United States v. Moore, LaZanda ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2989
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAZANDA MOORE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02-CR-211—Charles N. Clevert, Jr., Judge.
____________
ARGUED SEPTEMBER 13, 2005—DECIDED MAY 2, 2006
____________
Before POSNER, RIPPLE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. The practice of favoring close
family members or friends with lucrative government
contracts is hardly a new one, but, at least in modern times,
it is usually forbidden. This case involves a variant of that
story, in which a jury found defendant LaZanda Moore
guilty of violating 18 U.S.C. § 1001(a)(1), by participating in
a scheme to conceal a material fact from the City of Milwau-
kee (the City), which in turn was receiving federal monies
from the Department of Housing and Urban Development
(HUD). In urging that her conviction should be overturned,
Moore argues primarily that she had no duty to disclose the
fact that she was her mother’s daughter to the City (and
hence to the federal government). She challenges her
2 No. 04-2989
conviction on a number of grounds related to this basic
point, none of which we find persuasive. We therefore
affirm the district court’s judgment.
I
Moore’s mother, Rosa Cameron, founded the Williams-
burg Heights Community Block Club Association (WH)
in Milwaukee. WH was a non-profit organization that
Cameron established to carry out neighborhood social
programs; it was largely funded by HUD block grants
awarded by the City of Milwaukee. After a while, Cameron
ran for and was elected to be an alderwoman on Milwau-
kee’s Common Council. At that point, she put her daugh-
ters—first LaRosa Cameron and later defendant LaZanda
Moore—in charge of WH. Throughout this time, federal
HUD monies continued to flow through the City to WH.
Because that funding process figures importantly in the
charge against Moore, we describe it here.
Testimony at trial indicated that in recent years, HUD
had provided approximately $22 million per year to the City
of Milwaukee under its Community Development Block
Grant (CDBG) program. Although the City is responsible for
awarding and administering particular grants, its opera-
tions must comply with HUD regulations, and it must
ensure that the grant recipients, such as WH, comply with
HUD regulations. Each year, the City’s block grant office
solicits applications for funding; its staff evaluates these
applications and then recommends action to the Community
Development Policy Committee of the Milwaukee Common
Council. Upon receiving those recommendations, that
committee holds hearings to decide which organizations it
wishes to fund, although individual alderpersons (both
those on and those off the committee) also meet informally
with the applicants from their respective geographic areas
during the deliberation process. That committee’s recom-
mendations then move to the full Council and the mayor for
No. 04-2989 3
action. After a block grant is awarded to an organization,
the organization must sign a contract with the City. The
organization submits a budget, and then submits monthly
activity and cost reports to the City. The City reviews the
reports, and, if all is in order, it sends a check in the
approved amount to the organization.
One of the HUD regulations governing this process
concerns conflicts of interest. See 24 C.F.R. § 570.611(b).
That regulation prohibits elected officials who participate in
decisions about block grant funds from obtaining a financial
benefit from a CDBG-assisted beneficiary organization,
“either for themselves or those with whom they have
business or immediate family ties. . . .” Id. The regulation
specifically covers elected officials of the recipient of the
HUD funds, as well as employees of subrecipients, such as
WH. Id. § 570.611(c). This conflict-of-interest regulation
was specifically incorporated into the form contracts the
City of Milwaukee signed with recipients of HUD block
grant funds, including WH.
Cameron was still the executive director of WH on
September 1, 1999, when WH signed a block grant con-
tract with the City for $10,089, to handle snow removal
on vacant lots during 2000. Cameron and her daughter
LaRosa (using the name Roberta Allen, as we explain
below, and acting as WH’s assistant director) signed the
contract on WH’s behalf, with Cameron’s third daughter,
Robin Bennett, signing as a witness. The City was not
aware that LaRosa (or Roberta) and Robin were Cameron’s
daughters. Some time before the April 2000 municipal
elections in Milwaukee, Cameron decided to run for
alderwoman. Her plan was to get on the committee that
controlled block grants, so that she could funnel more
money to WH. Cameron won her election in April 2000, and
was sworn in as alderwoman on April 18, 2000. Four days
earlier, again acting for WH, she and “Roberta” had signed
4 No. 04-2989
another block grant contract with the City, this one worth
$42,000, for cutting grass.
