RAYMOND J. MOSKAL, SR., PETITIONER V. UNITED STATES OF AMERICA

   No. 89-964

   In The Supreme Court Of The United States

   October Term, 1989

   On Writ Of Certiorari To The United States Court Of Appeals For The
Third Circuit

   Brief For The United States

            TABLE OF CONTENTS
   Question Presented
   Opinion below
   Jurisdiction
   Statement
   Summary of argument
   Argument:
      An automobile title is "falsely made" within the
      meaning of Section 2314 if false information was
      inserted into it at the time of its making
      A. The language and purposes of Section 2314 indicate
         that it applies to all false documents, regardless
         of the method used to make the documents
         false
      B. Although most common law courts assumed that
         the term "falsely made" referred to forgery,
         Congress evidently adopted the competing position
         that "falsely made" applies to documents
         that were false when made
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 3a-8a) is reported
at 888 F.2d 283.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 1a-2a) was entered
on October 18, 1989.  The petition for a writ of certiorari was filed
on December 16, 1989, and granted on March 19, 1990.  The jurisdiction
of this Court rests on 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether 18 U.S.C. 2314, which prohibits the interstate
transportation of instruments that are "falsely made," applies to the
transportation of valid automobile certificates of title that contain
false mileage information.

                               STATEMENT

   After a jury trial in the United States District Court for the
Middle District of Pennsylvania, petitioner was convicted on two
counts of interstate transportation of falsely made securities, 18
U.S.C. 2314, two counts of uttering counterfeit state securities, 18
U.S.C. 513, and conspiracy to violate those statutes, 18 U.S.C. 371.
/1/ He was sentenced to six months' imprisonment on the conspiracy
count.  On the remaining counts, he received concurrent terms of two
years' imprisonment, but those sentences were suspended in favor of
three years' probation.  The court of appeals affirmed.  Pet. App.
3a-8a.  /2/

   1. The evidence at trial showed that between December 1984 and July
1985 petitioner engaged in an automobile "title washing" scheme, the
purpose of which was to obtain Virginia automobile titles bearing
false, low-mileage figures.  Petitioner was the office manager for
co-defendant Alvin Davis, Jr., who owned a wholesale auto dealership
in Manheim, Pennsylvania.  Pet. App. 5a.  Co-defendant Dennis Smith
and co-conspirator Curman "Buddy" Dickens owned and operated Buddy's
Auto Sales, a wholesale auto dealership in Virginia.

   The scheme operated as follows:  Persons working with Davis would
purchase used cars with high mileage for resale to the public.  The
odometers on those cars would be "rolled back" to reflect much lower
mileage figures.  Davis's associates would then alter the titles to
the cars, to accord with the rolled back odometer readings.  Packages
of the altered certificates of title would be sent from Davis's
dealership in Pennsylvania to Buddy's Auto Sales in Virginia.  Dickens
and his wife would then use the altered titles to apply for Virginia
title certificates for the cars in the name of their dealership.  Pet.
App. 5a-6a.  The Virginia titles would contain the lower odometer
readings.  The falsity of the odometer readings could not be detected
from the Virginia titles, because the lower odometer readings on the
titles had been entered by the Virginia state agency based on the
altered titles sent from Pennsylvania.  After obtaining the new
titles, Dickens and Smith would send them to the dealership in
Pennsylvania, charging a fee of $100 per title for their services.
Pet. App. 6a.  Petitioner, who participated in sending the old,
altered titles to Virginia, would receive the new, "washed" titles for
the dealership.  See Pet. 6.  Davis would then distribute the new
Virginia titles to dealers who had provided the original titles to
him, charging them a fee for his title-washing service.  Ultimately,
the dealers sold the vehicles with rolled-back odometers and washed
titles to unsuspecting customers.  Pet. App. 6a.

   2. The indictment charged that petitioner transported two washed
Virginia titles in interstate commerce in violation of 18 U.S.C. 2314,
which prohibits the intentional transportation in interstate commerce
of any "falsely made, forged, altered, or counterfeited securities."
J.A. 11-13.  In his defense, petitioner argued that the prohibition in
18 U.S.C. 2314 against transporting a "falsely made" security applies
only to documents that are not themselves genuine, i.e., documents
that are not what they purport to be.  He conceded that the washed
titles might have contained false information, but he argued that
because the titles themselves were "genuine," i.e., they were issued
by the appropriate Virginia officials and were not altered thereafter,
he could not be convicted under Section 2314.  The trial court
rejected that claim, and petitioner was found guilty.

   3. The court of appeals affirmed.  Pet. App. 3a-8a.  It noted that
the Tenth Circuit had held that the term "falsely made" relates to the
genuineness of the document, not the falsity of its contents.  See
United States v. Sparrow, 635 F.2d 794 (1980) (en banc), cert. denied,
450 U.S. 1004 (1981).  The court, however, chose to follow more recent
cases holding to the contrary.  The stated mileage figure, the court
explained, is a material part of a title certificate.  The fact that
valid title may be transferred by the certificate "does not vitiate
the fraud that is foisted on the unsuspecting customer when the
falsely made document is introduced into commerce." Pet. App. 7.  In
light of the purpose of Section 2314 to prevent fraudulent documents
from being circulated interstate, the court adopted the majority view
that the term "falsely made" in Section 2314 is not limited to
counterfeited, forged, or altered documents, but includes documents
into which false information was inserted when they were made.  Pet.
App. 7a.  /3/

                          SUMMARY OF ARGUMENT

   A. Section 2314 prohibits the intentional interstate transportation
of any security that is "falsely made," without regard to the method
used to make the security false.  The statute does not define or in
any way limit the meaning of "falsely made." There is therefore no
textual basis on which to premise a construction limiting the statute
based on the method by which a false document is produced.

