Petition for a Writ of Certiorari — Hibbs v. United States

— © Sunreme Court, v. §.

sey

IN THE

Supreme Court of the United States

MICHAEL RODAK, UR. CLEAX

—— Term No. ——

UNITED STATES OF AMERICA, Respondent

CHARLES C. HIBBS, Petitioner

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

JOHN J. O'BRIEN, JR.

Attorney for Petitioner

1260 Suburban Station Building

Philadelphia, Pa. 19103

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA., PA. 19107

TABLE OF CONTENTS

Page

RI 0 i ood cles s ks Gpulhs vob Ube 2

DM cco ccccccen 2

EERIE IDA ELE ERED 2

Constitutional and Statutory Provisions ............ 3

3 eee ar ES i. Ss Se ece eke. At cds: 3

Reasons for Granting the Writ .................... 18

TABLE OF CITATIONS

Cases:

Morissette v. U.S., 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed.

RT ie ete rant Se er ee ee 11

Stirone v. U.S., 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed. 2d

ROASTERS 8 ARLES GEO rt ok on ae Eee ape a a 11

United States v. Barfield, 447 F.2d 85(1971)........ 7

United States v. Beard, 414 F.2d 1014, (3rd C.A.

a ESE VE og, PERSE Seelam aR 11

United States v. Manuszak, 234 F.2d 421 (3rd C.A.

REPS AS SEES LER eae een Pee ea 12

United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117

ee oe eee wie cee e Wake 14, 15

Constitutional Provisions:

United States Constitution, Amendment V.......... 3

United States Constitution, Amendment VI ......... 3

Statutes:

I 3,4,5,6

TABLE OF CITATIONS—(Continued)

Statutes: Page

AD a en ee i ais Mua Saale bad 4

I el dv vas Gap ee ee oe 2,9, 10

I a hl co es ue eae an a a a 2

Appendix

Exhibit “A” (Memorandum and Order) ........ 20

Exhibit “B” (Judgment Order) ............... 30

Exhibit “C” (Sur Petition for Rehearing) ....... 32

ae

IN THE

Supreme Court of the United States

—— Term No. ——

UNITED STATES OF AMERICA, Respondent

CHARLES C. HIBBS, Petitioner

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner, Charles C. Hibbs, a defendant herein, prays that

a Writ of Certiorari issue to the United States Court of

Appeals for the Third Circuit to review the judgment of

that Court in affirming the Order of the United States

District Court for the Eastern District of Pennsylvania.

1

2

OPINIONS BELOW

The Memorandum and Order of the United States Dis-

trict Court for the Eastern District of Pennsylvania dated

April 9, 1973 denying petitioner’s post-trial motions is set

forth fully as Exhibit “A”. The Judgment Order of the

United States Court of Appeals for the Third Circuit dated

September 19, 1973 is set forth as Exhibit “B”. The undated

Order of the United States Court of Appeals for the Third

Circuit, entered October 25, 1973, denying the petitioner's

petition for rehearing is set forth as Exhibit “C”.

JURISDICTIONAL STATEMENT

The Order of the United States Court of Appeals for

the Third Circuit was entered on September 19, 1973. The

Petitioner’s Petition for Rehearing was denied on October

25, 1973. The jurisdiction of this Court is invoked pursuant

to the Act of June 25, 1948, C.646, 62 Stat. 928, 28 U.S.C.

1254.

STATEMENT OF THE ISSUES

1. Denial of plea of double jeopardy.

2. Denial of petitioner's constitutional right to be

informed of the charges upon which he was tried.

3. Denial of due process of law in that the second

indictment failed to state the necessary element of a crime;

the proof varied from the allegations in the indictment; the

petitioner is not within the class of persons specified by

the statute, 18 U.S.C.A. 1010; and the said statute is

unconstitutionally vague.

3

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fifth Amendment to the Constitution of the

United States provides:

| “No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be com-

pelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.”

The Sixth Amendment to the Constitution of the

United States provides:

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

| previously ascertained by law, and to be informed of

| the nature and cause of the accusation; to be confront-

ed with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defence.”

STATEMENT OF THE CASE

The facts of the case are as follows:

Petitioner, Charles C. Hibbs, was indicted on or about

September 14, 1971, purportedly under 18 U.S.C. $1001

and 18 U.S.C. 2. The indictment contains thirty-nine (39)

counts. The said counts are based on the rehabilitation of

thirteen (13) properties on the 2900 block of North Marshall

Street, Philadelphia, Pennsylvania.

A representative portion of the indictment is contained

in the first three counts; thereafter, the first three counts

4

are repeated thirty-six (36) times. The first three counts,

the same as the following thirty-six (36) counts, are as

follows:

Count I—From on or about the Ist day of May, 1970,

to on or about the 24th day of June, 1970, in the Eastern

District of Pennsylvania, CHARLES C. HIBBS and

GERALD D. SMITH, knowingly did make and caused to be

made a false, fictitious, and fraudulent statement and

representation as to material facts in a matter within the

jurisdiction of the Federal Housing Administration, an

agency of the United States, in that in a certification sub-

mitted to the said Federal Housing Administration,

GERALD D. SMITH stated and represented and described

the condition of the electrical system at 2909 North Mar-

shall Street, Philadelphia, Pennsylvania, whereas in truth

and fact, as he then knew, the electrical system was not in

such condition.

In violation of Title 18, United States Code, Section

1001,2.

Count II—From on or about the 24th day of June, 1970,

in the Eastern District of Pennsylvania, CHARLES C.

