Though seemingly ingenious, the defendant's argument assumes that the conduct prohibited by 18 U.S.C. § 1010 is limited to the "making" of a false statement. The statute, however, also proscribes the "passing, uttering, or publishing" of a false statement. The mortgagor's certificate was in the control of Mrs. Epperson until the settlement was concluded. The settlement was not concluded until she agreed to the loan offered by the defendant and had signed the judgment note that he had presented to her. At that point the mortgagor's certificate was false and was "passed, uttered, or published" to the FHA.
Next, the defendant argues that the Government failed to prove that any of the purchasers acted with the mens rea required to constitute a violation of section 1010. Failing to prove that any of them acted with a criminal state of mind, the defendant argues that the Government has failed to prove that any crime was committed in which the defendant could be said to have participated as an "aider and abettor." Again, though seemingly logical, the defendant's argument is not consistent with the law.
The defendant's conviction rests upon 18 U.S.C. § 2 which describes those individuals who are punishable as principals in offenses against the United States. Section 2 has two subsections. Although the conduct described in § 2(a) is apparently broad enough to overlap that described in § 2(b), it is clear that section 2, taken as a whole, proscribes two distinct forms of conduct: (1) participation in a criminal plan involving others who act with a criminal state of mind, and (2) the commission of a crime by the use of an innocent or irresponsible agent. To be convicted as a principal under the first subsection would clearly require proof of criminal conduct on behalf of more than one person. A conviction under the second subsection, however, requires proof of criminal conduct on behalf of only one person.
Assuming, as the defendant seems to, that section 2(b) does not exist and that the Government was limited in its case to proving only aiding and abetting under section 2(a), the defendant is still incorrect in his assertion that the Government must prove that those who performed the actual illegal acts acted with a criminal state of mind. On the contrary, although the law is clear that the Government must establish that the crime in question was committed by someone, United States v. Provenzano, 334 F.2d 678, 691 (3rd Cir. 1964), it is also clear that the Government need only prove that " the act constituting the offense was in fact committed by someone." Gray v. United States, 104 U.S. App. D.C. 153, 260 F.2d 483, 484 (1958); Meredith v. United States, 238 F.2d 535, 542 (4th Cir. 1956); Colosacco v. United States, 196 F.2d 165, 167 (10th Cir. 1952); Von Patzoll v. United States, 163 F.2d 216, 219 (10th Cir. 1947). Thus, regardless of whether the Government pursues a 2(a) or 2(b) theory at trial, its minimum burden of proof with respect to state of mind is, in either case, limited to that of the defendant. In any event, the prosecution in the present case proceeded on the theory that the defendant was guilty as a principal under section 2(b). In this regard there remains a related question.
When testifying, the defendant admitted that during the period involved in the indictment he knew that to arrange loans for FHA insured purchasers was illegal. As stated previously, he also testified that he was aware of the mortgagor's certificate contained in the firm commitment. From his admitted familiarity with the FHA's mortgage insurance program, it is clear that he was also aware that any settlement would be placed in serious jeopardy should a prospective purchaser fail to sign the mortgagor's certificate without qualification. The thrust of his defense was that he never arranged any loans for any of the purchasers named in the indictment. By its verdict, however, the jury found that he did.
Given the foregoing, coupled with the fact that the defendant was present at one point or another during each settlement, the question remaining is whether the defendant could be found to have "caused" acts to be done which, if directly performed by him or another, would constitute an offense against the United States.
The defendant argues that the only criminal act that took place was one of omission, i.e., that the respective purchasers failed to disclose additional obligations incurred in connection with the purchase of their properties. Since the government made no attempt to prove that the defendant ever suggested to any purchaser that they should purposely conceal their indebtedness, he argues that he cannot be said to have "caused" them to make false statements. Again, however, the defendant ignores the plain language of the statute. The false statements in the present case were made by the affirmative acts of the purchasers when they signed their mortgagor certificates. In United States v. Inciso, 292 F.2d 374, 378 (7th Cir. 1961), it was said that one who "procures" or "brings about" the commission of a crime is chargeable as a principal under section 2(b). Similarly, in United States v. Leggett, 269 F.2d 35, 37 (7th Cir. 1959), it was held that,
"Cause means 'to bring about; to bring into existence' . . . It 'is a word of very broad import' and 'is used in [ 18 U.S.C.A. § 2(b)] in its well known sense of bringing about'."
See also, United States v. Markee, 425 F.2d 1043, 1046 (9th Cir. 1970); United States v. Miller, 379 F.2d 483, 485 (7th Cir. 1967).
But for the loans arranged by the defendant, no settlements would have taken place and no false statements would have been made. Even applying a narrow reading of section 2(b) to these circumstances, there can be little doubt that the defendant caused each of the purchasers to make the false statements charged in the indictment.
For this reason, and those previously discussed, the defendant's motion for judgment of acquittal and/or a new trial will be denied.