   Moreover, the term "falsely made" would be superfluous if it
referred solely to documents that were false in their execution as
opposed to their content.  Section 2314 already prohibits the
transportation of "forged, altered, or counterfeited" securities.  If
"falsely made" is to have an independent function, it must reach the
falsity effected when false information is inserted into a genuine
document at the time it is made.

   The straightforward reading of "falsely made" indicated by the
statutory language promotes the purposes of Section 2314.  That
Section was designed to prevent frauds made possible or made easier by
using interstate transportation.  The fraud perpetrated in this case
is exactly the kind of fraud that Section 2314 was designed to combat.
 Titles are "washed" out-of-state because the lack of uniformity in
state titling requirements makes fradulent information harder to
detect and trace.  In addition, titles can be "washed" in those States
with the most manipulable titling procedures.  The fraudulent
documents produced by exploiting those differences in state practice
are at least as dangerous as those more simply produced by forging or
altering documents.  It would be incongruous to conclude that the
broad anti-fraud policies of Section 2314 reach only the latter two
categories.

   B. Although the term "falsely made" was given a restrictive
interpretation by many common law courts, such a construction is not
warranted here.  As this Court has noted, Congress cannot be presumed
to have intended to attach an arcane or antiquated common law meaning
to a term when that meaning would be inconsistent with Congress's
intent.

   The predominant view among American common law courts was that the
terms "falsely made" and "forged" were synonymous.  There is, however,
no indication that in 1939 or afterwards Congress recognized or meant
to adopt the predominant common law view.  To the contrary, Congress's
actions during recodification of the Criminal Code in 1948 and its
amendment of the National Stolen Property Act in 1984 indicate that it
has long held a broader view of the term "falsely made."

   In 1948, Congress reenacted and recodified Section 2314, as part of
a recodification of the Criminal Code.  Act of June 25, 1948, ch. 645,
Section 1, 62 Stat. 806.  At the same time, it restructured another
provision, Section 29 of the Criminal Code of 1909 (at that time
recodified as 18 U.S.C. 73 (1946)), the pertinent language of which
was the same as that in Section 2314 (concerning objects "falsely
made, forged, altered, or counterfeited").  The manner in which
Congress restructured Section 29 demonstrated that it understood
"falsely made" to mean false in execution or content.  A particular
clause of Section 29 had been previously interpreted by this Court in
United States v. Davis, 231 U.S. 183 (1913) to refer to both types of
falsity;  Congress in 1948 specifically linked that clause to the part
of Section 29 that dealt with "falsely made" documents.  Because it is
clear that Congress did not intend in 1948 to narrow the substantive
reach of Section 29, it is evident that the Congress that reenacted
both Section 29 and Section 2314 assumed that the phrase "falsely
made" was not limited to documents that are forged, altered, or
counterfeited.

   In 1984, Congress provided an even more unambiguous indication that
it did not understand the term "falsely made" to carry a restrictive
meaning.  That year, Congress amended the definition of "securities"
for purposes of Section 2314 to include "(any) valid or blank motor
vehicle title." Motor Vehicle Theft Law Enforcement Act of 1984, Pub.
L. No. 98-547, Section 202, 98 Stat. 2770.  Since "counterfeited" or
"altered" titles cannot be valid, Congress's action indicates that it
regarded the term "falsely made" to include genuine documents into
which false information had been inserted.

   The legislative history of the 1984 amendment confirms this view:
It demonstrates that Congress was concerned with "title washing"
schemes similar to the one here.  To give the term "falsely made" a
narrow interpretation would defeat the purpose of the 1984 amendment.
Thus, it is evident that the term "falsely made" in Section 2314
applies to documents such as the automobile titles in this case, which
were produced by officials duped by false information.

                               ARGUMENT

   AN AUTOMOBILE TITLE IS "FALSELY MADE" WITHIN THE MEANING OF SECTION
2314 IF FALSE INFORMATION WAS INSERTED INTO IT AT THE TIME OF ITS
MAKING

   A. The Language And Purposes Of Section 2314 Indicate That It
Applies To All False Documents, Regardless of the Method Used To Make
The Documents False

   Section 2314 punishes the knowing transportation of any security
that is "falsely made," as well as any security that is "forged,
altered, or counterfeited." Petitioner was charged with transporting
genuine Virginia automobile titles, which contained false odometer
readings that petitioner and his co-conspirators had fraudulently
induced the Commonwealth of Virginia to include on the title forms.
Petitioner argues that the term "falsely made" does not apply to the
"genuine" Virginia titles, even though the falsehood in the title
forms was procured by fraud, and even though the difference between
the "genuine" Virginia title documents and forged or altered title
documents is simply that the defendants induced the Virginia
authorities to introduce the false material into the title forms
rather than doing it themselves.

