The opinion of the court was delivered by: BRIEANT
Defendants Pocono International Corporation ("Pocono") and Charles Goldberg, chief operating officer of Pocono, are charged in a forty-two count indictment with violations of 18 U.S.C. § 1341 (mail fraud) and 15 U.S.C. § 1703(a)(2)(B) (fraudulent interstate land sales). Defendants are charged with knowing and wilfull participation in an illegal scheme to defraud purchasers of land owned by Pocono. Fifteen purchasers are named in the indictment.
The indictment alleges that the defendants sold land in a development known as Hickory Run Forest in the Pocono, Pennsylvania Forest Township, Carbon County, Pennsylvania, representing to prospective purchasers that the property was suitable for homesites, that "conventional" septic tank systems to dispose of human and household wastes could be installed on each homesite and that such sewage facilities would be approved by local township officials. The Government contends that at the time these representations were made, defendants knew most of the homesites were not suitable for conventional septic tank systems, and instead, other kinds of systems, far exceeding the conventional type in cost would have to be installed, and approval for these would have to be obtained from officials of the State of Pennsylvania. It is claimed certain purchasers relied thereon and parted with a valuable consideration, to their detriment.
The false representations were allegedly made orally to prospective buyers and contained in "Statements of Record" and "Property Reports" filed with the Department of Housing and Urban Development pursuant to 15 U.S.C. § 1701 et seq. The provisions of 15 U.S.C. § 1703 require that the "Property Reports" be furnished to prospective buyers, and defendants are charged with having failed to comply with this section. Defendants are alleged to have carried out sales promotions and related activities via radio, television, newspapers and telephone solicitations through an agent, SellAmerica, Ltd., of which defendant Goldberg was Vice President.
Defendants have moved to require the Government to make a pre-trial election to prosecute them either under the general mail fraud statute or under the land sale fraud statute, on the ground that the indictment is multiplicitous in that Counts 1 through 15, inclusive, which charge defendants with using the mails to further the alleged fraud, are duplicated by other counts of the indictment,
which allege that mailings were made to the same fifteen purchasers between July 18, 1972 and February 26, 1973, along with other acts done in furtherance of the scheme, in violation of the Land Sales Act.
Defendants' theory is that they are being charged, as a result of each single incident of use of the mails, with a violation of two statutes. Defendants acknowledge that a single act may constitute a violation of more than one penal provision, but contend correctly, that under applicable case law this is so only where the two different statutes are aimed at preventing distinct evils, and there is at least one additional element or fact to be proven under the two statutes. They urge that this is not such a case. We disagree.
We have been cited to no case, nor have we found any in this Circuit or elsewhere, dealing with an indictment charging violations of the general fraud statute and the Interstate Land Sales Act fraud provisions. It is clear, however, that a single indictment which initially charges defendants with multiple offenses may be proper and result in convictions for multiple offenses, all arising out of the same transaction. In Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), the Supreme Court held that one sale of narcotics can result in conviction of two separate offenses under the Narcotics Act.
The test to be applied to determine the propriety of a multiple conviction was stated as follows (284 U.S. at 304, 52 S. Ct. at 182):
"Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not."
The same issue was before the Supreme Court in Gore v. United States, 357 U.S. 386, 78 S. Ct. 1280, 2 L. Ed. 2d 1405 (1958), in which defendant was convicted of violating provisions of the Internal Revenue Code and the Narcotic Drugs Import and Export Act by a single narcotics sale. Citing Blockburger, supra, the Court upheld the convictions (357 U.S. at 389, 78 S. Ct. at 1283):
"The fact that an offender violates by a single transaction several regulatory controls devised by Congress as means for dealing with a social evil as deleterious as it is difficult to combat, does not make the several different regulatory controls single and identic."
In his dissent, Mr. Justice Brennan observed that the decision was not consistent with Blockburger,
"because it allows separate offenses to be proved . . . upon the proof of a single fact. . . . [Under] the statutes proof of the single fact of possession of unstamped narcotics suffices to convict . . . under either § 4704(a) or § 174. Since under Blockburger punishment under separate sections can be sustained only if 'each provision requires proof of a fact which the other does not,' 284 U.S., at 304 [52 S. Ct. 180 ...