At that point, LaRosa, still using the name Roberta Allen,
succeeded Cameron as the executive director of
WH. Despite appearances, LaRosa’s use of the name
Roberta Allen was not entirely random. LaRosa’s full
maiden name was LaRosa Roberta Cameron; upon her
marriage (four months later) on August 14, 2000, she
changed her name to LaRosa Roberta Allen. Cameron’s
other daughters also changed their names: defendant
LaZanda Moore had been LaZanda Perine before her
marriage, while her sister Robin Cameron became Robin
Bennett upon marriage. Moore became executive director of
WH in September 2000.
In late April 2000, Assistant City Attorney Ellen Tangen
explained the HUD conflict-of-interest regulations to
Cameron, who by then was (as planned) a member of the
Community Development Policy Committee. Tangen told
Cameron that, since she had responsibility over the commit-
ment of block grant funds, no member of her immediate
family could be in a paid position at WH if WH were to
receive any awards. On May 30, 2000, Cameron wrote a
memo to the City Attorney stating that her husband and
daughter (singular) worked at WH only as volunteers. That
statement was false, as shown by payroll records at WH
reflecting the fact that both Allen and Bennett were paid
employees at the time. Nevertheless, the City believed that
any potential conflict had been resolved because, as Tangen
testified, “it appeared from the memo that the alderwoman
understood the regulation and would be in compliance with
it.” Meanwhile, Cameron decided that she would shift the
grass cutting and snow removal work from her ex-husband,
Hilton Rollins, to a company Moore had formed called
Perine’s Maintenance. Perine’s began to receive checks from
WH on June 9, 2000; the first five checks were signed by
Allen. Checks written after November 2000 were signed by
No. 04-2989 5
Moore in her capacity as executive director, and then
endorsed by Moore for Perine’s Maintenance— sometimes
with Moore signing one name on the front of the check
(Moore) and another on the back (Perine).
The next block grant awarded to WH was a full-fledged
family affair. In August 2000, WH applied for the $50,000
grant; Allen signed the application as executive director and
Perine (Moore) signed as secretary of WH’s governing body.
Cameron, as alderwoman, voted to award the grant. Neither
Moore, Allen, nor Cameron ever disclosed their familial
relationships during the grant process. WH paid all three of
Cameron’s daughters well past the date of Cameron’s
election to the Milwaukee Common Council: Allen received
$19,935.03 in 2000; Bennett received $28,372.50; and
defendant Moore received $9,794 directly, while her com-
pany Perine’s received $28,449. In January 2001, Cameron
again falsely told Tangen that her daughter (again singular)
was just a volunteer at WH, although Allen, Moore, and
Bennett were all at that point on WH’s payroll. On Febru-
ary 20, 2001, Moore as executive director and Allen as office
manager signed the form contract, which—unlike the
earlier contracts that incorporated the HUD conflict-of-
interest regulation—included the full text of the HUD
conflict-of-interest regulation.
By May 2001, the City began to suspect that Allen was
Cameron’s daughter, although it did not realize that
Moore might be too. It consulted with HUD and took
other steps to look into the matter. Cameron continued to
deceive the City, writing to the city attorney that Allen was
a former employee of WH who had left, and failing to reveal
that Moore was now WH’s executive director.