   We submit that for two reasons the term "falsely made" applie to
the Virginia automobile titles at issue in this case.  First, the
addition of the term "falsely made" to the other categories of covered
securities suggests that Congress did not mean to limit the statute to
"nongenuine" documents, i.e., documents that are forged, altered, or
counterfeited.  Second, petitioner's restrictive interpretation of the
term "falsely made" would be inconsistent with the broad antifraud
purposes of Section 2314;  with respect to their capacity to promote
fraud, there is no sensible basis on which to distinguish between
nongenuine (i.e., false, altered, or counterfeited) documents and
documents that are "genuine," but contain material falsehoods.

   1. The term "falsely made" is general in nature.  It is not defined
in the statute, and there is no indication that the term was meant to
be used restrictively.  Nothing in the term itself, or anything else
in the statute, suggests a distinction between a document that is
"falsely made" because it was printed on an unauthorized press and one
that is "falsely made" because it contained false representations when
it was created.  Rather, the generality of the term indicates that
"(its) purpose (is to) * * * prohibit the fraudulent introduction into
commerce of falsely made documents regardless of the precise method by
which the introducer or his confederates effected their lack of
authenticity." United States v. Huntley, 535 F.2d 1400, 1402 (5th Cir.
1976), cert. denied, 430 U.S. 929 (1977);  see also United States v.
Daly, 716 F.2d 1499, 1509 (9th Cir. 1983);  United States v. Mitchell,
588 F.2d 481, 484 (5th Cir.), cert. denied, 442 U.S. 940 (1979).

   The same conclusion is suggested by the principle that a court must
"give effect, if possible, to every clause and word of a statute."
United States v. Menasche, 348 U.S. 528, 538-539 (1955);  see, e.g.,
Pennsylvania Dep't of Public Welfare v. Davenport, No. 89-156 (May 29,
1990), slip op. 8.  Petitioner contends that "falsely made" (Pet. Br.
15-16) is synonymous with "forged" -- another in the list of terms
Congress used to describe the kinds of documents covered by Section
2314.  In petitioner's view, both modifiers identify documents that
are false in their execution, as opposed to false in their content.
But if that is so, the term "falsely made" is mere surplusage.  To
give the term "falsely made" an independent function in the statute,
it is necessary to construe it to reach falsity effected by a means
other than forgery, altering, or counterfeiting.  That means the term
must apply to falsity effected by the insertion of false information
in the process leading to the creation of a genuine document.

   Most courts of appeals that have considered the issue have rejected
petitioner's narrow reading of "falsely made." /4/ In the context of
automobile title frauds, in particular, most courts have held that
Congress added the words "falsely made" to broaden the statute's
compass beyond forgery to include the "false makings" that are
effected when motor vehicle titles are procured on the basis of false
information.  United States v. Daly, 716 F.2d at 1507-1509;  United
States v. Cotoia, 785 F.2d 497, 501-502 (4th Cir. 1986);  United
States v. Kauffman, 670 F. Supp. 134, 136 (M.D. Pa. 1985), aff'd, 782
F.2d 1032 (3d Cir. 1985).  Contra United States v. Sparrow, 635 F.2d
794 (10th Cir. 1980) (en banc), cert. denied, 450 U.S. 1004 (1981).
The courts in the majority have recognized, as has this Court, that

         (a) genuine instrument containing a false statement of facts,
      used in support of a claim, the party knowing it to be false,
      and using it with the intent to defraud, presents a case not
      distinguishable in principle, or in turpitude, or in its
      mischievous effects, from one in which every part of the
      instrument is fabricated;  and when the one is as fully within
      the words of the statute as the other, we may well suppose that
      it was intended to embrace it

United States v. Staats, 49 U.S. (8 How.) 41, 47 (1850).

   2. In addition its consistency with the statutory language, the
court of appeals' construction of "falsely made" accords with the
purposes of Section 2314.  The provision that is now Section 2314 was
first enacted as part of the National Stolen Property Act (NSPA) of
1934, ch. 333, Section 3, 48 Stat. 794-795.  The language at issue in
this case was added as an amendment in 1939 in order to "widen() the
scope" of the Act, expanding its prohibitions against the interstate
transportation of stolen goods to include trafficking in securities
that had been "falsely made, forged, altered, or counterfeited." Act
of Aug. 3, 1939, ch. 413, Section 1, 53 Stat. 1178.  /5/

   Specifically, Section 2314 as amended was designed to prevent
frauds perpetrated or made easier by using interstate transportation.
United States v. Sheridan, 329 U.S. 379, 383-384 (1946).  In addition,
Congress intended to aid the States in detecting and punishing those
who committed crimes under state law but used channels of interstate
commerce to evade identification and prosecution.  Ibid.; see also
McElroy v. United States, 455 U.S. 642, 654-655 & n.19 (1982) (noting
that federal authority was necessary to investigate certain crimes and
to compel witnesses to testify).  /6/

   The fraud perpetrated here is precisely the type that is
facilitated by interstate transportation.  Titles are washed
out-of-state because States do not have uniform titling requirements
or procedures.  /7/ Those running a title washing scheme can choose
the States with the most manipulable procedures.  Furthermore, when
title is transferred between States, there is little chance that
inconsistency in the information required on title applications will
be traced.  /8/ And, even when state officials detect title washing
schemes, it is difficult to investigate and take steps against
out-of-state participants.

