United States v. Mario B. And Joseph L. Capano

GARTH, Circuit Judge,

dissenting:

I dissent because I believe that the unambiguous language of 12 U.S.C. § 1715z-4 criminalizes all equity skimming1 by mortgagors whose housing is subject to a mortgage which was or is insured by the Secretary of Housing and Urban Development (HUD) and is now in default. This is so regardless of whether or not HUD has granted the mortgagor a modification of mortgage terms or an extension of time to cure a default. The majority ignores this unambiguous congressional direction. Since the indictment recites facts which would establish a criminal violation, I would reverse the district court order dismissing the indictment.

I.

Subsection (a) of § 1715z-4 provides that the Secretary of HUD may not extend a mortgagee’s time for curing a mortgage default, nor may he modify the terms of a mortgage, unless the Secretary’s action complies with regulations prescribed by him. The prescribed regulations require that the mortgagor hold in trust all monies generated by the mortgaged property which are not needed in the operation of the property. Thus, subsection 1715z-4(a) and the regulations enacted in accordance therewith unequivocally proscribe the practice of skimming from the equity of mortgaged property.

Subsection (b) of § 1715z-4 establishes criminal penalties for owners of such property who are guilty of equity skimming. Owners who willfully and knowingly use funds derived from the property in violation of subsection (a) and who are convicted of equity skimming may be fined or imprisoned for not more than three years or both. The text of the relevant portions of subsection (a), with its regulations, and the text of subsection (b) are reproduced as an Appendix to this opinion.

The Capanos do not dispute that the indictment sets forth the “willful and knowing” diversion of rents that should have been used to pay mortgage obligations, but that were instead used to pay off construction loans. Section 1715z-4(b)(2)(a) provides that the owner of property whose mortgage is or was insured by HUD, even though he is either exempt from the requirements of the regulations issued under subsection (a) of that section or is “not otherwise covered” by those regulations, is nevertheless subject to criminal penalties if he willingly and knowingly skims equity. (,See Appendix for text of § 1715z-4(b)(2)(a).)

There is no dispute in this case that the Capano mortgage is “not otherwise covered” by the regulations issued under subsection (a). Those regulations cover only mortgages for which an extension of time or a modification has been granted. The Capano mortgage is not such a mortgage, but rather is a mortgage in default for which no extension or modification was ever requested. By the clear language of the statute, any mortgage under subsection (a), whether such mortgage is exempted by a determination of the Secretary or whether it is “not otherwise covered” because no *131modification or extension was ever granted, comes within the purview of the equity skimming prohibition and therefore subjects the mortgagor to criminal penalties for skimming.2

Thus, having demonstrated that the statute covers all mortgages described in subsection (a), be they exempt or not, be they covered or not covered by regulation, be they in default or be they extended or modified, we need only determine whether the Capano mortgage is “a mortgage described in subsection (a)” as that phrase is used in subsection (b), § 1715z-4(b)(2).

Under the majority’s present analysis, it is clear that the criminal penalties of subsection (b) are triggered only when the mortgagor receives an extension of time to cure his default or a modification of the terms of his mortgage. See maj. op. at 125. Thus, the majority implicitly holds that subsection (a) does not come into play, when the mortgagor defaults without requesting a modification or an extension of the mortgage. Nor does it come into play in the majority’s view, when the mortgagor has requested a modification or an extension and has been denied.

According to the majority, only a mortgage that has been extended or modified falls within the terms of subsection (b). Yet the plain language of subsection (a) in no way limits the description of a mortgage to those which have been extended or modified. In relevant part, as we have noted, subsection (a) reads: “The Secretary shall not consent to any request for an extension of the time for curing a default under any mortgage covering multifamily housing, as defined in the regulations of the Secretary.” 12 U.S.C. § 1715z-4(a) (emphasis added).3

As I have pointed out, it is clear that this statute includes within its definition of “mortgages” all HUD mortgages that are in default, whether or not a request for an extension of time or a modification of terms has ever been granted. In contrast, the majority opinion, which regards the granting of an extension or modification as the trigger for criminal liability, would subject the equity skimmer to criminal liability for skimming only when he has received an extension or modification, while it would allow the equity skimmer who never sought an extension or modification, or whose request for extension or modification was denied, to get off scot-free. There can be no logical reason for Congress to have preferred the equity skimmer who never applied for an extension or modification, or whose request for an extension or modification was denied, over the equity skimmer whose request is granted. Yet the majority opinion, without giving a reason therefor, and without explaining this *132anomaly, would absolve from criminal liability the skimmer who made no request or whose request was denied, while punishing the skimmer whose request was granted.

