Issues arise when after the enactment of a general statute such as 18 U.S.C. § 1001, Congress passes a more specific statute. See 18 U.S.C. § 1010 (false statements to Department of Housing and Urban Development and Federal Housing Administration transactions). In such cases it is necessary to determine the effect of the more specific statute on the scope of the more general. Further, it must be determined whether the prosecutor has unlimited discretion to choose the statute under which he/she will prosecute.
The initial step is to determine whether the Congress has expressed its intent on the relationship of the general and specific statutes. Unfortunately, the Congress rarely expresses its intent with sufficient clarity. But see 15 U.S.C. § 714(m)(false statements to the Department of Agriculture's Commodity Credit Corporation; Section 714 is the exclusive vehicle for such offenses). The argument that a specific statute enacted subsequent to a general statute repeals the latter is often advanced and often rejected; however, at least one United States Court of Appeals has indicated that if the two statutes clearly "conflict," the congressional intent may be determined by looking to the dates of enactment and the statutes' relative specificity. United States v. Roseman, 364 F.2d 18 (9th Cir. 1966), cert. denied, 386 U.S. 918 (1967).
Often the result is that a prosecutor may choose to proceed under either one of the two statutes. This direction is sanctioned:
The U.S. Attorney of the district where a violation of a federal statute occurs is charged with the duty of prosecution and vested with complete control over the proceedings, in the exercise of his discretion. If the facts show a violation of two or more statutes, he may elect under which he will prosecute, in the absence of a prohibitory statute.
Deuitch v. Anderhold, 80 F.2d 677, 678 (5th Cir. 1935). Also "[i]t is settled law . . . that where a single act violates more than one statute, the government may elect to prosecute under either." Ehrlich v. United States, 238 F.2d 481, 485 (5th Cir. 1956); see United States v. Jones, 976 F.2d 176, 183 (4th Cir. 1992), cert. denied, 508 U.S. 914 (1993)("[F]aced with two equally applicable penal statutes, there is nothing wrong with the government's decision [absent an improper purpose] to prosecute under one and not the other"). "[T]he government has the right to sue under any statute under which it can secure a conviction." Morgan v. Unites States, 380 F.2d 686, 703 (9th Cir. 1967), cert. denied, 390 U.S. 962 (1968).
[cited in JM 9-42.001; JM 9-42.191]