   It would be inconsistent with the anti-fraud purposes of Section
2314 for liability to turn on what amounts to the timing of the
introduction of falsehoods into the creation of a document used to
promote fraud.  Consider the status of three fraudulent documents:
(1) an entirely bogus document that contains false information;  (2) a
genuine document that was altered after its making to add the same
false information;  and (3) a genuine document in which the false
information was incorporated during the process of making the
document.  All three documents have similar capacity for mischief.
Indeed, documents of each type could have been used interchangeably in
the very fraud at issue in this case.  If anything, the third type of
document -- the type that would be excluded from Section 2314 under
petitioner's construction -- is more dangerous than the other two
because the falsehood, which is incorporated into a genuine document,
is more difficult to detect.  In light of the objectives Section 2314
was meant to serve, it would make no sense to include the first two
categories of documents, but not the third.  As the court of appeals
put the point in United States v. Daly, 716 F.2d at 1509, it would be
incongruous to conclude that Congress intended to exempt from the
scope of Section 2314 "clever schemes" such as washing motor vehicle
titles, in which the schemes succeed by "induc(ing) state
participation in the creation of fraudulent documents." Thus, the
broader interpretation of Section 2314 "accord(s) with the statutory
purpose of making guilt or innocence turn upon whether the actor
wrongfully intended to place into commerce a falsely made document
instead of focusing upon the precise method by which its lack of
authenticity was effected." United States v. Tucker, 473 F.2d 1290,
1294 (6th Cir. 1973).

   B. Although Most Common Law Courts Assumed That The Term "Falsely
Made" Referred To Forgery, Congress Evidently Adopted The Competing
Position That "Falsely Made" Applies To Documents That Were False When
Made

   When Congress uses a well-known common law term without defining
it, it is generally presumed, in the absence of contrary indications,
that Congress intended to adopt the common law meaning of the term.
Bell v. United States, 462 U.S. 356, 360 (1983);  United States v.
Turley, 352 U.S. 407, 411 (1957);  Gilbert v. United States, 370 U.S.
650, 655 (1962).  That proposition, however, is simply an application
of the more general principle that Congress ordinarily intends
undefined terms to have their conventional meaning.  See Morissette v.
United States, 342 U.S. 246, 263 (1952) ("where Congress borrows terms
of art in which are accumulated the legal tradition and meaning of
centuries of practice, * * * absence of contrary direction may be
taken as satisfaction with widely accepted definitions, not as a
departure from them").

   Where the common law definition of a term accords with the
conventional understanding of the term, that definition is naturally
presumed to be the one Congress intended.  But the common law
definition does not ordinarily apply where "the present common
understanding of the word departs largely from the technical meaning
it had at the old common law." Reagan v. United States, 157 U.S. 301,
302 (1895) (refusing to adopt the common law definition of the term
"felony").  Thus, even where a term had a clear common law meaning,
the Court has applied the "ordinary, contemporary, common meaning" of
the term in preference to an antiquated formulation from early common
law.  See Perrin v. United States, 444 U.S. 37, 42 (1979) ("bribery"
under the Travel Act, 18 U.S.C. 1952, is not confined to the common
law definition);  United States v. Nardello, 393 U.S. 286, 292-293
(1969) ("extortion" under the Travel Act is defined according to its
contemporary understanding, not according to the restrictive common
law definition).  In concluding that the offense proscribed in 18
U.S.C. 2113(b) is not limited to common law larceny, the Court stated:

      We cannot believe that Congress wished to limit the scope of the
      amended Act's coverage, and thus limit its remedial purpose, on
      the basis of an arcane and artificial distinction more suited to
      the social conditions of 18th-century England than the needs of
      20th-century America.

Bell v. United States, 462 U.S. 356, 362 (1983).  More recently, the
Court declined to interpret the term "burglary" in a modern statute
according to its common law meaning;  to the contrary, the Court
applied the rule that a statutory term should not be given its common
law meaning "when that meaning is obsolete or inconsistent with the
statute's purpose." Taylor v. United States, No. 88-7194 (May 29,
1990), slip op. 18.  Likewise, the Court has weighed heavily
indications in the legislative history that Congress intended to
depart from the common law usage.  Bell, 462 U.S. at 361-362;  Perrin,
444 U.S. at 45-49.

   The restrictive common law understanding of the term "falsely made"
should not be applied to Section 2314, because it would be
inconsistent with the purposes of the statute, as we have shown above.
 In addition, the available evidence indicates that Congress intended
the term "falsely made" in Section 2314 to have a broader reach than
most common law courts had given it.

   We recognize that the predominant view among American common law
courts was that the terms "falsely made" and "forged" were synonymous.
 /9/ The courts that took that view most frequently reasoned from the
definition of forgery by legal authorities as a "false" or "fraudulent
making";  they then equated that proposition with its converse -- that
a document that was "falsely made" had to be forged in a narrow sense.
 See, e.g., United States v. Wentworth, 11 F. 52, 55 (C.C.D.N.H. 1882)
("It is the 'false making' which the statute makes an offence, and
this is forgery as described in all the elementary books.").  In turn,
the courts determined that "(f)orgery cannot be committed by the
making of a genuine instrument, though the statements made therein are
untrue.  The words 'whoever falsely makes' generally apply to the
false making of the writing as distinguished from the contents of the
instrument itself." Goucher v. State, 113 Neb. 352, 355, 204 N.W. 967,
968 (1925) (citations omitted).

