*1 defense, govern- statute’s we dismiss that the federal interest cy, despite the fact statute, jurisdiction.” ment, appeal enforcer of the want the source 366-68, (emphasis at at 1700 add Id. at S.Ct. U.S. at 106 S.Ct. withdrawn. had ed). case, In that Dr. Diamond did not have 2240-41. standing his own interests were not ease, controlling is what is In the instant by sufficiently implicated the abortion stat withdrawn, but that has not that the State Here, standing ute. NECA does not have are not an intended the union contractors bring appeal simply this because its interests statute, beneficiary of the nor do target or sufficiently by Michigan are not affected sufficiently allege any direct stake they other statute. I do not read Diamond to establish they litigation, nor do the outcome private party rule that no intervenor can apprentices or represent claim or seem standing pursue appeal have an that an beneficiary. fact that other such bring, original party state declines to and to competitive position could affect statute the extent that this court establishes such is not itself sufficient of union contractors Circuit, disagree. I rule this must standing. to confer “only The court holds State
Michigan has the kind of direct stake necessary
defending provisions of its law standing prosecute appeal.”
to confer that, as
If
court means
between
State
NECA, only
had sufficient
the State
America,
UNITED STATES
agree. But
appeal, I
to the extent
stake to
Plaintiff-Appellee,
a state has
that the court means
litigate
validity
standing to
of its own
no
there can be
case
contro
statute —that
HUBBARD,
John Bruce
Defendant-
to defend its stat
versy if a state declines
Appellant.
clearly
disagree. There
is no
ute —I must
No. 91-1775.
only a state can de
constitutional rule that
statute,
number of
fend its own
Appeals,
United States Court
private
demonstrate that
two
famous cases
Sixth Circuit.
parties
fully
litigate
the consti
are
entitled
Argued Nov.
1993.
validity
tutionality
of state statutes.
or other
See,
Lessee, 14
e.g.,
v. Hunter’s
U.S.
Martin
Decided Feb.
1994.
(1 Wheat.)
(1816);
(1837);
Hotel v.
West Coast
(1937);
U.S. 57 S.Ct. Trust, Hanover Bank &
Mullane v. Central 652, 94 L.Ed. 865 course, But, party each such must standing, personal a sufficient stake in controversy.
the outcome of the point by quoting
I would underscore this Supreme
from the Court’s decision Dia Charles, 54, 106
mond v. 476 U.S. on which the court’s
opinion Blackmun writes that relies. Justice private party whose own conduct
“Because implicated
is neither nor threatened judicially cognizable
criminal no statute has *2 with three counts of mail fraud jury A
in violation of 18 U.S.C. appeals, guilty him on all counts. He found (1) arguing the evidence was insufficient (2) him of and all counts and convict *3 performance trial counsel’s violated his Sixth right Amendment to the effective assistance of counsel.
I The counts of conviction revolve around dealings in two different matters: Hubbard’s bankruptcy proceedings owner- his and his ship aof Fino boat. 25, 1985, September a
On Hubbard filed petition Chapter bankruptcy. for Pursuant bankruptcy petition in to the and the course adversary proceedings, of certain Hubbard deposed on at least four occasions re- assets, garding his his transfer of those as- sets, value, their and their whereabouts. At depositions, put each of these Hubbard was truth. under oath and he swore to tell the government prosecuted for during depo- false statements made he these sitions. during bankruptcy proceedings,
Also bankruptcy trustee filed a motion for surrender of the books and records of Hub- bard’s Hubbard filed a written businesses. response bankruptcy to this motion. The Felder, Peregord (argued Gary Jennifer J. complaint, trustee also filed an amended briefed), Detroit, Atty., Office of the U.S. and responded which Hubbard with a formal MI, plaintiff-appellee. pleading, “Debtor’s Answer to Trustee’s briefed), (argued Paul Morris Coral Complaint.” govern- First Amended Gables, FL, defendant-appellant. prosecuted ment Hubbard for written state- response in ments he made his to the motion BATCHELDER, Before: NELSON and in his Answer.1 MATIA, Judges; Circuit District Judge.* II
