seal to be false or counterfeit, shall be fined not more than $ 5,000 or imprisoned not more than five years, or both.'
is similar to Section 506, Title 18, which has to do with the forging or counterfeiting of seals of 'departments or agencies' of the United States and reads as follows:
'Whoever falsely makes, forges, counterfeits, mutilates, or alters the seal of any department or agency of the United States; or
'Whoever knowingly uses, affixes, or impresses any such fraudulently made, forged, counterfeited, mutilated, or altered seal to or upon any certificate, instrument, commission, document, or paper, of any description; or
'Whoever, with fraudulent intent, possesses any such seal, knowing the same to have been so falsely made, forged, counterfeited, mutilated, or altered --
'Shall be fined not more than $ 5,000 or imprisoned not more than five years, or both.'
If the Congress had intended the phrase 'department or agency', in Section 506, to have been all-inclusive because of the use of these words, there would have been no necessity for the enactment of Section 505, where the penalties are precisely the same. See also reviser's notes to Section 506, where it is stated:
'Provision for 10 years' imprisonment was reduced to 5 years to conform to punishment provision in section 505 of this title, covering an offense of like gravity.'
The Government similarly argues that if Section 1001 were intended to include the executive branches only, then false statements could be made to the legislative and judicial branches of the Government with impunity. This is not the case, since the perjury statutes of the United States Code make it a crime to make false statements to the legislative and judicial branches of the Government.
The United States Attorney has presented to the Court a number of instances where Courts have applied the word 'department' to the legislative and judicial branches of the Government and, in so doing, have referred not only to the legislative branch as a 'department' but have also referred to the executive and judicial branches as 'departments.' For instance, as far back as Foster v. Neilson, 1829, 2 Pet. 253, at page 314, 7 L. Ed. 415, Chief Justice Marshall uses the language: '* * * the treaty addresses itself to the political, not the judicial department; * * *.' See also State of Mississippi v. Johnson, 1867, 4 Wall. 475, at page 500, 18 L. Ed. 437, where Chase, C.J., says:
'The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; * * *.'
The United States Attorney also calls attention to the fact that in the recent edition of the United States Constitution, Annotated, the three coordinate branches of the Government are referred to as 'departments.'
There could be no quarrel with these arguments but the short answer is that, in the opinion of the Court, Section 1001 of Title 18 uses the word 'department' in a limited sense, as shown by Section 6 of that Title, all as above referred to. Further than this, while it is true that each of the three branches of the Government may be referred to at times as 'departments' of the Government, there would seem to be no justification for using the word 'department', as referred to in Section 1001, as referring to each of the three coordinate branches of the Government because Section 6, in its definition, refers to the 'executive departments', such as The Department of State, etc. (See page 7 of this opinion.)
Counsel for the Government has conceded in open court that if the Court has a reasonable doubt as to the applicability of a criminal statute in a hearing upon a motion in arrest of judgment (although he insists that the instant case is one where there is no reasonable doubt), then that doubt should be resolved against the Government and in favor of the defendant, thereby placing the burden of appeal upon the Government. This is particularly so in this case since counsel for both sides have stated that it will ultimately reach the Supreme Court. For the reasons expressed in this opinion, the Court has a reasonable doubt as to the applicability of Section 1001 to the legislative and judicial branches of the Government. I resolve this reasonable doubt in favor of the defendant.
The defendant's motion in arrest of judgment is granted, based on the Court's construction of the statute involved.
The Government is able to appeal this case directly to the United States Supreme Court under authority of Title 18, United States Code § 3731, since this decision is based upon the construction of Section 1001, Title 18, upon which the indictment in this case was founded.
Counsel will prepare and submit on notice the appropriate order.