   While most courts treated the term "falsely made" as equivalent to
"forged" in the narrow sense, that view was not universally followed
in this country.  A number of courts reasoned that a defendant could
be guilty of falsely making a validly executed document, "in case it
be false in any material part, and calculated to induce another to
give credit to it as genuine and authentic." Luttrell v. State, 85
Tenn. 232, 237, 1 S.W. 886, 888 (1886).  /10/ And in England, a
significant line of authority accorded with the minority American
position.  /11/

   This Court has adverted to the majority interpretation of "false
making" on two occasions, although both times without examining or
ruling on the point.  See United States v. Staats, supra, and United
States v. Davis, 231 U.S. 183 (1913).  Both cases concerned
prosecutions for the making and use of false affidavits with intent to
defraud the United States, in violation of predecessors of 18 U.S.C.
495.  /12/ The first clause of the statute at issue in Davis made
criminally liable any person who "falsely makes, alters, forges, or
counterfeits;  or causes or procures to be falsely made, altered,
forged, or counterfeited * * * any deed, power of attorney, order,
certificate, receipt, or other writing" for the purpose of defrauding
the government.  The third clause of the statute applied to any person
who transmitted or presented to any federal office or officer, "any
deed, power of attorney, order, certificate, receipt, or other writing
* * * (in support of a fraudulent claim), knowing the same to be
false, altered, forged, or counterfeited." Davis, 231 U.S. at 187 n.1
(quoting Rev. Stat. Section 5421).  In both Staats and Davis, this
Court found the prosecutions proper under the third clause of the
statute.  The Court assumed, without the need to decide, that the same
prosecutions would have been improper under the first clause.  /13/

   There is no indication that, in 1939 or afterwards, Congress was
aware of or intended to incorporate into Section 2314 the majority
common law construction of the term "falsely made." Other than the
broad purpose that the National Stolen Property Act was intended to
serve, there is nothing in the legislative history of the 1939
amendment to the Act that is at all instructive on the question
whether Congress intended to adopt the narrow common law meaning of
the term "falsely made" or intended the term to have a broader
meaning.  Some enlightenment can be obtained, however, from Congress's
action on a similar statute several years later.

   In 1948, Congress reenacted and recodified Section 2314, as part of
a recodification of the Criminal Code.  Act of June 25, 1948, ch. 645,
Section 1, 62 Stat. 806.  At the same time, Congress restructured a
provision containing the same language as Section 2314 (concerning
objects "falsely made, forged, altered, or counterfeited") in a manner
demonstrating that Congress equated "falsely made" with "false" either
in execution or in content.

   Congress's action concerned Section 29 of the Criminal Code of
1909, ch. 321, 35 Stat. 1094 (recodified as 18 U.S.C. 73 (1946)),
formerly Section 5421 of the Revised Statutes, the provision that had
been interpreted by this Court in Davis.  In that case, as noted
above, the Court assumed without analysis that the term "falsely made"
referred to forged instruments "in a technical sense." Davis, 231 U.S.
at 189.  By contrast, the Court determined that a subsequent clause of
the statute referred more broadly to "any and all fraudulent
documents" when it spoke of "any * * * writing (presented by a person)
* * * knowing the same to be false, altered, forged, or counterfeited"
Id. at 188.

   The Court's parsing of the statute depended on the fact that the
third clause of the statute contained no specific reference linking
the "false" writings it concerned to the "falsely made" writing
identified in the first clause.  By contrast, the Court classified a
second clause in the statute, which contained the same language used
in the third clause but included a specific reference to the falsely
made writings of the first clause, as referring only to forged (and
counterfeited) documents.  /14/ See Davis, 231 U.S. at 188.  As the
Court noted in Staats, upon which Davis relied (see 231 U.S. at 189):

         The deeds and other writings mentioned (in the third clause)
      are not connected with those in the preceding paragraph, as
      would have been natural, and almost of course, if intended to
      describe similar instruments.  The language is "any deed, power
      of attorney," &c.; not, the aforesaid deed, which words must be
      in effect interpolated, * * * (if they are to refer to the
      forged instruments identified in the first clause).

Staats, 49 U.S. (8 How.) at 47.

   It was thus well established by 1913 that submitting affidavits
that were false in content, as well as those that were false because
forged, to the federal government with intent to defraud constituted
an offense under the third provision of Rev. Stat. Section 5421.  See
Davis, 231 U.S. at 188.

   Against this background, Congress in 1948 revised and recodified
the Criminal Code.  As this Court has long recognized, "the function
of the Revisers of the 1948 Code was generally limited to that of
consolidation and codification." Muniz v. Hoffman, 422 U.S. 454, 474
(1975).  Absent a "clearly expressed" indication to the contrary, no
change in substantive law can be presumed.  Id. at 468-474;  see also
id. at 468 (noting that revision preserved "original intent of
Congress").  It is clear that Congress intended no substantive
amendment to Section 29.  To the contrary, the Reviser's Notes, which
guide construction of any alterations made during the 1948 revision
(see id. at 472-474), stipulate that only "(c)hanges * * * in
phraseology" occurred in recodifying Section 29 as Section 495.  H.R.
Rep. No. 304, 80th Cong., 1st Sess. A42 (1947).

   Yet in the process of recodification, Congress altered former
Section 29 in the one way that the Davis Court had deemed
determinative:  it inserted the critical reference ("such") into the
third clause of the statute.  The "false" writings covered by that
provision are now explicitly identified with the "falsely made"
writings of the first clause.  /15/ Thus, Congress effectively equated
the "falsely made" writings "know(n) * * * to be false" in the
Section's last clause.

