United States v. Rudge, Crim. No. 79-82.
| Decision Date | 26 July 1979 |
| Docket Number | Crim. No. 79-82. |
| Citation | 474 F. Supp. 360 |
| Parties | UNITED STATES of America, Plaintiff, v. Charles H. RUDGE, Jr., Defendant. |
| Court | U.S. District Court — Southern District of Iowa |
Terry Wright, Asst. U. S. Atty., Des Moines, Iowa, for plaintiff.
Samuel Zelden, Des Moines, Iowa, for defendant.
RULINGS ON MOTIONS AND JUDGMENT OF ACQUITTAL
On July 5, 1979, the undersigned Judge heard oral arguments of counsel in respect to defendant's motion to dismiss Counts 1, 2, 3 and 4 of the indictment. Subject to the ruling on the motion to dismiss, Count 3 was tried before the Court sitting without a jury on July 9, 1979, a jury trial having been waived pursuant to the provisions of Rule 23(a). All of the evidence was stipulated. Defendant moved for judgment of acquittal.
A motion to dismiss challenges the sufficiency of the face of the indictment. An automobile title certificate is a security within the meaning of 18 U.S.C. § 2314. United States v. Elliott, 571 F.2d 880, 907-08 (5th Cir. 1978). The Court is not satisfied that the charging language of Counts 1, 2, 3 and 4 is legally insufficient. The motion to dismiss those counts is overruled.
The evidence was stipulated and the Court finds the facts to be as reflected by the stipulated evidence and as reflected in the exhibits introduced.
Defendant is charged with violating the portion of section 2314 making it a felony offense for one, with unlawful or fraudulent intent, to transport in interstate commerce any falsely made or forged security, knowing the same to have been falsely made or forged. The legal issue to which the motion for judgment of acquittal is addressed is whether under the undisputed facts the automobile title certificate was falsely made or forged.
The factual essence of this case giving rise to the legal issue is that defendant caused an odometer mileage statement to be presented to the Polk County Treasurer falsely representing the "true mileage" of the used motor vehicle to be substantially lower than it actually was, resulting in the Treasurer issuing a new certificate of title (the transported security) bearing on its face as "mileage" the false figure.
The pertinent portions of Iowa Code § 321.71 provide:
The Government admits that the title certificate was not forged, but contends that it was "falsely made." Page 3, lines 7-8, Government's trial brief, filed July 16, 1979.
United States v. Freeman, 473 F.2d 7, 9 (8th Cir. 1973).
The certificate is a genuine certificate of title for the motor vehicle. The false information it contains concerning the mileage of the motor vehicle does not impair its genuineness as the certificate of title for the motor vehicle. The certificate will serve its primary legal purposes of proof of ownership of the motor vehicle (Iowa Code § 321.45(2)(a)(d)), and means of transferring ownership of the motor vehicle (Iowa Code § 321.45). The Government's contention that the certificate of title is not authentic because the Treasurer lacked authority to issue the certificate because Iowa Code § 321.71(7) provides that "no certificate of title shall be issued unless an odometer statement which is in compliance with federal law and regulation has been made by the transferor of such vehicle and is furnished with the application for certificate of title" is without merit. This provision of law is obviously directory, and does not operate to render the issued certificate a nullity if the odometer statement is false. To hold otherwise would add serious legal insult to the injury suffered by a good faith purchaser by depriving him of ownership of the vehicle, thus parlaying the odometer fraud into a title fraud. Such is not the intent of the statute.
It is the Court's conclusion that the title certificate was not "falsely made." What occurred was the creation of a genuine security instrument that contained a false statement of fact. Such a security instrument is not "falsely made" within the meaning of section 2314. A "falsely made" instrument is one that is not genuine. United States v. Jones, 553 F.2d 351, 355 (4th Cir. 1977); Marteney v. United States, 216 F.2d 760, 763 (10th Cir. 1954); Pines v. United States, 123 F.2d 825, 828-29 (8th Cir. 1942).
