US v. Vines

718 F. Supp. 895

UNITED STATES of America, Plaintiff, v. James Frank VINES, Defendant.

Crim. No. 87-00017-BH.

United States District Court, S.D. Alabama, S.D.

August 16, 1989.

J.B. Sessions, III, U.S. Atty., Donna Roberts, Asst. U.S. Atty., Mobile, Ala., for U.S.

Robert Clark, and John Tyson, Sr., Mobile, Ala., for defendant.

MEMORANDUM OPINION AND ORDER

HAND, Senior District Judge.

This cause comes before the Court on Defendant's Motion to Correct an Illegal Sentence, to wit, to vacate the monetary special assessment, filed May 19, 1989, pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure.

Defendant was found guilty on seventeen counts by a jury, and was sentenced on June 24, 1987, to three years on one count (count 20), five years probation on the remaining counts, to begin after his release, and $850.00 special assessment pursuant to 18 U.S.C. § 3013.¹

Defendant in said motion asserts the special assessment is invalid because the legislation authorizing this assessment originated in the United States Senate contrary to article I, § 7 of the Constitution.² Defendant relies exclusively on the Ninth Circuit Court of Appeals opinion in United States v. Munoz-Flores, 863 F.2d 654 (9th Cir. 1989), which held the special assessment statute arose in the Senate and had the primary purpose to raise revenue, and therefore, the legislation violated article I, § 7, of the Constitution, which mandates that revenue bills originate in the House of Representatives.

Preliminarily, we note there are no cases in the Eleventh Circuit addressing this issue; therefore, this Court is not bound by Circuit precedent as to the result to be reached in this case.³

The test to be used in analyzing this question must be drawn from the Origination Clause. The Ninth Circuit in Munoz-Flores, adopted the following three part analysis from the language of the Origination Clause:

First, the court must determine whether the statute falls within the class of revenue raising bills covered by the clause. If the bill is one that raises revenue within the meaning of art. I, § 7, the court must next determine if the bill originated in the House, as required by the clause. Finally, the court must examine whether the Senate's participation in the legislative process can be construed as an amendment permissible under the clause.

Munoz-Flores, 863 F.2d at 657.

In making this determination the Court must presume that an act of Congress is constitutional and a party challenging that act has the burden of establishing that act's unconstitutionality. See Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435, 1448 (1960). This presumption arises in favor of every legislative act and a person who would deny the act's constitutionality must bear the burden of proof. See Brown v. Maryland, 25 U.S. (12 Wheat) 419, 436, 6 L.Ed. 678, 685 (1827).

The Supreme Court has admonished all courts to be guided by the proposition that "a statute ... is to be construed, if such a construction is 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). This Court notes that we are forbidden to "lightly ... choose that reading of the statute which will invalidate it over that which will save it." Flemming, 363 U.S. at 617, 80 S.Ct. at 1376, 4 L.Ed.2d at 1448.

We note the fact that even though a statute produces income which the government can use, this fact alone is not dispositive of the issue of whether a statute is a "bill for raising revenue" as prohibited by the Origination Clause. Millard v. Roberts, 202 U.S. 429, 436-37, 26 S.Ct. 674, 675-76, 50 L.Ed. 1090 (1906). The Supreme Court has long ago 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". United States v. Norton, 91 U.S. 566, 569, 23 L.Ed. 454 (1875). The Supreme Court has further acknowledged 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. See Twin City Bank v. Nebeker, 167 U.S. 196, 202, 17 S.Ct. 766, 768-69, 42 L.Ed. 134 (1897).

These precedents mandate that this Court examine the special assessment statute to determine the purposes Congress had in passing such a bill, and to determine whether these purposes cause the statute to run afoul of the Origination Clause because the statute is a "bill for raising revenue". The determinative question is: was the statute passed "for the direct avowed purpose of creating revenue or public funds for the service of the government"? Munoz-Flores, 863 F.2d at 958 (quoting Norton, 91 U.S. at 569). That is to say, did Congress have a non-revenue raising purpose in mind when enacting the special assessment statute, which incidentally raised revenue? United States v. Conner, 715 F.Supp. 1327.

