State of West Virginia v. John J. Moffit

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
__________ FILED
April 11, 2013
No. 11-1306 released at 3:00 p.m.
__________ RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE of WEST VIRGINIA,
Plaintiff Below, Respondent
v.
JOHN J. MOFFIT,
Defendant Below, Petitioner
_______________________________________________
Appeal from the Circuit Court of Ohio County
The Honorable James P. Mazzone, Judge
Criminal Action No. 11-F-18
AFFIRMED
_______________________________________________
Submitted: March 27, 2013
Filed: April 11, 2013
Duane C. Rosenlieb, Jr., Esq. Patrick Morrisey
Richard H. Lorensen, Esq. Attorney General
West Virginia Public Defender Services Thomas W. Rodd, Esq.
Charleston, West Virginia Assistant Attorney General
Counsel for the Petitioner Counsel for the Respondent
JUSTICE KETCHUM delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. The Legislature’s intent in promulgating W.Va. Code § 61-4-3 [1931]
was to protect the citizens of this State from being victimized by fraudulent conduct.
2. “It is the duty of a court to construe a statute according to its true intent,
and give to it such construction as will uphold the law and further justice. It is as well the
duty of a court to disregard a construction, though apparently warranted by the literal sense
of the words in a statute, when such construction would lead to injustice and absurdity.”
Syllabus Point 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925).
3. A “note” as that term is used in W.Va. Code § 61-4-3 [1931] includes
Federal Reserve notes issued by the Federal Reserve System as authorized by 12 U.S.C. §
411 [1934].
4. A Federal Reserve note issued by the Federal Reserve System is a note
of a “banking institution” as that term is used in W.Va. Code § 61-4-3 [1931].
5. A “forged bank note” as that term is used in W.Va. Code § 61-4-6
[1923] includes Federal Reserve notes issued by the Federal Reserve System as authorized
by 12 U.S.C. § 411 [1934].
KETCHUM, JUSTICE:
The defendant, John J. Moffit, was convicted by a West Virginia jury of
uttering one Federal Reserve note and of possession with intent to utter eight counterfeit
Federal Reserve notes. In common language, these “notes” are often referred to as United
States paper currency or “twenty-dollar bills.”1 The defendant contends that his conduct was
not prohibited by West Virginia law. Having fully considered the record, and the parties’
briefs and arguments, the defendant’s convictions and sentences are affirmed.
I. Factual Background
On January 18, 2010, the defendant and his girlfriend placed a drive-through
order at a Kentucky Fried Chicken (“KFC”) in Wheeling, West Virginia. The defendant
handed his girlfriend a twenty-dollar bill, and she gave it to a KFC employee working the
drive-through window. The employee thought that the twenty-dollar bill was counterfeit and
tested it with a counterfeit detection pen. This test indicated that the bill was counterfeit.
The manager then called 911 and requested police assistance.
Within minutes, Sergeant Jeffrey Griffith of the Wheeling Police Department
arrived at the KFC. Sergeant Griffith asked the defendant if he had any additional paper
1
The Federal Reserve Bank issues Federal Reserve notes that are commonly referred
to as U.S. paper currency, money, or bills.
1
currency with him. The defendant produced thirteen twenty-dollar bills. Sergeant Griffith
checked this currency with a counterfeiting pen and determined that none of the bills were
counterfeit. After obtaining the defendant’s consent, Sergeant Griffith searched the
defendant’s vehicle. In the glove compartment Sergeant Griffith found a WesBanco bank
envelope containing eight twenty-dollar bills. All eight of these bills were determined to be
counterfeit. Sergeant Griffith testified that each of the eight counterfeit bills in the
WesBanco envelope had the same serial number as the counterfeit bill given to the KFC
employee. In addition, the serial number on one of the valid twenty-dollar bills held by the
defendant matched the serial number on each of the counterfeit bills.
The defendant was arrested and subsequently indicted for one felony count of
uttering a counterfeit note or bill in violation of W.Va. Code § 61-4-3 [1931], and one
misdemeanor count of possession with intent to utter eight forged bank notes in violation of
W.Va. Code § 61-4-6 [1931]. On June 28, 2011, the case proceeded to a jury trial. The jury
returned verdicts finding the defendant guilty of both offenses. Thereafter, the trial court
sentenced the defendant to a term of not less than two nor more than ten years imprisonment
on the felony uttering offense, and twelve months in the Northern Regional Jail for the
misdemeanor possession with intent to utter offense. The trial court ordered that both
sentences be served concurrently.
