U.S. v. Hubbard, 91-1775

Citation16 F.3d 694
Decision Date30 March 1994
Docket NumberNo. 91-1775,91-1775
PartiesP UNITED STATES of America, Plaintiff-Appellee, v. John Bruce HUBBARD, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Gary Felder, Jennifer J. Peregord (argued and briefed), Office of the U.S. Atty., Detroit, MI, for plaintiff-appellee.

Paul Morris (argued and briefed), Coral Gables, FL, for defendant-appellant.

Before: NELSON and BATCHELDER, Circuit Judges; and MATIA, District Judge. *

BATCHELDER, Circuit Judge.

Defendant Hubbard was charged in a ten-count indictment with four counts of bankruptcy fraud in violation of 18 U.S.C. Sec. 152, with three counts of making false statements in a matter within the jurisdiction of the federal government in violation of 18 U.S.C. Sec. 1001, and with three counts of mail fraud in violation of 18 U.S.C. Sec. 1341. A jury found him guilty on all counts. He appeals, arguing (1) the evidence was insufficient to convict him of any and all counts and (2) his trial counsel's performance violated his Sixth Amendment right to the effective assistance of counsel.

I

The counts of conviction revolve around Hubbard's dealings in two different matters: his bankruptcy proceedings and his ownership of a Fino boat.

On September 25, 1985, Hubbard filed a petition for Chapter 7 bankruptcy. Pursuant to the bankruptcy petition and in the course of certain adversary proceedings, Hubbard was deposed on at least four occasions regarding his assets, his transfer of those assets, their value, and their whereabouts. At each of these depositions, Hubbard was put under oath and he swore to tell the truth. The government prosecuted Hubbard for false statements he made during these depositions.

Also during the bankruptcy proceedings, the bankruptcy trustee filed a motion for surrender of the books and records of Hubbard's businesses. Hubbard filed a written response to this motion. The bankruptcy trustee also filed an amended complaint, to which Hubbard responded with a formal pleading, "Debtor's Answer to Trustee's First Amended Complaint." The government prosecuted Hubbard for written statements he made in his response to the motion and in his Answer. 1

II
A. Sufficiency of the Evidence

We review the sufficiency of the evidence for a criminal conviction under the standard set out in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979): "[W]hether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."

1. Bankruptcy Fraud Counts (Counts I-IV)

The indictment charged in each of the first four counts that many of Hubbard's answers during his deposition were false: count I alleged that Hubbard gave false answers in response to eleven specified deposition questions on October 23, 1985, count II alleged that Hubbard gave false answers in response to three specified deposition questions on November 13, 1985, count III alleged that Hubbard gave false answers in response to eleven specified deposition questions on February 7, 1986, and count IV alleged that Hubbard gave false answers in response to eighteen specified deposition questions on June 17, 1986. Hubbard asserts that the answers he gave during his depositions were not materially false. Because this is a sufficiency of the evidence claim, if we find that any one of Hubbard's allegedly false statements was a violation of 18 U.S.C. Sec. 152, that count of conviction must be upheld.

We have carefully reviewed the questions asked and the statements given and have concluded that it would serve no useful purpose to go into detail on each and every count of conviction. The evidence was plainly sufficient to support the jury's conclusions, and we therefore affirm the first four counts of conviction.

2. False Statement Counts (Counts V-VII)

Counts V, VI, and VII charged Hubbard with violating 18 U.S.C. Sec. 1001 for (1) stating in response to the bankruptcy trustee's motion to compel Hubbard to surrender his books and records that he had produced such records previously to the previous bankruptcy trustee (which he had not), (2) answering the bankruptcy trustee's complaint by denying that a certain well-drilling machine was stored a particular place when in fact Hubbard knew that it was, and (3) falsely denying the bankruptcy trustee's further allegation that parts to the well-drilling machine were being stored at a different specified location. None of these alleged falsehoods was made under oath.

Hubbard contends that his conviction on these counts cannot stand for several reasons. First, his untruthful statements were trivial falsehoods and were thus not material as required by Sec. 1001. 2 Second, his statements fall within the "exculpatory 'no' " exception to liability under Sec. 1001. Third, the statements fall within the "judicial function" exception to Sec. 1001 liability. Finally, the plain language of the statute does not encompass this activity. 3

As a preliminary matter, we must address an argument that the government raised at oral argument: because Hubbard failed to raise the judicial function exception defense before trial, Federal Rule of Criminal Procedure 12(f) bars him from raising it now. We disagree with the government's suggestion. Rule 12(b) identifies five types of defensive moves (motions, requests, or defenses) that must be made prior to trial, and Rule 12(f) provides that the failure to raise one of these types of claims before trial waives that claim. Hubbard's argument is most closely described by Rule 12(b)(2), which requires that the defendant raise before trial "[d]efenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings)."

Hubbard's argument is not merely a formalistic objection to a defect in the indictment; instead, his argument goes to the heart of whether, as a matter of law, he can be convicted of the crime with which he was charged. Thus, his claim falls within Rule 12(b)(2)'s parenthetical, which excepts his argument from the waiver provisions of Rule 12. Cf. Davis v. United States, 411 U.S. 233, 241, 93 S.Ct. 1577, 1582, 36 L.Ed.2d 216 (1973) ("The waiver provisions of Rule 12(b)(2) are operative only with respect to claims of defects in the institution of criminal proceedings."). We therefore proceed to the merits of Hubbard's contentions.

Hubbard's first two arguments can be disposed of quickly. First, his misrepresentations were clearly material under the standard set out in United States v. Steele, 933 F.2d 1313, 1319 (6th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 303, 116 L.Ed.2d 246 (1991), because they had the capability of influencing the bankruptcy court's function in determining what assets the debtor had and where those assets were so that they could be made available for the repayment of creditors. Second, the "exculpatory 'no' " doctrine cannot be applied here because this Circuit has rejected that doctrine. See Steele, 933 F.2d at 1319-22.

Hubbard's third and fourth arguments are similar to one another and challenge his false statement convictions as unlawful as a matter of law even assuming his statements were materially false. This assignment of error poses a more difficult problem.

Section 1001 provides:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

18 U.S.C. Sec. 1001 (emphasis added). The question is whether statements made in written filings in the bankruptcy court (and intended for use by the court and the bankruptcy trustee) are statements made "in [a] matter within the jurisdiction of any department or agency of the United States." 4

In United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955), a case involving a false representation by a then Congressman to the House of Representatives' Disbursing Office that a named woman was entitled to compensation as his official clerk, the Court rejected the argument that Sec. 1001 violations were limited to false statements made to the executive branch.

The falsification here involved was held to be within the jurisdiction of the Disbursing Office of the House which it was thought could not meet the definitions in Sec. 6 [see note 4 supra ]. It seemed significant to the trial court "that Title 18, Sec. 287 (formerly the first part of old Section 35) provides penalties against any one who 'makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim ... knowing such claim to be false,' " whereas Sec. 1001 does not contain such language. [United States v. Bramblett, 120 F.Supp. 857, 861 (D.D.C.1954) ].

It might be argued that the matter here involved was within the jurisdiction of the Treasury Department, as the appellee's misstatements would require the payment of funds from the United States Treasury. Or, viewing this as a matter within the jurisdiction of the Disbursing Office, it might be argued, as the Government does, that that body is an "authority" within the Sec. 6 definition of "agency." We do not rest our decision on either of those interpretations. The context in which this language is used calls for an unrestricted...

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