   It is inconsistent with the aims of the 1948 recodification to
conclude that Congress intended to abandon without comment the
long-standing interpretation that the "false" writings of Section 29
included those writings that were false in content as well as those
that were false in execution.  It is much more probable that
Congress's action demonstrated that it did not attach the dominant
common law interpretation to the phrase "falsely made." The Congress
that reenacted both Section 495 and Section 2314 in 1948 evidently
assumed that the phrase "falsely made" referred to writing "know(n) *
* * to be false." See also Davis, 231 U.S. at 188 (third clause of
Section 29 covers "any and all fraudulent documents, whether forged or
not forged").  Moreover, Congress's action in 1948 strongly suggests
that Congress did not have the common law definition in mind nine
years earlier when it first added the term "falsely made" to the
National Stolen Property Act.

   More recently, Congress has provided an even more unambiguous
indication that it understands the term "falsely made" in Section 2314
not to be restricted to the predominant common law meaning of the
term.  In 1984, Congress amended Section 2311, which defines
"securities" for purposes of Section 2314, to include "(any) valid or
blank motor vehicle title." Motor Vehicle Theft Law Enforcement Act of
1984, Pub. L. No. 98-547, Section 202, 98 Stat. 2770.  Because there
can be no such thing as a "counterfeit, valid," or "altered, valid"
motor vehicle title, Congress's reference to valid motor vehicle
titles in Section 2311 clearly indicates that it regarded the term
"falsely made" to include genuine documents that contained false
information when they were made.  Otherwise, the statute's application
to a "valid" but "falsely made" motor vehicle title would make no
sense.

   The legislative history of the 1984 amendment confirms this reading
of Congress's view of the statute.  The amendment was aimed at the
title fraud problem, analogous to the one presented here, that attends
trafficking in stolen vehicles.  It was passed as part of the Motor
Vehicle Theft Law Enforcement Act of 1984, Pub. L. No. 98-547, Section
202, 98 Stat. 2770, "a comprehensive package of proposals designed to
curb the theft of motor vehicles by preventing thefts and decreasing
the ease with which certain stolen vehicles and their major parts can
be fenced." H.R. Rep. No. 1087, 98th Cong., 2d Sess. Pt. 1, at 2
(1984).  /16/

   The 1984 amendment was enacted after Congress heard testimony
concerning the inability of the States independently to control the
circulation of title documents.  That testimony detailed weaknesses in
state verification of title documents, inspection of vehicles, and
title document security measures;  problems created by lack of
uniformity in title documents;  and gaps in state legal authority to
monitor and control the titling process, for example, by investigating
cars with altered vehicle identification numbers.  In particular, the
testimony exposed, within the context of the stolen car market,
precisely the type of problem that was exploited by the scheme in this
case.  /17/ According to a submission from the Department of
Transportation, a common technique for retitling stolen vehicles
involves the submission of title documents that have been altered by
modifying a vehicle identification number to match that of a stolen
automobile.  /18/ As in petitioner's title washing scheme, false (but
genuine) documents are obtained for the stolen vehicle on the basis of
the fraudulently altered originals.  /19/

   The clear import of the legislative history of the 1984 amendment
to Section 2314 is that Congress, in its effort to deter trafficking
in stolen vehicles, sought to ensure that title washing schemes would
be subject to federal prosecution.  /20/ In order for the 1984
amendment to have that effect, however, the term "falsely made" must
be understood to apply to title documents that are "genuine" but,
after completion of the washing process, contain key false
information.  If petitioner's narrow construction of the term "falsely
made" is adopted, Congress's clear purpose to outlaw title washing
schemes would be defeated.

   In sum, the available evidence suggests that Congress has not
intended the term "falsely made" in Section 2314 to be used in its
narrow common law sense.  Rather, Congress has legislated in reliance
on the assumption that the term encompasses documents that are
"falsely made" because they are produced by officials who are duped by
false information.  To give the term the narrow meaning that the
common law courts accorded it would defeat both the general purpose of
Section 2314 and Congress's specific intention that the statute reach
fraudulent conduct such as the scheme in this case.  /21/

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S. G. DENNIS, JR.

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   CHRISTINE DESAN HUSSON

      Assistant to the Solicitor General

   JOEL M. GERSHOWITZ

      Attorney

   JUNE 1990

   /1/ Co-defendants Alvin Davis, Jr., and Dennis Smith were tried and
convicted with petitioner.  The court of appeals affirmed their
convictions in the same opinion that disposed of petitioner's claims.

   /2/ The judges of the Third Circuit all recused themselves from
hearing this case.  As a result, the Chief Justice appointed three
judges from the Second Circuit to sit by designation in the Third
Circuit.  See Pet. App. 5.

   /3/ The court also rejected petitioner's attack on his Section 513
convictions.  Pet. App. 7a-8a.  Petitioner does not here challenge his
convictions on these counts.

   /4/ The Fourth, Fifth, Sixth, and Ninth Circuits have agreed with
the Third Circuit's construction of the term "falsely made." See,
e.g., United States v. Cotoia, 785 F.2d 497, 501-502 (4th Cir. 1986);
United States v. Daly, 716 F.2d at 1507-1509;  United States v.
Mitchell, 588 F.2d at 484;  United States v. Tucker, 473 F.2d 1290,
1293-1294 (6th Cir.), cert. denied, 412 U.S. 942 (1973);  United
States v. Huntley, 535 F.2d at 1402.  The Tenth Circuit has decided to
the contrary in United States v. Sparrow, 635 F.2d 794 (1980) (en
banc), cert. denied, 450 U.S. 1004 (1981).  Older decisions in the
Second, Seventh, and Eighth Circuits agreed with the view later taken
by the Tenth Circuit in the Sparrow case.  See Melvin v. United
States, 316 F.2d 647, 648 (7th Cir. 1963);  United States v. Brown,
246 F.2d 541, 542 (2d Cir. 1957);  Martyn v. United States, 176 F.2d
609, 610 (8th Cir. 1949).

