly, in the event that the bill was signed at 3:05 P.M., he alleges, in the alternative, that it was not announced publicly until around 11 P.M. and that the time of the announcement was the determinative time for fixing the application of the bill to his conduct. He thus contends that to expose him to the larger penalties contained in the amended act would, in effect, make the criminal statute applicable to him on an ex post facto basis contrary to the provisions of U.S. Const. art. I, § 9, cl. 3. *fn9 II
We first consider when the bill was actually signed. The original signed document embodying the actual bill which is preserved in the National Archives contains a written notation that it was signed by the President at "3:05 P.M. December 27, 1967 [at] The Ranch." *fn10 While no provision of the Constitution or statute requires the President to affix the time or date of signing, the notation constitutes a contemporaneous memorandum and is the best evidence of the fact that the nature of the case permits. Based upon the notation on the bill the official publication of the United States Statutes at Large, 90th Congress, 1st Session (1967), which states in its forepart that it is "Published by authority of law under the direction of the Administrator of General Services by the Office of the Federal Register, National Archives and Record Service," states that the act in question was "approved December 27, 1967, 3:05 P.M." (81 Stat. 744). Congress has declared that the United States Statutes at Large shall be "legal evidence of laws." *fn11 We accordingly decide that the bill was approved at the time endorsed on the official document and stated in the official publication rather than at the time alleged in appellant's hearsay affidavits. Hearsay newspaper statements are not a sufficient basis for overcoming the best evidence of which the case is susceptible and the presumption of regularity. *fn12 III
We next consider when the bill became law. On this point, the United States Constitution in art. I, § 7, provides, inter alia :
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United ...