BATCHELDER, Judge. Sufficiency Circuit A. the Evidence charged sufficiency in a Defendant Hubbard was ten- We review the of the evi count four counts of indictment with bank- dence for criminal conviction under the ruptcy Virginia, in in fraud violation of 18 U.S.C. standard set out Jackson v. 307, 319, 2781, 2789, making counts of false statements U.S. three L.Ed.2d (1979): “[Wjhether, jurisdiction viewing a matter within the after government light federal violation of 18 U.S.C. evidence most favorable to the * Matia, The Honorable Paul R. United States Dis- 1. We defer discussion of the Fino boat to the Ohio, (the Judge analysis trict for the Northern District of of the mail fraud counts related conviction). sitting by designation. counts response bankruptcy any rational trier of fact could to the trustee’s mo- prosecution, compel essential elements of the tion to Hubbard to surrender his found the beyond reasonable doubt.” produced crime books and records that he had such previously previous bankrupt- records to the (Counts /- Bankruptcy Fraud Counts (which (2) not), cy answering trustee he had IV) bankruptcy complaint by deny- trustee’s ing well-drilling that a certain machine was charged in each of the first The indictment many particular place answers when in fact Hub- four counts that Hubbard’s stored (3) was, I during deposition falsely deny- were false: count bard knew that it gave alleged that Hubbard false answers bankruptcy allega- trustee’s further specified deposition ques- response to eleven well-drilling parts tion that to the machine *4 1985, alleged count II tions on October specified being were stored at a different response gave false answers that Hubbard alleged location. None of these falsehoods specified deposition questions on to three was made under oath. alleged count III that November response to gave Hubbard false answers Hubbard contends that his convic questions specified deposition on Feb- eleven tion on these counts cannot stand for several 7, 1986, alleged that ruary and count IV First, reasons. his untruthful statements gave response Hubbard false answers were trivial falsehoods and were thus not questions eighteen specified deposition Second, required by material 1001.2 his as ” 1986. Hubbard asserts June “exculpatory statements fall within the ‘no’ gave during depositions his were answers he Third, liability exception to under 1001. materially false. Because this is a suffi- not “judicial the statements fall within the func claim, ciency if we find that of the evidence liability. Finally, exception tion” allegedly false state- any one of Hubbard’s language plain of the statute does not a violation of 18 U.S.C. ments was encompass activity.3 upheld. that count of conviction must be carefully questions matter, preliminary We have reviewed must As a we given and asked and the statements argument government address an pur- that it would serve no useful argument: concluded raised at oral because Hubbard every pose go into detail on each and exception failed to raise the plain- trial, count of conviction. The evidence defense before Federal Rule of Crimi conclusions, ly support jury’s 12(f) sufficient to raising him from nal Procedure bars and we therefore affirm the first four counts government’s disagree with the now. We conviction. 12(b) types suggestion. Rule identifies five (motions, requests, or of defensive moves (Counts
2. False Statement Counts
V-
defenses)
trial,
prior to
that must be made
VII)
12(f) provides that
the failure to
and Rule
V, VI,
types
trial
charged
raise one of these
of claims before
and
Counts
VII
(1)
argument
stating
that claim. Hubbard’s
is
violating 18 U.S.C.
1001 for
waives
First,
arguments
whether
argues
Both of these
fail.
2. Hubbard also
that his statements were
capability
influencing
not shown to have the
tactic” to answer a
or not it is a "traditional trial
government agency, but this is
falsehoods,
the functions of a
complaint
we need
with affirmative
materiality inquiry,
part
parcel
see
and therefore will not
not sanction such action
Steele,
(6th
933 F.2d
United States
exception
as to include Hub-
create an
so broad
-,
Cir.) (en banc), cert.
- U.S.
discussion
note 5.
bard’s conduct.
infra
Cf.
so we do not
Second,
information elicited from Hubbard's
argument independently.
address this
by
attorney-client
attorney
protected
was not
privilege
Hubbard communicated
because what
suggest
can also be read to
two
3. Hubbard’s brief
attorney
conveyed to the bank-
to his
was to be
(1)
arguments:
responses
his
additional
ruptcy
pleading
trustee and the court via written
simply
were
"traditional trial tactics” and thus
protected by
privilege:
and thus was not
(2)
cannot violate
that evidence was
privilege
communi-
extends
attorney
taken from his
ney-client privilege.
in violation of the attor-
confidential
cations,
not all communications.