This interpretation of the statute would render superfluous, as best I can discern, the language of section 1715z-4(b)(2)(a) referring to “a mortgage not otherwise covered by such regulation.” Under the majority’s interpretation, only mortgagors who have received an extension or modification of their mortgages would be liable to criminal penalties. Since all such mortgagors are subject to the regulations of subsection (a), it is hard to imagine who might fit into the category of mortgagors liable to criminal penalties but “not otherwise covered” by the subsection (a) regulations.

The majority seeks to find meaning for the category of mortgages “not otherwise covered” by the regulations in the fact that, in its view, those regulations apply only to HUD-insured mortgages, not to HUD-held mortgages,4 whereas the criminal penalties of § 1715z-4(b) apply to both HUD-held and HUD-insured mortgages. The “not otherwise covered” category, the majority speculates, would thus comprise those HUD-held mortgages that had once been extended to modified. Maj. op. at 126 n. 6

But the regulations nowhere state that they apply only to HUD-insured mortgages and not to HUD-held mortgages. Furthermore, under this interpretation, the criminal penalties of 1715z-4(b) would apply to those mortgagors whose mortgages were taken over by HUD after they had reached an agreement as to extension or modification, but not to similarly situated mortgagors who defaulted without seeking such an agreement. This distinction is arbitrary and illogical when viewed in terms of the purpose of the statute. Under this interpretation, Congress would have given equity skimmers the perverse incentive of avoiding all communication with HUD so that they could then escape criminal liability. Again, it is' unclear to me why Congress should have wished to subject the equity skimmer to criminal penalties when he receives an extension or modification of the terms of his mortgage, while exculpating the equity skimmer who neither requests nor is granted an extension or modification. Again, the majority has failed to explain what could possibly have motivated Congress to make such an illogical distinction.

The majority can make sense of the language of section 1715z-4(b)(2) only by creating artificial distinctions which Congress did not see fit to make and which bear no relation to Congress’s purpose in enacting this provision, namely the prevention of equity skimming from property in which HUD has a financial interest as mortgage insurer or as mortgagee. Only if it is recognized that criminal penalties apply to equity skimming from all HUD mortgages, whether or not there has been a request for extension or modification, whether or not such request has been granted, and whether they are HUD-held or HUD-insured,5 can the language of section 1715z-*1334(b)(2) be given content in accordance with the plain and ordinary meaning of that language.

Because it is obvious that the focus of the statutory provision is on equity skimming and its prevention rather than on requests for modification of HUD mortgages, I believe that section 1715z-4 makes criminal the diversion of rental income pri- or to payment of the obligations of a defaulted mortgage insured or held by HUD, and that the indictment therefore adequately states a charge against the Capanos whether or not they requested an extension or modification.

II.

According to the Supreme Court,

[T]he starting point for interpreting a statute is the language itself. Absent a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.

Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980).

The majority points to no expression of a legislative intent which would even intimate that section 1715z-4 penalties could not be assessed against mortgagors of any defaulted HUD-insured mortgage. Rather the majority opinion relies on the lack of an affirmative statement of legislative intent, on an equivocal and outdated letter from HUD’s general counsel that is not entitled to our deference, and on an interpretation, which I believe to be unsupportable, of the scope of the literal language of the statute in order to support its refusal to apply the statute by its terms.

I have discussed earlier in this opinion the plain meaning of the statute, pointing out that it obviously applies to all HUD mortgages, and that it proscribes skimming equity from any property that is security for a defaulted mortgage that is or has been insured by HUD.