The defendant contends that the trial court erred when it ruled that W.Va. Code
§ 61-4-3 prohibits the counterfeiting of United States paper currency, and ruled that the term
2
“forged bank notes” as used in W.Va. Code § 61-4-6 includes forged United States paper
currency. The defendant argues that these statutes only refer to notes, bills and coins of
private banks, and not the paper currency of the United States. The defendant says that the
West Virginia counterfeit statute was originally drafted by the
General Assembly of the Commonwealth of Virginia and
included in the Code of Virginia of 1849. There was no valid
Federal (national) paper currency in the United States after
President Andrew Jackson refused to charter the Second Bank
of the United States in 1832.
In 1849 the value of currency was based upon the
precious metal (gold or silver) contained in the coin. Bills and
notes of various state and private banks were redeemable in
coin. Statutes referring to such state and private bank notes and
bills recognize that they are not money, legal tender or United
States paper currency.
Unlike the Commonwealth of Virginia, West Virginia
never amended its counterfeiting statute to cover United States
paper currency that is current by law or usage, legal tender or
money. In the present case [the defendant] was charged with
uttering one counterfeit Federal Reserve Note . . . and
possessing eight others. He was not charged with anything
having to do with state or private bank notes. Because [W.Va.
Code § 61-4-3 [1931]] does not make any provision for money
in the form of United States paper currency either directly or
indirectly, [the defendant] must be acquitted of the charges.
II. Standard of Review
The defendant appeals the trial court’s denial of his motion for judgment of
acquittal and the trial court’s interpretation of W.Va. Code § 61-4-3 and W.Va. Code § 61-4­
6. Because these issues involve questions of law and statutory interpretation/construction,
3
the standard of review set forth in Syllabus Point 1 of Chrystal R.M. v. Charlie A.L., 194
W.Va. 138, 459 S.E.2d 415 (1995), will guide our review: “Where the issue on an appeal
from the circuit court is clearly a question of law or involving an interpretation of a statute,
we apply a de novo standard of review.”
III. Discussion
A. Uttering Counterfeit Federal Reserve Notes
West Virginia Code § 61-4-3 [1931], provides:
If any person forge any coin, current by law or usage in
this State, or any note or bill of a banking institution, or
fraudulently make any base coin, or a note or bill purporting to
be the note or bill of a banking institution, when such banking
institution does not exist; or utter or attempt to employ as true,
or sell, exchange or deliver, or offer to sell, exchange or deliver,
or receive on sale, exchange, or delivery, with intent to utter or
employ or to have the same uttered or employed as true, any
such false, forged, or base coin, note or bill, knowing it to be so,
he shall be deemed guilty of a felony, and, upon conviction,
shall be confined in the penitentiary not less than two nor more
than ten years.
As we made clear in Syllabus Point 1 of State v. Flinn, 158 W.Va. 111, 208
S.E.2d 538 (1974), “[a] criminal statute must be set out with sufficient definiteness to give
a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by
statute and to provide adequate standards for adjudication.” In order to determine whether
this standard has been met, we begin our review with a plain reading of the statute to
determine the Legislature’s intent. See State ex rel. Tucker County Solid Waste Authority v.
4
West Virginia, 222 W.Va. 588, 595, 668 S.E.2d 217, 224 (2008) (“As with any matter
involving the interpretation and application of statutes, we first must determine the
Legislature’s intent in promulgating the statutory law at issue.”). See also Syllabus Point 14,
State v. Harden, 62 W.Va. 313, 58 S.E. 715 (1907) (“That which is necessarily implied in
a statute, or must be included in it in order to make the terms actually used have effect,
according to their nature and ordinary meaning, is as much a part of it as if it had been
declared in express terms.”).