12(b)(2),
rejected
because this Circuit has
that doc-
closely
Rule
described
most
Steele,
at 1319-22.
that the defendant raise be-
trine. See
requires
which
objections based on
trial “[d]efenses
fore
argu
Hubbard’s third and fourth
(oth-
or information
indictment
defects in the
ments are similar to one another and chal
jurisdiction in
to show
it fails
er than that
un
lenge his false statement convictions as
objec-
charge an offense which
court or to
assuming his
lawful as a matter of law even
any
the court at
noticed
tions shall be
materially
statements were
false. This as
proceed-
during
pendency
time
signment
poses a more
of error
difficult
ings).”
problem.
merely
argument
a for-
Hubbard’s
provides:
Section
objection
a defect
the indict-
malistic
Whoever,
any
juris-
matter within the
ment;
instead,
argument goes to the
his
any department
agency
or
diction
law,
whether,
a matter of
he can
heart
knowingly
willfully
falsi-
United States
of the crime with which he was
be convicted
trick,
fies,
up by any
conceals
covers
Thus,
claim falls within Rule
charged.
his
fact,
scheme, or device a material
or makes
12(b)(2)’s
excepts
ar-
parenthetical, which
false,
fictitious or fraudulent state-
provisions
gument
of Rule
from the waiver
representations,
ments or
or makes or uses
States,
Davis United
Cf.
*5
any
knowing
writing
false
or document
the
1582,
93 S.Ct.
false,
any
same to contain
fictitious or
(1973) (“The
provisions of Rule
waiver
entry,
statement or
shall be
fraudulent
12(b)(2)
respect
operative
are
$10,000
imprisoned
fined not more than
or
of criminal
in the institution
claims of defects
years,
not more than five
or both.
proceed to the
proceedings.”). We therefore
merits of Hubbard’s contentions.
added).
(emphasis
§
18 U.S.C.
1001
The
question
statements made in writ-
is whether
arguments
two
can
Hubbard’s first
(and
filings
bankruptcy
ten
in the
court
in-
First,
misrepre
disposed
quickly.
be
of
for use
court and the
tended
the
bank-
clearly material under the
sentations were
trustee)
ruptcy
“in
are statements made
[a]
Steele,
out in United States
standard set
jurisdiction
any depart-
matter within the
(6th Cir.) (en banc),
1313, 1319
cert.
agency
ment or
of the United States.”4
—
-,
denied,
112 S.Ct.
116
U.S.
Bramblett,
(1991),
they had the
In United States v.
348
L.Ed.2d 246
U.S.
influencing
bankruptcy
capability of
the
699
though
Even
Bramblett does not ad
limited to false state-
§ 1001 violations were
branch.
made to the executive
any exceptions
sweeping
ments
mit of
to its
lan
involved was held
falsification here
guage,
The
courts
lower
have carved out
jurisdiction of the Disburs
to be within
important
than one.
most
more
of these
which it was
of the House
Office
suggested
at
for the ease
bar is one
the definitions in
thought could not meet
Erhardt,
court’s decision United States v.
signifi
supra
note 4
It seemed
[see
].
6
(6th Cir.1967)
curiam).
(per
700 (4th Cir.1988), and fil Morgan, 840 F.2d 248-49 several Erhardt
Relying on
bankruptcy
“judicial function” ex
ing
performance
a false
bond
developed
courts
liability.
of these
§
Some
1001
matter and
ception to
court was an administrative
a court’s
between
a distinction
upheld,
courts draw
1001 conviction was
therefore
administrative or
and its
judicial functions
Rowland,
F.2d 1169
see
v.
789
United States
functions,
1001
and hold
housekeeping
denied,
(5th Cir.),
107
cert.
479 U.S.
made in
by false statements
can be violated
409
Other
93 L.Ed.2d
S.Ct.
courts,
but
matters
administrative
judicial function
applied
ex
courts
of those courts.
judicial functions
considering
administra
ception without
denying
bankruptcy
falsely
to a
example,
For
tive/judicial dichotomy.
v.