The only other court of appeals decision interpreting this statute does not even deign to discuss the identifying characteristics of extension or modification that the majority claims define a subsection (a) mortgage. The Fourth Circuit, in United States v. Norris, 749 F.2d 1116 (4th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 2139, 85 L.Ed.2d 496 (1985), construed the very section under consideration here. That court held that a mortgagor whose mortgage was assigned to HUD, and who continued in default, was properly indicted and convicted for a violation of section 1715z-4(b). The Fourth Circuit stated:

The language and intent of the statute are clear and need no interpretation from HUD. The congressional intent is to prevent money of federally insured housing projects from being diverted to purposes other than actual and necessary expenses when the mortgage is in default. Congress enacted 12 U.S.C. § 1715z-4 in an effort to stop the diversion of funds from other than “actual and necessary expenses arising in connection with such property.” Section 1715z-4(a) addresses insured mortgages and § 1715z-4(b) covers conversion of rents during default in cases “exempt from the requirement.of any such regulation or is [sic] not otherwise covered by such regulation.” The proscribed activity is clear because it applies to owners of property under mortgage who willfully and knowingly use any part of the rents or funds derived from the property for a,ny purpose other than to meet the actual and necessary expenses, while the mortgage is in default. There is no need for HUD regulations to describe what is unlawful. The statute clearly states that if the loan is in default one may not use rent for any purpose other than meeting the actual and necessary expenses. This is the activity charged against the two defendants in fifteen of the counts in the indictment. The language is not ambiguous, and the intent is obvious to persons such *134as defendants who were involved with many federally insured projects.
Criminal statutes should be given their fair meaning in accord with the evident intent of Congress. United States v. Rothberg, 480 F.2d 534 (2d Cir.1973), cert. denied, 414 U.S. 856, 94 S.Ct. 159, 38 L.Ed.2d 106 (1973). Congressional intent is quite obvious under any reading of 12 U.S.C. § 1715z-4(b)(2). The statute is intended to prevent the skimming of funds while the mortgage is in default.
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The requirements of the statute are clear and unambiguous. The proscribed acts are obvious to anyone of normal intelligence. The appellants were experienced in dealing with federally insured housing projects and the meaning and intent of the statute would be immediately apparent to them.

United States v. Norris, 749 F.2d at 1120-21.

Thus, Norris sustained the conviction of a defendant charged under section 1715z-4(b) where no extension or modification of the HUD mortgage was ever sought or obtained. Norris reached its conclusion as I do: the statute under which the Norris defendants were charged and under which Capano was charged is unambiguous and clear. In my opinion, there is no need to resort to strained interpretations in order to avoid the explicit command of Congress. The statute provides penalties for skimming involving mortgages covering multifamily housing. 12 U.S.C. § 1715z-4. No further inquiry is necessary as to whether a request for extension or modification was or was not made. If skimming is charged under the statute, the indictment is sufficient and cannot be dismissed, regardless of whether a request for extension has been made, denied or granted.

As I have earlier observed, the majority concludes that Congress intended to subject the mortgagor to criminal penalties only if that mortgagor is granted an extension or modification. The legislative history which is reproduced in the majority opinion concededly deals with such a situation, but the congressional intent revealed by that history is by no means so strictly limited. The crux of that history, I believe, is to be found in the purpose portion of the House Report. There, it is stated:

This section is designed to discourage distribution of rental income of multifamily projects to stockholders of a mortgage corporation or individual owners where such income should be used to meet mortgage payments. Where it is thought that a mortgaged property probably will not generate enough income to meet mortgage payments, there is a temptation for the owners to divert funds received from rentals to their own use and to allow the mortgage to go into default in order to recoup their investment in the project and even to show a profit in the investment.

H.R.Rep. No. 1585, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad. News at 2906. The other sections of the Report and the portions on which the majority rely are no more than explanations of how the purpose of the new provisions may be implemented. Under GTE Sylvania, 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766, only an expression of contrary legislative intent avoids the unambiguous terms of a statute. Here, the terms of the statute speak loud and clear, and the legislative history, far from contradicting these terms, support them.

This court should not embrace an interpretation of legislative intent that leads to an absurd or inconsistent result when a consistent interpretation is readily apparent. The legislative intent, as described in the House Report, was to provide HUD with a more effective means of protecting its financial stake in all cases where there is a temptation for the mortgagor to divert rental income to private uses. This express intent accords precisely with the literal terms of section 1715z-4. Under these circumstances, I do not believe it is appropriate for us to displace the Congress’s policies with our own.