We have not previously considered the legislative intent of W.Va. Code § 61-4­
3. Initially, we note that W.Va. Code § 61-4-3 is directly traceable to the Code of Virginia.
Following West Virginia’s achieving statehood, our Legislature adopted Virginia’s
counterfeiting statute in 1868. Given this shared history, we have considered decisions of
the Supreme Court of Virginia which have construed its counterfeiting statutes. We find one
early case to be of particular interest in ascertaining legislative intent. In Hendrick v.
Commonwealth, 32 Va. 707 (1834), the Court rejected the defendant’s arguments that it was
not a violation of Virginia law to counterfeit a bank check drawn against the Bank of the
United States. In rejecting the argument the Virginia Supreme Court said:
The statute of Virginia for punishing thefts and forgeries . . .
was not enacted to protect the bank of the U. States; it was made
to protect the citizens of this commonwealth against the thefts
and forgeries therein mentioned, and to punish the offenders. It
recognizes the existence of the bank of the U. States, de facto,
whether it was created constitutionally or not.
32 Va. at 712.
5
More than a century later, in Bartkus v. Illinois, 359 U.S. 121 (1959), the
United States Supreme Court relied on similar reasoning to conclude that both the state and
federal government had reason to prosecute a defendant for counterfeiting the currency of
the United States. As the Supreme Court said, in counterfeiting cases “both the Federal and
State Governments retained the power to impose criminal sanctions, the United States
because of its interest in protecting the purity of its currency, the States because of their
interest in protecting their citizens against fraud.” 359 U.S. at 129.
While the Virginia counterfeiting statute discussed in Hendrick was amended
twice before West Virginia attained statehood in 1863, there is no indication that Virginia’s
legislative intent “to protect the citizens of [the] commonwealth against . . . thefts and
forgeries,” 32 Va. at 712, changed in those amendments. In Jett v. Commonwealth, 59 Va.
933 (1867), the Virginia Supreme Court construed the intent of its 1860 counterfeiting statute
(which is nearly identical to our present statute codified at W.Va. Code § 61-4-3). The
defendant in Jett had been convicted of uttering “a certain false and forged note, commonly
called a bank note or national currency” purportedly issued by “the Fourth National Bank of
Philadelphia.” 59 Va. at 933. On appeal, Jett argued that the National Banking Act of 1864,
under which a national currency was to be developed, preempted state counterfeiting
prosecutions of offenses against that currency. The Court, noting that counterfeiting “is
simply a cheat practiced or attempted by one citizen of Virginia upon another,” 59 Va. at 949,
rejected Jett’s argument and held that Virginia’s counterfeiting laws were “in entire harmony
6
with the act of Congress, and seeks, though for different reasons and in pursuance of a
different policy, to effect the same object, to wit, the suppression of counterfeits.” 59 Va.
at 951.
The 1860 version of Virginia’s counterfeiting statute, construed in Jett, was
adopted by our Legislature in 1868 (omitting only a reference to “free person” contained in
the Virginia counterpart). Since its enactment in 1868, W.Va. Code § 61-4-3 has been
slightly amended on only one occasion. Significantly, this amendment was in 1923 and after
creation of the Federal Reserve System.2
Based on our review, we do not see any indication that our Legislature intended
a purpose for W.Va. Code § 61-4-3 that was any different from that noted in Hendrick and
Jett. Had the Legislature intended a different purpose it would have made that clear. We
agree with the statement of legislative intent that was succinctly given by the court in
Hendrick and reaffirmed in Jett. We therefore hold that the Legislature’s intent in
promulgating W.Va. Code § 61-4-3 [1931] was to protect the citizens of this State from being
victimized by fraudulent conduct.
While we have determined the Legislature intended to protect West Virginians
from fraud, two issues of first impression relevant to W.Va. Code, § 61-4-3 remain: 1)
2
We recognize, however, that the current version of W.Va. Code § 61-4-3 dates to the
1931 Official Code of West Virginia where a Revisers’ Note appended to W.Va. Code § 61-4­
3 provides that “[t]he term ‘banking institution’ is used in lieu of ‘banking company’ to
conform to art. 4, c. 31” of the Official Code of West Virginia.
7
whether a “note,” as that term is used in the statute, includes Federal Reserve notes issued
by the Federal Reserve System as authorized by 12 U.S.C.§ 411 [1934]; and 2) whether a
Federal Reserve note, issued by the Federal Reserve System, is a note of a “banking
institution” as that term is used in the statute.
