United States of America, Plaintiff-appellee, v. Jose Luis Castro, Alberto Duque, Gaston Pereira, Jaimebayon, Defendants- Appellants, 837 F.2d 441 (11th Cir. 1988)

Both the government and defendant-appellant Duque have moved for rehearing. We take this opportunity to explain our denial of both motions for rehearing and to correct a point in our original opinion.

The government requests rehearing based on its reading of dicta in footnote 25 of our opinion, United States v. Castro, 829 F.2d 1038, 1047 (11th Cir. 1987), concerning the elements necessary to a violation of 18 U.S.C. § 656. The government asserts that our finding of harmful error in the misjoinder of Castro in the trial of his co-defendants was based in large part on what the government claims to be a misunderstanding of the crime of misapplication of bank funds. Although we dispute this assertion, we here observe only that nothing in footnote 25 is a holding. Consequently, we believe that no court in the future will read our discussion of the misapplication of bank funds as changing the current elements of the crime or as advancing the idea that notice to the bank is a proper and absolute defense to the crime, rather than simply one factor to be considered. We therefore deny the government's request for rehearing, noting that nothing in the original opinion prevents the government from retrying defendant Castro for any crimes of which the government believes he is guilty.

Defendant Duque has also requested a rehearing, objecting to our reading of the Federal Bill of Lading Act ("FBLA" or "Act") as encompassing bills of lading issued abroad. While further study of the statute and its history have revealed that we were incorrect to base, in part, our analysis of 49 U.S.C. § 81 on the United States Code heading for that section,¹  we are convinced that the result reached by our previous analysis remains correct.

A general guide to statutory construction states "that the mention of one thing implies the exclusion of another; expressio unius est exclusio alterius." 73 Am.Jur.2d, Statutes, sec. 211, at 405. See, e.g., Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19-24, 100 S. Ct. 242, 247-49, 62 L. Ed. 2d 146 (1979); Associates Commercial Corp. v. Sel-O-Rak Corp., 746 F.2d 1441, 1444 (11th Cir. 1984); Belluso v. Turner Communications Corp., 633 F.2d 393, 397 (5th Cir. 1980); United States v. Capeletti Bros., Inc., 621 F.2d 1309, 1315 (5th Cir. 1980).

As is readily acknowledged, this principle has its limits and exceptions and cannot apply when the legislative history and context are contrary to such a reading of the statute.²  See, e.g., Herman & MacLean v. Huddleston, 459 U.S. 375, 387 n. 23, 103 S. Ct. 683, 690 n. 23, 74 L. Ed. 2d 548 (1983) (rejecting application of expressio unius principle and holding that availability of express remedy under one section of Securities Act of 1933 did not preclude maintenance of action under another section of act, in light of purposes of act); Bailey v. Federal Intermediate Credit Bank, 788 F.2d 498, 500 (8th Cir.) (list in 12 U.S.C. § 2072 of 21 powers vested in intermediate credit banks was not exclusive; banks also had implicit power to remove officer of production credit association), cert. denied, --- U.S. ----, 107 S. Ct. 317, 93 L. Ed. 2d 290 (1986); State of Illinois, Dep't of Public Aid v. Schweiker, 707 F.2d 273, 277 (7th Cir. 1983) ("Not every silence is pregnant;" holding that agency decision of disallowance was subject to judicial review in district court although Congress said nothing about judicial review in statute section relating to disallowances, while specifically providing for review in appellate court in another section relating to agency determinations of plan nonconformity); Chicago Title Ins. Co. v. Sherred Village Ass'n, 544 F. Supp. 320, 326 (D. Me. 1982) (enumeration of certain prior liens--taxes, assessments, water rates--in 12 U.S.C. § 1713(g) did not indicate congressional intent that other unspecified prior liens go unrecognized), aff'd, 708 F.2d 804 (1st Cir. 1983); cf. Church of the Holy Trinity v. United States, 143 U.S. 457, 12 S. Ct. 511, 36 L. Ed. 226 (1892) (although action contested clearly fell within letter of law, court held that action was plainly outside spirit of law).

Appellant Duque argues that Congress, by making no mention in section 81 of goods transported from a foreign country to a state, deliberately meant to exclude bills of lading related to foreign imports from the ambit of the act. While it is unnecessary to decide the full scope of section 81 because our decision rests on a different point, our impression is that Duque's reading of the section is contradicted by the Act's legislative history. The expressio unius rule seems therefore inapplicable here.

First, there is indication in the legislative history that Congress intended to include imports under the statute. The substantive discussion of the bill in the Senate Report begins with the statement: "The total exports and imports for the year 1915 amounted to $5,329,521,248." S.Rep. No. 149, 64th Cong., 1st Sess. 1 (1916). Elsewhere, the Senate Report speaks of the pending law as applying to "interstate and foreign commerce," id. at 1, 2, without drawing any distinction between imports and exports.

Second, we note that the Federal Bill of Lading Act was passed to eliminate opportunities of irregularity and fraud with regard to the issuance of such bills, so as to encourage the advance of money to businesses by banks, with the bills as security. If banks could depend on the integrity of bills of lading, they could lend money on such instruments without fear of loss. See id. at 2-5; H.Rep. No. 847, 64th Cong., 1st Sess. 2-3 (1916). As the present case illustrates, fraud and confusion can occur in relation to bills of lading issued in foreign countries as well as in relation to bills of lading covering domestic shipments and exports. There is no indication in the legislative history that Congress intended only a partial solution to the problem it was attempting to solve. We think Congress intended the full solution.

