UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

HUBBELL, WEBSTER L.


99-3044a

D.C. Cir. 1999


*	*	*


Opinion for the Court filed Per Curiam.


Per Curiam: The Office of Independent Counsel appeals  from the
district court's dismissal, for vagueness, of one count  of a
multi-count indictment returned against Webster L.  Hubbell. We


I.


The 15-count indictment alleges that Hubbell, acting as an  attorney
for the Rose Law firm, assisted Madison Guaranty  Savings & Loan
Association in a series of real estate transac- tions, including the
purchase of land, through Madison Guar- anty's subsidiary, Madison
Financial, and nominee purchaser  Seth Ward, Hubbell's father-in-law.
Allegedly seeking to  conceal the improprieties in these transactions
from the Fed- eral Home Loan Bank Board, Hubbell assisted Madison 
Guaranty in creating a fictitious paper record to deceive the  bank
regulators about the nature of Madison's payments to  Seth Ward, and
then concealed his representation of Seth  Ward from the Federal
Deposit Insurance Corporation  (FDIC). The indictment further alleges
that Hubbell lied to  federal investigators about these events.


Count 1 of the indictment,1 which incorporates by reference  the
allegations above as set forth in the first 85 paragraphs of  the
indictment, charges a violation of 18 U.S.C. s 1001 (1994). 




__________

n 1 The remaining counts are as follows: Count 2 charges a  violation
of 18 U.S.C. s 1032(2) (corruptly impeding the functions of  the FDIC
and Resolution Trust Corporation (RTC)); Count 3  charges a violation
of 18 U.S.C. s 1006 (fraud on the FDIC and  RTC); Counts 4 through 7
charge violations of 18 U.S.C. s 1007  (false statements to the FDIC);
Counts 8 and 9 charge violations of  18 U.S.C. s 1001 (false
statements to the RTC); Count 10 charges  a violation of 18 U.S.C. s
1621 (perjury); and Counts 11 through 15  charge violations of 18
U.S.C. ss 1341, 1346 (mail fraud).


At the time of Hubbell's conduct alleged here, s 1001 provid- ed:


[W]hoever, in any matter within the jurisdiction of any  department or
agency of the United States knowingly  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
representations, or  makes or uses any false writing or document
knowing the  same to contain any false, fictitious or fraudulent
state- ment or entry, shall be fined under this title or impris- oned
not more than five years, or both.


Id. Specifically, Count 1 alleges that Hubbell "did knowingly  and
willfully falsify, conceal, and cover up by scheme material  facts
about and related to the true nature" of his relationships  with Seth
Ward, Madison Guaranty, and Madison Financial,  and that he made
"materially false and fraudulent statements  and representations to
the FDIC and the RTC" about these  relationships. Hubbell moved to
dismiss this count for vague- ness and to require election among
multiplicitous counts. He  argued that, given the lack of specificity
in identifying the  particular facts concealed, the indictment failed
to "fairly  infor[m] [him] of the charge against which he must
defend."  Hamling v. United States, 418 U.S. 87, 117 (1974); Fed. R. 


The district court granted the motion to dismiss Count 1  for vagueness
(and as such did not reach the multiplicity  issue). The district
court's reasoning, however, focused not  on the specificity of the
allegations, but on whether s 1001  permits the charging of a scheme
crime. The district court  first noted that, in Bramblett v. United
States, 231 F.2d 489  (D.C. Cir. 1956), the "suggestion that s 1001
punishes a  'pattern of conduct' is dictum." United States v. Hubbell,
 Crim. Act. No. 98-0394, Mem. Op. (D.D.C. Mar. 18, 1999),  reported at
1999 WL 152534, at *2; see Bramblett, 231 F.2d  at 491. Viewing the
indictment as charging just such a  scheme or pattern of conduct, the
district court concluded  that the allegations in the indictment went
to the "scheme"  itself and were therefore insufficiently specific as


precise acts of concealment or falsification at issue. Although  the
court acknowledged that the 85 paragraphs incorporated  by reference
in Count 1 allege "many false statements and  acts of concealment," it
described the charging language of  Count 1 itself as "nonspecific."
Hubbell, 1999 WL 152534, at  *2. The government appealed.


II.