West Virginia Code 61-4-1 to -8, relating to “Forgery and Crimes against the
Currency,” does not define the terms “note” and “banking institution.” In such situations this
Court has held that “[g]enerally the words of a statute are to be given their ordinary and
familiar significance and meaning, and regard is to be had for their general and proper use.”
Syllabus Point 4, State v. Veterans Of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959).
In order to give regard for their general and proper use, we must consider the meaning of the
terms “note” and “banking institution” within the statutory framework that they appear,
which in this instance is in a penal counterfeiting statute.
As the defendant observes in his historical summary of the monetary system
of the United States, there was a point in our history where it was commonplace for private
banks to create and issue “notes” that could be used in commerce as currency and otherwise
exchanged for goods and services of value. Undoubtedly, during this era it was the intent of
the Legislature to proscribe the counterfeiting of those “notes” in order that our economy not
be damaged, or our citizens victimized by being paid for goods or services with a forged
instrument having no value. However, in 1913, the practice of banking institutions creating
and issuing their own bank “notes” (i.e., currency) began to come to an end.
8
The Federal Reserve System was created by the Federal Reserve Act of
December 23, 1913. See 12 U.S.C. §§ 221 to 522. Presently there are twelve regional
Federal Reserve Banks located throughout the United States. Each of these Reserve Banks
are “responsible for a particular geographic area or district of the United States. Each
Reserve District is identified by a number and a letter.” Board of Governors of the Federal
Reserve System, The Federal Reserve System: Purposes & Functions 6 (9th Ed. 2005). See
also 12 U.S.C 222.3
In our modern banking era, the “notes” used by our state “banking institutions”
include4 Federal Reserve notes issued by Federal Reserve Banks:
Federal reserve notes, to be issued at the discretion of the Board
of Governors of the Federal Reserve System for the purpose of
making advances to Federal reserve banks through the Federal
reserve agents as hereinafter set forth and for no other purpose,
are authorized. The said notes shall be obligations of the United
States and shall be receivable by all national and member banks
and Federal reserve banks and for all taxes, customs, and other
public dues. They shall be redeemed in lawful money on
demand at the Treasury Department of the United States, in the
city of Washington, District of Columbia, or at any Federal
Reserve bank.
3
12 U.S.C. § 222, provides, in part, that “[t]he continental United States, excluding
Alaska, shall be divided into not less than eight nor more than twelve districts. . . . Such
districts shall be known as Federal reserve districts and may be designated by number.”
4
We expressly recognize, by the use of the word “include,” that banking institutions
have other forms of negotiable instruments that are capable of being considered a “note.”
Accordingly, nothing in this Opinion should be construed to limit the definition of “note,”
as that term is used in W.Va. Code § 61-4-3 to be exclusive to a Federal Reserve note.
9
12 U.S.C.§ 411. Each Federal Reserve note has markings indicating which Reserve Bank
authorized its issuance. 12 U.S.C. § 413.5 The counterfeit twenty-dollar bills in defendant’s
case have markings which designate the issuing bank as the Federal Reserve Bank of Atlanta,
Georgia, located in the Sixth District of the Federal Reserve System.
Our Legislature amended W.Va. Code § 61-4-3 in 1923, after passage of the
Federal Reserve Act in 1913. If the Legislature did not intend for the term “note” or
“banking institution” as those terms are used in W.Va. Code § 61-4-3, to include Federal
Reserve notes, it would have expressly excluded them as part of the 1923 amendments. For
that matter, the Legislature could have done so at any time during the one hundred years
since the Federal Reserve Act was first enacted, but it has not.
This Court is not going to give the tortured interpretation of W.Va. Code § 61­
4-3 [1931] sought by the defendant. We are mindful that
[i]t is the duty of a court to construe a statute according to its true
intent, and give to it such construction as will uphold the law and
further justice. It is as well the duty of a court to disregard a
construction, though apparently warranted by the literal sense of
the words in a statute, when such construction would lead to
injustice and absurdity.
Syllabus Point 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925). See also Syllabus Point
2, Conseco Finance Servicing Corporation v. Myers, 211 W.Va. 631, 567 S.E.2d 641 (2002).
