United States v. Barbato, 72-1261.

• Decision Date: 11 January 1973
• Docket Number: No. 72-1261.,72-1261.
• Parties: UNITED STATES of America, Appellee, v. Robert A. BARBATO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

471 F.2d 918 (1973)

UNITED STATES of America, Appellee, v. Robert A. BARBATO, Defendant, Appellant.

No. 72-1261.

United States Court of Appeals, First Circuit.

Heard November 6, 1972.

Decided January 11, 1973.

Louis V. Jackvony, Jr., Providence, R. I., for appellant.

Richard A. Levie, Atty., Dept. of Justice, with whom Lincoln C. Almond, U. S. Atty., Roger A. Pauley, Atty., Dept. of Justice, and S. Michael Levin, Sp. Atty., Washington, D. C., were on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

After trial by a jury appellant Robert A. Barbato was found guilty on nine counts of a twelve count indictment charging him with violations of 18 U.S.C. § 1010 (1970). The gravamen of the indictment was that Barbato had made false representations and had overvalued assets in personal financial and credit statements filed with the Department of Housing and Urban Development (HUD) in connection with an F.H.A. application for project mortgage insurance. He appeals from these convictions and, for the reasons set forth below, we affirm.

On August 19, 1970, appellant, through a corporation, RAB Realty, Inc., submitted an application to HUD for project mortgage insurance for a proposed real estate development called Lakewood Apartments. Accompanying this application was a Personal Financial and Credit Statement which purported to set forth Barbato's financial condition as of June 15, 1970. Updated financial statements were filed with the Department on June 14 and on July 28, 1971. As the evidence demonstrated, a number of the representations contained in these statements were clearly incorrect.¹ These misrepresentations resulted in part from the careless and unprofessional manner in which appellant's accountant prepared the statements in question and also from appellant's failure to disclose all of the details of his financial situation to the accountant.

On appeal Barbato first attacks the sufficiency of the indictment. Specifically, he contends that because the counts in the indictment fail to allege that the financial statements in question were filed with either a federal agency or an agency of the United States that an essential element of a § 1010 violation, the requisite federal nexus, has not been charged.² Relying on United States v. Cox, 285 F.Supp. 367 (E.D.Wis.1968), where a bank robbery indictment which failed to set forth that the bank in question was federally chartered or insured was held to be deficient, appellant urges that the indictment in the instant case similarly fails to charge an offense over which the federal courts have jurisdiction.

As a general rule an indictment must contain "a plain, concise and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7(c). In addition, it must charge all of the essential elements of the crime in question. See, e. g., Salinas v. United States, 277 F.2d 914, 916 (9th Cir. 1960); United States v. Tornabene, 222 F.2d 875, 878 (3rd Cir. 1955). Although it is generally the better practice, these elements need not always be set forth in haec verba. Indictments "must be read to include facts which are necessarily implied by the specific allegations made." United States v. Silverman, 430 F.2d 106, 111-112 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971). See United States v. Martell, 335 F.2d 764, 765-766 (4th Cir. 1964); Gonzales v. United States, 286 F.2d 118, 120-122 (10th Cir. 1960), cert. denied, 365 U.S. 878, 81 S.Ct. 1028, 6 L.Ed.2d 190 (1961); Finn v. United States, 256 F.2d 304, 306-307 (4th Cir. 1958); Griffith v. United States, 230 F.2d 607 (6th Cir. 1956); Rumely v. United States, 293 F. 532, 547-548 (2d Cir.), cert. denied, 263 U.S. 713, 44 S.Ct. 38, 68 L.Ed. 520 (1923). But see Walker v. United States, 342 F.2d 22, 26-27 (5th Cir.), cert. denied, 382 U.S. 859, 86 S.Ct. 117, 15 L.Ed.2d 97 (1965).

The indictment in the instant case charges that the financial statements in question were filed with the "Department of Housing and Urban Development." In so characterizing the Department, use is made of the official title of this federal agency. 42 U.S.C. § 3532(a) (1970). In addition, the financial statements are identified in eight counts of the indictment as "Personal Financial and Credit Statement(s)." This designation refers specifically to Federal Housing Authority Form 2417, which appellant used in filing the first and third financial reports. Given these facts, we find that a federal connection sufficient to confer federal jurisdiction over the violations alleged may be implied. The indictment in this case is not like the charge in United States v. Cox, supra, where no allegations or facts were set forth from which the requisite federal nexus could be found. United States v. Silverman, 430 F.2d supra at 111, n. 3. While a more appropriately drawn indictment would have spelled out the fact that these statements were filed with a federal agency, we cannot say that the indictment here is fatally defective.

Appellant's next contention, namely that the counts in the indictment are prejudicially duplicitous, multiplicitous, and vague, requires little comment since these issues were not raised in the trial court. Rule 12(b)(2) of the Federal Rules of Criminal Procedure specifically provides that "(d)efenses and objections based on defects ... in the indictment ... other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial." If appellant found himself uncertain as to the nature of the charges against him, his remedy was to file a motion for a bill of particulars in the court below. Not having availed himself of this remedy, and having made no motion to quash the indictment on these grounds, he may not raise these questions on appeal. See, e. g., Mitchell v. United States, 434 F.2d 230, 231 (9th Cir. 1970), cert. denied, 402 U.S. 946, 91 S.Ct. 1636, 29 L.Ed.2d 115 (1971); United States v. Kelley, 395 F.2d 727, 729-730 (2d Cir.), cert. denied, 393 U.S. 963, 89 S.Ct. 391, 21 L. Ed.2d 376 (1968).

Barbato next contends that a fatal variance exists between the offenses charged and the evidence adduced at trial. His argument is that the indictment charged overvaluation of assets while the government's proof established primarily non-disclosure of liabilities. The frivolity of this contention is obvious since every count of the indictment also charged appellant with filing false statements.³ It is settled that the failure to disclose an outstanding debt on an F.H.A. application is sufficient to support a conviction for filing false statements under § 1010. See Parker v. United States, 378 F.2d 641, 643-645 (1st Cir.), cert. denied, Perma-Home Corp. v. U. S., 389 U.S. 842, 88 S.Ct. 81, 19 L.Ed.2d 107 (1967).

Appellant's further points may be dealt with summarily. His...