HIBBS and JOSEPH MATZ, knowingly did make and

caused to be made a false, fictitious and fraudulent state-

ment and representation as to material facts in a matter

within the jurisdiction of the Federal Housing Administra-

tion, an agency of the United States, in that in a certifica-

tion submitted to the said Federal Housing Administration,

JOSEPH MATZ, stated and represented and described the

condition of the plumbing system at 2909 North Marshall

Street, Philadelphia, Pennsylvania, whereas in truth and

in fact, as he then knew, the plumbing system was not in

such condition.

In violation of Title 18, United States Code, Section

1001,2.

Count II1I—From on or about the 28th day of Novem-

ber, 1969, to on or about the 24th day of June, 1970, in the

5

Eastern District of Pennsylvania, RAYMOND BARRAH,

knowingly did make and caused to be made a false, ficti-

tious and fraudulent statement and representation as to

material facts in a matter within the jurisdiction of the

Federal Housing Administration, an agency of the United

States, in that in a certification submitted to the said

Federal Housing Administration, RAYMOND BARRAH

stated and represented and described the condition of the

roof at 2909 North Marshall Street, Philadelphia, Pennsyl-

vania, whereas in truth and fact, as he then knew, the roof

was not in such condition.

That on or about the 28th day of November, 1969, to

on or about the 24th day of June, 1970, at Philadelphia,

in the Eastern District of Pennsylvania, CHARLES C.

HIBBS, well knowing the premises aforesaid, did knowingly

and unlawfully abet, counsel, induce and procure the com-

mission of the aforesaid offense by the said RAYMOND

BARRAH, in the manner and form aforesaid. In violation

of Title 18, United States Code Section 1001,2.

The Statutes of 18 U.S.C. 1001 and 18 U.S.C. 2 are as

follows:

§1001. Statements or entries generally.

Whoever, in any matter within the jurisdiction of

any department or agency of the United States know-

ingly 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 repre-

sentations, 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. June 25, 1948, c. 645, 62 Stat.

749. ;

§2. Principals.

(a) Whoever commits an offense against the

United States or aids, abets, counsels, commands, in-

SRS OT EP Ra

6

duces or procures its commission, is punishable as a

principal.

(b) Whoever willfully causes an act to be done

which if directly performed by him or another would

be an offense against the United States, is punishable

as a principal. June 25, 1948, c. 645, 62 Stat. 684; Oct.

31, 1951, c. 655, §17b, 65 Stat. 717.

It is significant to notice that nowhere in the indict-

ment do the counts contain the word “wilfully” as the

statute does. In this respect the petitioner, before trial,

raised the insufficiency of the indictment in a motion to dis-

miss; during trial at the close of the petitioner’s case; at the

close of prosecutor's case and after trial.

Nevertheless, the prosecutor argued wilfulness of

petitioner-Hibbs to the jury and the Court suppressed an

objection to argument based on wilfulness and thereafter

the Court instructed the jury with respect to wilfullness on

six (6) occasions (N. T. pp. 1470, 1475, 1477, 1502).

Further, it is significant to take notice of the fact that

only one of the three representative counts charges Hibbs

with aiding and abetting the commission of an alleged

crime (For instance, Count III). However, with respect to

that type of Count, the perpetrator of the alleged crime was

not actually indicted nor prosecuted and the prosecutor

readily admitted to the Court that the Government had

given that person, Raymond Darrah, alias Raymond Bar-

rah, immunity from prosecution; in spite of the fact that

Raymond Darrah, alias Raymond Barrah, denied such im-

munity when he testified under oath in this case against

Charles C. Hibbs (N.T. p. 1360).

In any event, the jury failed to consider the logical and

reasonable proposition that if the Government has not es-

tablished beyond a reasonable doubt that the alleged of-

fense was committed, then it must be impossible to find

the aider or abettor guilty because there is no guilt upon

Myc

33 wz .

7

which such a decision can be made. United States v. Bar-

field, 447 F.2d 85 (1971).

Gerald D. Smith was not tried in that he pleaded

guilty to some of the counts in the indictment and other

counts were -withdrawn by the Government. Gerald D-

Smith also testified against Hibbs and in the course of his

testimony it was developed that Smith had, prior to trial,

informed the representatives of the Federal Bureau of

Investigation that at the time he certified as to the

adequacy of the electrical supply for each of the properties

herein, he considered the certifications true (N.T., pp. 736,

737). Significantly, this information was concealed from

the petitioner until the time of trial.

Joseph Matz was acquitted of giving a false certifica-

tion as to the plumbing of the properties involved; never-

theless, Charles C. Hibbs was convicted on the same certifi-

cations. The Government's proof with respect to the plumb-

ing certifications was the only evidence relating to the truth

or falsity of those certifications. The Government's evidence

through its witness, Sidney Volov, proved that all of the

plumbing in the houses in question had been approved by

the appropriate authority of the City of Philadelphia (N.T.

pp. 682, 686, 690, 692). The jury apparently disregarded the

Government's own evidence and the only evidence in the

case concerning the truth or falsity of the plumbing certifi-

cations. Since this evidence showed the plumbing certifi-

cation to be true; the Government failed to prove an essen-

tial element of the crime, namely, a false representation

with respect to plumbing.

The court in its charge to the jury erroneously out-

lined the elements of the alleged crime (N.T. p. 1475). Fur-

ther, the court found that the element of materiality had

been determined as a matter of law. In this respect, counsel

for petitioner-Hibbs, brought to the attention of the court

two Circular letters issued by the F.H.A. under the dates of

January 20, 1969 and December 16, 1970, both of which

related to the question of materiality. These letters, excul-

patory and beneficial, were received by defense counsel for

ERLE ELT LE

8

Hibbs on the last day of trial and he immediately explained

their significance to the court. However, the court would

not permit testimony to authenticate the said circular let-

ters in spite of the fact that counsel had subpoenaed a wit-

- ness from Housing. and Urban.Development who was

capable of doing so (N.T. p. 1466). Thus, evidence, benefi-

cial and exculpatory to the petitioner, was concealed and

remained undisclosed to the jury. Since the trial, those let-

ters have been authenticated by the legal counsel for Hous-

ing and Urban Development and the United States Attor-

ney concedes their authenticity.

