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Case No. 11–20290–CR.
2012-03-13
UNITED STATES of America v. Raphael LEVY.
Eric A. Hernandez, AUSA, United States Attorney's Office, Miami, for Plaintiff. Joaquin G. Perez, Esq., Miami, for Defendant.
Eric A. Hernandez, AUSA, United States Attorney's Office, Miami, for Plaintiff. Joaquin G. Perez, Esq., Miami, for Defendant.
Order Denying Mr. Levy's Motions To Dismiss The Indictment
ADALBERTO JORDAN, District Judge.
Raphael Levy has filed several pro se “commercial notices” [D.E. 42, 43, 44, 48] and motions [D.E. 73, 75, 77] seeking to dismiss the indictment. Following oral argument, and for the reasons which follow, Mr. Levy's notices and motions are DENIED.
Mr. Levy styled some his filings as motions for judgment on the pleadings. SeeFED. R. CIV. P. 12(c). Because “the Federal Rules of Civil Procedure only [apply] to civil, not criminal, proceedings,” United States v. Guerra, 426 Fed.Appx. 694, 697 (11th Cir.2011), I construe these filings as motions to dismiss the indictment under Federal Rule of Criminal Procedure 12.
Where a criminal defendant is represented by counsel, courts may limit pro se filings. See, e.g., United States v. Long, 597 F.3d 720, 729 (5th Cir.2010). In the exercise of my discretion, I will consider the arguments in Mr. Levy's filings on the merits. Cf. Local Rule 11.1(d)(4) ( “Whenever a party has appeared by attorney, the party cannot thereafter appear or act on [his] own behalf ... provided, that the Court may in its discretion hear a party in open court, notwithstanding the fact that the party has appeared or is represented by an attorney.”).
I. Background
A grand jury has charged that Mr. Levy violated 18 U.S.C. §§ 514(a)(1) and (2) by producing and passing fictitious financial instruments, purporting to be issued under the authority of the United States, with the intent to defraud. The indictment alleges that between July and November of 2009 Mr. Levy created five separate money orders, appearing to be issued on behalf of the United States, and sent them to various private and public entities.
Although his filings contain many different contentions, at oral argument Mr. Levy confirmed that he only seeks to dismiss the indictment on two grounds. As a result, I address only these two arguments. The first is that 18 U.S.C. § 3231, the statute that grants district courts jurisdiction over federal criminal cases, was enacted in contravention of Article 1, § 5, of the Constitution. The second is that because the United States is required to pay his debts, Mr. Levy cannot be prosecuted for creating the money orders at issue. This second argument is generally referred to as the “redemption theory.”
II. Analysis
A. Title 18 Of The United States Code
Copies of the documents that Mr. Levy filed in support of his arguments, as well as copies of the legislative records discussed in this order, are attached as exhibits.
Mr. Levy asserts that Public Law 80–772, which became Title 18 of the United States Code (including § 3231), was enacted in violation of the Constitution. For starters, Mr. Levy contends that the Quorum Clause of the Constitution was violated when the House of Representatives voted on May 12, 1947, to pass H.R. 3190, which later became Public Law 80–772. Mr. Levy also asserts that the Quorum Clause was violated a second time when the Speaker of the House and the President pro tempore of the Senate signed Public Law 80–772 on June 23, 1948, four days after Congress adjourned.
Under settled precedent, Mr. Levy has the burden of proving that 18 U.S.C. § 3231 was not constitutionally enacted. See, e.g., I.N.S. v. Chadha, 462 U.S. 919, 944, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (“We begin... with the presumption that the challenged statute is valid.”); Benning v. Georgia, 391 F.3d 1299, 1303 (11th Cir.2004) (the party challenging an act of Congress has the “burden to show that [it] is unconstitutional”); Wells v. Attorney General of the United States, 201 F.2d 556, 560 (10th Cir.1953) (“[I]n the enactment of a statute Congress is presumed to act with knowledge of controlling constitutional limitationsor proscriptions and with an intent and purpose to avoid their contravention.”). As explained below, he has not carried that burden.