The majority also supports its refusal to apply section 1715z-4 in accordance with *135its terms by reasoning that, as a policy matter, “the lack of a criminal proscription did not leave HUD without a remedy against the Capanos, for the mortgage was held by HUD, and the agency could have foreclosed or sequestered the rents at any time.” Maj. op. at 129 n. 10. A court, however, may not substitute its own notion of policy for that expressed by Congress. As I have obviously noted above, Congress was concerned with deterring equity skimming, not just with providing HUD with a substitute for foreclosure proceedings. The House Report reflects a congressional determination that civil remedies were insufficient. Thus, the very civil remedies to which the majority looks in order to obviate the need for criminal sanctions were expressly deemed insufficient by the Congress that enacted section 1715z-4.

Finally, the majority relies on a 1969 letter from John W. Kopecky, Acting Associate General Counsel of HUD, to William D. Ruckelshaus, Assistant Attorney General. As the majority is forced to acknowledge, however, this letter is equivocal at best. In fact, Kopecky’s letter admits that “the clause [in section 1715z-4(b)(2) that reads] ‘or is not otherwise covered by such regulation’ might be construed to cover any diversion under a project mortgage after default.” Joint appendix at A-56. While finding the initial portion of Kopecky’s letter to be “probative” and entitled to serious consideration, the majority declines to find the concluding portion of Kopecky’s letter, which is unfavorable to the majority’s argument, to be either probative or entitled to consideration. Compare maj. op. at 127-28 n. 7 with id. at 128 n. 8. I am perplexed as to why selected segments of the same document are characterized so differently.

In any case, this opinion letter does not constitute the sort of agency interpretation entitled to deference — especially given the literal terms of the statute and the position taken by HUD in supporting this prosecution. See Garcia v. United States, 469 U.S. 70, 105 S.Ct. 479, 484-85, 83 L.Ed.2d 472 (1984).

III.

The majority goes on to hold that, even if its statutory arguments are not accepted, a dismissal of the indictment would still be required because “potential criminal defendants must be accorded fair notice of the proscribed conduct.” Maj. op. at 128.6

In a case where the defendants have concededly diverted rental payments from Golden Acres to their own use while the mortgage was in default, I find it difficult to believe that they were unaware that such conduct was proscribed. Certainly had the Capanos renegotiated their mortgage with HUD such an argument would be given short shrift. They did not do so, but nevertheless continued to skim equity from the property that was now the security for a defaulted mortgage held by HUD itself. Surely, their mere failure to renegotiate the terms of their mortgage should not insulate them from criminal penalties. As I have earlier argued, a plain reading of the statute would alert any lay person, even one without the business sophistication of the Capanos, to the fact that penalties would be imposed on any owner who used the Golden Acres revenues for personal benefit rather than to discharge the owner’s mortgage obligations.

IV.

Because I believe that section 1715z-4 of the statute clearly criminalizes equity skimming from property that is security for a HUD mortgage regardless of whether or not an extension or a modification of the mortgage has been sought, granted, or denied, I would reverse the judgment of the *136district court which dismissed the indictments and reinstate the indictments against the Cápanos. I therefore respectfully dissent.

APPENDIX

Subsection (a) of section 1715z-4 provides, in pertinent part:

The Secretary shall not consent to any request for an extension of the time for curing a default under any mortgage covering multifamily housing, as defined in the regulations of the Secretary, or for a modification of the terms of such mortgage, except in conformity with regulations prescribed by the Secretary in accordance with the provisions of this section. Such regulations shall require, as a condition to the granting of any such request, that, during the period of such extension or modification, any part of the rents or other funds derived by the mortgagor from the property covered by the mortgage which is not required to meet actual and necessary expenses arising in connection with the operation of such property, including amortization charges under the mortgage, be held in trust by the mortgagor and distributed only with the consent of the Secretary; ...

