United States v. Brown

• Decision Date: 17 August 1973
• Docket Number: No. 73-1461.,73-1461.
• Citation: 482 F.2d 1359
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Horton J. BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

482 F.2d 1359 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Horton J. BROWN, Defendant-Appellant.

No. 73-1461.

United States Court of Appeals, Ninth Circuit.

August 17, 1973.

Murray B. Guterson (argued), of Culp, Dwyer, Guterson & Grader, Seattle, Wash., for defendant-appellant.

J. Ronald Sim, Asst. U. S. Atty. (argued), Stan Pitkin, U. S. Atty., Susan L. Barnes, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.

Before CHAMBERS, WRIGHT and KILKENNY, Circuit Judges.

PER CURIAM:

Defendant Horton J. Brown appeals from conviction on 17 counts of violations of 18 U.S.C. § 1001¹ and one count of violation of 18 U.S.C. § 371 (conspiracy to violate § 1001). He received concurrent three year sentences on each count, the sentences to be suspended conditioned upon defendant spending six months in a jail-type institution and being placed on probation for an additional period of two and one-half years. He was also fined $5,000 on each count, with the fines suspended as to all but one count.

Defendant raises two contentions on this appeal, neither of which has merit. He first argues that the indictment should have been brought under either 18 U.S.C. § 1010² or § 1012.³ instead of § 1001.

We disagree.

The indictments charged defendant with knowingly making false, fictitious and fraudulent statements and representations in the submission of several fictitious bids for construction on property owned by the Department of Housing and Urban Development (HUD). Assuming, as defendant argues, that this conduct constitutes a violation of either § 1010 or § 1012, we find no indication in the legislative history that Congress, by creating a specific HUD false claim statute, intended to disallow use of the more general false statement statute, § 1001, with its harsher penalties. Cf. Kniess v. United States, 413 F.2d 752 (9th Cir. 1969).

This case thus falls under the general rule that where a single act violates more than one statute, the government may elect to prosecute under either. United States v. Gilliland, 312 U. S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941); United States v. Chakmakis, 449 F.2d 315 (5th Cir. 1971); Ehrlich v. United States, 238 F.2d 481 (5th Cir. 1956).

The defendant also contends that the government failed to prove that the bids were submitted in a matter within the jurisdiction of HUD, as required by § 1001. Viewing the evidence in the light most favorable to the government, as we are required to do, we conclude that there was sufficient evidence before the jury to support a finding beyond a reasonable doubt that the property in question was indeed owned by HUD.

The judgment appealed from is affirmed.

1 § 1001.

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.

2 § 1010.

Whoever, for the purpose of obtaining any...