See United States
bankrupt
particular
forged a
judge that one
(10th Cir.1993)
Wood,
692, 694-95
6 F.3d
§ 1001
be a violation of
cy
cannot
document
(false
agents acting
made to FBI
statements
judicial
the court’s
it was within
grand jury
auspices of federal
were
under
Taylor,
v.
907
States
capacity, see United
judicial proceed
with a
“made
connection
Cir.1990)
(8th
(dictum;
n. 3
F.2d
805
prose
“exempt from
ing” and were therefore
“exculpatory
its decision
court based
‘judicial
pursuant
function’ ex
cution
” doctrine), submitting
fictitious letters
‘no’
Deffenbaugh In
ception”);
United States
district court to con
for the
recommendation
(10th Cir.1992) (false
dus., Inc.,
F.2d 749
judicial
sentencing
within the
at
sider
Department of Jus
affidavit submitted to the
and could not be a
function of the court
grand jury
investi
tice in connection with
May
States v.
violation of
see United
judicial
exception
gation came within
function
(9th Cir.1985),
er,
giving a
F.2d 1387
liability);
v. Abra
United States
judge
plea
magistrate
at a
false name to a
(5th Cir.1979) (mak
hams,
604 F.2d
magis
matter of the
hearing was within a
identity
concerning one’s
false statements
duties and thus was
trate’s administrative
magistrate judge
hearing could
to a
at a bail
v. Plas
States
violation of
see United
“ ‘§
1001 is not a
not violate
1001 because
(9th Cir.1984),
cencia-Orozco,
charging a
proper basis for
defendant
statement of indi-
representations on
false
judicial pro
in a
making a false statement
and thus were
gency were administrative
Erhardt);
though
ceeding”’ (quoting
even
liability,
§ 1001
see United
proper
basis
regarding an administra
false statement was
(9th Cir.1983),
Powell,
F.2d 455
States
matter,
tive
court relied
1254, 104
467 U.S.
*7
exception anyway). But
see United States
(1984),
other
and rev’d on
L.Ed.2d 845
(7th Cir.1989)
Barber,
881 F.2d
349-50
57, 105 S.Ct.
grounds, 469 U.S.
(submission
sentencing
of false letters
to a
giving a false name
L.Ed.2d 461
judge
proceeding violat
in another’s criminal
consenting
filing
form
magistrate and
1001;
§
court criticized the “so-called ‘tri
ed
magistrate judge under
proceed
the
before
it),
apply
exception” and refused to
al tactics’
an administrative
the false name was within
1956, 109
922, 110
subject to
court and therefore
U.S.
matter of the
(1990).5
Holmes,
liability,
§
States v.
L.Ed.2d 318
1001-
see United
up
noting
Columbia
Does a defendant cover
... material
is that the District of
Worth
Circuit,
guilty?
Morgan,
pleads
authored
has criticized
fact when he
not
Does an
which
Morgan
attorney
up
relied on the
he moves to exclude
circuits that have
cover when
the other
true,
judicial
establishing
hearsay testimony
ex-
function
he knows to be
or
dictum
ception:
when he makes a summation on behalf of a
guilty?
courts,
he knows to be
Morgan
client
relying upon the
A number of
(internal
Morgan,
quotation
dictum,
it is but clear attorney that an In London it was held exception recognized tion the law of this gave falsified a court order and it to his who Circuit. *8 them of substan- clients order to defraud money gov- did not violate 1001. unnecessary find it to reach the tial sums of We ‘judicial § 1001 was con- argument “the func- The London court held that ernment’s that to the exception’ inapplicable misrepresentations to cerned with made tion is false state- attorney’s fraudu- government from the and that an ments intended to conceal assets fore, putative “judicial true even of Erhardt because Erhardt to extend the function” 6. This is exception protect knowingly to one who makes development preceded of the the other circuits’ a material false statement of fact in the course gave judicial excéption, function as the rationale legislative inquiry. Mayer, at of a See 775 F.2d undermining holding the the avoidance of for its (Fairchild, ("virtually concurring) 1392 none statute, infra, perjury and did not see discussion significant really defined decisions has developing any “judicial purport such func- to be [judicial exception expound- function] [or] the ed a exception. although And the Erhardt court tion” rationale,” “compelling and there is no Morgan, cannot be said that Erhardt did cite extending exception beyond for the the reason implicitly adopting ex- cases). holdings” prior exact (as Morgan ception discussed from Poindexter, 369, 951 F.2d - United States v. above) any excep- -, Morgan did not create such (D.C.Cir.1991), tion. clients, of one Cliff Ham- though employing the assistance even to his
lent statement
boat,
stripped down the
merlee. Hammerlee
litigation, was
federal civil
ongoing
related
equipment from the
removing most of the
is most
1001. London
not a violation
etc.),
seats,
(e.g.,
decking, gauges,
and
boat
by the fact that the at-
easily distinguished
home.
