B-146412, AUGUST 1, 1961, 41 COMP. GEN. 62

B-146412: Aug 1, 1961

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OF MEMBER - NOLO CONTENDERE PLEA A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES ( MISSISSIPPI NATIONAL GUARD) WHO WAS CONVICTED OF PRESCRIBING FALSE CLAIMS UNDER 18 U.S.C. 73 (1940 USED.). WHICH IS NOW CODIFIED IN 18 U.S.C. 495 AND IS NOT ONE OF THE SPECIFIC OFFENSES ENUMERATED IN CLAUSE (1) OF SECTION 1 OF THE ACT OF SEPTEMBER 1. EVEN THOUGH THERE ARE SIMILARITIES BETWEEN THE FRAUD PROVISIONS IN 18 U.S.C. 73 AND 18 U.S.C. 80. WHICH IS INCLUDED AS ONE OF THE OFFENSES IN THE 1954 ACT. IF THE RECORD ESTABLISHES THAT THE OFFENSE WAS COMMITTED IN THE EXERCISE OF THE MEMBER'S AUTHORITY. ALTHOUGH THERE ARE SIMILARITIES BETWEEN THE FRAUD PROVISIONS IN 18 U.S.C. 73 UNDER WHICH A MEMBER OF A STATE NATIONAL GUARD WAS CONVICTED AND 18 U.S.C. 80 (BOTH IN THE 1940 USED.).

B-146412, AUGUST 1, 1961, 41 COMP. GEN. 62

PAY - RETIRED - EFFECT OF ACT OF SEPTEMBER 1, 1954, PROHIBITING PAYMENT TO PERSONS CONVICTED OF CERTAIN OFFENSES - FALSE CLAIMS - OFFENSES WITHIN AUTHORITY, INFLUENCE, ETC., OF MEMBER - NOLO CONTENDERE PLEA A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES ( MISSISSIPPI NATIONAL GUARD) WHO WAS CONVICTED OF PRESCRIBING FALSE CLAIMS UNDER 18 U.S.C. 73 (1940 USED.) WHICH IS NOW CODIFIED IN 18 U.S.C. 495 AND IS NOT ONE OF THE SPECIFIC OFFENSES ENUMERATED IN CLAUSE (1) OF SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, PRECLUDING RECEIPT OF RETIRED PAY BY OFFICERS CONVICTED OF CERTAIN OFFENSES, HAS NOT BEEN CONVICTED OF AN OFFENSE UNDER CLAUSE (1) OF SECTION 1 OF THE 1954 ACT TO DISQUALIFY THE MEMBER FROM RECEIVING RETIRED PAY, EVEN THOUGH THERE ARE SIMILARITIES BETWEEN THE FRAUD PROVISIONS IN 18 U.S.C. 73 AND 18 U.S.C. 80--- THE LATTER SECTION HAVING BEEN CODIFIED IN PART IN 18 U.S.C. 287, WHICH IS INCLUDED AS ONE OF THE OFFENSES IN THE 1954 ACT; HOWEVER, IF THE RECORD ESTABLISHES THAT THE OFFENSE WAS COMMITTED IN THE EXERCISE OF THE MEMBER'S AUTHORITY, INFLUENCE, POWER OR PRIVILEGES AS AN OFFICER OF THE UNITED STATES WITHIN THE MEANING OF CLAUSE (2) OF SECTION 1 OF THE 1954 ACT, INVOCATION OF THE RETIRED PAY WITHHOLDING PROVISIONS WOULD BE PROPER. ALTHOUGH THERE ARE SIMILARITIES BETWEEN THE FRAUD PROVISIONS IN 18 U.S.C. 73 UNDER WHICH A MEMBER OF A STATE NATIONAL GUARD WAS CONVICTED AND 18 U.S.C. 80 (BOTH IN THE 1940 USED.), THE LATTER SECTION HAVING BEEN RECODIFIED IN PART IN 18 U.S.C. 287, WHICH IS ONE OF THE OFFENSES ENUMERATED IN CLAUSE (1), SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, PRECLUDING RECEIPT OF RETIRED PAY BY OFFICERS OF THE UNITED STATES CONVICTED OF CERTAIN OFFENSES, AN ASSUMPTION THAT THE MEMBER WAS CONVICTED UNDER 18 U.S.C. 80 MAY NOT BE MADE; TO INVOKE THE RETIRED PAY WITHHOLDING PROVISIONS IN THE 1954 ACT, THE RECORD MUST AFFIRMATIVELY ESTABLISH THAT THE MEMBER WAS CONVICTED UNDER 18 U.S.C. 80. A CONVICTION OF A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES ( MISSISSIPPI NATIONAL GUARD) UNDER 18 U.S.C. 73 (1940 USED./--- NOW CODIFIED AS 18 U.S.C. 498--- WHICH CONCERNS FRAUDULENT DOCUMENTS IN CONNECTION WITH DEFRAUDING THE UNITED STATES AND WHICH IS NOT ONE OF THE OFFENSES ENUMERATED IN CLAUSE (1) SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2282, PRECLUDING RECEIPT OF RETIRED PAY BY PERSONS CONVICTED OF CERTAIN OFFENSES, DOES NOT IN ITSELF DISQUALIFY THE MEMBER FROM RECEIVING RETIRED PAY AND, THEREFORE, IN ORDER FOR A CONDITION UNDER 18 U.S.C. 73 TO DISQUALIFY THE MEMBER FROM RECEIVING RETIRED PAY, THE OFFENSE MUST BE AN OFFENSE COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OF THE UNITED STATES AS SPECIFIED IN CLAUSE (2) OF SECTION 1 OF THE 1954 ACT. IN THE DETERMINATION OF WHETHER AN OFFENSE FOR WHICH A CAPTAIN IN THE NATIONAL GUARD WAS CONVICTED WAS "COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT" WITHIN THE MEANING OF CLAUSE (2), SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, WHICH PRECLUDES RECEIPT OF RETIRED PAY, THE MERE FACT THAT THE MEMBER WAS A CAPTAIN IN THE NATIONAL GUARD AT THE TIME WOULD HAVE NO BEARING ON THE MATTER. A PLEA OF "NOLO CONTENDERE" BY A MEMBER OF THE NATIONAL GUARD OF THE UNITED STATES ( MISSISSIPPI NATIONAL GUARD) TO AN INDICTMENT FOR PRESCRIBING FALSE CLAIMS AGAINST THE UNITED STATES UNDER 18 U.S.C. 73 MUST BE REGARDED AS HAVING THE SAME FORCE AND EFFECT AS A CONVICTION UNDER A PLEA OF GUILTY IN THE APPLICATION OF THE ACT OF SEPTEMBER 1, 1954, WHICH PRECLUDES THE RECEIPT OF RETIRED PAY BY MEMBERS CONVICTED OF CERTAIN OFFENSES, IN THE ABSENCE OF A DEFINITION OF THE WORDS ,CONVICTED" AND "CONVICTION" IN THE 1954 ACT AND PENDING AN AUTHORITATIVE JUDICIAL DECISION.

