Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. Nos. 85 C 1105, 84 CR 35 -- James T. Moody, Judge.
Cummings and Posner, Circuit Judges, and Fairchild, Senior Circuit Judge. Cummings, Circuit Judge, concurring.
Edwards received concurrent prison sentences of five years for having violated 18 U.S.C. § 495 by (1) forging an endorsement on a United States Treasury check for $437 and then (2) uttering the check (i.e., using it as a medium of payment). Later he brought this action under 28 U.S.C. § 2255 to set aside his sentences on the ground that a statute passed shortly before he was sentenced, 18 U.S.C. § 510, had impliedly repealed section 495 with respect to Treasury checks for less than $500. We agree with the district court, 646 F. Supp 42 (1986), and with the Ninth Circuit in United States v. Edmonson, 792 F.2d 1492, 1497-98 (9th Cir. 1986), that there was no repeal. See also United States v. Jackson, 805 F.2d 457 (2d Cir. 1986), which rejected a similar argument (that section 510 had repealed section 641 of the Criminal Code, which forbids the conversion of money or other things of value of the United States).
Section 495, under which Edwards was sentenced, reads as follows:
Whoever falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States or any officers or agents thereof, any sum of money; or
Whoever utters or publishes as true any such false, forged, altered, or counterfeited writing, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited; or
Whoever transmits to, or presents at any office or officer of the United States, any such writing in support of, or in relation to, any account or claim, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited -- Shall be fined not more than $1,000 or imprisoned not more than ten years, or both.
The source of this statute is the Act of March 3, 1823, ch. 38, § 1, 3 Stat. 771, which specified a maximum sentence of 10 years at hard labor. Later versions made slight wording changes, and eventually the provision for hard labor was dropped; but the consistency in both the substantive and the penalty provisions through revisions of the federal criminal code extending over a century and a half is impressive. See Rev. Stat. § 5421 (1873); Crim. Code § 29, 35 Stat. 1088, 1094 (1909); 18 U.S.C. § 73 (1940); 18 U.S.C. § 495 (1948).
Section 510 was passed in 1983. It provides:
(a) Whoever, with intent to defraud --
(1) falsely makes or forges any endorsement or signature on a Treasury check or bond or security of the United States; or
(2) passes, utters, or publishes, or attempts to pass, utter, or publish, any Treasury check or bond or security of the United States bearing a falsely made or forged endorsement or signature shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
(b) Whoever, with knowledge that such Treasury check or bond or security of the United States is stolen or bears a falsely made or forged endorsement or signature buys, sells, exchanges, receives, delivers, retains, or conceals any such Treasury check or bond or security of the United States that in fact is stolen or bears a forged or falsely made endorsement or ...