equipment
at his own
stored
any fraudulent statement
made
torney never
money
not
Hubbard did
When
opposing party in
to the
court or
to the
restoration,
pay Hammerlee to continue the
The London
proceeding.
court document
up
picked
a truck and
rented
Hubbard
vastly
different
sound but
holding seems
equipment.
at bar.
from the case
applied Allstate
April
In
Hubbard
similar.
In a
case is more
D’Amato
The
boat, claiming
value
its
for insurance
damages arising
out
for
private civil action
$22,500. Although
per-
Allstate denied
to be
Products’s “Ul-
counterfeiting of Johnson
grant temporary
coverage, it did
cov-
manent
an affida-
gel, D’Amato filed
hair
tra Sheen”
through
June
erage
June
On
knowledge
products
he
that
denying
vit
an
filed a claim with Allstate for
Hubbard
appeal following
On
counterfeits.
sold were
equipment
from the
alleged June
theft of
§of
for violation
jury
a
conviction
adjuster
pic-
took
The Allstate claims
boat.
conviction,
hold-
reversed
Second Circuit
boat, Hubbard sent a letter that
tures of the
apply
a false
does not
that
“sto-
replacement
cost
itemized
The
private
in a
civil action.
made
statement
July
equipment to Allstate on
len”
apply
where
§ 1001 “does
court
said
paid
approximately
Allstate
a claim of
$4800.
only by way of a
is involved
the Government
photos
trial Hammerlee identified the
tak-
At
in which the Govern-
deciding a matter
court
adjuster
representative
en
the Allstate
as
agencies are not
involved.”
its
ment or
just
condition in 1981
after he
of the boat’s
D’Amato,
empha-
at 28. The court
equipment for Hubbard.
had removed all the
government’s
the fact
sized
(and specifically
July 12th
facts
These
adjudicator
as
in the case was
involvement
letter) formed the basis for Count VIII.
controversy and noted that
other
applied
April
Also in
Hubbard
in-
government was often
1001 cases
loan
loan to refurbish the boat. With his
(e.g.,
party as well
opposing
as an
volved
application, he included fraudulent documen-
cases; gov-
in criminal
made
false statements
(2)
(1)
value,
regarding
tation
the boat’s
party).
opposing
Id. at 29.
ernment
(non-existent)
(3)
loan,
prior
insurance cover-
D’Amato is also distin-
We believe
(4)
age,
the location
boat.
the case at bar. Without
guishable from
By
July
approved.
mail on
loan was
features,
distinguishing
how-
focusing on the
loan,
paid
portion
of his
ever,
simply hold that to the extent that
we
representations
fraudulent
as to the
made
enough
controlling
similar
be
D’Amato is
restoration,
requested a
progress of the
being
this case
heard
on this
were
issue
response
of the loan.
In
short-term renewal
Circuit,
follow it in
we decline to
the Second
request for a
renew-
to Hubbard’s
short-term
the Sixth Circuit.
al, the bank sent loan renewal documentation
affirm Hubbard’s conviction
We therefore
29,1985.
August
July
to Hubbard on
VI,V,
and VII.
on counts
August mailings
formed the basis of
jury
IX and X. The
found Hubbard
Counts
(Counts VIII-X)
Fraud Counts
3. Mail
guilty
all three mail fraud counts.
