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Valley of Lakes RICO Class Action against PNCBANK, et al.
ripped edge: Criminal Doc's




	-vs-			:	CRIMINAL NO. 80-00080-1





	A Grand Jury sitting in the Middle District of Pennsylvania returned an 

Indictment against the Defendant, Jack Halperin, in this matter on July 25, 

1980. That Indictment charged the Defendant, inter alia, with thirty-three 

(33) Counts of Fraud in interstate land sales and Mail Fraud, The Defendant 

is filing this Motion at the Arraignment because of the failure of the 

Indictment to state the necessary elements of a crime and the failure of the 

Indictment to be brought within the Statute of Limitations.  With the per-

mission of the Court, the Defendant reserves his right to file additional 

Motions after preliminary discovery.


Failure to Allege all of the Elements of a Crime.

	The Defendant is specifically charged with a violation of 15 USC 1703, 

which reads in pertinent part:

	"It shall be unlawful for any developer or agent, directly

	or indirectly, to make use of any means or instrument of trans-

	portation or communication in interstate commerce, or 

	of the mails . . . .

	(2) in selling or leasing or offering to sell or lease, any 
	lot in a subdivision.

		    	A. To employ any device, scheme, or artifice 

		to defraud; or,

		    	B. To obtain money or property by means of 

		a material misrepresentation with respect to any 

		information included in the statement of record or 

		the property report or with respect to any other 

		information pertinent to the lot or the subdivision 

		and upon which the purchaser relies; or,

		    	C. To engage in any transaction, practice or 

		course of business which operates or would operate 

		as a fraud or deceit upon a purchaser."

	It is clear from the Statute that the elements of an offense are: (1) 

capacity as defined by the Act; (2) intent to defraud; (3) a scheme to defraud; 

and (4) reliance by someone on the fraudulent scheme.  Gilbert v. Woods

			-2 -

Marketing, Inc., 454 F. Supp. 745 (D.C. Minn. 1978), Bryan v. Amrep 

Corp., 429 F. Supp. 313 (D.C.N.Y. 1977).  Capacity entails a subdivision 

as defined by the Act, and a developer or agent as defined by the Act.  See 

15 USC 1701.

	The Indictment in this case fails to allege an essential element of a 

violation of 15 USC 1703, to wit: That Jack Halperin was either a developer 

or an agent(1) as defined in USC 1703.  The Third Circuit Court of Appeals in 

Bartholomew v. Northampton National Bank of Easton, 584 F. 2d 1288 (3rd 

Cir. 1978), recognized this essential element and stated:

	      	"The Act clearly limits the imposition of liability to 

	   those who meet the definitions of developers or agents of 

	   developers." (Emphasis added).  Page 1293.

	The Government, however, has failed to allege that Mr. Halperin was 

an agent or developer as defined by the Act.  This omission from the 

Indictment of a material element of the crime charged is a fatal flaw, and 

thus, the Court is mandated to dismiss Counts I through XIII.  See United 

States v. King, 587 F. 2d 956, 963-65 (9th Cir. 1978).


	The Fifth Amendment requires that a person prosecuted for a crime be 

tried only on a presentment or Indictment returned by a Grand Jury that is 

sufficiently specific and alleges all the elements of a crime.  See Sanabua v. 

United States, 437 U.S. 54, 65-66 (1978); Russell v. United States, 369 US. 

749, 770-71 (1962).  This Indictment clearly does not meet the requirements 

demanded by the Supreme Court.  It fails to state an essential element of the 

crime.  Nowhere in the Indictment is it alleged that Mr. Halperin was a 

developer or agent as defined in the Act.

	In an analogous situation, a violation of 18 USC 1005 requires the person 

charged to be in a certain class.  Failure to so charge mandates that the 

Indictment be stricken.  Edruck v. United States, 432 F. 2d 35 (4 Cird. 190).  

Title 18 is full of Statutes which apply to only certain classes of individuals.  

This class limitation must be alleged in the Indictment or the Indictment 

fails.  Russell v. United States, supra.

	For all of the above reasons, the Defendant moves to dismiss Counts I 

through XIII.

Statute of Limitations.

	All of the alleged violations of Title 15 USC 1703 occurred over four (4) 

years ago, the latest violation alleged was July 14, 1976.  The Statute of 

Limitations for a violation of 15 USC 1703 is found in 15 USC 1711, which 

states that the Limitation is three (3) years.  The failure of the Government 

to bring the Indictment within the statutory period mandates dismissal.


18 USC 3282 reads in pertinent parts:

		"Except as otherwise expressly provided by law, no 

	   person shall be prosecuted, tried, or punished for any 

	   offense, not capital, unless the Indictment is found or the 

	   information is instituted within five (5) years next after 

	   such offense shall have been committed. (Emphasis 


	15 USC 1711 reads in pertinent parts:

	     	"(a) No action shall be maintained under Section 1709 

	   of this Title with respect to . . . .

	     	(2) a violation of Subsection (A) (2) (A), (A) (2) (B), 

	   or (A) (2) (C) of Section 1703 of this Title, more than three

	   (3) years after discovery of the violation or after discovery 

	   shall have been made by the exercise of reasonable diligence

	   . . . ."

	18 USC 1382 clearly states that its applicability is limited, and that other 

Titles override its scope.  U. S. v. Tiplitz, 105 F. Supp. 512 (D.C.N.J., 

1952).  While there are no cases interpreting the interplay between 18 USC 

1382 and 15 USC 1711, a review of the Legislative history of Title 15 USC 1711 

demonstrates that 15 USC 1711 is the appropriate Statute of Limitation.

	The original Title 15 USC 1711 used language such as "To enforce any

liability" .... "action be broughtby a purchaser." This language could

suggest that the Statute only covered civil actions.  See U. S. v. Bloom,,

			-5 -

78 F.R.D. 591.  However, Congress, when it reviewed the scope of 15 USC 

1711, clearly decided to-indicate that the scope of 15 USC 1711 covered 

criminal acts:

		"This bill amends the statute of limitations affecting all 

	   violations related to the property report or statement of 

	   record to three (3) years." (Emphasis added). 1979 U. S.

	   Cong. & Administrative News, 2354.

	Congressional purpose was clearly demonstrated in the revision of 15 

USC 1711.  The language is positive, intelligible, and applicable to the 

instant case.  Protection from prosecution under a statute of limitations is 

a substantive right.  U.S. v. Haramic, 125 F. Supp. 128 (D.C. Pa., 1954).  

Such limitations are to be liberally interpreted in favor of repose.  U.S. v. 

Richardson, 393 F. Supp. 83 (D.C. Pa. 1974) affirmed 513 F. 2d 105 (3rd 

Cir. 1974).  Where lapse of time between commission of offenses charged 

and return of Indictment was not within the statute of limitation, the Indict-

ment must be dismissed. U.S. v. Angalone, 197 F. 2d 714 (3rd Cir. 1952).

	In the instant case, all the acts alleged in the Indictment occurred more 

than three (3) years ago and are postively barred by the Statute of Limitations.

	For all of the above reasons, the Defendant moves this Court to dismiss

Counts I through XIII.





The undersigned certify that a verified copy of the attached Brief In 

Support Of Defendant's Motion To Dismiss The Indictment was served upon 

the United States Attorney for the Middle District of Pennsylvania by hand 

delivery at his office in the Federal Building, Scranton, Pennsylvania, on 

August 4, 1980.



FOOTNOTES 1. The Government in one of its preambles to the charges refers to Mr. Halperin as "agent officer employee". No one can seriously contend that this is sufficient.
Valley of Lakes RICO Class Action against PNCBANK, et al.

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