In support of his attack on § 3231, Mr. Levy submits several documents which he says support his argument that § 3231 was enacted in contravention of the Constitution. These documents include letters, an email, and an affidavit that discuss the enactment and legislative history of H.R. 3190. In one such letter, dated September 11, 2006, Karen L. Haas, Clerk of the U.S. House of Representatives, states that she was unable to find any evidence of a vote on May 12, 1947, on H.R. 3190 in the Journal of the House of Representatives and that the Congressional Record indicates that a quorum was not present when the House voted to amend H.R. 3190. There is also an email from Harley G. Lappin, Director of the Federal Bureau of Prisons, to the Bureau's department heads, dated July 27, 2009. In that email, Mr. Lappin states, among other things, that there is no record of a quorum being present in the House on May 12, 1947. The remaining documents are a letter from Jeff Trandahl, Clerk of the U.S. House of Representatives, to a Charles R. Degan, dated June 28, 2000 (stating that, although Congress was in session on June 1, 3, 4, 7–12, and 14–19, 1948, Title 18 was not voted on those days); a letter from Nancy Erikson, Secretary of the Senate, to a Wayne E. Matthews, dated March 9, 2009 (stating that no action was taken by the Senate on H.R. 3190 prior to the December 10, 1947, sine die adjournment); a letter from the Office of the Clerk of the U.S. House of Representatives, dated August 24, 2010 (stating that H.R. 3190 was passed by the House and Senate on June 18, 1948, and became Public Law 80–772 on June 25, 1948); and an undated affidavit from a Tony Robert Davis, who works for a law firm in Texas (stating that the House library had confirmed that the information in Mr. Trandahl's letter was correct). Notwithstanding these documents, and contrary to Mr. Levy's contentions, § 3231 is valid.
1. The Enrolled Bill Rule
The first problem for Mr. Levy is the Supreme Court's decision over a century ago in Marshall Field & Co. v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294 (1892). In that case, the Supreme Court, rejecting an attempt to show through evidence that a bill which passed both Houses of Congress was not the bill actually voted on (because it allegedly omitted a particular section contained in the bill), explained that the “signing by the speaker of the house of representatives, and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress.” Id. at 672, 12 S.Ct. 495.See also id. at 680, 12 S.Ct. 495 (“We are of the opinion ... that it is not competent for the appellants to show, from the journals of either house, from the reports of committees, or from other documents printed by authority of Congress, that the enrolled bill, designated ‘H.R. 9416,’ as finally passed, contained a section that does not appear in the enrolled act in the custody of the state department.”).
Though Marshall Field dealt with a law signed in open session, some federal courts have relied on its reasoning to reject the type of attack made by Mr. Levy here. See, e.g., United States v. Farmer, 583 F.3d 131, 152 (2d Cir.2009) (“We agree with the government that the enrolled bill rule [from Marshall Field ] precludes Farmer's challenge to the validity of the Act of June 25, 1948, and we hold that the district court properly exercised jurisdiction pursuant to 18 U.S.C. § 3231.”); United States v. Miles, 244 Fed.Appx. 31, 33 (7th Cir.2007) (relying on enrolled bill rule to reject challenge to validity of § 3231). Finding these cases persuasive, I do the same.
For a good discussion of why Marshall Field remains good law today, see Public Citizen v. Clerk, U.S. District Court, 451 F.Supp.2d 109, 118–25 (D.D.C.2006), aff'd, 486 F.3d 1342, 1350–55 (D.C.Cir.2007).
2. The Legislative Record
Even if Mr. Levy's extrinsic evidence could be considered, the challenge to § 3231 would nonetheless fail. Mr. Levy argues that the Quorum Clause was violated on May 12, 1947, because the House voted to pass H.R. 3190 by a vote of 38 to 6. But the Congressional Record of the 80th Congress, 1st Session, does not indicate that H.R. 3190 was voted on by 44 Members of the House. Instead, the Congressional Record merely states that before the vote on the bill itself, the House voted 38 to 6 to include an amendment to the language of H.R. 3190. After the vote on the amendment, the record reflects that the bill was ordered to be engrossed, read for a third time, and passed. See 93 CONG. REC. 5049 (1947). Although the Congressional Record does not expressly state that a quorum was present when the House voted to pass H.R. 3190 or the final tally, it is clear that the 38 to 6 vote referenced by Mr. Levy was not the final House vote on the bill.
More importantly, the Journal of the House of Representatives, the official record of the House, see 4 A. HINDS, PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 2727 (1907), indicates that a quorum was present when H.R. 3190 was passed on May 12, 1947. The Journal explicitly states that 297 Members were present on May 12, 1947, and that number constituted a quorum. See H. JOURNAL, 80th Cong., 1st Sess. 341(1947). The Journal also confirms that H.R. 3190 was read and passed by the House:
The bill, as amended, was ordered to be engrossed and read a third time, was read a third time by title, and passed.
Ordered, That the Clerk request the concurrence of the Senate in said bill.
Id. at 343–44. Thus, the Journal of the House of Representatives establishes that a quorum was present on May 12, 1947, when the House voted to pass H.R. 3190. Cf. United States v. Ballin, 144 U.S. 1, 4, 12 S.Ct. 507, 36 L.Ed. 321 (1892) (if reference to the Journal of the House of Representatives can be made to determine whether a law was properly enacted, the Journal “must be assumed to speak the truth”).
