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United States v. Nasser

March 23, 1962

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
SKANDER NASSER, JR., DEFENDANT-APPELLANT.



Author: Hastings

Before HASTINGS, Chief Judge, and DUFFY and SWYGERT, Circuit Judges.

HASTINGS, Chief Judge.

Defendant was charged in a two-count indictment with violations of Title 18 U.S.C.A. § 1010.*fn1

Following a trial to the court, without the intervention of a jury, defendant was found guilty as charged on each count of the indictment. Judgment of conviction was entered thereon, and it was adjudged that defendant pay a fine in the sum of $1,000 on each count, together with the costs of the action. No sentence of imprisonment was imposed. This appeal followed.

The trial court denied defendant's motions to dismiss the indictment, for disclosure of evidence before the grand jury, for acquittal at the close of the Government's case and at the close of defendant's case and overruled defendant's objections to the admission of oral testimony relating to certain Government exhibits.

The errors relied on for reversal arise out of such adverse rulings.

Count I of the indictment charges:

"That on or about March 26, 1959 Skander Nasser, Jr., at Universal, State of Indiana, in the Terre Haute Division of the Southern District of Indiana, for the purpose of obtaining a home improvement loan for George K. Domieka on premises located in Universal, Indiana, from the Citizens Investment Company, Terre Haute, Indiana, and with the intent that said loan be offered to and accepted by the Federal Housing Administration for insurance, did unlawfully, knowingly and wilfully cause the said George K. Domieka to make a false statement, to wit: statement captioned 'Credit Application for Property Improvement Loan' dated March 26, 1959, in the amount of $3,500.00 to the Citizens Investment Company, Terre Haute, Indiana, which statement was false in that it showed that the loan proceeds would be used as 'siding, electric pump, room on house and bathroom,' whereas the said Skander Nasser, Jr. then and there well knew that said statement was false in that George K. Domieka had no intention of using the said loan proceeds solely for 'siding, electric pump, room on house and bathroom,' as aforesaid on the said premises."

Count II is in substance to the same effect setting out another such occurrence with different parties. Our determination of the sufficiency of Count I applies equally to Count II.

The charge that defendant "did unlawfully, knowingly and wilfully cause the said George K. Domieka to make a false statement" is sufficient to properly charge defendant as a principal under Title 18 U.S.C.A. § 2.*fn2 United States v. Inciso, 7 Cir., 292 F.2d 374, 375, 378 (1961).

The charge in Count I further recites that "whereas the said [defendant] then and there well knew that said statement was false in that George K. Domieka had no intention of using the said loan proceeds solely for 'siding, electric pump, room on house and bathroom,' as aforesaid on the said premises." (Emphasis added.) Defendant contends that the Government, by use of the word solely, "in effect created a new federal statutory offense" not within the purview of 18 U.S.C.A. § 1010. There is no merit in this argument.

A careful reading of the indictment demonstrates that the use of the word solely is to give emphasis to the falsity of the statements the defendant is charged with having caused to be made. The statements were false in that the proceeds of the loan were not to be used solely for the purposes set forth. The material part of the offense was the act of causing false statements to be made.

The indictment is "a plain, concise and definite written statement of the essential facts constituting the offense charged." Rule 7, Federal Rules of Criminal Procedure, Title 18 U.S.C.A. It contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet and is adequate, should other similar proceedings be brought against him, to enable him to frame a plea of former jeopardy. United States v. Debrow, 346 U.S. 374, 376, 74 S. Ct. 113, 98 L. Ed. 92 (1953). It fully meets the standards of sufficiency laid down by the courts in a long line of decisions. See United States v. Inciso, supra, 292 F.2d at 378, and cases cited therein. We hold that the trial court did not err in denying defendant's motion to dismiss the indictment.

For the same reasons, we reject defendant's contention that his conviction on the indictment as drawn was a denial of due process under the Fifth Amendment. His reliance on United States v. Amadio, 348 U.S. 892, 75 S. Ct. 218, 99 L. Ed. 701 (1954), reversing per ...


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