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Tripp v. United States

United States Court of Appeals, Ninth Circuit
Sep 14, 1967
381 F.2d 320 (9th Cir. 1967)

Summary

holding that an indictment's failure to list all of § 1010's articulated purposes for influencing housing authority did not render the indictment defective

Summary of this case from McLean v. U.S.

Opinion

No. 20525.

July 27, 1967. Rehearing Denied September 14, 1967.

William A. Dougherty, Ackerman Dougherty, Santa Ana, Cal., for appellant.

William M. Byrne, Jr., U.S. Atty., Robert M. Talcott, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before JERTBERG, BROWNING, and ELY, Circuit Judges.


Appellant James H. Tripp was convicted on twenty-two counts of a twenty-six count indictment charging violations of 18 U.S.C. § 2, 371, and 1010 (1964). The government alleged that Tripp and an unindicted individual engaged in a conspiracy to defraud the Federal Housing Administration, and that Tripp submitted false documents to the FHA designed to influence it to accept and guarantee loans and mortgages on Tripp-constructed houses.

The government based a separate count on each false document even where several of the documents were submitted in support of a single application. Of course such counts were not "duplicitous," as appellant urged, for duplicity is the charging of several separate offenses in a single count. It is rarely prejudicial. More to the point, such counts did not split a single statutory offense into multiple charges, for under 18 U.S.C. § 1010 (1964) "[t]he filing of each false document would constitute a crime." Bins v. United States, 331 F.2d 390, 393 (5th Cir. 1964). Cf. United States v. Private Brands, Inc., 250 F.2d 554, 557 (2d Cir. 1957).

Counts Four and Twenty-four, each alleging that appellant made, uttered, and published a document containing false statements "for the purpose of influencing the action of the Federal Housing Administration," are not defective because they do not also allege that appellant acted "for the purpose of obtaining any loan or advance of credit * * * with the intent that such loan or advance of credit shall be offered to or accepted by the Federal Housing Administration for insurance." The statute is in the disjunctive; either purpose is enough. The allegation in counts Sixteen, Seventeen, and Nineteen that appellant "knew" the statements to be false, serves as well as an allegation that he acted "knowingly." Each of the challenged counts of the indictment alleged all of the essential elements of the offenses under 18 U.S.C. § 1010 "and identified the particular conduct upon which the charge was based to the extent necessary to protect appellant from double jeopardy and to tell him what he must be prepared to meet." Rivera v. United States, 318 F.2d 606, 607 (9th Cir. 1963).

The court properly denied appellant's motions to strike the testimony of the witnesses Cardona, Galbreath, Rosemond, and Branum. The contention that their testimony was vague and uncertain goes only to its weight. The contention that their testimony relates to appellant's conduct after the alleged conspiracy had ended misses the point: evidence of appellant's efforts to induce home buyers to conceal the facts from federal investigators was admissible against appellant in proof of his guilty knowledge.

Appellant did not object to the testimony of his co-conspirator that he had pleaded guilty; we do not consider the claim of error.

Appellant's challenge to the sufficiency of the evidence is frivolous; proof of his guilt was overwhelming.

The prosecutor's summation contained no prejudicial error.

Affirmed.


Summaries of

Tripp v. United States

United States Court of Appeals, Ninth Circuit
Sep 14, 1967
381 F.2d 320 (9th Cir. 1967)

holding that an indictment's failure to list all of § 1010's articulated purposes for influencing housing authority did not render the indictment defective

Summary of this case from McLean v. U.S.

rejecting the defendant's complaint that the government could not submit "a separate count on each false document even where several of the documents were submitted in support of a single application" because "the filing of each false document would constitute a crime"

Summary of this case from Jones v. State
Case details for

Tripp v. United States

Case Details

Full title:James H. TRIPP, Appellant, v. UNITED STATES of America, Appellee

Court:United States Court of Appeals, Ninth Circuit

Date published: Sep 14, 1967

Citations

381 F.2d 320 (9th Cir. 1967)

Citing Cases

McLean v. U.S.

Section 1010 is comprised of multiple clauses in the disjunctive. Tripp v. United States, 381 F.2d 320, 321…

Zimmerman v. U.S.

Because the statute is in the disjunctive, an allegation of more than one purpose for influencing HUD does…