United States v. William J. Johnson

JERRE S. WILLIAMS, Circuit Judge,

with whom

CLARK, Chief Judge, GEE and E. GRADY JOLLY, Circuit Judges, join, dissenting:

I agree wholeheartedly with the principle that “the due process clause ‘protects the accused against conviction except upon proof of every fact necessary to constitute the crime with which he is charged.’ ”1 The majority of the Court however, moves far beyond this principle by interpreting it to take from the judge in a criminal trial his right and, indeed, his duty to instruct the jury on the law. The majority argues that a judge may not instruct the jury that a Gold Certificate such as was involved in this case falls within Congress’ definition of a security as a matter of law, because that takes from the jury its right to decide whether every fact necessary to prove every element of an offense has been established. This argument is fundamentally flawed.

First, a jury’s right to decide the facts is not infringed by a judge making a declaration of law. To hold otherwise ignores the distinction between questions of fact and law. Because the distinction between questions of fact and law may often be unclear, the majority notes that the jury has a right to pass on the law as well as on the facts. The jury’s power to pass on the law, however, does not negate the judge’s right and duty to declare the law. The majority nevertheless concludes that, in a criminal trial, the judge is preempted from making any positive statements about the law as it affects an element of the offense in other than broad definitional terms, lest the jury be preempted from deciding the facts. Since the dawn of the American legal tradition and the early days of the English common law it has been established, however, that the jury has the power to rule on what is the law, but not the right to do so. The jury’s duty is to follow the law as pronounced by the judge. Sparf v. United States, 156 U.S. 51, 15 S.Ct. 73, 39 L.Ed. 343 (1895).2 Thus Justice Story wrote in United States v. Battiste, 24 F.Cas. 1042, 1043 (C.C. *1327D.Mass.1835) (No. 14,545), quoted also in the majority opinion:

[T]he jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, then they are in every civil case tried upon the general issue. In each of these cases, their verdict, when general, is necessarily compounded of law and of fact; and includes both. In each they must necessarily determine the law, as well as the fact. In each, they have the physical power to disregard the law, as laid down to them by the court. But I deny, that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions, or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court.

That the jury is bound to follow the judge’s instructions is considered to be black letter law. See 3 L. Orfield, Criminal Procedure Under the Federal Rules § 23:26 (1966). The jury rules on the law, not because it is entitled by expertise to do so, but because in the chronological sequence of trials the jury has the last word. Chief Justice Shaw recognized this in his thorough and scholarly opinion in Commonwealth v. Anthes, 71 Mass. (5 Gray) 185, 208 (1855):

[I]n practice, the verdict of a jury, both upon the law and the fact, is conclusive; because, from the nature of the proceeding, there is no judicial power by which the conclusion of law thus brought upon the record by that verdict can be reversed, set aside, or inquired into.
A general verdict, either of conviction or acquittal, does embody and declare the result of both the law and the fact, and there is no mode of separating them on the record so as to ascertain whether the jury passed their judgment on the law, or only on the evidence. The law authorized them to adjudicate definitively on the evidence; the law presumes that they acted upon correct rules of law given them by the judge; the verdict therefore stands conclusive and unquestionable, in point both of law and fact.
In a certain limited sense, therefore, it may be said that the jury have a power and a legal right to pass upon both the law and the fact. And this is sufficient to account for many and most of the dicta in which the proposition is stated. But it would be more accurate to state, that it is the right of the jury to return a general verdict; this draws after it, as a necessary consequence, that they incidentally pass upon the law.

The ability to pass upon the law then, is inherent in the jury’s crucial right, the right to return a general verdict. The jury is not deprived of its right to find a defendant guilty or not guilty upon each and every element of the offense charged by a judge’s declaration of law, since the jury applies the law as given by the judge, and is the final arbiter of guilt or innocence. Therefore, it was not error for the district judge to inform the jury that, as a matter of law, the Gold Certificate was a security under the detailed and thorough definition by the Congress. Making that ruling was not synonomous to directing a verdict. Even if the only element of the offense in dispute was whether or not the Gold Certificate was a security, and the judge instructed that the Gold Certificate was a security as a matter of law, the jury would still have had the power to return a general verdict of not guilty. That would be an instance of the jury deciding against the law as pronounced by the judge.