TO THE SECRETARY OF THE ARMY, AUGUST 1, 1961:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 12, 1961, REQUESTING A DECISION WHETHER MASTER SERGEANT JAMES E. SHAW, JR., UNITED STATES ARMY, WILL BE PRECLUDED FROM ENTITLEMENT TO RETIRED PAY FROM THE ARMY BY THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, AS AMENDED, 5 U.S.C. 2281, ET SEQ., IN VIEW OF HIS CONVICTION ON APRIL 27, 1939, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI. THE REQUEST FOR DECISION WAS ASSIGNED SUBMISSION NO. SS-A-587 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT THE INDICTMENT CHARGED 26 COUNTS OF PRESCRIBING FALSE CLAIMS AGAINST THE UNITED STATES (TO THE DISTRICT DIRECTOR OF THE WPA) UNDER TITLE 18, U.S. CODE, SECTION 73, THE CHARGE ,PROBABLY" BEING LAID UNDER 18 U.S.C. 80 (1940 USED.). IT IS FURTHER REPORTED THAT AT THE TIME THE OFFENSES WERE COMMITTED SERGEANT SHAW WAS A CAPTAIN IN THE NATIONAL GUARD OF THE UNITED STATES ( MISSISSIPPI NATIONAL GUARD); THAT HE WAS EMPLOYED BY THE MISSISSIPPI FORESTRY COMMISSION, AND THAT HE ENTERED A PLEA OF "NOLO CONTENDERE" TO THE CHARGES.

SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142 (5 U.S.C. 2282), PROVIDES IN PART:

THAT THERE SHALL NOT BE PAID TO ANY PERSON CONVICTED PRIOR TO, ON, OR AFTER THE DATE OF ENACTMENT OF THIS ACT OF ANY OF THE FOLLOWING OFFENSES DESCRIBED IN THIS SECTION, OR TO THE SURVIVOR OR BENEFICIARY OF SUCH PERSON SO CONVICTED, FOR ANY PERIOD, SUBSEQUENT TO THE DATE OF SUCH CONVICTION OR THE DATE OF ENACTMENT OF THIS ACT, WHICHEVER IS LATER, ANY ANNUITY OR RETIRED PAY ON THE BASIS OF THE SERVICE OF SUCH PERSON AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT:

(1) ANY OFFENSE DEFINED IN SECTION 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 216, 217, 218, 219, 220, 221, 222, OR 223 OF CHAPTER 11 (RELATING TO BRIBERY AND GRAFT), SECTION 281, 282, 283, 284, 285, 286, OR 287 OF CHAPTER 15 (RELATING TO CLAIMS AND SERVICES IN MATTERS AFFECTING GOVERNMENT), SECTION 434, 435, 436, 441, 442, OR 443 OF CHAPTER 23 (RELATING TO CONTRACTS), CHAPTER 37 (RELATING TO ESPIONAGE AND CENSORSHIP), SECTION 1700, 1702, 1703, 1704, 1705, 1706, 1707, 1708, 1709, 1711, OR 1712 OF CHAPTER 83 (RELATING TO OFFENSES INVOLVING THE POSTAL SERVICE), CHAPTER 105 (RELATING TO SABOTAGE), OR CHAPTER 115 (RELATING TO TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES) OF TITLE 18 OF THE U.S.C. OR IN SECTION 10 OR 16 OF THE ATOMIC ENERGY ACT OF 1946 (42 U.S.C., SECS. 1810 AND 1816);

(2) ANY OFFENSE (NOT INCLUDING ANY OFFENSE WITHIN THE PURVIEW OF SECTION 13 OF TITLE 18 OF THE UNITED STATES CODE) WHICH IS A FELONY UNDER THE LAWS OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA (A) COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT * * *.

18 U.S.C. 287 RELATES TO FALSE CLAIMS AND IS SPECIFICALLY ENUMERATED IN CLAUSE (1) OF SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, AS ONE OF THE OFFENSES FOR WHICH THE ACT REQUIRES LOSS OF RETIRED PAY. THE PROVISIONS OF 18 U.S.C. 80 (1940 USED.), WERE SUBSEQUENTLY DIVIDED INTO TWO PARTS, THE PORTION MAKING IT A CRIME TO PRESENT FALSE CLAIMS AGAINST THE UNITED STATES, OR ANY DEPARTMENT THEREOF, BEING RETAINED IN 18 U.S.C. 287. THAT PART RELATING TO FALSE STATEMENTS IS NOW SECTION 1001, TITLE 18 OF THE UNITED STATES CODE. ALSO, THE LEGISLATIVE HISTORY OF THE 1954 LAW INDICATES A LEGISLATIVE INTENT TO COVER FALSE CLAIMS AGAINST THE GOVERNMENT INCIDENT TO GOVERNMENT EMPLOYMENT. SECTION 80 PROVIDED A PENALTY OF A FINE OF NOT MORE THAN $10,000 OR IMPRISONMENT FOR NOT MORE THAN 10 YEARS, OR BOTH.

SECTION 73 OF TITLE 18, U.S.C. (1940 USED.), CONCERNED FRAUDULENT DOCUMENTS IN CONNECTION WITH DEFRAUDING THE UNITED STATES AND PROVIDED A PENALTY OF A FINE OF NOT MORE THAN $1,000 AND IMPRISONMENT FOR NOT MORE THAN 10 YEARS. THE PROVISIONS OF THAT SECTION ARE NOW CONTAINED IN SECTION 495 OF TITLE 18, U.S. CODE, WHICH IS NOT ONE OF THE OFFENSES ENUMERATED IN CLAUSE (1) OF SECTION 1 OF THE 1954 ACT.

SECTION 541 OF TITLE 18 OF THE 1940 CODE DEFINED A FELONY AS AN OFFENSE PUNISHABLE BY DEATH OR IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR.