Thereafter, petitioner's motion in arrest of judgment

was granted on October 17, 1972 and the conviction, in

effect, was a nullity. Following the granting of the motion

in arrest of judgment, the petitioner was indicted on or

about October 25, 1972 purportedly under 18 U.S.C.A.

$1010. The indictment contained thirty-nine (39) counts.

The counts are based on the rehabilitation of thirteen (13)

properties of the 2900 block of North Marshall Street,

Philadelphia, Pennsylvania, a representative portion of the

indictment is contained in the first three counts: thereafter,

the first three counts are repeated thirty-six (36) times and

the first three counts, the same as the following thirty-six

(36) counts, are as follows:

COUNT I

THE GRAND JURY CHARGES:

On or about the 25th day of June, 1970, in the Eastern

District of Pennsylvania, CHARLES C. HIBBS, for the pur-

pose of influencing the action of the Department of Housing

and Urban Development, wilfully and knowingly did make,

pass, utter and publish, and wilfully cause to be made,

passed, uttered and published to the said Department of

Housing and Urban Development a false statement, as to

material facts, knowing the same to be false, in that in a

certification, CHARLES C. HIBBS represented and caused

to be represented to the said Department of Housing and

9

Urban Development, the condition of the electrical system

at 2911 North Marshall Street, Philadelphia, Pennsylvania,

whereas in truth and fact, as he then knew, the electrical

system was not in such condition.

. . In violation of Title 18, United States Code, Section

1010.

COUNT II

THE GRAND JURY FURTHER CHARGES:

On or about the 25th day of June 1970, in the Eastern

District of Pennsylvania, CHARLES C. HIBBS for the pur-

pose of influencing the action of the Department of Housing

and Urban Development, wilfully and knowingly did make,

pass, utter and publish, and wilfully cause to be made,

passed, uttered and published, to the said Department of

Housing and Urban Development a false statement, as to

material facts, knowing the same to be false, in that in a

certification CHARLES C. HIBBS represented and caused

to be represented to the said Department of Housing and

Urban Development the condition of the plumbing and

heating system at 2911 North Marshall Street, Philadel-

phia, Pennsylvania, whereas in truth and fact, as he then

knew, the plumbing and heating system was not in such

condition.

In violation of Title 18, United States Code, Section

1010.

COUNT III

THE GRAND JURY FURTHER CHARGES:

On or about the 25th day of June 1970, in the Eastern

District of Pennsylvania, CHARLES C. HIBBS, for the pur-

pose of influencing the action of the Department of Housing

and Urban Development, wilfully and knowingly did make,

pass, utter and publish, and wilfully cause to be made,

passed, uttered and published, to the said Department of

Housing and Urban Development a false statement, as to

10

material facts, knowing the same to be false, in that in a

certification, CHARLES C. HIBBS represented and caused

to be represented to the said Department of Housing and

Urban Development, the condition of the roof at 2911 North

Marshall Street, - Philadelphia, -Pennsylvania, whereas «in

truth and fact, as he then knew, the roof was not in such

condition.

--In violation of Title 18, United States Code, Section

1010. .

The Statute 18 U.S.C. §1010 is as follows:

Whoever, for the purposes of obtaining any loan

or advance of credit from any person, partnership,

association, or corporation with the intent that such

loan or advance of credit shall be offered to or accepted

by the Department of Housing and Urban Develop-

ment for insurance, or for the purposes of paying any

extension or renewal of any loan, advance of credit or

mortgage insurance by such department, or the ac-

ceptance release or substitution of any security on

such a loan, advance of credit, or for the purpose of

influencing in any way the action of such department,

makes, passes, utters, or publishes any statement,

knowing the same to be false or alters, forges, or

counterfeits any instrument, paper or document, or

utters, publishes, or passes as true any instrument,

paper, or document, knowing it to have been altered,

forged, or counterfeited or wilfully over values any

security, assets, or income shail be fined not more than

$5,000.00 or imprisoned not more than two (2) years

or both.

(As amended May 25, 1967, Pub. L. 90-19 Section 24(c),

81 Stat. 28) (Emphasis supplied).

Significantly, the indictment varies from the statute

in that the statute requires intent, the indictment is silent

PEELE PPI

11

with respect to intent. The court charged the jury with

criminal intent as a necessary element of the crime. The

court indicated of record that it would cover in its charge

all of the points for charge submitted by the petitioner

with respect to the necessity of proving criminal intent. --

However, the prosecution in its memorandum of law contra

to the motion to dismiss contended: “the government need

not show a fraudulent intent, but must only show that the

defendant made, passed, uttered and published a false

statement which the defendant knew to be false.” The

court, in an obvious contradiction, sustained the govern-

ment’s position with respect to the defendant's motion to

dismiss.

Title 18, Section I of the United States Code states:

“Not withstanding any act of Congress to the contrary;

(1) any offense punishable by death or imprisonment

for a term exceeding one year is a felony.”

Thus the crime set forth in 18 U.S.C. §1010 is a felony

and in order to indict and in order to convict with respect

to a felony, the allegation of intent and proof of intent is

an indispensable element of the indictment and the proof.

Morissette v. U.S., 342 U.S. 246, 72 S. Ct. 240, 96 L.Ed. 288.