The majority of the Court takes the stringent view that “every element” of the offense must be submitted to the jury, and includes the definition of a security as an element of the offense. The majority relies on Roe v. United States, 287 F.2d 435 (5th Cir.), cert. denied, 368 U.S. 824, 82 S.Ct. 43, 7 L.Ed.2d 29 (1961), for the proposition that the jury is the proper instrument to decide *1328whether documents are securities, and cites the passage:

More than that, this being a criminal case ... no fact, not even an undisputed fact, may be determined by the judge. The plea of not guilty puts all in issue, even the most patent truths. In our federal system, the Trial Court may never instruct a verdict in whole or in part.

287 F.2d at 440. This statement by the Court in Roe, however, becomes more accurate and enlightening when it is read in connection with the words which immediately precede it:

[W]e determine that, as a matter of ¡aw, the evidence of these transactions, if credited, would constitute the sale or delivery of an “investment contract,” hence a “security” thereby requiring registration with the SEC. But the if in “if credited” is a big one. By its very nature, it is the peculiar facts of the setting which turns the offer from a mere sale of property into a sale of a security. That means that the trier of fact, here a jury, must determine the issue.

Id. (emphasis added). Roe concerned a mail solicitation campaign which culminated in the sale of mineral leases. The mineral leases on their face were not securities. Rather, the representations made in connection with the sales brought the mineral leases into the category of securities. Thus the question of whether the mineral leases were securities was a mixed question of fact and law. I have no dispute with the proposition that evidence of representations made to prospective customers raised fact issues for the jury. Only if this evidence was credited did the mineral leases constitute securities as a matter of law. In Roe, then, the mixed question was properly submitted to the jury.

Roe is correctly decided. So also are all four cases the majority cites in footnote sixteen in support of its position. In those cases there were questions of fact involved which had to be submitted to a jury. It is accurate to say that one may not decide as a question of law whether an outlet is “comparable,” United States v. Heller, 635 F.2d 848, 856-57 (Em.App.1980), whether a loan is a “loanshark” loan, United States v. Benedetto, 558 F.2d 171, 176-77 (3d Cir.1977), whether a pop bottle is a dangerous weapon, Greenfield v. United States, 341 F.2d 411, 412-13 (D.C.Cir.1964) (per curiam), or whether a defendant has failed to pay a wagering tax, DeCecco v. United States, 338 F.2d 797, 798 (1st Cir.1964). All of those questions turn on a number of factual circumstances rather than on a concrete document’s characteristics and a detailed definition provided by Congress. In Heller the jury had to weigh witnesses’ testimony to determine what was the nearest comparable outlet. In Benedetto there was the question of whether creditors knew they incurred the risk of violence in taking out high interest loans. In Greenfield the jury had to examine the circumstances and manner in which a pop bottle was wielded to determine if it was a dangerous weapon, and in DeCecco the jury had to decide whether the government’s failure to issue a wagering stamp to the defendant was sufficient to prove that the defendant had not paid his tax.

All of the above cases differ from the present case. In this case there was no need to weigh testimony or rely on external facts to determine that the Gold Certificate was a security. Although a “Gold Certificate Contract” is not expressly named under the statute as is a travelers check, the certificate fell literally into the statutory definition by undertaking to “assign” gold. The statutory definition includes an “instrument or document or writing evidencing ownership of goods, wares, and merchandise, or transferring or assigning any right, title, or interest in or to goods, wares, and merchandise.... ” 18 U.S.C. § 2311. Thus it was unnecessary to decide factual issues to decide that the Gold Certificate was a security. The question was properly decided as a question of law, whereas the cases the majority relies on were properly characterized as presenting mixed questions of fact and law, and thus jury questions.

