United States v. Clawson, 3988.

• Decision Date: 09 December 1935
• Docket Number: No. 3988.,3988.
• Citation: 13 F. Supp. 178
• Parties: UNITED STATES v. CLAWSON.
• Court: U.S. District Court — District of Wyoming

13 F. Supp. 178

UNITED STATES v. CLAWSON.

No. 3988.

District Court, D. Wyoming.

December 9, 1935.

E. C. Raymond, Sp. Asst. U. S. Atty., of Newcastle, Wyo., and John C. Pickett, Asst. U. S. Atty., of Cheyenne, Wyo.

G. R. Hagens, of Casper, Wyo., and C. R. Ellery, of Cheyenne, Wyo., for defendant.

KENNEDY, District Judge.

Defendant was indicted by a grand jury for violation of title 12, § 1467 (a), U.S.C.A., in making false statements for the purpose of influencing action of the Home Owners' Loan Corporation in the matter of loans. The indictment is in the form of eleven counts which relate to different loans in connection with which the alleged false statements were made, and all counts are similar with respect to the nature of the various charges. The substance of the charges is, that the defendant as a trustee holding certain mortgages made answer on a form provided by the HOLC and in a questionnaire by overstating the amount due upon the respective mortgages which the HOLC was being sought to take over. After the indictment was returned, the defendant moved for a bill of particulars setting forth in greater particularity the manner in which it is claimed in the indictment the overstatement of the amount due upon the mortgages had been determined. This motion was sustained, and in due time a bill of particulars was filed by the government setting forth with greater particularity the details of the charges set out in the indictment. The defendant then interposed his demurrer and motion to quash the indictment upon various grounds. The demurrer and motion were argued, trial briefs submitted, and the matter in this form is now before the court for consideration.

The transactions in connection with the mortgages here in question leading up to the immediate acts upon which the indictment is based are manifold and varied, involving a process of assignments from an original building and loan association to trustees, through another organized building and loan association and back into the hands of the trustees, which process it is probably unnecessary to follow in this discussion, if it be conceded, as it seems to be, that the defendant as one of such trustees held the mortgages at the time the alleged false statements are claimed to have been made to the government agency.

Numerous points are presented under the demurrer and motion, but only one or two of these which go to the substance of the charge will be considered in this inquiry. No challenge on behalf of the government seems to be made over the fact that the demurrer and motion are directed to the indictment as amplified by the bill of particulars, so that this point need not be further considered, especially inasmuch as such procedure has been recognized as proper by some courts. United States v. Flores (D.C.) 3 F.Supp. 134; Singer v. United States (C.C.A.3) 58 F.(2d) 74.

One of the points raised is that, while the indictment alleges that the defendant in his capacity as a trustee for a building and loan association made the false statements in question, yet the bill of particulars shows that the defendant and one Charles Anda were cotrustees holding the mortgages as such at the time the defendant made the alleged false statements to the HOLC in connection with the loans. It is argued that this is a fatal variance because of the fact that the trusteeship was a distinct entity and that the defendant alone was not a trustee in the strict interpretation of that term. Cases are cited in support of this contention. The logic of these cases is to the effect that in an indictment upon which a person is prosecuted for a criminal offense the indictment must be specific in regard to all the essential allegations necessary to constitute the crime, and that, if there is a substantial variance in this respect, it is fatal. Some of the cases which illustrate the principle are: Naftzger v. United States (C.C.A.8) 200 F. 494; Fontana v. United States (C.C.A.8) 262 F. 283. In the light of these well-defined principles of law invoking the interpretation of indictments, there would seem to be grave doubt in the case at bar as to whether an allegation in the indictment that the defendant as a trustee made certain representations is sufficient when as a matter of fact he was only a single member of a trusteeship which in law is a separate and distinct entity from an individual or a single trustee,...