U.S. v. Guthartz

Decision Date18 May 1978
Docket NumberNos. 77-2404 and 77-5306,s. 77-2404 and 77-5306
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Barnett GUTHARTZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Leonard Moriber, North Miami, Fla., for defendant-appellant in both cases.

J. V. Eskenazi, U. S. Atty., Charles A. Intriago, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee in both cases.

Appeals from the United States District Court for the Southern District of Florida.

Before WISDOM, TJOFLAT and VANCE, Circuit Judges.

VANCE, Circuit Judge.

This is an appeal by Barnett Guthartz from his conviction in the United States District Court for the Southern District of Florida of knowingly making a false statement to an agency of the United States government in violation of 18 U.S.C. section 1001.

Mr. Guthartz is an owner of the Bay Terrace Apartments in Miami Beach, Florida. Bay Terrace was financed by the Federal Housing administration under what is known as a 231 program which was designed to provide housing for the elderly and handicapped. Under a "regulatory agreement" between FHA and the owners the maximum amounts of the rents charged is regulated by FHA (now HUD).

In July and August 1975 Mr. Guthartz was undertaking to justify a rental increase and in that connection engaged in correspondence with the Department of Housing and Urban Development (HUD). The amount of the specific increase was contingent on information supporting increased costs and expenses, which was required to be supplied to HUD. A portion of such information involved "major expenditures" for capital improvements. In this connection Mr. Guthartz sent a letter to HUD dated August 29, 1975 wherein he stated:

We are forced to expend $18,000.00 for a new Cooling Tower and $6,400.00 for a Manual Fire Alarm system.

On the face of the letter, beneath Mr. Guthartz' signature it was indicated that there were enclosures. One enclosure was an estimate theretofore provided to Mr. Guthartz by Mr. W. Edd Helm, Jr. concerning the fire alarm system. It reflected an installation cost in the amount of $3,800.00.

Subsequent to HUD's receipt of such letter and its approval of a rental increase, it was discovered that the actual cost of such fire alarm installation was $1,900.00. Mr. Guthartz' indictment followed.

18 U.S.C. 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 $10,000.00 or imprisoned not more than 5 years, or both.

Mr. Guthartz was charged with violation of this statute in a two count indictment. He was acquitted on count one, which involved the claimed cost of a cooling tower. Count two, on which he was convicted, read in part that:

On or about August 29, 1975 in the Southern District of Florida, the defendant, Barnett Guthartz, did willfully and knowingly in a matter within the jurisdiction of the Department of Housing and Urban Development, an agency of the United States, make and cause to be made, by means of a letter . . . a materially false, fictitious and fraudulent statement that the installation of a fire alarm system cost $3,800.00 when in truth and in fact as he then and there well knew the actual cost of the installation of said fire alarm system was $1,900.00 . . . .

With respect to this indictment the trial judge charged the jury:

Whether the letter referred to in the indictment includes its enclosures is a question to be resolved by the jury.

After conviction the defendant filed a motion for new trial based on newly discovered evidence, his contention being that the testimony of the government's witness, Mr. Edd Helms, may have been untrue. An evidentiary hearing was held on such motion at which testimony was taken from an attorney for the defendant, from the defendant himself and from Mr. Helms. The court denied the motion for new trial and this appeal followed.

Defendant first argues that the indictment was defective and that there was a fatal variance between the indictment and the proof adduced at trial. Specifically he claims that the indictment charged him with "making" a false statement but that the proof showed the "using" of false documents. Mr. Guthartz claims that the statute proscribes making false statements or using false documents in the disjunctive and that they are separate and distinct offenses. It is his position that the particular writing shown to have been false was the enclosed estimate, which was not his statement. Because he was not charged with the use of a false document he says that he was insufficiently charged and that there was a fatal variance between the proof and the charge made in count two.

If we should concede that the indictment might have been more precisely drawn this would not necessarily lead to the conclusion that reversible error has been committed. Specificity does not determine the sufficiency of an indictment. The established test is that the indictment first, must contain the elements of the offense charged and fairly inform the defendant of the charge against which he must defend; and second, enable him to plead an acquittal or conviction in bar of any future prosecution for the same offense. Hamling, et al. v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). Its validity is determined by practical, not technical, considerations. United States v. London, 550 F.2d 206 (5th Cir. 1977); United States v. Markham, 537 F.2d 187 (5th Cir. 1976), cert. denied 429 U.S. 1041, 97 S.Ct. 739, 50 L.Ed.2d 752 (1977). The challenged indictment clearly meets the requirements of this rule. The...

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  • United States v. Shorter, Crim. No. 84-00421.
    • United States
    • U.S. District Court — District of Columbia
    • March 26, 1985
    ...The validity of an indictment in this respect is to be determined upon practical rather than technical grounds. United States v. Guthartz, 573 F.2d 225, 227 (5th Cir.1978); United States v. Haas, 583 F.2d 216 (5th Cir.1978). The test is not whether the indictment might have been drawn with ......
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    • November 8, 1978
    ...742-46, Cert. denied, 1974, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58. We have read Stirone differently. Thus, in United States v. Guthartz, 5 Cir. 1978, 573 F.2d 225, 227-28, we considered its doctrine to permit evaluation of an alleged deviation between indictment and proof to determine wh......
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    ...to bar any future prosecution for the same offense. United States v. Welliver, 601 F.2d 203, 207 (5th Cir. 1979); United States v. Guthartz, 573 F.2d 225, 227 (5th Cir.), Cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed.2d 173 (1978); See United States v. Diecidue, 603 F.2d 535, 539-548 & ......
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    ...United States v. Graham, 758 F.2d 879 (3d Cir.), cert. denied, 474 U.S. 901, 106 S.Ct. 226, 88 L.Ed.2d 226 (1985); United States v. Guthartz, 573 F.2d 225 (5th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed.2d 173 (1978); United States v. Crum, 529 F.2d 1380 (9th Cir.1976); Baker ......
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