The crucial issue which is to be submitted to the jury in a case such as the one before *1329us is whether the accused acted with knowledge and intent — in other words, did Johnson know the document was a security? The element of intent is usually a subjective view of the state of mind of the accused — a view that belongs within the exclusive domain of the jury. United States v. De La Barra, 447 F.2d 193 (5th Cir.1971); Anderson v. United States, 406 F.2d 529 (8th Cir.1969); Hansen v. United States, 326 F.2d 152 (9th Cir.1963); Karikas v. United States, 296 F.2d 434 (D.C.Cir.1961); Harris v. United States, 285 F.2d 85 (5th Cir.1960), cert. denied, 368 U.S. 820, 82 S.Ct. 38, 7 L.Ed.2d 26 (1961). A defendant, for example, may believe he was carrying a water pistol rather than a .357 Magnum, but that negates only the requisite intent, not the existence of a firearm. In the case before us, Johnson might have believed he was transporting something other than a security. Such a belief would have been incorrect as a matter of law, but would have negated the requisite intent.

Admittedly, the question of whether Johnson knowingly and intentionally transported a falsely made security across state lines must be proved in every respect in order to sustain a conviction. The majority of the Court has focused on the term “security” in urging that Johnson has not had a sufficient jury determination of his guilt. But the majority’s focus is unpersuasive, for the jury did confer upon proper instruction on the crucial fact issues needed to sustain a conviction. The question that only a jury could decide was not whether the document was a security, but whether Johnson intended it to serve as a security when he moved it into interstate commerce. The jury, after having been charged that the document was a security, found that he transported it across state lines knowingly and intentionally. They found no mistaken belief that the Gold Certificate Contract was something else, such as a brokerage contract or a piece of tomfoolery. The jury thus found Johnson guilty of every factual element of the offense with which he was charged.

The majority opinion correctly lists relevancy and pertinency as significant historical instances where judges decide some elements of offenses as questions of law. Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 273, 73 L.Ed. 692, 700 (1929). It is asserted that these instances are exceptions and should not be extended to the definition of a security. The majority distinguishes between deciding pertinency and materiality and deciding whether a document falls within a statutory definition on the basis that one primarily reasons to determine whether a question or evidence is pertinent or material, whereas one weighs evidence to decide whether a document is a security. The majority’s distinction is not persuasive since a judge cannot decide relevancy or materiality in a vacuum; the judge must consider the factual context of an investigation or trial to reason whether a question or piece of evidence is pertinent.

There are many instances where the judge may be able to determine that an article falls within a statutory definition without having to consider more than the definition and the article itself. The majority of the Court apparently recognizes this, as indicated by its somewhat contradictory footnote thirteen. There the Court states that whether a generic type of document, such as a traveler’s check or an equipment lease, is a security is a question of law. The majority offers no explanation for why a defendant has no right to have a jury decide whether a generic document is a security, but does have a right to have a jury decide whether some “other” document meets Congress’ definition. The distinction is not supported by logic or authority. The proper test is clear: as long as a judge need not weigh the probative value of evidence to make his decision, it is proper for a judge to determine whether or not an item is a security as a matter of law. Although there was expert testimony introduced in this case designed to sway the jury, as long as the judge could conclude from the detailed statutory definition, from legal precedent, and from the certificate itself that the Gold Certificate was a security as a matter of law, it was proper for him to do so.

*1330Precise authority already controls this case. This is the authority establishing what constitutes a security as a question of law under Section 2811. As the majority opinion points out, the distinction between a question of fact and a question of law is not always clear. Mere difficulty of distinction, however, does not relieve the judge of his duty to make such a distinction.3 In this instance, both logic and precedent confirm that it was proper to find the Gold Certificate a security as a matter of law. The case law both in this and other courts is overwhelming in establishing in criminal trials under the National Stolen Property Act, 18 U.S.C. §§ 2311, 2314, the statute under which appellant was convicted, that documents covered by the definition of “securities” in that statute4 are properly found to be securities as a matter of law. The Supreme Court faced a case involving stolen checks in United States v. Sheridan, 329 U.S. 379, 67 S.Ct. 332, 91 L.Ed. 359 (1946). The Court did not question what was apparently the trial court’s ruling that the checks were securities within the meaning of the statute. The only factual issue was found to be whether the defendant had brought about the requisite interstate commerce. In United States v. Elliott, 571 F.2d 880, 907-08 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978), this Court held that a Georgia state automobile title certificate is evidence of an interest in property as a matter of law. The case, brought under 18 U.S.C. § 2315 and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, looked to the section 2311 definition of security as including a document evidencing ownership of goods, and found that the title *1331certificate fit within the statutory definition as a matter of law.