*9
1970s,
argues
in-
stepfather
Hubbard’s
Hubbard
that the evidence was
Since
count of mail fraud
stepfather
After his
sufficient as to each
had
a Fino boat.
owned
“not de-
took the
from because the scheme to defraud was
died in
Hubbard
boat
Shores, Michigan.
pendent upon
charged mailings”
and be-
The
Florida to St. Clair
“extremely poor” shape at the
cause the scheme had reached fruition before
in
boat was
boat,
time,
mailings
were made.7
set out to restore the
so Hubbard
argues
merit because the indictment
7.
his conviction was
ment is without
Hubbard also
by
argu-
barred
of limitations. This
statute
First,
insufficiency contention
the defendant must show that coun-
Hubbard’s
performance
he misunderstands the
sel’s
was
fails for two reasons:
deficient. This re-
and the
required
quires
nexus between the scheme
showing that counsel made errors
scheme too nar
mailing, and he defines the
functioning
so
that counsel
serious
was not
charged
simply
rowly.
was not
The scheme
guaranteed
by
as “counsel”
the defendant
company,
to defraud the insurance
Second,
a scheme
the Sixth Amendment.
the defen-
a scheme to obtain
fraudu
but was also
perfor-
dant must show that the deficient
repairing
and to
lent means a loan for
a boat
prejudiced
mance
the defense. This re-
by fraudulent means an extension of
obtain
quires showing that counsel’s errors were
“
mailings
‘inci
that loan. If the
made were
deprive
so serious as to
the defendant of a
scheme,’
part of the
or ‘a
dent to an essential
trial,
fair
a trial whose result is reliable.
step
plot,’”
in
Schmuck v. United
[the]
668, 687,
Washington,
Strickland
States,
489 U.S.
109 S.Ct.
2052, 2064,
(1984).
104 S.Ct.
In order to the reversal of the conviction show ineffective assistance counsel, directly things: § 1001 count is relevant here. Hubbard must establish two *10 5, 1990, mailings. July years charged the
was returned on within five introduction of false documents § was If the holding on the 1001 issue Erhardt’s rule, proceedings is conduct connected court the two-witness primarily not based judicial machin- operation of the court’s the cryptic opin- somewhat panel’s I read the as performance of an ery, not with the of the began its discussion panel ion. function, I housekeeping or administrative saying that two-wit- “[t]he § 1001 issue concluding principled no basis for can see appellant’s dispositive of not rule is ness making false statements that of unsworn the charging the in- the count under conviction proceedings is not likewise connect- document, in court since it false of a troduction judicial machin- operation of the ed with rule does the two-witness generally held from ery. Accordingly, respectfully I dissent under 18 U.S.C. prosecutions apply to not omitted). Hubbard’s con- (citations affirmance of defendant It is § Id. at 1001.” of the false statement counts viction on the talking to be panel seemed true I concur in the affirmance of said, indictment. 1001 when its construction about remaining counts. convictions on the contrary opinion, that “[a] at the end of the effective- undermine construction would perju- of the rule and of the two-witness
ness I do not understand itself.” Id.
ry statute principal represent ba-
this statement holding on the panel’s
sis for the however, panel’s explicit ac-
issue, given the ap- two-witness rule
knowledgement that the
prosecutions under
perjury
plied
America,
UNITED STATES
prosecutions
writing
not to false
1621 and
Plaintiff-Appellee,
under
holding
basis for
principal
CZUPRYNSKI,
M.
Edward
it,
issue,
I understand
was
as
Defendant-Appellant.
States,
Morgan
v. United
passage from
(D.C.Cir.1962),
No. 93-1079.
F.2d
373 U.S.
Appeals,
United States Court
panel
fol
by the Erhardt
as
quoted
Circuit.
Sixth
lows:
17, 1994.
Feb.
Congress
certain that neither
are
“We
the stat-
Supreme Court intended
nor the
MERRITT,
Judge;
Before:
Chief
trial tactics with-
include traditional
ute to
MARTIN, JONES,
KEITH, KENNEDY,
statutory terms ‘conceals or covers
in the
GUY, NELSON, RYAN,
MILBURN,
authority
only, on the
up.’
holdWe
NORRIS, SUHRHEINRICH,
BOGGS,
construction, that the stat-
Supreme Court
BATCHELDER,
SILER,
* * *
type
of action
apply to
ute does
DAUGHTREY,
Judges.
Circuit
essentially involved the ‘administra-
which
functions,
‘housekeeping’
not
tive’ or
ORDER
machinery of the court.”
‘judicial’
report:
Prior