U.S. v. Beard, 414 F.2d 1014 (3rd C.A. 1969).

In addition, it is important to consider that during the

course of the trial, the government proved through oral

testimony and by its exhibits one (1) to thirteen (13) inclu-

sive which were offered and accepted in evidence that the

certifications in issue were required by the FHA in connec-

tion with and as a part of an application for mortgage

insurance. The indictment is absolutely silent on the sub-

ject of mortgage insurance; this is contrary to the law

announced in the case of Stirone v. U.S. 361 U.S. 212, 80

S. Ct. 270, 4 L.Ed. 2d 252; U. S. v. Beard, 414 F.2d 1014

(3rd C.A. 1969).

12

The petitioner filed of record, a motion for a bill of par-

ticulars which was denied. The bill of particulars among

other things asked the government to show who in the De-

partment of Housing and Urban Development received and

. Was influenced in any way for the certifications herein in- -

volved. The government did not offer any proof to show

when the said certifications were received by the Depart-

ment of Housing and Urban Development nor did the

government prove from whom the certifications were re-

ceived nor did the government prove that the Department

of Housing and Urban Development was influenced in any

way by the said certifications; on the contrary, the govern-

ment did prove that the Department of Housing and Urban

Development would not have accepted such certifications

if they had been supplied by the seller.

The denial of the bill of particulars made it impossible

for the petitioner to adequately prepare his defense in that

the indictment was silent with respect to certifications to

be used in connection with a mortgage application for

mortgage insurance, yet, the government's case was

grounded completely upon allegedly false certifications

which were submitted in connection with an application

for mortgage insurance with respect to each and every one

of the properties that are herein involved. The denial of

the bill of particulars placed the petitioner in jeopardy

without giving him an adequate opportunity to anticipate

which aspect of 18 U.S.C. §1010 the government would base

its case. The indictment itself gave no indication that the

government would base its case upon statements to be

supplied in connection with an application for mortgage

insurance. Nevertheless, the government proceeded to

prove its case on the necessity of certifications designed

to induce the FHA to issue mortgage insurance.

The indictment for an additional reason is contrary

to the law as announced in U.S. v. Manuszak, 234 F.2d

421 (3rd C.A. 1956).

In the Stirone case, supra, proof exceeded the limits of

the indictment while in the Manuszak case, supra, the

ie

13

indictment failed to assert the essential elements or ae

dients of the crime.

The government witness, A. Ciao, testified conci:

sively that no certifications on roofing, plumbing, heating

and electrification-wéuld be accepted from the seller. The -

seller, in this case, is of course the petitioner, CHARLES

C. HIBBS. Further, the government offered proof in the

form of Exhibit fourteen (14) that the certifications herein

at issue will be supplied either by the mortgagee or by the

purchaser.

The government’s proof showed that all of the plumb-

ing in all the properties here involved was inspected and

approved upon a request for a permit made by Joseph

Matz, a registered plumber. The government witness,

Gerald Smith, testified that when he gave the electrical

certifications he considered them satisfactory and he gave

them on John Bowes letterhead, a registered electrician,

with John Bowes’ permission. In this respect, the govern-

ment’s evidence showed that an undefined portion of the

electrical work was done by John Bowes and Gerald Smith,

working as partners. Finally, the government witness,

Raymond Darrah, testified that he put new roofs on all of

the houses in question and that he had considerable diffi-

culty with vandals who deliberately slashed the new roofs

with knives, broken bottles and sticks which caused holes

in the roofs and on one occasion he found an arrow sticking

in one of the roofs.

The petitioner was placed in jeopardy under a prior

indictment, U.S. District Court, Eastern District of

Pennsylvania, Criminal Action 71-520, on the identical

facts offered by the government in the case presently

before the Court (Criminal Action 72-600) by which he is

placed in double jeopardy.

Nevertheless, the petitioner was found guilty by the

jury on all thirty-nine (39) counts. Criminal Action 72-600.

Following the verdict, the petitioner filed motions

for acquittal, arrest of judgment and for a new trial. All

the motions were denied and the petitioner was sentenced

i

14

to pay a fine of Five Thousand ($5,000.00) Dollars on each

of thirty-nine (39) counts and placed on probation for a

period of five (5) years on each count. This is an appeal

from the conviction and sentence.

. The Honorable trial judge in the case herein.in a ~:

memorandum and order under the date of December 6,

1972 states: “On October 25, 1972 the defendant was again

indicted on the basis of the same facts as were alleged in

the first prosecution.” The government in its memorandum

in opposition to defendant’s motion to dismiss the indict-

ment states:

“The defendant cites no Supreme Court case

which stands for the proposition that the defendant

had been placed in jeopardy where after trial an order

in arrest of judgment is granted. Horn Book Law and

case precedent stand in sharp contradiction to the

proposition of the defendant.”

In this respect, the court’s attention is directed to the

case of U.S. v. Sisson, 399 US 267, 90 S. Ct. 2117 (1970) in

which the Court said:

“The district court characterizes its own decision

as an arrest of judgment, and the government seeks

review. here pursuant to the arrest of judgment pro-

vision on the criminal appeal act 18 U.S.C. 3731, an

act that narrowly limits the government's right to

appeal in criminal cases to certain types. On October

13, 1969 this court entered an order postponing fur-

ther consideration of the question of jurisdiction to

hearing of the case on the merits, 396 US 812, 90 S. Ct.

92, 24 L.E. 2d 65 (1969). For the reasons that we elabo-

rate in what follows, we conclude that the decision

below, standing as it does on facts developed at Sis-

son’s trial, is not an arrest of judgment but instead a

directed acquittal.” (Emphasis supplied)

AER TIPE LSS IL NI IP IN OT

15

In addition, the Supreme Court in the Sisson Case,

supra, stated another compelling conclusion with respect

to double jeopardy when it said: | : ,

m2 “The Government takes the risk of all mistakes

of its prosecuting officers and the trial judge. . . .””