Similarly, in United States v. Bass, 562 F.2d 967, 969 (5th Cir.1977), we affirmed a holding that payroll drafts were securities as a matter of law within the reach of section 2314. We upheld the verdict of the district court, finding that the drafts were covered regardless of whether they were checks or sight drafts, since both were covered under the statute.

Popeko v. United States, 294 F.2d 168 (5th Cir.1961), examined whether cashier’s checks were covered under section 2311. The defendant objected on appeal to the lack of a jury instruction defining the term “security.” We found that no instruction was necessary because the district court correctly treated cashier’s checks as securities as a matter of law under the statute.

The Eighth Circuit examined the scope of section 2311 in United States v. Speidel, 562 F.2d 1129 (8th Cir.1977), cert. denied, 435 U.S. 915, 98 S.Ct. 1468, 55 L.Ed.2d 505 (1978). The district court below had dismissed an indictment under section 2314 on the ground that quitclaim deeds, as a matter of law, were not securities under section 2311. The circuit court reversed, relying on legislative history, statutory construction, and other methods of legal interpretation to conclude that as a matter of law quitclaim deeds do constitute “securities” under section 2311. The Sixth Circuit, in United States v. Deaton, 364 F.2d 820, 821 (6th Cir.1966), cert. denied, 386 U.S. 977, 87 S.Ct. 1173, 18 L.Ed.2d 138 (1967), found that checks were securities under section 2311 as a matter of law, citing United States v. Sheridan, supra. Accord, United States v. Tucker, 473 F.2d 1290 (6th Cir.), cert. denied, 412 U.S. 942, 93 S.Ct. 2785, 37 L.Ed.2d 402 (1973). Similar holdings have been made in the Second Circuit, United States v. Wexler, 621 F.2d 1218 (2d Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 119, 66 L.Ed.2d 48 (1980) (equipment leases), and the Tenth Circuit, United States v. Roby, 499 F.2d 151 (10th Cir.1974) (money orders); United States v. Austin, 462 F.2d 724 (10th Cir.), cert. denied, 409 U.S. 1048, 93 S.Ct. 518, 34 L.Ed.2d 501 (1972) (loan commitment letters).

There is some logic in recognizing also that courts have decided certain documents are not securities as a matter of law. Of course, such a decision is not at all controlling since such a decision does not place any pressure upon the right of an accused to a jury trial. Briefly, in United States v. Jones, 450 F.2d 523 (5th Cir.1971), this Court found that as a matter of law an airline ticket was not a security under section 2311.5 Similarly, in Merrill v. United States, 338 F.2d 763 (5th Cir.1964), cert. denied, 386 U.S. 994, 87 S.Ct. 1311, 18 L.Ed.2d 340 (1967), we found that a gasoline company credit card was not a security.

The critical conclusion from these summarized cases is that the court in this case had the authority to decide, as a matter of law, that the Gold Certificate Contract was a “security” within the meaning of the National Stolen Property Act. The statute defines what a “security” is, and the court properly applied that definition as a matter of law.

Next, we look to other, similar statutory schemes for additional guidance.6 The most obvious source of guidance is the voluminous jurisprudence interpreting the Securities Act of 1933, 15 U.S.C. §§ 77a-77bb, *1332and the Securities Exchange Act of 1934,15 U.S.C. §§ 78a-78kk (Securities Acts).

The majority of the Securities Acts cases are civil rather than criminal in nature, but this does not necessarily limit the usefulness of considering their role as precedents. Violations of the Securities Acts are subject to both civil and criminal enforcement. Compare, e.g., 15 U.S.C. §§ 77k, 111 [1933 Act] and § 78r [1934 Act] (civil penalties) with 15 U.S.C. § 77x [1933 Act] and § 78ff [1934 Act] (criminal penalties). So even the civil cases under the Securities Acts are useful analogies in the case before us. The majority’s contention would mean that a pure matter of law in a civil prosecution under the Securities Acts would become a question of fact in a criminal case under that same provision of the statute. Such a conclusion is doubtful, especially considering that there is a constitutional right to jury trial in civil cases as well, Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510, 79 S.Ct. 948, 956, 3 L.Ed.2d 988, 997 (1959).

