United States v. Young

376 A.2d 809, 1977 D.C. App. LEXIS 352
CourtDistrict of Columbia Court of Appeals
DecidedJuly 11, 1977
Docket11183
StatusPublished
Cited by67 cases

This text of 376 A.2d 809 (United States v. Young) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Young, 376 A.2d 809, 1977 D.C. App. LEXIS 352 (D.C. 1977).

Opinions

NEBEKER, Associate Judge:

Appellee was indicted on April 14, 1976, for threatening to injure the person and property of Jeanette Barney in violation of D.C.Code 1973, § 22-2307. On May 3, 1976, appellee moved to dismiss the indictment claiming that it did not allege all the elements necessary to constitute the offense, that it was ambiguous, and that it was insufficiently detailed. Subsequent hearings on appellee’s motion resulted in dismissal of the indictment. The United States appeals pursuant to D.C.Code 1973, § 23-104(c). We reverse.

Three central issues, as contained in ap-pellee’s motion to dismiss the indictment, are raised by this appeal. First, is specific intent to extort a necessary element of threats to injure another person under D.C. Code 1973, § 22-2307? Second, does the fact that appellee’s conduct may be punishable under D.C.Code 1973, § 22-507, which provides misdemeanor characterization for conduct identical to that proscribed by part of the felony statute, D.C.Code 1973, § 22-2307, require dismissal of the indictment? Third, are the allegations of the indictment sufficient to charge an offense under § 22-2307 inasmuch as the indictment did not contain the actual words of the alleged threat, nor did it allege that the threats were made knowingly and intentionally?

We find no such ambiguity or constitutional infirmity on the face of the statute or from the fact that another provision of the Code punishes identical conduct as would cast a shadow over either provision or impute an intent to extort as an element of the offense. Moreover, a defendant has no constitutional right to elect which of two applicable statutes will be the basis of his indictment. Such a choice is properly left to prosecutorial discretion. Finally, we find the indictment to have been sufficiently worded to charge an offense.

The first two factors which prompted dismissal of the indictment center around the fact that both § 22-507, a misdemeanor statute, and § 22-2307, a later-enacted felony statute, prohibit identical conduct, i. e., threats to do bodily injury.1 The threats-. [812]*812to-do-personal-injury overlap, according to appellee, is impermissible and creates an inherent ambiguity in application, necessitating an examination of legislative history to clarify what conduct was sought to be proscribed by each statute. The legislative history of § 22-2307, as interpreted by ap-pellee, in conjunction with the fact that the statute appears in that portion of the D.C. Code which pertains to extortion, suggests to appellee that the statute was aimed at extortion. Therefore, according to appel-lee, the trial court correctly held that this additional element must be alleged and proved under § 22-2307.

The trial court’s ruling was based on the erroneous premise that the existence of § 22-507 must mean that essentially different conduct was meant to be proscribed by § 22-2307. It was assumed that otherwise the statutes would suffer constitutional infirmity because of vagueness, ambiguity, or denial of equal protection/due process. It was also assumed that the two sections would provide disparate punishment for precisely the same offense and thus permit the prosecuting attorney to exercise unbridled discretion. Such conclusions are not warranted.

It is well established that where the evidence relied upon to prove a violation of a felony statute is identical to the evidence needed to show a violation of the misdemeanor statute, the felony statute is not rendered void for vagueness or unconstitutional in any other sense, nor does it require that the conduct be prosecuted as a misdemeanor rather than as the felony. Palmore v. United States, D.C.App., 290 A.2d 573 (1972), aff’d, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973); Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967); United States v. Coppola, 300 F.Supp. 932, 934 (D.Conn.1969). The defendant cannot complain merely because the charge against him is brought under the statute carrying the more severe penalty. United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975); Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956); Rosenberg v. United States, 346 U.S. 273, 294, 73 S.Ct. 1152, 97 L.Ed. 1607 (1953); Hutcherson v. United States, 120 U.S.App.D.C. 274, 345 F.2d 964 (1965); Ehrlich v. United States, 238 F.2d 481 (5th Cir. 1956).

In Hutcherson, supra, the defendant was convicted of violating federal narcotics statutes. He argued on appeal that he was denied due process because he was indicted and convicted under federal statutes instead of under the District of Columbia Code. His point was that the offenses denounced by the federal and local statutes were identical and that he was entitled to be prosecuted under the latter because the penalty for violating it was less severe.2 That court of appeals rejected this theory stating that the defendant had no constitutional right to elect which of two applicable statutes was to be the basis of his indictment and prosecution. That choice was to be made by the United States Attorney. Hutcherson v. United States, supra, 120 U.S.App.D.C. at 277, 345 F.2d at 967. Underlying this conclusion is the acknowledgment that there is no constitutional infirmity in the coexistence of statutes proscribing identical conduct. There is no substantial difference between the federal/District of Columbia statute situation posited by Hutcherson and the instant case in which the two statutes are both D.C.Code provisions.

The discretion to choose under which statute to prosecute is vested in the prosecuting attorney and the grand jury. If the facts show a violation of two or more statutes, an election may be made to prosecute under either. Berra v. United States, su[813]*813pra; United States v. Liddy, 542 F.2d 76 (1976); United States v. Shepard, 169 U.S.App.D.C. 353, 515 F.2d 1324 (1975); Deutsch v. Aderhold, 80 F.2d 677 (5th Cir. 1935). This discretion is necessarily broad. See Newman v. United States, supra. See also Fay v. Miller, 87 U.S.App.D.C. 168, 183 F.2d 986 (1950).

In the absence of an express statement of congressional intent, the courts are obliged to permit enforcement of both statutes. United States v. Shepard, supra, 169 U.S.App.D.C. at 365, 515 F.2d at 1336. Thus, it is not valid to argue that where the statutes cover identical conduct, the latter in time should effect a repeal of the former. Repeals by implication are not favored. The Supreme Court in Rosenberg v. United States, supra, 346 U.S. at 294-95, 73 S.Ct. at 1163, reasserted the rule that

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Cite This Page — Counsel Stack

Bluebook (online)
376 A.2d 809, 1977 D.C. App. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-young-dc-1977.