Therefore, the motion in arrest of judgment, upon the

failure of the trial judge to recognize the insufficiency

of the indictment and to declare a mistrial, had the effect

of an acquittal.

The order in arrest of judgment issued by the trial

judge on October 17, 1972, in criminal action no. 71-520,

was in effect an order of acquittal because the petitioner

was placed in jeopardy as the result of an error on the part

of the government in its presentment to the grand jury,

and on the part of the trial judge to declare a mistrial rather

than permit a trial to proceed upon an indictment that was

a nullity.

In criminal action no. 71-520, the petitioner moved to

dismiss the indictment before trial and that motion was

denied. Motions for acquittal were made during the course

of trial and they were refused. With respect to the second

motion for acquittal made during the course of trial, the

following was stated by defense counsel:

“So there is no wilfullness alleged and therefore

there is no wilfullness proved. So I say to you, sir,

the indictment fails because of that.”

Thus, it was not simply a matter of a defective indict-

ment but it was a matter of the government being unable

to sustain its burden of proof. The government offered

a presentment to the grand jury upon which it could not

prove, among other elements, the necessary element of the

crime; namely, wilfullness.

In the case of U.S. v. Sisson, supra, the Supreme Court

decided that when the decision depends on facts developed

EEE ELE ESE APR NILE CR Ps RR ee

'

16

at the time of trial, the granting of an arrest of judgment

is a directed acquittal.

Since the government placed itself in a position which -

made it impossible for it to prove an indispensable element

of the crime, it logically follows that the order of.the trial ~

judge of October 17, 1972, was a “directed acquittal.”

Moreover, at the time of argument, upon petitioner's

motion for acquittal (U.S. District Court criminal action

no. 71-520), the United States attorney conceded that peti-

tioner, Hibbs, should be acquitted of the counts in the

indictment relating to roofing. Specifically the record on

this subject is as follows:

MR. O'BRIEN: Yes, Sir. Thank you sir. If you recall, Your

Honor, during the course of trial—and

you may not recall and I will try to refresh

your recollection—we moved for a mo-

tion for acquittal on Counts 6, 9, 12, 15,

18, 21, 24, 27, 30, 33, 36 and 39.

MR. O'BRIEN: Those counts were counts in which the

_ defendant was charged with aiding and

abetting Raymond Barrah in the com-

mission of a crime.

Now, Your Honor at the time of the argu-

ment had some misgivings about those

particular counts, but it never developed

in that way.

But I say to you, Your Honor, that—and

the cases are in my brief which support

this proposition—Barrah was the princi-

pal. Hibbs—

MR. LAZIN: Excuse me, Your Honor. I am sorry to

interrupt, but I believe that Mr. O’Brien

has read my brief.

The Government has conceded that point,

sir. It would be a waste of Mr. O’Brien’s

articulation to argue it.

A PRA RIE LN) LUTE ESN RY IS

eae

MR. O'BRIEN:

THE COURT:

MR. LAZIN:

THE COURT:

17

In other words, the government concedes

that the motion for acquittal should be

granted with respect to 6, 9, 12, 15, 18,

21, 24, 27, 30, 33, 36 and 39.

Is that correct?

Your Honor, I would have to check the

numbers, but if it is as to Raymond Bar-

rah, that is correct, Your Honor.

Yes. That is right. That is my under-

standing.

However, in complete disregard of his own concession

of record, the United States attorney reindicted the peti-

tioner upon the same counts on which he conceded that the

petitioner should be acquitted. The United States attorney's

concession is a concession of acquittal and by any standard

or concept applicable to double jeopardy, the petitioner

cannot be placed in jeopardy a second time. The govern-

ment’s concession of record cannot be without meaning if

the injunction contained in the U.S. Constitution against

double jeopardy is to be honored and enforced as a funda-

mental precept of our system of justice.

SAR akan POTCUEL sata Yntinaed coat da oals Soi iad LOLS i

18

REASONS FOR GRANTING WRIT

The Petition for Writ of Certiorari should be allowed

for the following reasons:

(a) Because the statute, 18 U.S.C.A. §1010, is uncon-

stitutionally vague in that it does not, upon any interpre-

tation, refer to the petitioner.

(b) The denial of petitioner’s constitutional rights by

being placed in jeopardy twice for the same charges based

on the identical facts.

(c) Denial of petitioner’s constitutional right to be in-

formed of the charges upon which he was tried.

(d) Denial of petitioner's right to due process of law

in that both indictments failed to state the necessary ele-

ments of any crime but the petitioner over his objections

was, nevertheless, forced to undergo trial; that proof at the

time of trial varied from the allegations in the indictment;

and that the petitioner is not within the class of persons

specified by the statute, 18 U.S.C.A. §1010.

A copy of the order and decree of the United States

Court of Appeals for the Third Circuit containing no date

is attached hereto and identified as Exhibit “C”.

Respectfully submitted,

Awa MY ee > J

JOHN J. O'BRIEN, JR.

Attorney for Petitioner

PUTO PREG DIRT NANL AMT LUNCH RT PRTC RH CRANE

de Ware ERC A

APPENDIX

SEPT Ta vy mona AL ek SOLA EN RENEE BAT INP ee TN

20

EXHIBIT “A”

IN THE

UNITED STATES: DISTRICT COURT

For THE Eastern District OF PENNSYLVANIA

cehaadeniamameen ia one

Criminal No. 72-600

UNITED STATES OF AMERICA

v.