   /5/ The 1939 Act also added a prohibition against the
transportation of embezzled goods, securities, and money.  See ch.
413, Section 1, 53 Stat. 1178.

   /6/ Although the main purposes of the 1939 amendment are clear, the
legislative history of the provision is scanty.  The brief references
in the legislative history to the scope of the new prohibition focused
mainly on counterfeited securities.  See H.R. Rep. No. 422, 76th
Cong., 1st Sess. 3 (1939) (incorporating letter of Attorney General);
S. Rep. No. 674, 76th Cong., 1st Sess. 1-2 (1939).

   /7/ In 1986, Congress amended the Motor Vehicle Information and
Cost Savings Act (1972), Pub. L. No. 92-513, 86 Stat. 947, to provide
that certain information uniformly be required in registering title of
motor vehicles.  Truth in Mileage Act of 1986, Pub. L. No. 99-579, 100
Stat. 3309.  At that time, six States did not require that mileage
information be included on state titles;  other States did not provide
space on the title for odometer readings upon reassignment of title;
still other States did not enforce existing requirements that mileage
be disclosed.  See S. Rep. No. 47, 99th Cong., 1st Sess. 1-2 (1985).

   /8/ In hearings on legislation to strengthen automobile anti-theft
measures in a number of statutes, including the National Stolen
Property Act, Congress in 1980 reviewed testimony detailing the
problems created by disparate and variously enforced state titling
programs.  Motor Vehicle Theft Prevention Act:  Joint Hearings on H.R.
4178 Before the House Comm. on Interstate and Foreign Commerce and the
House Comm. on Foreign Affairs, 96th Cong., 2d Sess. (1980).
According to material submitted by the U.S. Department of
Transportation, weaknesses in state titling systems stem from the
absence of review procedures designed to detect counterfeiting or
alteration, the lack of familiarity by state personnel with foreign
state title documents, and the failure by States to require
verification of foreign title validity.  Id. at 316, 317-318.

   /9/ See, e.g., Goucher v. State, 113 Neb. 352, 354-355, 204 N.W.
967, 968 (1925);  State v. Ford, 89 Or. 121, 172 P. 802 (1918);
People v. Bendit, 111 Cal. 274, 43 P. 901 (1896);  State v. Corfield,
46 Kan. 207, 26 P. 498 (1890);  State v. Young, 46 N.H. 266 (1865).

   Cases interpreting the same phrase in federal statutes generally
adopted the same approach.  See United States ex rel. Starr v.
Mulligan, 59 F.2d 200 (2d Cir. 1932);  United States v. Wentworth, 11
F. 52 (C.C.D.N.H. 1882);  United States v. Corbin, 11 F. 238
(C.C.D.N.H. 1882);  United States v. Smith, 262 F. 191 (D. Ind. 1920);
 United States v. Glasener, 81 F. 566 (S.D. Cal. 1897);  United States
v. Moore, 60 F. 738 (N.D.N.Y. 1894);  United States v. Cameron, 3 Dak.
132, 13 N.W. 561 (1882).

   /10/ See, e.g., United States v. Hartman, 65 F. 490 (E.D. Mo.
1894);  Ex parte Hibbs, 26 F. 421 (D. Ore. 1886);  Commonwealth v.
Wilson, 89 Ky. 157, 12 S.W. 264 (1889);  Moore v. Commonwealth, 92 Ky.
630, 18 S.W. 833 (1892);  Luttrell v. State, 85 Tenn. 232, 1 S.W. 886
(1886).  For a comparison of the common law approaches, see
Annotation, Genuine Making of Instrument for Purpose of Defrauding as
Constituting Forgery, 41 A.L.R. 229 (1926);  see also 37 C.J.S.
Forgery Sections 5, 11 (1943 & Supp. 1989).

   In fact, even assuming the equivalence of "false making" and
"forgery" did not end the inquiry for a number of courts, since
"forgery" itself can include procuring a genuine signature by ruse, or
sleight of hand.  As the court noted in State v. Shurtliff, 18 Me.
368, 371 (1841), where the defendant had switched deeds unbeknownst to
a seller:

      The whole was done by the hand, or by the procurement of the
      defendant.  It does not lessen the turpitude of the offence,
      that the party whom he sought to defraud was made in part his
      involuntary agent, in effecting his purpose.  * * * In truth the
      signature to that false instrument, in a moral and legal point
      of view, is as much imputable to him, as if he had done it with
      his own hand.

See In re Count de Toulouse Lautrec, 102 F. 878 (7th Cir. 1900);
People v. Nesseth, 127 Cal. App. 2d 712, 274 P.2d 479 (1954);  Warren
v. State, 247 Ala. 595, 25 So. 2d 698 (1946);  Biddeford Nat'l Bank v.
Hill, 102 Me. 346, 66 A. 721 (1907).