Third, our inclination to interpret Section 81 as a partial, nonexclusive listing is buttressed by consideration of the general legal climate concerning the extent of congressional authority over interstate and foreign commerce in 1916, when section 81 was drafted and enacted. There was considerable debate and uncertainty in 1916 as to Congress's powers under the interstate commerce clause of the Constitution.³  On the other hand, it was beyond dispute then, as now, that Congress had plenary powers to regulate the foreign commerce of the United States. See, e.g., Henderson v. Mayor, 92 U.S. (2 Otto) 259, 23 L. Ed. 543 (1875); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824).

We think the legislative history shows that Congress wished the entire Act to reach as far as it could reach constitutionally. The listing in section 81 was to emphasize that certain grey areas were definitely included. The absence of any mention of intrastate commerce or of imports is not a limitation of the categories of traffic covered but merely an implicit acknowledgement of Congress's undisputed power to reach all foreign commerce of the United States and its then presumed lack of authority to reach any purely intrastate transactions.

For the above reasons we question whether Congress meant to exclude bills of lading covering imports from the general purview of the Act. Nevertheless, even if section 81 were conceded to be an exhaustive listing and a limitation on the scope of the Act in general, the plain language of section 121 shows that section 81 was simply not meant to be limiting vis-a-vis section 121 in particular. Put differently, section 121 sets its own scope.

Assuming section 81 to be a limitation implies that there are other possible sorts of bills of lading that do not fall within the list set out in that section.⁴  Furthermore, section 81 speaks only of "bills of lading issued by any common carrier" (emphasis added). The definitional section at the end of the Act defines the word "bill" as "bill of lading covered by this Act." Consequently, throughout the sections dealing with duplicate bills, bills issued in parts, liability, responsibility for goods and so forth, the FBLA speaks of "a bill" or "the bill" or "the bill of lading." In contrast, in section 121 the final substantive section of the Act, criminal penalties are imposed upon "any person" with regard to "any bill of lading" fraudulently representing goods in intrastate or foreign commerce (emphasis added).

The scope of section 121 is thus broader than what is expressly set out in section 81. We think Congress intended "any" in section 121 to mean "every" and "all." Cf. United States v. Kaercher, 720 F.2d 5 (1st Cir. 1983) (upholding conviction based on statute forbidding possession of controlled substance by U.S. citizen aboard "any vessel;" in accordance with nationality principle of international law, "any vessel" was not necessarily limited to U.S. vessel and could include foreign vessel). Accordingly, we hold that section 121, by its very language, intends to punish not only the fraudulent making or use of domestic and export bills of lading, but the fraudulent making or use of all bills of lading, not only by a common carrier or carrier's agent, but by "any person."⁵ 

Even if section 81 is a limiting section and the other provisions of the FBLA do not apply to bills of lading originating outside the United States, Congress intended to criminalize any act by any person that results in an intentionally false bill of lading. Any other understanding of section 121 would lead to results inconsistent with common sense. Someone negotiating forged, worthless bills of lading to a bank in this country would be subject to punishment for bills purportedly dealing with a fictitious shipment from Kansas to New York or New York to Berlin, yet could escape punishment under section 121 by concocting bills originating in a foreign country, for example, a bill purportedly dealing with shipments from Berlin to New York. Absent a clear command from Congress expressed in the words of the Act, we are unwilling to assume that Congress intended such an unreasonable result. See United States v. Mendoza, 565 F.2d 1285, 1288-89 (5th Cir.), reh. granted, 581 F.2d 89 (5th Cir. 1978); Government of Virgin Islands v. Berry, 604 F.2d 221, 225 (3d Cir. 1979); see also Payne v. Panama Canal Co., 607 F.2d 155, 164 (5th Cir. 1979) (holding that no part of a statute should be dismissed as mere surplusage but should be given the reasonable meaning it is presumed that Congress intended). Instead, the language of section 121 shows that Congress was aware of the incongruity that would result if criminal penalties applied only to domestic bills of lading. "Any" false bill of lading could endanger the financial dependability of all bills of lading; Congress therefore imposed a penalty to prevent "any" kind of fraudulent machinations.⁶ 

Our reading of section 121 of the FBLA is not a change in the law, and it can and does apply to appellant Duque. Our reading does not unduly broaden the explicit words of the statute nor does it give to them a meaning that no reasonable person would foresee upon reading them.⁷  The words of the Act, themselves, are sufficiently explicit and unambiguous to have put defendant on notice that he risked prosecution for his use of false bills of lading. Title 49 U.S.C. § 121 expressly imposes punishment for use of any false bills of lading purporting to represent goods shipped "among the several States or with foreign nations." In dealing with such false bills, appellant Duque took the risk that a court would reject his interpretation of 49 U.S.C. § 81 as limiting the reach of the criminal penalties imposed by section 121. We are aware of no opinion of any court that has held that prosecution under section 121 cannot reach false bills of lading originating abroad, purporting to represent goods shipped from abroad; there is therefore no law in this circuit or anywhere else upon which appellant Duque could reasonably rely.

For the above reasons, we therefore deny defendant Duque's motion for rehearing. We also withdraw the last two paragraphs on p. 1049 (including accompanying footnote 35) and the first complete paragraph on p. 1050 of our original opinion, United States v. Castro, 829 F.2d 1038, that is, the portion beginning "Section 81, however ..." and ending "... that affected the United States."

No member of this panel nor other Judge in regular active service on the court having requested that the court be polled on rehearing in banc, Duque's suggestion of rehearing in banc is denied.