CHARLES C. HIBBS |

i

MEMORANDUM AND ORDER

HANNUM, J. April 9th, 1973

Presently before the Court are the motions of the de-

fendant, Charles C. Hibbs, in arrest of judgment, for judg-

ment of acquittal, and/or for a new trial. Combined, the

defendant has advanced 64 arguments in support of these

motions. Only those that are considered in his brief shall

be discussed.

The indictment contained 39 counts. Each count

charged the defendant with a separate violation of Section

J

-' St Ak &

21

1010 of Title 18, U.S.C.1 Among other things, this section

makes it a crime for anyone to submit false statements to

the Department of Housing and Urban Development for the

purpose of influencing in any way the action of such depart-

ment. Together, the 39 counts relate to certifications issued

in the course of the sale of thirteen different houses on the

2900 block of North Marshall Street in Philadelphia. The

certifications were issued at various times during the

Spring, Summer, and Fall of 1970.

Each count charged that on or about a given date the

defendant, for the purpose of influencing in any way the

action of the Department of Housing and Urban Develop-

ment, did knowingly and willfully make, pass, utter, or

publish to the said Department of Housing and Urban De-

velopment, a false statement, knowing the same to be false,

contained in a certification regarding the condition of a

given aspect of a given house.

‘ A series of three counts was devoted to each and every

house. The first of each series charged that a false certifi-

cation was submitted regarding the electrical system of

that house; the second, that a false certification was sub-

1. 18 U.S.C. $1010 reads in its entirety as follows:

“Whoever, for the purpose of obtaining any loan or advance

of credit from any person, partnership, association, or corpo-

ration with the intent that such loan or advance of credit

shall be offered to or accepted by the Department of Housing

and Urban Development for insurance, or for the purpose of

obtaining any extension or renewal of any loan, advance of

credit, or mortgage insured by such Department, or the accept-

ance, release, or substitution of any security on such a loan,

advance of credit, or for the purpose of influencing in any way

the action of such Department, makes, passes, utters, or pub-

lishes any statement, knowing the same to be false, or alters,

forges, or counterfeits any instrument, paper, or document, or

utters, publishes, or passes as true any instrument, paper, or

document, knowing it to have been altered, forged or counter-

feited, or willfully overvalues any security, asset, or income,

shall be fined not more than $5,000 or imprisoned not more

than two years, or both.”

EE Spit EOI AE TEE ELLIE PEL DOL GELLING LLL DEMO Si da

22

mitted regarding the condition of the plumbing and heating

system of the same house; and the third, that a false certi-

fication was submitted regarding the condition of the roof

of the same house. As previously stated, there being three

counts per house with respect to thirteen separate houses,

a total of 39 counts were set forth in the indictment.

MOTION IN ARREST OF JUDGMENT

In support of his motion in arrest of judgment pur-

suant to Fed. R. Crim. P. 34, the defendant advances three

fundamental arguments. First, that the indictment “failed

to contain the necessary element of intent.” Second, that

there was a variance between the indictment and the gov-

ernment’s proofs. And finally, that the indictment failed to

state “the purpose for which the defendant criminally in-

tended to influence ‘the action’ of the Department of

Housing and Urban Development.”

By his first argument the defendant strips the word

“intent” of its generic sense and argues that it is a vocable

consisting of six letters that, as a noun, must be typed into

the indictment. He asserts that, absent these six letters, the

indictment comes apart. This argument, however, is not

only unpersuasive, but borders on being sophistic. The of-

fenses described in Section 1010 clearly require proof of

more than a general mens rea; they require proof of a

specific mens rea. The words “knowingly,” “willfully,”

and “for the purpose of influencing in any way the action

of the Department of Housing and Urban Development” are

descriptive of that specific mens rea, and the defendant

was indicted, tried, and convicted on the basis of such proof.

In this regard, neither the indictment nor the proofs offered

by the Government violate the teachings of Morissette v.

United States, 342 U.S. 246, 72 S. Ct. 240 (1952) or United

States v. Beard, 414 F.2d 1014 (3rd Cir. 1969). By the same

token, there is nothing unsound with the decisions in Watts

v. United States, 394 U.S. 705, 89 S. Ct. 1399 (1969);

_

a nee ae SO ee

23

United States v. Patillo, 431 F.2d 273 (4th Cir. 1970), they

are simply inapplicable to the present case.

The defendant's second argument is equally unper-

suasive. The Government's proofs as to the issuance of

mortgage insurance were clearly relevant to explaining

how the FHA’s mortgage insurance program operates. Un-

like the defendant, this Court does not read Stirone v.

United States, 361 U.S. 212, 80 S. Ct. 270 (1960) as prevent-

ing the government from offering relevant evidence in ex-

planation of the crime charged. The indictment in this case

charged that the defendant, for the purpose of influencing

the action of the Department of Housing and Urban Devel-

opment, willfully and knowingly made, passed, uttered, or

published to the Department of Housing and Urban Devel-

opment false statements, knowing the same to be false.

The Government's proofs did not vary from these charges,

nor did the Court’s charge to the jury.

. The defendant's third argument, that the indictment

was fundamentally defective because it failed to state “the

purpose for which the defendant criminally intended to

influence ‘the action’ of the Department of Housing and

Urban Development,” is also specious. Again he ignores the

plain language of the statute which on its face states that

the offense is complete when an individual acts for the

purpose of influencing the Department of Housing and

Urban Development “in any way.” United States v. Manus-

zak, 234 F.2d 421 (3rd Cir. 1956), though sound in its own

right, is thus inapplicable. The defendant's subsidiary argu-

ment, that the indictment is defective because the defen-

dant does not fall within the class of persons to which the

statute applies, is similarly unpersuasive. The statute on its

face applies to “whoever” commits the offense.