It is beyond argument that § 3013, by requiring all persons or non-persons convicted of either a misdemeanor or a felony to pay a special assessment, raises revenue. The statute raises funds for government use that previously did not exist in the government treasury. Furthermore, the special assessment frees funds that would otherwise have to be appropriated from the general funds for the special Crime Victims Fund. In either case, § 3013 clearly raises revenue as this Court understands the meaning of revenue.

Therefore, upon first inspection of the special assessment statute, this Court was of the opinion the Ninth Circuit in Munoz-Flores had correctly found the statute to violate the Origination Clause of the Constitution. However, upon closer examination of all relevant cases and authority, this Court feels that the Ninth Circuit, although correct in spirit, was wrong in application, and therefore, this court reluctantly yields to the bonds of authority.

In examining the determinative question of exactly what Congress' intended purposes were in enacting the special assessment provision, the Court must look first to the explicit language of § 3013. See Burlington N.R.R. v. Oklahoma Tax Commission, 481 U.S. 454, 107 S.Ct. 1855, 95 L.Ed.2d 404 (1987). From the face of the statute, there are certain limited clues as to the underlying purpose of § 3013. In examining the face of the statute, Congress appeared to have a penal purpose in mind. First, the special assessment, while merely monetary, places an additional burden or penalty upon the defendant. See United States v. Mayberry, 774 F.2d 1018, 1021 (1985). Second, the assessment is only imposed upon a defendant following a conviction of a crime against the United States. Mayberry, 774 F.2d at 1021. This means the assessment is tied directly to a conviction and results as a consequence thereof, and does not fall upon the public at large. Third, the statute imposes a higher assessment upon those convicted of a felony than those convicted of a misdemeanor. See United States v. Ramos, 624 F.Supp. 970, 973 (1985). This furthers the punitive ideals of society by making the punishment fit the crime. Lastly, by the terms of the statute, the special assessment will be collected in the same manner that fines are collected in criminal cases. Therefore, assessments are nothing more than "kissing cousins" of criminal fines. From the face of the statute, the Court's presumption of constitutionality is strengthened because of the close analogies to a penalty provision.⁴

Further support for the determination that special assessments are punitive in nature comes from the legislative history. The overall purpose of the Victims of Crime Assistance Act, of which § 3013 was introduced and which was finally signed into law as part of the legislative package known as the Comprehensive Crime Control Act of 1984, was provided by the accompanying report of the Senate Committee on the Judiciary:

The purpose of S. 2423, the Victims of Crime Assistance Act, as reported by the Committee on the Judiciary, is to provide limited Federal funding to the States, with minimal bureaucratic "strings attached," for direct compensation and service programs to assist victims of Federal crime. In addition, it provides funds to improve Federal efforts which assist crime victims, and establishes a Federal Victim of Crime Advisory Committee. A Federal Victim Assistance Administrator in the Department of Justice will coordinate Federal efforts.

S.Rep. No 497, 98th Cong., 2d Sess. 1 (1984), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3607. This report shows the stated purpose to be assisting victims of criminal activity by establishing a relief fund. The Senate Report stated further:

The purpose of imposing nominal assessment fees is to generate needed income to offset the cost of the victims' assistance fund authorized under S. 2423. Although substantial amounts will not result, these additional amounts will be helpful in financing the program and will constitute new income for the Federal government.

S.Rep. No. 497, at 13-14, 1984 U.S.Code Cong. & Admin.News, at 3619-20 herein-after S.Rep. No. 497. Since Congress realized that the monetary gain from such an assessment would be minimal, this statement casts doubt on the fact that Congress' sole purpose was to raise revenue. See Mayberry, 774 F.2d at 1018. Therefore, Congress undoubtedly understood the statute would further penalize the convicted defendants. In addition, the Senate hearing report, S.Rep. No. 497, at 5 and 13, 1984 U.S.Code Cong. & Admin.News, at 3611 and 3619, and the original bill used the term "penalty assessment". Even though the final codified version of the statute reads "special assessment", the original Senate language, when read in conjunction with the statute as a whole, is also dispositive of Congress' purpose. Finally, Title I of the Comprehensive...