SINCE SECTION 495 IS NOT ONE OF THE SECTIONS ENUMERATED IN CLAUSE (1) OF SECTION 1 OF THE 1954 ACT, CONVICTION UNDER ITS PREDECESSOR STATUTE (SECTION 73 OF THE 1940 EDITION OF THE U.S. CODE) DOES NOT IN ITSELF DISQUALIFY THE MEMBER FROM RECEIVING RETIRED PAY. IN ORDER FOR CONVICTION UNDER THAT STATUTE TO DISQUALIFY THE MEMBER FROM RECEIVING RETIRED PAY, THE OFFENSE MUST BE AN OFFENSE COVERED BY CLAUSE (2) OF SECTION 1 OF THAT ACT. WHILE THERE ARE SIMILARITIES BETWEEN SECTION 73 AND SECTION 80 OF TITLE 18 OF THE 1940 EDITION OF THE U.S. CODE, WE MAY NOT ASSUME THAT THE MEMBER WAS CONVICTED UNDER SECTION 80. IN ORDER TO WITHHOLD RETIRED PAY BECAUSE OF A CONVICTION UNDER SECTION 80, THE RECORD MUST AFFIRMATIVELY ESTABLISH THAT HE WAS IN FACT CHARGED AND CONVICTED UNDER THAT SPECIFIC STATUTE. HENCE, IN THE ABSENCE OF A RECORD OF CONVICTION UNDER THAT SECTION, IT IS NECESSARY TO DETERMINE WHETHER THE OFFENSE IS ONE "COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OR EMPLOYEE" OF THE UNITED STATES.

IN OUR DECISION OF NOVEMBER 29, 1955, 35 COMP. GEN. 302, WE POINTED OUT THAT THE PURPOSE OF THE ACT OF SEPTEMBER 1, 1954, IS TO BAR PAYMENT OF ANY ANNUITY OR RETIRED PAY TO ANY PERSON WHO COMMITS AN ACT OR OFFENSE COMING WITHIN ITS PROVISIONS AND THAT IT IS THUS A STATUTE WHICH IS MAINLY PENAL IN NATURE. ALSO, WE THERE STATED THAT IT IS AN ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT STATUTES WHICH IMPOSE PENALTIES OR FORFEITURES ARE TO BE CONSTRUED STRICTLY AND THAT THERE APPEARS TO BE NO REASON WHY THE ACT OF SEPTEMBER 1, 1954, SHOULD BE REGARDED AS BEING APPLICABLE TO SITUATIONS WHICH ARE NOT SHOWN TO BE EXPRESSLY COVERED BY ITS PROVISIONS.

DOUBT IN THE MATTER OF THE APPLICABILITY OF THE PERTINENT PROVISIONS OF SECTION 1 OF THE 1954 ACT IN THE INSTANT CASE ARISES FROM THE FACT THAT THE INFORMATION FURNISHED DOES NOT DEFINITELY ESTABLISH THE MANNER IN WHICH THE MEMBER COMMITTED THE OFFENSES AND DOES NOT SHOW WHETHER THE MEMBER WAS IN FACT AN "OFFICER OR EMPLOYEE" OF THE UNITED STATES AT THE TIME THE OFFENSES WERE COMMITTED. THE MERE FACT THAT THE MEMBER WAS A CAPTAIN IN THE NATIONAL GUARD OF THE UNITED STATES AT THE TIME WOULD, OF COURSE, HAVE NO BEARING ON THE MATTER UNDER CONSIDERATION HERE. THEREFORE, WE CANNOT DETERMINE FROM THE INFORMATION FURNISHED WHETHER SERGEANT SHAW WAS CONVICTED OF A FELONY WITHIN THE MEANING OF THE 1954 LAW SO AS TO PRECLUDE HIM FROM ENTITLEMENT TO RETIRED PAY. HOWEVER, IF, ON THE BASIS OF THE INFORMATION BEFORE YOUR OFFICE, THERE IS DOUBT WHETHER THE OFFENSES OF WHICH THE MEMBER WAS CHARGED WERE COMMITTED INCIDENT TO THE EXERCISE OF HIS "AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES" AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES, THE MATTER MAY BE SUBMITTED HERE FOR FURTHER CONSIDERATION TOGETHER WITH A COMPLETE STATEMENT OF THE FACTS AS DISCLOSED BY THE OFFICIAL RECORDS. SEE IN THAT CONNECTION DECISION OF MAY 22, 1961, 40 COMP. GEN. 635.