5
12 U.S.C. § 413 provides, in part, that “Federal Reserve notes shall bear upon their
faces a distinctive letter and serial number which shall be assigned by the Board of
Governors of the Federal Reserve System to each Federal Reserve bank.”
10
Were we to accept the defendant’s argument that W.Va. Code § 61-4-3 does not explicitly
prohibit the counterfeiting of United States paper currency, we would be rendering a mandate
contrary to the clear and unambiguous legislative intent to protect the citizens of this State
from being victimized by the forgeries of coins, notes and bills used in our local commerce.
A West Virginia banking institution may be the victim of a forgery of the
private bank’s negotiable instruments and a defendant may properly be prosecuted under
W.Va. Code § 61-4-3 for that forgery. However, W.Va. Code § 61-4-3 was intended by the
Legislature to prohibit much more than that. It was the Legislature’s intent to protect the
citizens and businesses of this State by prohibiting the forgery or uttering, or attempt thereof,
of any coin, note or bill current by law or usage in this State. A defendant indicted for
violating W.Va. Code § 61-4-3 is not being prosecuted to “protect the purity” of a Federal
Reserve note, Bartkus, supra. Instead, the prosecution is to protect our citizens, our State’s
businesses, and our local commerce, from fraudulent behavior involving currency and to
punish an offender for that fraudulent behavior.
It is clear to this Court that the Legislature intended for the fraud underlying
the forgery and uttering of fraudulent United States paper currency to fall within the sphere
of conduct prohibited by W.Va. Code § 61-4-3. Accordingly, we hold that a “note” as that
term is used in W.Va. Code § 61-4-3 includes Federal Reserve notes issued by the Federal
Reserve System as authorized by 12 U.S.C. § 411. We further hold that a Federal Reserve
11
note issued by the Federal Reserve System is a note of a “banking institution” as that term
is used in W.Va. Code § 61-4-3.
B. Possession of Forged Bank Notes
Having addressed the legislative intent of W.Va. Code § 61-4-3, we turn to the
final issue remaining in this appeal. West Virginia Code § 61-4-6 [1923], prohibits, inter
alia, the possession of forged bank notes “as are mentioned in” W.Va. Code § 61-4-3:
If any person have in his possession forged bank notes,
or pieces of forged or base coin, such as are mentioned in
[W.Va. Code § 61-4-3], knowing the same to be forged or base,
with intent to utter or employ the same as true, or to sell,
exchange, or deliver them, so as to enable any other person to
utter or employ them as true, he shall, if the number of such
notes or pieces of coin in his possession, at the same time, . . . be
less than ten, he shall be deemed guilty of a misdemeanor, and,
upon conviction, shall be confined in jail not less than six
months nor more than one year and be fined not exceeding five
hundred dollars.
W.Va. Code § 61-4-6, in part. (Emphasis added.).
Reviewing W.Va. Code § 61-4-6, we find the Legislative intent of this statute
is also to protect the citizens of this State from being victimized by fraudulent conduct. By
enacting W.Va. Code § 61-4-6, the Legislature included the knowing possession of
fraudulent bank notes, coins and bills (when there is the intent to utter) with the types of
fraudulent conduct proscribed in its efforts to legislate against counterfeiting. W.Va. Code
§ 61-4-1 to -8.
12
The Legislature specifically refers to W.Va. Code § 61-4-3 when discussing the
types of fraudulent instruments it intended the statute to cover. A “note” as that term is
referenced in W.Va. Code § 61-4-3 includes Federal Reserve notes issued by the Federal
Reserve System. Accordingly, we hold that a “forged bank note,” as that term is used in
W.Va. Code § 61-4-6 includes Federal Reserve notes issued by the Federal Reserve System
as authorized by 12 U.S.C. § 411.
IV. Conclusion
For the reasons set forth in this Opinion, we find that West Virginia Code § 61­
4-3 and W.Va. Code § 61-4-6 were correctly construed and applied by the trial court and that
the evidence supports the jury’s finding that the defendant committed the offenses prohibited
by these statutes. Accordingly, there is no error in the trial court’s denial of the motion for
judgment of acquittal, and the defendant’s convictions are affirmed.
Affirmed.
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