Some of the evidence related specifically to Moore’s role
in the scheme. One WH employee testified that she over-
heard a telephone conversation between Moore and
a woman from the City’s block grant office in which Moore
6 No. 04-2989
told the woman that she had no idea that Allen was
Cameron’s daughter. On May 23, 2001, Juanita Hawkins,
the head of the block grant office, wrote a letter ex-
plicitly quoting the conflict-of-interest regulation and
noting that, “[a]ccording to a staff roster and payroll
information . . . it appears that Ms. Roberta Allen, who is
the daughter of Alderwoman Rosa Cameron, is a paid
employee” of WH, and then also raising six additional
questions about the non-profit’s cost reports. Two days
later, Moore wrote back, responding to the six questions
about documentation; with regard to conflicts of interest,
Moore wrote only, “we feel it is unmerited for you to pend
[sic] our grant for the reason being ‘possible conflict of
interest.’ ” Notably, Moore did not bother to mention that
she too was one of Cameron’s daughters. She also remained
silent in a series of conversations with other City officials
who were trying to get to the bottom of the conflict problem.
On August 24, 2001, Moore faxed a letter to the block grant
office falsely stating that the conflict had been removed,
because Allen had been gone from WH since February 27,
2001, even though payroll records showed that Allen was
paid through July 15, 2001. Her letter again failed to
mention that she was also Cameron’s daughter. On Septem-
ber 5, 2001, Moore sent yet another letter to the City,
asserting this time that Allen’s last day of work was March
15, 2001. And, also in September, Moore signed off as
executive director on another application for block grant
funds, this time seeking $62,300 for crime prevention
neighborhood organizing.
By the end of 2001, the game was up. Cameron tried
denying to Hawkins that Moore was her biological daugh-
ter, but apparently the City had been fooled long enough,
and WH lost its funding. Nevertheless, in 2001, it paid
a total of $41,695 to Moore and Allen, and another $9,911
to Perine’s Maintenance. The initial indictment was handed
down on October 3, 2002, charging Rosa Cameron, LaRosa
No. 04-2989 7
Cameron (aka Roberta Allen), and LaZanda Moore with
various violations of federal law. Cameron and Allen
pleaded guilty, but Moore went to trial and was convicted
on a superseding indictment charging only the § 1001
violation. Moore was sentenced on July 21, 2004, to two
years’ probation and ordered to pay a $1,000 fine.
II
A. Sufficiency of Indictment and Evidence
Moore raises a number of arguments on appeal, all
concerning her conviction. First, she claims that the
superseding indictment fails to allege facts that con-
stitute an offense under § 1001, because it does not allege
facts that “demonstrate that Moore . . . had a duty to
disclose” her familial relationships. This court reviews the
sufficiency of an indictment de novo. United States v.
Webster, 125 F.3d 1024, 1029 (7th Cir. 1997). An indict-
ment, according to Federal Rule of Criminal Procedure
7(c)(1), “must be a plain, concise, and definite written
statement of the essential facts constituting the offense
charged.” An indictment is sufficient if it “first, contains the
elements of the offense charged and fairly informs a
defendant of the charge against which he must defend, and,
second, enables him to plead an acquittal or conviction in
bar of future prosecutions for the same offense.” Webster,
125 F.3d at 1029 (quoting Hamling v. United States, 418
U.S. 87, 117 (1974)).
We have identified five elements of a “false statements”
charge under § 1001(a)(2), which, stated more generally,
also apply to a scheme to conceal a material fact pro-
hibited by § 1001(a)(1): (1) the defendant must make a
statement, or have a duty to disclose the information; (2)
the statement must be false, or there must be acts amount-
ing to concealment; (3) the statement or concealed facts
must be material; (4) the person must make the state-
8 No. 04-2989
ment or conceal the facts knowingly and willfully; and
(5) the statement or concealed information must concern a
matter within the jurisdiction of a federal department
or agency. See United States v. Ross, 77 F.3d 1525, 1543-
44 (7th Cir. 1996). Moore argues that the superseding
indictment failed to meet several of these elements: first,
that she had a duty to disclose; second, that she committed
an affirmative act of concealment; and third, that the
information she was concealing was material.