THERE REMAINS FOR CONSIDERATION THE QUESTION OF WHETHER A SENTENCE PURSUANT TO A PLEA OF "NOLO CONTENDERE" HAS THE SAME FORCE AND EFFECT AS A CONVICTION UNDER A PLEA OF GUILTY WITHIN THE CONTEMPLATION OF THE ACT OF SEPTEMBER 1, 1954.

THE WORDS "CONVICTED" AND "CONVICTION," AS USED IN SECTION 1 ARE NOT DEFINED IN THE ACT OF SEPTEMBER 1, 1954. IT HAS BEEN SAID THAT IN CRIMINAL PROCEDURE THE WORDS ARE OF EQUIVOCAL MEANING, HAVING BOTH A POPULAR AND TECHNICAL SIGNIFICATION, THE CONSTRUCTION THEREOF NOT ALWAYS BEING UNIFORM, BUT APPEARING TO DEPEND UPON AN INTERPRETATION OF THE PARTICULAR LAW UNDER CONSIDERATION SO AS TO EFFECTUATE THE PURPOSE THEREOF. SEE 18 C.J.S., CONVICTION, PAGE 97.

A PLEA OF "NOLO CONTENDERE," SOMETIMES CALLED ALSO A PLEA OF "NON VULT" OR A PLEA OF "NOLLE CONTENDERE," MEANS LITERALLY " I DO NOT WISH TO CONTEND.' IT HAS ITS ORIGIN IN THE EARLY ENGLISH COMMON LAW AND HAS THE EFFECT OF A PLEA OF GUILTY FOR THE PURPOSES OF THAT CASE IN STATE AND FEDERAL COURTS. SEE FOX V. SCHEIDT, 84 S.E.2D 259, 262. IT HAS BEEN HELD THAT THE ENTRY OF A PLEA OF "NOLO CONTENDERE" CONSTITUTES A CONVICTION MAKING AN INDIVIDUAL A SECOND OFFENDER UPON A SUBSEQUENT CONVICTION. SEE PEOPLE V. DAIBOCH, 191 N.E. 859, 860. TO THE SAME EFFECT ARE BROZOSKY V. STATE, 222 N.W. 311, 313, AND STATE V. SUICK, 217 N.W. 743, 744. UNITED STATES EX REL. BRUNO V. REIMER, COMMISSIONER OF IMMIGRATION, 98 F.2D 92, INDICATES THAT THE FEDERAL COURTS WILL TREAT THE PLEA OF "NOLO CONTENDERE" AS A CONVICTION UNDER ANALOGOUS CIRCUMSTANCES. CF. HUDSON V. UNITED STATES, 272 U.S. 451; UNITED STATES V. NORRIS, 281 U.S. 619; STATE V. FOUSEK, 8 P.2D 795; COMMONWEALTH V. JACKSON, 94 A. 233; 51 YALE LAW JOURNAL 1255. THE EVIDENT PURPOSE OF THE STATUTE INVOLVED IS TO DENY PAYMENT OF ANNUITY OR RETIRED PAY TO ANY PERSON CONVICTED OF ANY OF THE LISTED OFFENSES OR TO THE SURVIVORS OR BENEFICIARY OF SUCH PERSON SO CONVICTED. IN SUCH CIRCUMSTANCES AND PENDING AN AUTHORITATIVE JUDICIAL DECISION TO THE CONTRARY, IT IS BELIEVED PROPER TO ADOPT THE INTERPRETATION THAT A PLEA OF "NOLO CONTENDERE" HAS THE SAME FORCE AND EFFECT AS A CONVICTION UNDER A PLEA OF GUILTY IN THE APPLICATION OF THE ACT OF SEPTEMBER 1, 1954. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.

AS A MATTER OF INFORMATION, YOUR ATTENTION IS CALLED TO THE FACT THAT H.R. 6141, 87TH CONGRESS (A BILL TO LIMIT THE PROHIBITION IN THE ACT OF SEPTEMBER 1, 1954), WAS PASSED BY THE HOUSE OF REPRESENTATIVES ON JULY 12, 1961, AND IS NOW UNDER CONSIDERATION BY THE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, UNITED STATES SENATE.