United States v. Oscar Tufti

Ninth Circuit

United States v. Oscar Tufti

542 F.2d 1046, 1976 U.S. App. LEXIS 8617

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 10, 1976

Docket76-1344

StatusPublished

Cited by1 cases

This text of 542 F.2d 1046 (United States v. Oscar Tufti) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Oscar Tufti, 542 F.2d 1046, 1976 U.S. App. LEXIS 8617 (9th Cir. 1976).

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Opinion

PER CURIAM:

Tufti pleaded guilty to a charge of assault with a dangerous weapon [18 U.S.C. *1047 § 1153 H 1; 18 U.S.C. § 113(c)]. The sole issue involves jurisdiction. Tufti argues that Paragraph 1 of Section 1153 provides no basis for prosecution. The district court disagreed, and we affirm.

In United States v. Cleveland, 503 F.2d 1067, 1071 (9th Cir. 1974), we struck down the 1966 and 1968 amendments to Section 1153 as being violative of the “equal protection requirement of the Fifth Amendment.” In that opinion, however, we specifically left open the possibility that future charges might be brought under the Statute “as it read prior to the amendments that have been constitutionally invalidated.” Id. at 1072.

Tufti argues that our decision in Cleveland effectively nullified Section 1153 in its entirety. This argument must fail. In Cleveland we expressly purported to preserve the vitality of Section 1153 as it read before 1966. In so doing, we applied the fundamental principle of statutory construction that “a void act cannot operate to repeal a valid existing statute . . Conlon v. Adamski, 64 App.D.C. 274, 77 F.2d 397, 399 (1935), citing Frost v. Corporation Comm’n, 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed. 483 (1929). See also Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254 (1921).

As that portion of Paragraph 1 under which Tufti was charged was a part of Section 1153 prior to its 1966 and 1968 amendments, that portion remains in full force and effect after Cleveland.

AFFIRMED.

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PER CURIAM:

Tufti pleaded guilty to a charge of assault with a dangerous weapon [18 U.S.C. *1047 § 1153 H 1; 18 U.S.C. § 113(c)]. The sole issue involves jurisdiction. Tufti argues that Paragraph 1 of Section 1153 provides no basis for prosecution. The district court disagreed, and we affirm.

In United States v. Cleveland, 503 F.2d 1067, 1071 (9th Cir. 1974), we struck down the 1966 and 1968 amendments to Section 1153 as being violative of the “equal protection requirement of the Fifth Amendment.” In that opinion, however, we specifically left open the possibility that future charges might be brought under the Statute “as it read prior to the amendments that have been constitutionally invalidated.” Id. at 1072.

Tufti argues that our decision in Cleveland effectively nullified Section 1153 in its entirety. This argument must fail. In Cleveland we expressly purported to preserve the vitality of Section 1153 as it read before 1966. In so doing, we applied the fundamental principle of statutory construction that “a void act cannot operate to repeal a valid existing statute . . Conlon v. Adamski, 64 App.D.C. 274, 77 F.2d 397, 399 (1935), citing Frost v. Corporation Comm’n, 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed. 483 (1929). See also Truax v. Corrigan, 257 U.S. 312, 42 S.Ct. 124, 66 L.Ed. 254 (1921).

As that portion of Paragraph 1 under which Tufti was charged was a part of Section 1153 prior to its 1966 and 1968 amendments, that portion remains in full force and effect after Cleveland.

AFFIRMED.

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Bluebook (online)

542 F.2d 1046, 1976 U.S. App. LEXIS 8617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-oscar-tufti-ca9-1976.

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