MOTION FOR JUDGMENT OF ACQUITTAL

The defendant's present conviction is the second of

two that he has suffered within the past year. In the first

prosecution brought against him, he was convicted of 39

Es *, Pg EY SS

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24

violations of 18 U.S.C. §1001 and §2. Following that trial,

he successfully moved to arrest the judgment on the basis

of the fact that the indictment failed to allege a necessary

element of the crimes charged, namely, that they were com-

mitted “willfully.” The first conviction having been set

aside upon the defendant’s motion, on October 25, 1972,

he was reindicted. In this, the second prosecution, he was

charged with 39 violations of 18 U.S.C. §1010. Prior to trial,

he moved to dismiss the indictment on the basis that a

second prosecution placed him twice in jeopardy and was

therefore violative of the Fifth Amendment. This double

Jeopardy a-gument was rejected by a Memorandum and

Order datea December 6, 1972. Now, the defendant raises

a variation of the same argument. Citing United States v.

Sisson, 390 U.S. 267, 90 S. Ct. 2117 (1970) he now argues

that the granting of his motion in arrest of judgment in

the first prosecution was not really that, but rather, a di-

rected acquittal. Although the defendant is quite right

that in Sisson the grant of what the trial court there

labelled as a motion in arrest of judgment was held to con-

stitute the grant of a judgment of acquittal, he is incorrect

in his assertion that the arrest of judgment entered in his

first prosecution was similarly mislabelled. The rationale

in Sisson was that the trial court, when granting the defen-

dant’s motion in arrest of judgment, went beyond the “face

of the record” and relied upon evidence that was developed

during the trial. Because a motion in arrest of judgment is

properly confined to challenging the sufficiency of the in-

dictment or the court’s jurisdiction, the trial court in Sisson

was held to have directed an acquittal. When the present

defendant's motion in arrest of judgment was granted fol-

lowing his first conviction, the trial court’s action was

based upon a defect in the indictment. It had nothing to do

with the proofs developed at trial. The defendant was not

acquitted at the conclusion of the first prosecution, and,

therefore, has not been twice put in jeopardy this prosecu-

tion.

— 5 AOR ST eT

PEERS ey RE PES CLF OES

FETS ELAR EEE NDEI LIEE EE

ee

25

Again raising a double jeopardy argument, the defen-

dant contends that the entry of a judgment of acquittal

in the present case is dictated by the cases of United States

v. Jorn, 400 U.S. 470, 91 S. Ct. 547 (1971); Downum v.

United States, 372 U.S. 734, 83 S. Ct. 1033 (1963); and

Green v. United States, 355 U.S. 184, 78 S. Ct. 221 (1957). It

has long been held, however, that where a conviction is set

aside upon an insufficiency in the indictment and at the

insistence of the defendant, a second prosecution is not

barred by the Fifth Amendment. United States v. Tateo,

377 U.S. 463, 84 S. Ct. 1587 (1964); United States v. Ball,

163 U.S. 622, 16 S. Ct. 1192 (1896).

Next, the defendant argues that judgment of acquittal

should be granted because the Government failed to prove

that the false statements made or passed by the defendant

did in fact influence the action of the Department of

Housing and Urban Development. Section 1010, however,

requires only that false statements be made or passed “for

the purpose of influencing” in any way the action of HUD.

Nowhere is it stated that the false statements must actually

influence the agency. Moreover, unlike Section 1001 of

Title 18, U.S.C., which proscribes the making of material

false statements to any department or agency of the United

States, Section 1010 includes no requirement thus the false

statement made or passed must be material. Thus, the de-

fendant’s reliance upon United States v. East, 416 F.2d 351

(9th Cir. 1969), is misplaced.

MOTION FOR NEW TRIAL

The defendant first asserts that this Court erred in

denying his motion for a bill of particulars. He asserts that

he was thus prejudiced by an inability to adequately pre-

pare his case; by surprise at the time of trial; and, by a

later risk of double jeopardy. In light of the fact that the

second prosecution was based almost entirely upon the

evidence that the Government produced during the first

wus PALLET PRESS A Se ee eee

26

trial, the defendant's present claim of inability to prepare

and surprise is astounding.

Next, the defendant argues that the Court committed

error in precluding defense counsel from cross-examining

a Government witness concerning FHA Circular Letter No.

152. The Court’s ruling was based upon the fact that the

particular Circular Letter was promulgated subsequent to

the commission of the offenses charged in the indictment

and was, therefore, irrelevant.

The defendant also argues that the Court erred in

refusing to grant a mistrial based upon three leading and

allegedly prejudicial questions asked by the prosecutor.

Defense counsel objected to each as they were made and

before the witness had an opportunity to answer. The ob-

jection to each question was not only sustained, but the

questions themselves were ordered stricken from the

record. During the charge, the Court instructed the jury as

follows:

“When the Court has sustained an objection to

a question addressed to a witness the jury must disre-

gard the question entirely and may draw no inference

from the wording of it, or speculate as to what the

witness would have said if he would have been per-

mitted to answer any questions.” (N.T. 535).

Thus, even if the questions themselves were arguably

prejudicial, the defendant certainly did not suffer sufficient

prejudice to justify the grant of a new trial.

Citing Giglio v. United States, 405 U.S. 150, 92 S. Ct.

763 (1972) the defendant next contends that the Govern-

ment failed to inform the jury that two of the Government's

witnesses had been guaranteed prosecutorial leniency.

This, he argues, is a denial of his right to due process.