Defendant's conduct may constitute other federal and state offenses, but it does not constitute the offense charged.
Defendant's motion for judgment of acquittal is sustained, and judgment of acquittal of the offense charged in Count 3 is hereby entered.
APPENDIX
Meg Nichols if called would testify as follows. That she is a secretary in the Corporation Division of the Secretary of State's Office for the State of Iowa with offices at State Capitol in Des Moines, Iowa. That her office is responsible for the care, custody, and control of all the Articles of Incorporation filed therein. That upon searching her records, she finds a corporation named Crossroads Motors Limited with the Articles of Incorporation filed on March 26, 1974, showing the registered agent of the corporation as Charles H. Rudge, Jr., with a local address of 3506 Valdez Drive, Des Moines, Iowa. That the records also indicate that Charles H. Rudge, Jr. is President, Vice-President, Secretary and Treasurer of Crossroads Motors, Ltd. That she is the custodian of these records. That these records are kept in the course of regularly conducted business and are made at or about the time of the filing of the Articles of Incorporation.
Larry D. Peterson, 709 2nd Avenue, S.E., Altoona, Iowa. If called Mr. Peterson would testify that he was employed in October of 1977 for Eastman Kodak Company. That Eastman Kodak furnished him a car for his work. The particular car that he had in October of 1977 was a copper colored 1975 Ford LTD with Vehicle Identification Number 5P63H115986. That Eastman Kodak leased this car from D. L. Peterson Trust. That in October of 1977 he recalls from his mileage records and his own knowledge that the car had approximately 66,912 miles on it. That the car was due for a trade-in and that he took the car to Charles Gabus Ford in Des Moines where he turned it in and received a new Ford Fairmont. At the time that he turned the 1975 Ford LTD in it had approximately 66,912 miles on it. That these were the actual miles on the vehicle as he had driven it since 1974 when it was new.
Doyle Hawbaker if called would testify that he is the office manager for Charles Gabus Ford at 4545 Merle Hay Road, Des Moines, Iowa. That his records reflect that in October of 1977 Eastman Kodak Company and D. L. Peterson Trust traded in a 1975 Ford, VIN 5P63H115986, for a new Ford Fairmont. That Gabus took the trade-in on the 1975 Ford and when it was traded in it had approximately 66,900 miles on it. That on behalf of Eastman Kodak and D. L. Peterson Trust, said car was sent to the Central States Auto Auction at 824 S. Taft Street, Mason City, Iowa, for auction.
Sam Holtzman if called would testify that he, along with Herman Anderson, run the Central State's Auto Auction at 825 S. Taft in Mason City, Iowa. That he has checked his records...
To continue reading
Request your trial
-
U.S. v. Davis, s. 89-5233
...States v. Sparrow, 635 F.2d 794 (10th Cir.1980), cert. denied, 450 U.S. 1004, 101 S.Ct. 1717, 68 L.Ed.2d 209 (1981); United States v. Rudge, 474 F.Supp. 360 (S.D.Iowa 1979). Other courts hold that documents validly issued containing material false information are "falsely made" for purposes......
-
U.S. v. Cotoia
...addressed the issue of alteration of mileage on certificates of title and its materiality under 18 U.S.C. Sec. 2314. United States v. Rudge, 474 F.Supp. 360 (S.D.Iowa 1979). In Rudge, the defendant was running a title washing operation much the same as the one at issue here. The indictment ......
-
AMERICAN FEDERATION, ETC. v. Campbell, Civ. A. No. 78-2270
... ... Civ. A. Nos. 78-2270, 79-19 ... United States District Court, District of Columbia ... July 26, ... ...
-
US v. Kauffman, Crim. No. 84-00136-02.
...in several cases involving the same issue. The question appears to have been resolved in defendant's favor in United States v. Rudge, 474 F.Supp. 360 (S.D.Iowa 1979) and United States v. Sparrow, 635 F.2d 794 (10th Cir.1980). In a later case, United States v. Daly, 716 F.2d 1499 (9th Cir. 1......