634 F.2d 441 (9th Cir. 1980), 79-1043, United States v. Dacus

Docket Nº:CA 79-1043.
Citation:634 F.2d 441
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Norman Lester DACUS, Nevada Land Builders, Inc., Green Saddle Ranch Co., Defendants-Appellants.
Case Date:December 18, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 441

634 F.2d 441 (9th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,

v.

Norman Lester DACUS, Nevada Land Builders, Inc., Green

Saddle Ranch Co., Defendants-Appellants.

No. CA 79-1043.

United States Court of Appeals, Ninth Circuit

December 18, 1980

Argued Jan. 15, 1980.

Submitted March 17, 1980.

Page 442

Ruth L. Cohen, Asst. U. S. Atty., Las Vegas, Nev., for plaintiff-appellee.

John A. Greenman, Las Vegas, Nev., for defendants-appellants.

Appeal from the United States District Court for the District of Nevada.

Before TRASK, TANG and FERGUSON, Circuit Judges.

TRASK, Circuit Judge:

Norman L. Dacus (Dacus) appeals from his conviction on thirteen counts of selling unregistered lots from a subdivision in violation of the Interstate Lands Sales Act

Page 443

(the Act), 15 U.S.C. § 1703(a)(1). 1 He is joined in his appeal by two corporate defendants which stand convicted of various counts of the same offense.

Between the spring of 1972 and the summer of 1977, Dacus, some other individuals and the two corporate defendants, offered and sold to members of the public a number of lots from various developments in Pahrump Valley, Nye County, Nevada. Dacus, individually and through his corporations, either owned or obtained brokerage rights to a number of parcels of land in the Pahrump Valley. During the period of the indictments, Dacus marketed the lots through one main office. He used a number of salesmen to show lots to prospective purchasers and advertised all eight development parcels in which he had ownership or brokerage interests under a common name, usually "Pahrump" or "Nevada Land Builders, Inc.". In the course of his sales business, Dacus employed the mails and various means of interstate transportation and communication.

None of the developments, which included (1) Green Saddle Ranch, (2) Roadrunner, (3) Green Valley Acres, (4) Spring Mountain Industrial Park, (5) Kimberly Place, (6) Conestoga Country Estates, (7) Western Village, and (8) Charleston Commercial Center, were ever registered as subdivisions with the Department of Housing and Urban Development (HUD). The total number of lots in all the developments, as shown by plat maps admitted in evidence, exceeded 700.

Dacus first challenges the registration requirements of the Act as being unconstitutionally vague. He argues that the statute is so confusing that he was not put on notice that his conduct was prohibited. The registration requirement, 15 U.S.C. § 1703(a)(1), plainly prohibits the use of interstate transportation or communication, or the mails, to sell or lease an unregistered lot in a subdivision. Dacus, however, argues that the statute's definition of "subdivision" made it unconstitutionally unclear whether his lots must be registered before sale. 2

The statutory provision which is the key to this dispute is the definition of "subdivision" which provides in pertinent part:

"(S)ubdivision" means any land, located in any State or in a foreign country, which is divided or proposed to be divided into fifty or more lots, whether contiguous or not, for the purpose of sale or lease as part of a common promotional plan and where subdivided land is offered for sale or lease by a single developer, or a group of developers acting in concert, and such land is contiguous or is known, designated or advertised as a common unit or by a common name such land shall be presumed, without regard to the number of lots covered by each individual offering, as being offered for sale or lease as part of a common promotional plan.

15 U.S.C. § 1701(3). The definition has two basic elements: (1) there must be 50 or more lots; and (2) the lots must be sold pursuant to a common promotional plan. Although "common promotional plan" is not defined, the statute does provide that a common promotional plan will be presumed if the lots are contiguous or are known or advertised as a unit or under a common name. Other means of proving a common promotional plan are not foreclosed.

Page 444

Dacus' challenge to the constitutionality of this statute must fail for two reasons. First, whether or not a statute is...

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