There has been a steady line of cases, civil and criminal, under the Securities Acts upholding a finding of a “security” as a matter of law. The case authority begins with Securities and Exchange Commission v. C.M. Joiner Leasing Corp., 320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88 (1943), holding that fractional interests in mineral leases are securities as a matter of law, and Securities and Exchange Commission v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), holding that interests in orange groves are securities. The Howey case was a suit for an injunction against the sale of orange grove interests that failed to comply with the registration requirements of the Securities Acts. Justice Frankfurter’s dissent in Howey, id. at 301-02, 66 S.Ct. at 1104, calling for the Court to uphold the district court’s determination as a reasonable factual finding rather than a freely reversible legal issue, underscores the conclusion that the majority’s determination was made as a question of law.7

A similar determination was made in United States v. Fishbein, 446 F.2d 1201 (9th Cir.1971), cert. denied, 404 U.S. 1019, 92 S.Ct. 683, 30 L.Ed.2d 667 (1972), a case involving diversion of corporate funds through stock transactions. The case was brought under the Stolen Property Act and the Securities Acts. The court relied on the definition of security under the 1933 Act, 15 U.S.C. § 77b, to find that stock is a security as a matter of law.

It is urged that the Court erred in instructing the jury that the stock was a security. Stock is by law a security (15 U.S.C., § 77b). In some cases there may be a question of fact whether a thing sold is a security (SEC v. C.M. Joiner Leasing Corporation, 320 U.S. 344, 64 S.Ct. 120 [88 L.Ed. 88] (1943); Roe v. United States, 287 F.2d 435 (5th Cir.1961)), but there was no fact question here.

446 F.2d at 1207. This firm conclusion was drawn in a criminal prosecution. Note also that the court distinguished our Roe decision, just as I do here, as involving fact questions.

The Tenth Circuit has found reversible error in giving the jury the final determination of “security” in a civil case. Ahrens v. American-Canadian Beaver Co., 428 F.2d 926, 928 (10th Cir.1970).8

The same problem of separating legal from factual issues occurs in criminal statutes other than in the securities context. These other situations involving criminal prosecution bolster the conclusion that not every issue in a criminal case has to be submitted to the jury. One of the best known categories of cases in which this is *1333true is the category of cases which raise First Amendment issues. In Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951), defendants had been convicted of violating the Smith Act by conspiring to form a Communist Party which would teach and advocate the overthrow of the United States government by force and violence. The Supreme Court held that it was the jury’s role to determine whether defendants’ acts violated the terms of the statute, and that it was the Court’s role to determine whether such a violation created “a clear and present danger of a substantive evil that Congress had the right to prevent.” “Bearing ... the marks of a ‘question of law,’ the issue is properly one for the judge to decide.” Id. at 515, 71 S.Ct. at 870, 95 L.Ed. at 1155.

The Constitution guaranteed a right to a jury trial to Dennis and his co-defendants. Yet not every element of the offense was submitted to the jury. An “element of the offense” in Dennis was a showing of “clear and present danger.” Yet the Court held, over the dissents of Justices Black and Douglas, that this element of the offense was to be resolved as a question of law. 341 U.S. at 580, 587, 71 S.Ct. at 902, 906. So also the element of “security” under a detailed statutory definition is a question of law when the document is clear on its face.

In United States v. Pietri, 683 F.2d 877 (5th Cir.1982), we upheld a conviction for carrying a weapon during the commission of a felony. We did not require a jury determination of whether a .38 caliber Smith & Wesson revolver is a weapon. Although that case does not show explicitly that such a determination was requested, we had no problem finding a .38 caliber revolver to be a weapon as a matter of law.

