United States v. Purcell
| Citation | 360 F. Supp. 1074 |
| Decision Date | 02 July 1973 |
| Docket Number | Cr. No. 1-73-4. |
| Parties | UNITED STATES of America, Plaintiff, v. Linda PURCELL, Defendant. |
| Court | U.S. District Court — District of Idaho |
Wilbur Nelson, Asst. U. S. Atty., Boise, Idaho, for plaintiff.
David W. Hyde, Martin, Chapman, Martin & Lyons, Boise, Idaho, for defendant.
FACTS
By indictment,1 defendant Purcell is charged with knowingly and intentionally defrauding and defeating the purpose of the Department of Housing and Urban Development, in violation of 18 U. S.C. § 1012, which carries with it a maximum penalty of one year imprisonment or $1,000.00 fine.
By elucidation the indictment further charges that Purcell applied for and received home ownership assistance from the Department under the terms of § 235 of the National Housing Act, embodied in 12 U.S.C. § 1715z. This section authorizes the Department to aid low income families in securing adequate housing by paying a portion of the family's mortgage payments on the home, conditioned upon their continued occupancy. In this case it is alleged the Department paid the monthly sum of $80.00 directly to Purcell's mortgagee, the Mortgage Insurance Corporation of Boise, to aid her in purchasing a home in Nampa, Idaho.
It is alleged that while she was receiving assistance from the Department, Purcell, for a period of approximately 4½ months in 1971, did not live in the home. Rather, she rented it out to another at a rate of $150.00 per month, keeping the rent payments for herself. She did not notify the Department of these events. It is this act of vacating the home, renting it and receiving the rent payments, while still receiving mortgage assistance from the Department, that is said to be a violation of 18 U.S.C. § 1012.
Defendant has filed a motion to dismiss the indictment against her on the grounds that:
1. The indictment does not state facts sufficient to constitute an offense against the United States because it does not state which purpose of the Department the defendant is accused of intending to defraud or defeat, and
2. The portion of 18 U.S.C. § 1012, which she has allegedly violated, is unconstitutionally vague, indefinite and uncertain in violation of the Fifth Amendment to the United States Constitution because it does not state the purposes of the Department or refer to where they can be ascertained and, therefore, does not inform the defendant what actions constitute a violation of the section.
For the purpose of considering the merits of defendant's motion, the allegations of the indictment must be taken as true. United States v. Chrysler Corporation Parts Wholesalers, Northwest Region, et al., 180 F.2d 557 (9th Cir. 1950).
As to the first ground for dismissal of the indictment, defendant seems to abandon the ground or just does not discuss the question. By saying the indictment does not state facts sufficient to constitute an offense because it does not state the purpose of the Department she allegedly has defrauded or defeated, she raises the question whether the indictment itself must contain a statement of the purpose of the act in order to give it validity. However, defendant has not confronted this question in her briefs.
Rule 7(c)(1) of the Federal Rules of Criminal Procedure provides in part:
Generally, it has been held in a long line of cases that the requirements of an indictment, in order to be consistent with the rule, are to state the essential elements of the offense charged and to sufficiently inform the defendant so as to enable her to prepare a proper defense and to plead it as a bar to future prosecutions for the same offense. Russell v. U. S., 369 U.S. 749, 82 S.Ct. 1038, 8 L. Ed.2d 240 (1962); U. S. v. Mitman, 459 F.2d 451 (9th Cir. 1972). The indictment does state sufficient facts to allege an offense against the United States, consistent with Rule 7(c)(1) and the above requirements.
Rule 7(c)(1) by its language does not require that the purposes behind a statute, or in this case the purpose of the Department, be set out in the indictment. It is sufficient that the indictment states the official citation of the statute allegedly violated, which it does in this case. Neither is it necessary to spell out by verbal description the purpose of the statute in order to set forth the facts that constitute the elements of the offense charged.
The indictment makes reference to § 235 of the National Housing Act which, as embodied in 12 U.S.C. § 1715z(a), sets forth the purpose of the home ownership assistance program. All that would be required of defendant is a scant reading of the indictment and the statutory reference in order to be put on notice of what purpose she has allegedly violated, so as to enable her to prepare a defense to the charge. Further, the specific allegations as to method, manner, time and place of alleged commission are more than ample to bar a future prosecution. Thus, the essential requirements of an indictment are satisfied.
Defendant's principal argument for dismissing the indictment is that 18 U.S.C. § 1012 is unconstitutionally vague and indefinite. Title 18 U.S.C. § 1012, so far as is relevant here, provides:
"Whoever receives any compensation, rebate, or reward, with intent to defraud such Department or with intent unlawfully to defeat its purposes; . . . Shall be fined not more than $1,000 or imprisoned not more than one year, or both."
Defendant does not seem to quarrel with the provision of the statute, "with intent to defraud such Department". Rather, she contends that because the statute does not define what the purpose of the Department is or refer to where it can be ascertained, she is not informed of what conduct the statute is designed to prohibit by use of the language "with intent unlawfully to defeat its purposes". Therefore, she contends the statute should be struck down for vagueness.
Defendant's authorities cited in her brief in support of the motion to dismiss refer to the general constitutional...
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