   /11/ See Reg. v. Ritson, 11 Cox's Crim. Law Cas. 352 (1869);  1
Hale P.C. ch. 64, at 683 (1847);  1 Hawk. P.C. ch. 70, at 336 (6th ed.
1777);  see also 2 J. Bishop, Criminal Law Section 584 (9th ed. 1923)
(quoting Coke).

   /12/ The statute at issue in the Staats case was Section 1 of the
Act of Mar. 3, 1823, ch. 38, Section 1, 3 Stat. 771-772.  The statute
at issue in the Davis case was a direct successor statute, Section
5421 of the Revised Statutes, which was codified as Section 29 of the
Criminal Code of 1909, ch. 321, 35 Stat. 1094.

   /13/ The prosecution in Staats was brought only under the third
clause of the statute.  In Davis, the government did not contest the
decision of the lower court that the first clause of Rev. Stat.
Section 5421 embraced only those documents that were forged or
counterfeited, conceding the point without explanation.

   /14/ Rev. Stat. Section 5421 (1878 ed.) provided in relevant part
(emphasis added):

      Every person who falsely makes, alters, forges, or counterfeits;
       or causes or procures to be falsely made, altered, forged, or
      counterfeited(,) * * * any deed, power of attorney * * * or
      other writing, for the purpose of obtaining * * * from the
      United States * * * any sum of money;  or who utters or
      publishes as true, or causes to be uttered or published as true,
      any such false, forged, altered, or counterfeited deed, power of
      attorney, * * * or other writing, knowing the same to be false,
      altered, forged, or counterfeited;  or who transmits to, or
      presents at, or causes or procures to be transmitted to, or
      presented at, any * * * (federal officer or office), any deed,
      power of attorney, * * * or other writing, in support of, or in
      relation to, any account or claim, with intent to defraud the
      United States, knowing the same to be false, altered, forged, or
      counterfeited, shall * * * (be guilty of a crime).

   /15/ As reenacted, Section 495 provided (emphasis added):

         Whoever falsely makes, alters, forges or counterfeits any * *
      * writing, for the purpose of obtaining * * * from the United
      States * * * any sum of money;  or

         Whoever utters or publishes as true any such false, forged,
      altered, or counterfeited writing, * * * knowing the same to be
      false, altered, forged, or counterfeited;  or

         Whoever transmits to, or presents at * * * (any federal
      officer or office), any such writing in support of, or in
      relation to, any account or claim, with intent to defraud the
      United States, knowing the same to be false, altered, forged, or
      counterfeited * * * (shall be guilty of a crime).

   /16/ See Motor Vehicle Theft Law Enforcement Act of 1983:  Hearing
on S. 1400 Before the Senate Comm. on Commerce, Science, and
Transportation, 98th Cong., 1st Sess. 1 (1983) (discussing rise and
increasing professionalization of auto theft);  Motor Vehicle Theft
Law Enforcement Act:  Hearing on H.R. 2235 Before the House Comm. on
Energy and Commerce, 98th Cong., 1st Sess. (1983) (hereinafter House
Hearing), at 2-3, 4 73 (same).  The bill sought to give "law
enforcement officials at all levels of government" the tools to "crack
criminal theft rings" and "to apprehend, successfully prosecute and
punish motor vehicle thieves." H.R. Rep. No. 1087, supra, Pt. 1, at
2-3.

   /17/ See, e.g., House Hearing 52-53, 60;  Motor Vehicle Theft
Prevention Act:  Joint Hearings on H.R. 4178 Before the House Comm. on
Interstate and Foreign Commerce and the House Comm. on Foreign
Affairs, 96th Cong., 2d Sess. 304-305, 306-331 (1980) (hereinafter
Joint Hearings).

   /18/ See Joint Hearings 314-315, 316-317.

   /19/ The scheme also closely parallels the one that was the subject
of the prosecution in United States v. Daly, supra.  In that case, a
car theft ring operating in California routinely altered the vehicle
identification numbers of stolen vehicles, and sent counterfeited
certificates with matching identification numbers to Nebraska.  The
state vehicle registration policy there did not require a car's
presence in the State nor did it provide that a State in which a
vehicle had been registered would be notified of the impending
registration transfer.  Nebraska thus issued "genuine" motor vehicle
titles, which defendants were successfully prosecuted for transporting
in interstate commerce.  716 F.d at 1502-1503.

   /20/ Although the hearing testimony focused on title reforms
necessary to deter traffic in stolen vehicles, Joan Claybrook of the
National Traffic Highway Safety Administration identified "odometer
rollback" as another area of fraud.  She noted that "(t)he title is
also quite important for notification of the odometer reading at the
time of the exchange of title." Joint Hearings 304-305.

   /21/ As we have noted above (see note 10, supra), the type of
fraudulent inducement represented by the title washing scheme in this
case was considered by some courts at common law to be forgery.  Thus,
in the event that this Court determines that Congress intended to
adopt the restrictive common law meaning of "falsely made" as
equivalent to "forged," Section 2314 would still apply to prohibit
this type of forgery.  That construction of the term "falsely made"
would limit the incongruity between imputing liability to those who
alter or forge a motor vehicle title, and those who obtain the same
result by submitting false information to state officials issuing the
title.

   If the case is decided in this manner, it would require remand for
a new trial, because the trial court in this case did not instruct the
jury to consider whether petitioner had transported the titles with
the knowledge that they had been obtained by fraudulently inducing
their issuance on the basis of false information.