US v. Conner

715 F. Supp. 1327

UNITED STATES of America v. James E. CONNER.

No. C-CR-87-42.

United States District Court, W.D. North Carolina, Charlotte Division.

July 10, 1989.

H. Thomas Church, Asst. U.S. Atty., Charlotte, N.C., for plaintiff.

James E. Connor, pro se.

ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court on Defendant's Motion to Correct an Illegal Sentence, filed March 8, 1989, pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure.

On August 7, 1987, Defendant pleaded guilty to participating in a cocaine conspiracy as charged in Count One of the Bill of Indictment. On October 14, 1987, this Court sentenced Defendant to a term of imprisonment of seven years. The Court also ordered Defendant to pay a special assessment of fifty dollars, pursuant to section 3013 of Title 18 of the United States Code.¹

In the Motion now pending before the Court, Defendant challenges the constitutionality of the special assessment portion of the sentence imposed by this Court. In support of his challenge, Defendant contends that because the legislation establishing the special assessment provision ("section 3013" or "special assessment provision") is a revenue bill that originated in the United States Senate, the legislation violates article I, section 7 of the United States Constitution ("the Origination Clause"). Defendant relies primarily on the recent decision of the United States Court of Appeals for the Ninth Circuit in United States v. Munoz-Flores. See United States v. Munoz-Flores, 863 F.2d 654 (9th Cir.1988).

On May 16, 1989, the Government filed the Government's Answer to Defendant's Motion to Correct an Illegal Sentence and a Memorandum in Support. In opposing Defendant's Motion, the Government contends, first, that section 3013 is not a revenue bill within the meaning of the Origination Clause. The Government contends, second, that the legislative history of section 3013 reveals that the special assessment provision originated in the House of Representatives.

In United States v. Munoz-Flores, the Ninth Circuit found the special assessment to be unconstitutional. Munoz-Flores, 863 F.2d at 661-62. The Ninth Circuit in Munoz-Flores acknowledged that the Origination Clause applies only to bills that raise revenue. Id. at 657. The Munoz-Flores court recognized, further, that the Origination Clause's requirement that revenue-raising bills originate in the House of Representatives does not apply to bills that incidentally create revenue if Congress enacted those bills for purposes other than to raise revenue. Id. at 657-58. The Ninth Circuit concluded, however, that Congress' primary purpose in enacting the special assessment provision of section 3013 was to raise revenue. Id. at 660. The Ninth Circuit found also that section 3013 originated in the Senate and that the Senate did not amend any revenue-raising bill initiated in the House of Representatives. Id. at 660-61. The Munoz-Flores court concluded, therefore, that section 3013 violated the Origination Clause and was thus unconstitutional.

Since the Ninth Circuit's decision in Munoz-Flores, several district courts have rejected defendants' constitutional challenges of the special assessment based upon the Ninth Circuit's decision in Munoz-Flores. See United States v. Michaels, 706 F.Supp. 699 (D.Minn.1989); United States v. McDonough, 706 F.Supp. 692 (D.Minn.1989); United States v. Hines, No. 88-739, slip op., 1989 WL 16565 (S.D.N.Y. Feb. 11, 1989); United States v. Greene, 709 F.Supp. 636 (E.D.Penn.1989). The district courts essentially have disagreed with the Ninth Circuit's conclusion that Congress enacted section 3013 to raise revenue. See Michaels, 706 F.Supp. at 702 (finding that Congress enacted § 3013 as integral part of scheme to aid victims of crime, rather than as means of generating general federal revenue); McDonough, 706 F.Supp. at 694 (finding that Congress enacted § 3013 to promote assistance to victims of crime); Hines, No. 88-739, slip op. at 6-7 (finding that Congress enacted special assessment to be penalty against those convicted of crimes); Greene, 709 F.Supp. at 638-39 (finding that Congress enacted § 3013 to defray cost of criminal victim assistance program and to punish defendants); see also United States v. Ramos, 624 F.Supp. 970, 973 (S.D.N.Y.1985) (although decided before Munoz-Flores, court found that Congress enacted special assessment to punish criminals). Neither the Ninth Circuit's decision in Munoz-Flores nor the district court decisions, however, are binding on this Court. The Court, therefore, will consider the constitutionality of the special assessment provision.

