The opinion of the court was delivered by: HANNUM
Presently before the Court are the motions of the defendant, Charles C. Hibbs, in arrest of judgment, for judgment of acquittal, and/or for a new trial. Combined, the defendant has advanced 64 arguments in support of these motions. Only those that are considered in his brief shall be discussed.
The indictment contained 39 counts. Each count charged the defendant with a separate violation of Section 1010 of Title 18, U.S.C.
Among other things, this section makes it a crime for anyone to submit false statements to the Department of Housing and Urban Development for the purpose of influencing in any way the action of such department. Together, the 39 counts relate to certifications issued in the course of the sale of thirteen different houses on the 2900 block of North Marshall Street in Philadelphia. The certifications were issued at various times during the Spring, Summer, and Fall of 1970.
Each count charged that on or about a given date the defendant, for the purpose of influencing in any way the action of the Department of Housing and Urban Development, did knowingly and willfully make, pass, utter, or publish to the said Department of Housing and Urban Development, a false statement, knowing the same to be false, contained in a certification regarding the condition of a given aspect of a given house.
A series of three counts was devoted to each and every house. The first of each series charged that a false certification was submitted regarding the electrical system of that house; the second, that a false certification was submitted regarding the condition of the plumbing and heating system of the same house; and the third, that a false certification was submitted regarding the condition of the roof of the same house. As previously stated, there being three counts per house with respect to thirteen separate houses, a total of 39 counts were set forth in the indictment.
Motion in Arrest of Judgment
In support of his motion in arrest of judgment pursuant to Fed. R. Crim. P. 34, the defendant advances three fundamental arguments. First, that the indictment "failed to contain the necessary element of intent." Second, that there was a variance between the indictment and the government's proofs. And finally, that the indictment failed to state "the purpose for which the defendant criminally intended to influence 'the action' of the Department of Housing and Urban Development."
By his first argument the defendant strips the word "intent" of its generic sense and argues that it is a vocable consisting of six letters that, as a noun, must be typed into the indictment. He asserts that, absent these six letters, the indictment comes apart. This argument, however, is not only unpersuasive, but borders on being sophistic. The offenses described in Section 1010 clearly require proof of more than a general mens rea ; they require proof of a specific mens rea. The words "knowingly," "willfully," and "for the purpose of influencing in any way the action of the Department of Housing and Urban Development" are descriptive of that specific mens rea, and the defendant was indicted, tried, and convicted on the basis of such proof. In this regard, neither the indictment nor the proofs offered by the Government violate the teachings of Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952) or United States v. Beard, 414 F.2d 1014 (3rd Cir. 1969). By the same token, there is nothing unsound with the decisions in Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969); United States v. Patillo, 431 F.2d 293 (4th Cir. 1970), they are simply inapplicable to the present case.
The defendant's second argument is equally unpersuasive. The Government's proofs as to the issuance of mortgage insurance were clearly relevant to explaining how the FHA's mortgage insurance program operates. Unlike the defendant, this Court does not read Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960) as preventing the government from offering relevant evidence in explanation of the crime charged. The indictment in this case charged that the defendant, for the purpose of influencing the action of the Department of Housing and Urban Development, willfully and knowingly made, passed, uttered, or published to the Department of Housing and Urban Development false statements, knowing the same to be false. The Government's proofs did not vary from these charges, nor did the Court's charge to the jury.
The defendant's third argument, that the indictment was fundamentally defective because it failed to state "the purpose for which the defendant criminally intended to influence 'the action' of the Department of Housing and Urban Development," is also specious. Again he ignores the plain language of the statute which on its face states that the offense is complete when an individual acts for the purpose of influencing the Department of Housing and Urban Development "in any way." United States v. Manuszak, 234 F.2d 421 (3rd Cir. 1956), though sound in its own right, is thus inapplicable. The defendant's subsidiary argument, that the indictment is defective because the defendant does not fall within the class of persons to which the statute applies, is similarly unpersuasive. The statute on its face applies to "whoever" commits the offense.
Motion for Judgment of Acquittal
The defendant's present conviction is the second of two that he has suffered within the past year. In the first prosecution brought against him, he was convicted of 39 violations of 18 U.S.C. § 1001 and § 2. Following that trial, he successfully moved to arrest the judgment on the basis of the fact that the indictment failed to allege a necessary element of the crimes charged, namely, that they were committed "willfully." The first conviction having been set aside upon the defendant's motion, on October 25, 1972, he was reindicted. In this, the second prosecution, he was charged with 39 violations of 18 U.S.C. § 1010. Prior to trial, he moved to dismiss the indictment on the basis that a second prosecution placed him twice in jeopardy and was therefore violative of the Fifth Amendment. This double jeopardy argument was rejected by a Memorandum and Order dated December 6, 1972. Now, the defendant raises a variation of the same argument. Citing United States v. Sisson, 399 U.S. 267, 90 S. Ct. 2117, 26 L. Ed. 2d 608 (1970) he now argues that the granting of his motion in arrest of judgment in the first prosecution was not really that, but rather, a directed acquittal. Although the defendant is quite right that in Sisson the grant of what the trial court there labelled as a motion in arrest of judgment was held to constitute the grant of a judgment of acquittal, he is incorrect in his assertion that the arrest of judgment entered in his first prosecution was similarly mislabelled. The rationale in Sisson was that the trial court, when granting the defendant's motion in arrest of judgment, went beyond the "face of the record" and relied upon evidence that was developed during the trial. Because a motion in arrest of judgment is properly confined to challenging the sufficiency of the indictment or the court's jurisdiction, the trial court in Sisson was held to have directed an acquittal. When the present defendant's motion in arrest of judgment was granted following his first conviction, the trial court's action was based upon a defect in the indictment. It had nothing to do with the proofs developed at trial. The defendant was not acquitted at the conclusion of the first prosecution, and, therefore, has not been twice put in jeopardy in this prosecution.
Again raising a double jeopardy argument, the defendant contends that the entry of a judgment of acquittal in the present case is dictated by the cases of United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971); Downum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963); and Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957). It has long been held, however, that where a conviction is set aside upon an insufficiency in the indictment and at the instance of the defendant, a second prosecution is not barred by the Fifth Amendment. ...