The true factual issue in firearms cases is not whether the gun in question is a weapon, but rather whether the accused intentionally and willfully possessed the illegal weapon. In United States v. Hernandez, 662 F.2d 289 (5th Cir.1981) (per curiam), we affirmed a conviction for shipping firearms in interstate commerce. We upheld the finding as a matter of law that the weapons in question were firearms within the meaning of the statute. However, two convictions under other counts in the indictment were reversed because those counts required an intentional and willful shipping of prohibited firearms in interstate commerce. Since no jury instruction was given in the district court regarding the effect of the defendant’s claimed ignorance of the law, we found that the jury had no standard by which to judge the requisite intent and willfulness. Had Hernandez believed, for example, that he was shipping water pistols rather than sawed-off shotguns, the jury should have acquitted on the counts requiring specific intent. We therefore remanded the case for a proper jury determination of knowledge and intent. Similarly, in United States v. Davis, 583 F.2d 190 (5th Cir.1978), this Court examined a conviction for conspiring to export sawed-off shotguns. We did not demand a jury determination of whether the shotgun barrels were indeed less than eighteen inches long and therefore covered under the statute. But we did require a jury determination regarding the defendants’ knowledge and intent.

The Dyer Act, 18 U.S.C. § 2312, prohibits the interstate transportation of stolen motor vehicles. In United States v. Graves, 669 F.2d 964 (5th Cir.1982), this Court did not require a jury determination of whether stolen trucks were stolen- motor vehicles within the meaning of the Act. We required only a jury determination as to knowledge and intent; we found sufficient evidence for the jury’s verdict of guilty. See also United States v. Beil, 577 F.2d 1313 (5th Cir.1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979) (on charge of violating Dyer Act jury not asked to consider what is a motor vehicle). Although the inclusion of a car or truck within the Dyer Act’s description of “motor vehicle” might seem too frivolous to present to a jury, that has not been our rationale in accepting as a matter of law that such articles are within the statutory definition. See also Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F.Supp. 116, 117 (S.D.N.Y.1960) (civil case (“The issue is, what is chicken?”). That the *1334determination may be difficult is insufficient to permit a judge to pass a legal question to a jury.

Still other criminal statutes raise the “fact or law” inquiry. In United States v. Miller, 520 F.2d 1208 (9th Cir.1975), the defendant was charged with stealing government property. The Ninth Circuit held that “[wjhether an item is government property ordinarily is a question of law, and when the facts so establish, it is proper for the court to give such an instruction.” The Tenth Circuit also followed that rule in United States v. Owens, 536 F.2d 340 (10th Cir.1976). The court overruled the district court’s ruling that certain funds were government money as a matter of law, not because such a ruling was improper, but because there was insufficient evidence in that case to rule that the money was government money, a factual issue.

The Hobbs Act, 18 U.S.C. § 1951, prohibits threats or violence that affect interstate commerce. Although a jury is given the power to authenticate the factual testimony in a Hobbs Act case, “[a]ll of the Hobbs Act cases agree that the court should determine whether the facts alleged meet the statutory requirement of affecting interstate commerce.” United States v. Hyde, 448 F.2d 815, 839 (5th Cir.1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972); see id. at 839-42 and cases cited therein. Under the wire fraud acts, the question of whether a microwave transmission was a radio signal under the statute was decided by the court and not the jury in United States v. Bohr, 581 F.2d 1294 (8th Cir.), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978). And under 18 U.S.C. § 549, the court in United States v. O’Brien, 255 F.Supp. 755 (E.D.Mich.1965) instructed the jury that the place from which goods were allegedly stolen was a bonded warehouse as a matter of law. The Sixth Circuit affirmed, United States v. Parisi, 365 F.2d 601 (6th Cir.1966), vacated on other grounds sub nom. O’Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967).

Yet all of the instances detailed above are but a sample of the broad range of questions that are not submitted to a criminal jury but are decided by the court as a matter of law. Such cases serve to illustrate the established principle that a judge has the right to rule on a matter of law in a criminal case, even if that matter of law concerns an element of the offense. By its holding that such a ruling in a criminal trial strips the jury of its right to apply the law to the facts, this Court is moving beyond preserving the jury’s historic right to return a general verdict.

