Appeal from the United States District Court for the Eastern District of Illinois, East St. Louis Division No. 77-05023-01-E - James L. Foreman, Judge.
Cummings, Circuit Judge, Miller, Judge,*fn* and Tone, Circuit Judge.
On July 13, 1977,*fn1 defendant-appellant (hereinafter "appellant") was tried and found guilty by a jury on both counts of a two -count indictment charging him under 18 U.S.C. § 2114*fn2 with robbery of United States Postal Service funds from the Landsdowne Postal Station in East St. Louis, Illinois, on May 3 and again on May 4, in the amount of $278.11 and $44.75, respectively.*fn3 On July 28, the district court imposed a sentence of ten years' imprisonment on count one and twenty-five years' imprisonment on count two, the sentences to run concurrently.
Appellant argues that the trial court erred in imposing on him the twenty-five year sentence prescribed by section 2114 on count two since this sentence was intended to apply only in the case of a second offense occurring after a person has been convicted of a first offense and not to a case like this where two offenses were committed without an intervening conviction. The Government argues that the language appearing in the statute is "clear" and dismisses appellant's contention, saying:
If this is what Congress in fact intended why did not Congress, at the time of statutory revision, accomplish legislatively what the defendant now proposes to conjure up by interpretative fantasy and invention?
At sentencing, the trial court said:
The jury finding you guilty of count-one, robbing the Post Office on May 3, 1977 and also finding you guilty of coming back the next day on May 4, 1977 and robbing that same Post Office and that same lady.
The Court basically, has really no choice in this matter. The law seems to be clear on it and the Court cites the section of the statute which [sic, it] is alleged that you violated and the jury found that you violated, being 2114 of Title 18, provides for a second or subsequent offense of this nature that you be mandatorily sentenced to the penitentiary for twenty-five years. On the first offense you can be sentenced to ten years imprisonment. The way the Court reads it I have no, basically, no choice in regard to the second or subsequent offense. That it's a mandatory sentence of twenty-five years.
Accordingly, it is the judgment of this Court that with regard to count-one, that the defendant is hereby committed to the custody of the Attorney General of the United States or his authorized representative for imprisonment for the term of ten years. And with regard to count-two, it is the judgment of . . . this Court that the defendant be committed to the custody of the Attorney General of the United States or his authorized representative, for imprisonment for a term of twenty-five years.
It is further the judgment of this Court that the sentences on count-one and two run concurrently with one another.
Although we, of course, recognize the general rule that "when words are free from doubt they must be taken as the final expression of the legislative intent" (Caminetti v. United States, 242 U.S. 470, 490, 61 L. Ed. 442, 37 S. Ct. 192 (1917)), we also recognize "the well-established principle that penal statutes are to be construed strictly" (FCC v. American Broadcasting Co., 347 U.S. 284, 296, 98 L. Ed. 699, 74 S. Ct. 593 (1954)). It is obvious that section 2114 must be read with "and conviction therefor," or words of similar import, impliedly inserted after the phrase "first offense" in order to support the prescribed penalty of imprisonment for not more than ten years. Thus, a strict but entirely reasonable reading of the phrase "a subsequent offense" would refer to an offense subsequent to the first offense and conviction therefor, rather than to an offense subsequent to, but before conviction of, the first offense, as the liberal reading advanced by the Government would have it. Legislative history supports this strict reading.
Section 2114 originated in section 15 of the Act to Establish the Post Office of the United States (Act of March 2, 1799, ch. 43, 1 Stat. 736). A penalty was provided for robbing any carrier of the mail, and an enhanced penalty was provided "if convicted a second time of a like offense." A later form of that statute retained the language just quoted. Act of June 8, 1872, ch. 335, § 285, 17 Stat. 320 (codified at Title 70, Rev. Stat. § 5472 (1878)). However, in section 197 of the Act of March 4, 1909, ch. 321, 35 Stat. 1126, the language "convicted a second time of a like offense" was changed to the present "for a subsequent offense." Noting this change, the Government argues:
It can only be concluded that Congress eliminated reference to the intervening conviction requirement because such an event was no longer considered the appropriate touchstone for ...