The government contends that the district court erred by  confusing two
distinct questions--whether Count 1 properly  charges an offense under
the "conceal[s] ... by scheme"  clause of s 1001, and whether Count 1
is too vague to inform  the defendant of the charge against him. As to
the first  question, the government asserts that governing precedent, 
as well as principles of statutory construction, tell us that  s 1001
allows prosecution of "scheme crimes." Hubbell re- sponds that s 1001
does not define a separate offense of  committing a scheme; it merely
limits the type of conceal- ments that violate the statute. Hubbell's
argument, however,  cannot be squared with our prior decision in
Bramblett, which  expressly held that the plain language of s 1001
permits the  charging of scheme crimes. In that case, the defendant, a
 member of Congress, filed a false designation with the Dis- bursing
Office of the House of Representatives claiming that  he had hired a
clerk; he then proceeded to collect the  phantom-clerk's monthly
paychecks. The defendant argued  that the prosecution under s 1001 was
time-barred because  the crime was complete when the designation was
filed, more  than three years before the indictment was returned. We 
rejected that argument, however, explaining that "the indict- ment
[did] not merely charge the making of a false state- ment," but
instead alleged a falsification by scheme. By  "falsifying a material
fact, and in leaving it on file, thereby  continuing the falsification
in order repeatedly to partake of  the fruits of the scheme," the
defendant committed a continu- ing crime of falsification by scheme
that "fairly falls within  the terms of section 1001." Bramblett, 231
F.2d at 491. To  the extent that the district court concluded that
Count 1 did  not properly charge an offense under s 1001, it was in


Turning to the asserted vagueness, we do not see how  Count 1, having
incorporated by reference the 85-paragraph  introductory section
detailing the allegations, can be thought  insufficient to "fairly
inform[ ] [the] defendant of the charge  against which he must
defend." Hamling, 418 U.S. at 117.  As the government points out, the
indictment sets forth the  acts of falsification and concealment; the
nature of the  scheme by which these material facts were falsified and
 concealed; and the material facts that Hubbell concealed  from the
FDIC and RTC. The district court seems to have  ignored the
incorporation by reference of this material (which  it conceded
"allege[s] many false statements and acts of  concealment," Hubbell,
1999 WL 152534, at *2). That the  "charging language" itself did not
allege specific acts of  concealment is of no moment--the purpose of
incorporation is  to supply those specifics. Hubbell's additional (and
somewhat  inconsistent) argument that the indictment fails to give
suffi- cient notice because it provides too much detail is, to be 
charitable, unconvincing. It cannot be the case that the more 
elaborate the scheme or the more numerous the acts of  concealment,
the less able the government is to charge a  crime under s 1001.


Hubbell's argument that Count 1 of the indictment includes  too many
allegations of falsifications and concealments can be  alternatively
viewed as a claim that the indictment is duplici- tous--an argument
raised in passing below and renewed here  as part of Hubbell's
vagueness claim. Duplicity is the joining  in a single count of two or
more distinct and separate  offenses. See United States v. Mangieri,
694 F.2d 1270, 1281  (D.C. Cir. 1982); Charles Alan Wright, 1A Federal
Practice  and Procedure: Criminal s 142, at 7 (3d ed. 1999). Hubbell 
contends that by charging numerous false statements and  acts of
concealment in Count 1, the indictment impermissibly  charges multiple
offenses in one count. But this construction  of the indictment makes
sense only if s 1001 does not state  an offense for a scheme
crime--which it clearly does. See  Bramblett, 231 F.2d at 491
(multiple acts of concealment as  part of one continuing scheme
constitutes one offense); see  also United States v. Shorter, 809 F.2d


(when two or more acts would constitute an offense standing  alone,
those acts may instead be charged in a single count if  those acts
could be characterized as part of a single, continu- ing scheme),
abrogated on other grounds by Daubert v.  Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). Cf.  Mangieri, 694 F.2d at 1282 (indictment
not duplicitous where  each count included several misrepresentations
as part of one  fraudulent loan application transaction).


The district court, having dismissed Count 1, did not reach  Hubbell's
argument that the indictment is multiplicitous, i.e.,  that individual
false statements were charged separately as  false statements in
Counts 4 through 9 and again in Count 1  as part of a falsification or
concealment by scheme. We  agree with the government that multiplicity
claims are better  sorted out post-trial. The factual issues as to
what state- ments were made and what acts of concealment were commit-
ted, as well as whether the later acts or statements further  impaired
the operations of government, see, e.g., United  States v. Cisneros,
26 F. Supp. 2d 24, 44 (D.D.C. 1998) (citing  United States v.
Salas-Camacho, 859 F.2d 788, 791 (9th Cir.  1988), need development at
trial, and attempting to decide  such issues pre-trial would be


* * * *


For the foregoing reasons, we reverse the district court's  dismissal
of Count 1 of the indictment.


So ordered.