We are not persuaded by her position. The opening
paragraph of the superseding indictment charged that
Moore, with Cameron and Allen, “knowingly and willfully
planned and executed a scheme to conceal a material fact,
which they had a duty to disclose” (emphasis added). The
indictment goes on to charge that the material fact in
question was that “members of the immediate family of
Rosa Cameron were receiving a financial benefit from
Williamsburg Heights Community Block Club Association
while it was being funded, in significant part, by Com-
munity Development Block Grants (CDBG) funded by
the United States Department of Housing and Urban
Development (HUD) and awarded by the Common Council
of the City of Milwaukee.” Finally, the indictment specifi-
cally charged that as part of the scheme “Moore, then
serving as executive director of Williamsburg Heights, sent
a letter to the City of Milwaukee Community Develop-
ment Block Grants in response to an inquiry over whether
Roberta Allen was a daughter of Rosa Cameron who was
working for Williamsburg Heights,” and that the letter from
Moore falsely “stated that Roberta Allen had stopped
working at Williamsburg Heights on March 15, 2001.” We
could go on, but this is enough to show that the indictment
adequately charges the crime. Whether Moore’s actions met
these allegations, including whether she indeed had a duty
to disclose, is another matter relating more to the suffi-
ciency of the evidence to convict, to which we now turn.
No. 04-2989 9
Moore spends most of her time arguing that she had
no duty to disclose her relationship with Cameron, attempt-
ing to draw a line between the prohibited conflict itself and
the information she was required to disclose. When we
review the sufficiency of the evidence, we ask “only if, after
viewing all of the evidence in a light most favorable to the
government, and drawing all reasonable inferences there-
from, . . . a rational trier of fact could not have found the
essential elements of the crime, beyond a reasonable doubt.”
United States v. Rivera, 825 F.2d 152, 158-59 (7th Cir.
1987) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
The government accuses Moore of characterizing the
scheme too narrowly. In its view, the material fact that she
had a duty to disclose was that members of Cameron’s
family were receiving financial benefits from WH while it
was being funded by HUD block grants. Thus, the govern-
ment argues, Moore had a duty to disclose not only her own
relationship to Cameron, but also the fact that she, Allen,
and Bennett were receiving financial benefits in the form of
paychecks from WH. This duty arose both when Moore
signed contracts on WH’s behalf and in the course of her
communications with City officials who were investigating
the conflict-of-interest problem.
Our starting point in considering this argument is the
language of the contracts that WH signed with the City.
Importantly, these are essentially form contracts, the
content of which was dictated by HUD and the terms of the
block grant program. Thus, these particular contracts are
the functional equivalent of any other government form.
The contract covering the period from January 1, 2001,
through December 31, 2001, which Moore herself signed, is
typical. Article XXI of that contract is entitled “Conflict of
Interest (pursuant to 24 CFR 570.611, 24 CFR 85.36 and
OMB Circular A-110).” Subsections A and B specify that no
officer, employee, or agent of the City (A) or member of the
governing body of the locality (B) shall have any financial
10 No. 04-2989
interest, direct or indirect, in the contract. Subsection C
reads as follows:
Interest of Contractor and Employees. The CONTRAC-
TOR covenants that no person described in Article XXI,
A and B above, who presently exercises any functions or
responsibilities in connection with the Contract has any
financial interest, direct or indirect, in this Contract.
The CONTRACTOR further covenants that he/she
presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any
manner or degree with the performance of his/her
services hereunder. The CONTRACTOR further cove-
nants that in the performance of this Contract no
person having any conflicting interest shall be em-
ployed. An interest on the part of the CONTRACTOR or
his/her employees must be disclosed to the CITY. . . .
(emphasis added). The subsection that immediately follows
replicates HUD’s conflict-of-interest regulation for CDBG
grants, 24 C.F.R. § 570.611, which makes clear that
among the prohibited conflicts are those in which an elected
official obtains a financial interest or benefit from a CDBG-
funded activity either for herself or her immediate family.