The United States Supreme Court has held that an act of Congress is presumed to be constitutional and that the burden of establishing an act's unconstitutionality rests with the party challenging the legislative act. See Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435 (1960) (in considering Social Security Act, Supreme Court acknowledged existence of presumption favoring constitutionality of congressional acts); Brown v. Maryland, 25 U.S. (12 Wheat) 419, 436, 6 L.Ed. 678 (1827) (noting presumption of constitutionality favors every legislative act and burden of proof rests on person denying act's constitutionality); see also Moon v. Freeman, 379 F.2d 382, 391 (9th Cir.1967). In considering the constitutionality of an act of Congress, the Supreme Court has declared also that "a statute ... is to be construed, if such a construction is fairly possible, to avoid raising doubts of its constitutionality." St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780, 101 S.Ct. 2142, 2147, 68 L.Ed.2d 612 (1981); accord Nestor, 363 U.S. at 617, 80 S.Ct. at 1376 (stating that "The presumption of constitutionality with which this enactment, like any other, comes to us forbids us lightly to choose that reading of the statute's setting which will invalidate it over that which will save it").

The Origination Clause provides that "all Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." U.S. Const. art. I, § 7. The Supreme Court has defined the phrase "bills for raising revenue" as bills that "levy taxes, in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue." Twin City Bank v. Nebeker, 167 U.S. 196, 202, 17 S.Ct. 766, 769, 42 L.Ed. 134 (1897); accord United States v. Norton, 91 U.S. 566, 569, 23 L.Ed. 454 (1875). The Supreme Court has recognized, thus, that bills for raising revenue are bills enacted for the direct, stated purpose of raising revenue and public funds for the service of the government. Norton, 91 U.S. at 569, 23 L.Ed. 454. The requirement that a bill for raising revenue originate in the House of Representatives does not apply to a bill that Congress enacted for purposes other than to raise revenue even though the bill incidentally creates revenue. See, e.g., Millard v. Roberts, 202 U.S. 429, 436-37, 26 S.Ct. 674, 675, 50 L.Ed. 1090 (1906) (holding Act of Congress imposing tax as constitutional, non-revenue raising act because imposition of tax merely was means of effecting overall purpose of act); Twin City Bank, 167 U.S. at 202, 17 S.Ct. at 768 (same). The Supreme Court has acknowledged also that a bill containing a provision that levies a tax is not a bill for raising revenue if Congress designed the taxing provision to further a non-revenue raising object of the bill as a whole. Twin City Bank, 167 U.S. at 202, 17 S.Ct. at 768.

Because section 3013 requires persons convicted of crimes to pay special assessments, there can be little doubt that the imposition of special assessments pursuant to section 3013 raises revenue. The question for the Court, however, is whether Congress enacted the special assessment provision for a non-revenue raising purpose, which enactment incidentally raised revenue. See Munoz-Flores, 863 F.2d at 658 (stating issue as whether "special assessment statute was enacted for the direct and avowed purpose of creating revenue or public funds for the service of the government"). The Court, consequently, must consider Congress' purpose in enacting the special assessment provision.

In attempting to ascertain Congress' purpose in enacting the special assessment provision, the Court first must consider the explicit language of section 3013 itself. See Burlington N.R.R. v. Oklahoma Tax Comm'n, 481 U.S. 454, 107 S.Ct. 1855, 1859-60, 95 L.Ed.2d 404 (1987) (noting that in attempting to ascertain purpose of statute, courts first should consider language of statute). After carefully scrutinizing the language of the statute, the Court believes that the statutory language fails to reveal the purpose of the special assessment. See 18 U.S.C. § 3013 (Supp. V 1987); supra, note 1 (citing text of § 3013). The Court, however, feels that several points, which other courts have noted, are worthy of mention. First, because section 3013(b) provides that special assessments are to be collected in the same manner as criminal fines, the statutory language suggests that the special assessment is not a tax in the strict sense of the word. See 18 U.S.C. § 3013(b) (Supp. V 1987); see also Michaels, 706 F.Supp. at 701 n. 3; Hines, No. 88-739, slip op. at 2; Greene, 709 F.Supp. at 638. Second, because section 3013 creates two different levels of assessment based on the gravity of the offense, the statutory language of section 3013 suggests that the special assessment is a penalty, analogous to a criminal fine, and therefore, punitive. See 18 U.S.C. § 3013(a) (Supp. V 1987); see also Hines, No. 88-739, slip op. at 2; Greene, 709 F.Supp. at 638; Ramos, 624 F.Supp. at 973. And, third, because courts can impose a special assessment only on those convicted of a crime, the special assessment is a penalty and punitive in nature. See Hines, No. 88-739,...