12 U.S.C. § 1715z-4(a).

Section 1715z-4(b) establishes criminal penalties for:

Whoever, as an owner of a property which • is security for a mortgage described in subsection (a) of this section ... (2) if such mortgage is determined, as provided in subsection (a) of this section, to be exempt from the requirement of any such regulation or is not otherwise covered by such regulation, willfully and knowingly uses or authorizes the use, while such mortgage is in default, of any part of the rents or other funds derived from the property covered by such mortgage for any purpose other than to meet actual and necessary expenses arising in connection with such property____

12 U.S.C. § 1715z-4(b).

The regulations issued under subsection (a) read as follows:

(a) The mortgagor and the mortgagee may, with the approval of the Commissioner, enter into an agreement which extends the time for curing a default under the mortgage or modifies the payment terms of the mortgage.
(b) The Commissioner’s . approval of the type of agreement specified in paragraph (a) of this section shall not be given unless the mortgagor agrees in writing that, during such period as payments to the mortgagee are less than the amounts required under the terms of the original mortgage, it will hold in trust for disposition as directed by the Commissioner all rents or other funds derived from the property which are not required to meet actual and necessary expenses arising in connection with the operation of such property, including amortization charges under the mortgage.
(c) The Commissioner may exempt a mortgagor from the requirement of paragraph (b) of this section in any case where the Commissioner determines that such exemption does not jeopardize the interests of the United States.

24 C.F.R. § 207.256b (1985).

. Equity skimming is the practice of diverting revenues generated by mortgaged property in default to purposes other than maintenance or mortgage payments.

. The Capanos do not claim that they have been exempted from the requirements of the regulations. However, if, following a hypothetical extension or modification of their HUD mortgage, the Capanos had been exempted from the requirement that they place all revenues from the property in a trust, they would still be liable to prosecution for equity skimming. The statute and its regulations clearly proscribe all equity skimming and provide that equity -skimmers may be criminally indicted, even if the equity skimmer has been exempted from compliance with the deposit in trust provisions of the statute, and even if the equity skimmer is not otherwise covered by the regulations. This legislative intent was explicitly stated by the House Committee in its Report as follows:

The Secretary in his regulations could provide for granting consent to an extension or modification of a mortgage in any case or class of cases without regard to the requirements of the regulations where he determined such action would not jeopardize the interests of the United States. However, in the case of such exempt mortgages, the knowing and willful use, or authorization of such use, of any part of the rents or other funds derived from the mortgaged property for any purpose other than to meet actual and necessary expenses (including amortization) while the mortgage is in default would carry a similar penalty.

H.R.Rep. No. 1585, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad.News at 2906.

. Although HUD has not promulgated any regulations defining "multifamily housing" for the purposes of this provision, other regulations define multifamily housing as accommodations designed principally for residential use, conforming to standards satisfactory to the Commissioner of the Federal Housing Administration, and containing at least five rental units. See 24 C.F.R. sec. 207.24.

. A HUD-held mortgage is a mortgage once insured by HUD, that has been defaulted on by the mortgagor and subsequently taken over and held by HUD.

. In its affirmance of the district court, the majority tentatively disclaims reliance on the argument of the Capanos, accepted by the district court, that criminal penalties apply only to skimming involving HUD-insured mortgages, not HUD-held mortgages. See maj. op. at 123 n. 1. The Capanos’ argument should be rejected unequivocally.

The short answer to any such argument is first to be found in the plain language of subsection (a). The statute in no way limits the description of a subsection (a) mortgage to those merely insured by HUD. The temptation to skim equity from a HUD-held mortgage is as great as the temptation to skim equity from a HUD-insured mortgage. The concern of Congress was focused upon deterring equity skimming through criminal penalties, not merely upon providing HUD as an insurer with an alternative to civil remedies in case of default, as the majority theorizes (see maj. op. at 18 n. 10). Second, United States v. Norris, 749 F.2d 1116 (4th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 2130, 85 L.Ed.2d 496 (1985) holds that 12 U.S.C. § 1715z-4(b)(2) unambiguously embraces within its provisions HUD-held mortgages such as the Capano’s defaulted mortgage here. Finally, if this argument were accepted, *133the majority’s already implausible attempt to give content to the “not otherwise covered” language of subsection (b) would collapse entirely.

. Although the majority opinion disclaims reliance on ostensible redeeming features of Capano’s conduct, it curiously refers to several circumstances underlying Joseph Capano’s acquisition of ownership of Golden Acres, Inc. These factual assertions are found only in Capano’s appellate brief. These circumstances are not a part of the record before the district court on a motion to dismiss an indictment and therefore may not play any part in our decision of this case.