The majority of the Court in this case abandons a long line of authority holding that an article involved in a criminal case is properly identified by the court as fitting a statutory definition as a matter of law when the intrinsic nature of the article meets the definition without the need for extrinsic evidence to explain its nature. The majority opinion cites not one case to the contrary. The Constitution has never until now been held to require the expansion of the right to a jury trial to encompass such a case. The judgment of the district court was correct and should be affirmed.

. Majority opinion at 1320, citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375(1970).

. Writing for the Court in Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), Mr. Justice Harlan provides an extensive discussion of whether historically the jury has been permitted to determine the law in a criminal case. He concludes that it has not.

. The distinction between “security” as a factual question and “security” as a legal doctrine is the difference between a context of action and context of being. In United States v. Manuszak, 234 F.2d 421 (3d Cir.1956), the final determination of “stolen goods” under section 2314 was held to be a jury issue. Determining that the goods were stolen would have required an adoption of factual evidence that someone had acted to steal the goods. In Roe, supra, 287 F.2d at 328, this Circuit observed that whether the issue should be treated as factual or legal depended upon whether facts outside the document weighed on the question of security status. By contrast, the definition of “security” under section 2314 in the case before us requires no such adoption of factual evidence. The determination does not rest on a party’s actions in creating, misrepresenting, or forging the documents. It rests only on what the document is, a context of being. It is the nature of the document itself which is at issue, not what may or may not have happened in connection with it.

As the Ninth Circuit noted in a recent workers’ compensation case:

Whether particular facts fit within the meaning of certain legal terms is a question of law. Cf. Estates of Franklin v. Commissioner, 544 F.2d 1045, 1047 n. 3 (9th Cir.1976) (characteristics of transaction are questions of fact, but whether such characteristics constitute ‘sale for tax purposes’ is a question of law); K. Davis, Administrative Law Treatise § 30.-01 (3d ed. 1972) (circumstances of arrest are questions of fact, but whether such circumstances amount to ‘probable cause’ is a question of law).

Duncanson-Harreison Co. v. Director, Office of Workers’ Compensation Programs, 686 F.2d 1336, 1341 (9th Cir.1982).

. Under 18 U.S.C. § 2314, it is illegal to transport a falsely made security knowingly in interstate commerce. The term “security” for purposes of § 2314 is defined in 18 U.S.C. § 2311. It provides:

“Securities” includes any note, stock certificate, bond, debenture, check, draft, warrant, traveler’s check, letter of credit, warehouse receipt, negotiable bill of lading, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate; certificate of interest in property, tangible or intangible; instrument or document or writing evidencing ownership of goods, wares, and merchandise, or transferring or assigning any right, title, or interest in or to goods, wares, and merchandise; or, in general, any instrument commonly known as a “security”, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, warrant, or right to subscribe to or purchase any of the foregoing, or any forged, counterfeited, or spurious representation of any of the foregoing....

As discussed later in this opinion, this § 2311 definition of “security” relevant to the § 2314 interstate transportation charge, is broader than that under the Securities Acts of 1933 and 1934.

. But c.f. United States v. Gallipoli, 599 F.2d 100 (5th Cir.1979) (although airline ticket is not included in Congress’ definition of a security, as a matter of law it is merchandise within the scope of 18 U.S.C. § 2315).

. As discussed later in this opinion, the paucity of case law on this subject might be explained in part by a failure of defense attorneys to request a jury instruction on this point. As a matter of trial strategy it might well be unwise for a defendant to demand a jury instruction that submits to the jury the issue of whether General Motors common stock is a security or a Ford sedan is an automobile. This might be because the defense would feel it unwise to cast aspersions upon the intelligence of the jury by asking it such a question. But it might also be because the defense realizes the stock is a security as a matter of law and the sedan is an automobile as a matter of law.

. The issue of whether the determination was one of law or of fact was properly before the Court, because the original question in the district court was whether the shares were securities, and that court had made the determination as a matter of law. 60 F.Supp. 440 (S.D.Fla. 1945).

. This Court, however, has at least once upheld a district court’s submission of this issue to a jury. Nor-Tex Agencies, Inc. v. Jones, 482 F.2d 1093 (5th Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1563, 39 L.Ed.2d 873 (1974) (whether document was an “investment contract” under the Securities Acts properly decided by jury).