Were it so, his argument would be colorable. The defendant,

has failed to mention who these two witnesses were. More-

over, this Court does not understand Giglio to place any

more of a burden upon the prosecution than to inform de-

RY SETS SOFA SOE ree oF

~~

27

fense counsel of any understandings or agreements the

Government may have as to future prosecutions of wit-

nesses. Finally, the critical witnesses used by the prosecu-

tion in the present case were the same as those who testi-

fied during the defendant’s first trial. At that trial, the de-

fendant and his counsel were both informed by the prosecu-

tor of an informal agreement between the Government

and the witness Raymond Darrah. It was then disclosed

that, should Darrah testify, he would not be prosecuted.

Once on notice of this agreement, if defense counsel

thought it had any impeachment value, it was his responsi-

bility to raise the matter through cross-examination.

Next, the defendant argues that the Court committed

error by precluding defense counsel from cross-examining

a Government witness with respect to a particular section

of the Code of Federal Regulations. He bases the argu-

ment upon the well known fact that the contents of the

Federal Register are required to be judicially noticed. 44

U.S.C. §1507. By its ruling, however, the Court did not

decline to take judicial notice of the Code of Federal Regu-

lations. The ruling was based upon the fact that the at-

tempted cross-examination was irrelevant and inmaterial.

Further, the defendant contends that the Court erred

in admitting expert testimony as to the condition of various

aspects of the houses mentioned in the indictment. The

expert witnesses examined the houses more than a year

after the false statements were made or passed. The defen-

dant argues that the intervening interval of time was so

great that the testimony was irrelevent, unmaterial and

highly prejudicial. When the condition of an object at a

given time is in issue, its subsequent condition is, in human

experience, some indication of its probable prior condition.

The propriety of the inference that the prior condition was

the same as the subsequent proven condition will depend

upon the likelihood of intervening circumstances having

occurred. The expert testimony that was admitted in the

present case concerned the condition of the plumbing,

heating, and electrical systems and the right of houses that

SNE Be SRT SSSR DO SE ED

28

presumably had been rehabilitated by the defendant some-

what more than a year earlier. It is well within the realm

of human experience that the aspects of these houses to

which the Government's witnesses testified should not have

changed significantly within such an interval of time. The

defendant, as was his right, had an ample opportunity to

explain away the effect of the evidence by showing that in

the meantime other circumstances had occurred that

would suggest that the conditions testified to were not the

same as those at the date in issue. The defendant exercised

this right at length. Quite apart from such a prerogative,

it is clear that the admissibility of such evidence lies in the

discretion of the trial court. II Wigmore, Evidence §437

(3d ed. 1940). In this case there was no abuse of that dis-

cretion, and certainly no prejudical error in the magnitude

complained of by the defendant.

It is next argued that the Court erred in not permitting

the defendant to cross-examine a Government witness with

respect to “seller/builder” agreements executed by the

mortgagee. These agreements were irrelevant to the issues

being tried and were, therefore, properly excluded.

Finally, the defendant argues that the Court erred

during the voir dire by refusing to examine the pro-

spective jurors with regard to 53 questions submitted by the

defendant. The questions that should be asked upon voir

dire examination are a matter within the discretion of the

trial court. The questions that were excluded in the present

case had either been covered by the Court in its examina-

tion or were inmaterial and irrelevant to the issue to be

tried by the jury. United States v. Bamberger, 456 F.2d 1119

(3d Cir. 1972); United States v. Owens, 415 F.2d 1308, 1315

(6th Cir. 1969).

For the foregoing reasons, the motions of the defen-

dant, Charles C. Hibbs, for arrest of judgment, for judg-

ment of acquittal, and/or for a new trial will be denied.

set a NS AEN bes 2

29

ORDER

AND NOW, this 9th day of April, 1973, it is ORDERED

that the motions of the defendant Charles C. Hibbs, in

arrest of judgment, for judgment of acquittal, and for a

new trial, are hereby DENIED.

AND IT IS FURTHER ORDERED that the United

States Probation Office prepare a presentence report.

PARES. Lor

J.

Laat

fe te

30

EXHIBIT “B”

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

Nos. 73-1011, 73-1491

UNITED STATES OF AMERICA

v.

CHARLES C. HIBBS, Appellant

Appeal from the United States District Court for the

Eastern District of Pennsylvania.

(District Court Criminal Action No. 72-600)

Under Third Circuit Rule 12(6)

Submitted September 18, 1973

Before: KALODNER, ALDISERT and Gartu, Circuit Judges.

JUDGMENT ORDER

After considering the contentions raised by appellant

that: (1) the court erred in denying the plea of double

jeopardy; (2) the certifications in issue were not material

and did not influence the action of the Department of

Housing and Urban Development; and (3) the indictment

failed to state necessary elements of the offense, the proof

31

varied from the allegations in the indictment, and the

defendant was not within the class of persons specified by

18 U.S.C. §1010, it is

ORDERED AND ADJUDGED that the judgment

of the district court be and is hereby affirmed.

By the Court,

Qadir t

Circuit Judge

— Tor

Dated: September 19, 1973

a ————————

32

EXHIBIT “C”

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 73-1011 and 73-1491

UNITED STATES OF AMERICA

v.

CHARLES C. HIBBS, Appellant

SUR PETITION FOR REHEARING

Present: Seitz, Chief Judge, and KALopNER, VAN Dusen,

ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER,

Wess and Garth, Circuit Judges.

THE PETITION FOR REHEARING FILED BY

APPELLANT

in the above entitled case having been submitted to the

judges who participated in the decision of this court and to

all the other available circuit judges of the circuit in regular

33

active service, and no judge who concurred in the decision

having asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not having

voted for rehearing by the court in banc, the petition for

rehearing is denied.

By the Court,

Dated: Judge

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