Mr. Levy also asserts that the Quorum Clause was violated when the Speaker of the House and the President pro tempore of the Senate signed Public Law 80–772 on July 23, 1948, four days after Congress had adjourned sine die. This argument too lacks merit. First, Mr. Levy provides no legal support for the proposition that a bill properly passed by both Houses of Congress must be signed in open session with a quorum present. Second, contrary to any contention that Public Law 80–772 was signed without the proper authority of Congress, the House Journal indicates that the Speaker of the House and the President pro tempore of the Senate were authorized to sign enrolled bills after the congressional adjournment pursuant to House Concurrent Resolution 219. See H. JOURNAL, 80th Cong., 2d Sess. 771 (1948) (“ Resolved, That notwithstanding the adjournment of the two Houses until December 31, 1948, the Speaker of the House of Representatives and the President pro tempore of the Senate be, and they are hereby, authorized to sign enrolled bills and joint resolutions duly passed by the two Houses and found truly enrolled.”). See also S. JOURNAL, 80th Cong., 2d Sess. 578–79 (1948) (stating that the President pro tempore of the Senate, pursuant to the authority of House Concurrent Resolution 219, signed H.R. 3190 after the adjournment of the Senate on June 20, 1948). In sum, § 3231 is valid. See Wolford v. United States, 362 Fed.Appx. 231, 232 (3d Cir.2010) (“Section 3231 was properly enacted and is binding. The 1948 amendment to that statute, Public Law 80–772, passed both houses of Congress and was signed into law by President Truman[.]”).
Finally, I note that arguments identical or similar to those made by Mr. Levy have been squarely rejected by all the federal courts to have considered them. See, e.g., United States v. Campbell, 221 Fed.Appx. 459, 461 (7th Cir.2007) (rejecting argument that § 3231 is void because the House and Senate did not vote on it during the same session of Congress); United States v. Collins, 510 F.3d 697, 698 (7th Cir.2007) (describing attack on constitutionality of the enaction of Title 18 as “unbelievably frivolous”); United States v. Potts, 251 Fed.Appx. 109, 111 (3d Cir.2007) (denying motion to void a criminal judgment and holding that the defendant's contention that the 1948 amendment to § 3231 was not passed by both houses of Congress was “frivolous”); Rhodes v. United States, No. 4:06–CR–00218, 2011 WL 2693571, at *1 (E.D.Ark. Jul. 12, 2011) (rejecting claim that a quorum was not present when the House voted on Public Law 80–772); Turner v. United States, No. 11–0327–WS–C, 2011 WL 5595939, at *5–6 (S.D.Ala. Sep. 8, 2011) (denying challenge to the jurisdiction of the court on the ground that the House vote on Public Law 80–772 was taken without a quorum); United States v. Felipe, No. 07–CV–061, 2007 WL 2207804, at *2 (E.D.Pa. Jul. 30, 2007) (rejecting argument that there was a sine die recess in Congress between the House vote on Public Law 80–772 and its adoption by the Senate in violation of the Constitution). Because there is no factual or legal support for the contention that H.R. 3190 was passed by the House in contravention of the Constitution, or that Public Law 80–772 was otherwise improperly enacted, I conclude that the court has jurisdiction in this criminal case pursuant to § 3231.
B. The Redemption/Prepayment Theory
Mr. Levy also appears to invoke what is commonly referred to as the “redemption theory” in support of his contention that indictment should be dismissed. The theory, as understood through Mr. Levy's filings and several court opinions discussing (and rejecting) the argument, is based on the idea that each person has a split personality: the real person and the fictional person called a “strawman.” The strawman came into existence when the United States went off the gold standard in 1933. At that time, the government pledged the strawman of its citizens as collateral to secure the national debt. Each citizen thus became the secured holder of debt and a creditor of the United States. As a creditor, a citizen is entitled to redeem the debt, funds for which are maintained in a trust account for each citizen in Puerto Rico. The citizen may use the proceeds to pay for private or public debts. Relying on this theory, Mr. Levy concludes that because the government is required to release money from his account upon demand and the indictment merely constitutes a request for the value of the money orders he is charged with creating, the United States Treasury, the alleged trustee of the accounts in Puerto Rico, is required to release the money requested and “settle” the case.
Every court which has considered the “redemption theory” has dismissed it as frivolous. See, e.g., Ferguson–El v. Virginia, No. 3:10CV577, 2011 WL 3652327, at *3 (E.D.Va. Aug. 18, 2011); Tirado v. New Jersey, No. 10–3408(JAP), 2011 WL 1256624, at *4–5 (D.N.J. Mar. 28, 2011); Marshall v. Florida, No. 10–20227, 2010 WL 1248846, at *1 (S.D.Fla. Feb. 1, 2010); Rasheed v. Comerica Bank, No. 05–73668, 2005 WL 3592009, at *1 (E.D.Mich. Nov. 2, 2005). As Mr. Levy provides no legal or factual support for the contention that the government is required to pay his debts, I adopt the rationale of the cases cited above, and reject the redemption theory.
III. Conclusion
Mr. Levy's “commercial notices” and motions to dismiss the indictment are DENIED.
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