While it may have been possible theoretically to cross the
“t’s” and dot the “i’s” more perfectly in this language, its
import is unmistakeable: conflicts of interest must be
disclosed to the City, and one type of conflict arises when an
elected official or the immediate family of an elected official
benefits financially from the CDBG grant. The evidence
before the jury easily permitted it to conclude that Moore,
who signed this contract to obtain HUD block grant funds,
knew what the standards were and deliberately avoided
disclosing the conflict to the City, even when she was asked
directly about it. Indeed, even if Moore did not—as she
argues—read the contract and thus was ignorant for a time
of her legal obligation, the continued inquiries from City
No. 04-2989 11
officials about the relationships between WH, Cameron, and
Allen and the concerns expressed by City officials about
conflicts of interest repeatedly triggered a duty to disclose.
Once the City explicitly asked for the information, the
failure to respond honestly is something far greater than a
failure to volunteer information. The jury was entitled to
conclude that Moore continued not only to withhold obvi-
ously material information from the City but affirmatively
to lie.
Although Moore argues that United States v. Gimbel, 830
F.2d 621 (7th Cir. 1987), requires us to hold that a § 1001
violation cannot be based on a failure to comply with
instructions on a government form that was not itself
promulgated in accordance with § 553 of the Administrative
Procedure Act, we do not read Gimbel so broadly. In Gimbel,
the central question was whether the defendant’s bank had
a duty under the Currency and Foreign Transactions
Reporting Act, 31 U.S.C. §§ 5311-22, to “aggregate all
transactions by one customer on one day,” 830 F.2d at 625,
and then to report those aggregates. Neither the Act nor the
regulations imposed such a duty; the only reference to
aggregation was contained in a form, which we found was
insufficient to impose the duty to aggregate on the bank. In
the absence of a duty to aggregate, the bank also had no
duty to report aggregates.
In Gimbel, therefore, the problem was that the underlying
substantive duty (there, aggregation) was based only on
a form. In Moore’s case, in contrast, the underlying duty to
avoid conflicts of interest comes directly from regulations
duly promulgated and codified in the Code of Federal
Regulations. Those regulations are replicated in the form
contract that the City used, and the contract spelled out the
duty to disclose. Nothing in Gimbel suggests that forms or
form contracts cannot perform this modest but important
function. The contracts before us required WH to disclose to
the City any conflicting interest on the part of WH or any of
12 No. 04-2989
its employees; Article XVIII also required WH to furnish to
the City “such statements, records, reports, data and
information as the CITY may request pertaining to matters
covered by this Contract.” Because this contractual duty
was expressly tied to the properly promulgated federal
regulations governing the CDBG program, and the City was
required to adopt forms that satisfied HUD, we conclude
that the duty to disclose fell within the scope of § 1001. We
note as well that Moore continued to stonewall the City and
on occasion to lie long after she signed the contracts. Even
if she had the right to remain silent, she did not have
the right affirmatively to mislead City officials or to
lie about which family members were or were not on
WH’s payroll. See, e.g., Ross, 77 F.3d at 1546 (upholding a
§ 1001 false statements conviction where Ross lied to the
government by submitting a false spreadsheet even where
Ross had no duty to submit the information in the first
place).
The Eleventh Circuit came to a conclusion consistent with
ours in United States v. Calhoon, 97 F.3d 518 (11th Cir.
1996), an analogous case that dealt with the Medi-
care program. Hospital employee Calhoon told the truth,
but not the whole truth, on certain Medicare reimburse-
ment forms. He argued that the law permitted him to claim
reimbursement for costs that might in the end be
nonreimbursable, and thus that doing so could not be a
false statement. The Eleventh Circuit took a more nuanced
approach in rejecting his position:
While it is true that a provider may submit claims for
costs it knows to be presumptively nonreimbursable, it
must do so openly and honestly, describing them
accurately while challenging the presumption and
seeking reimbursement. Nothing less is required if
the Medicare reimbursement system is not to be turned
into a cat and mouse game in which clever providers
could, with impunity, practice fraud on the government.
No. 04-2989 13
Id. at 529. See also United States v. Cisneros, 26 F. Supp. 2d
24, 42 (D.D.C. 1998) (“Since Cisneros responded to the
questions, he had a duty to include all information neces-
sary to make his statements truthful.”). As with the
Medicare system, the HUD block grant system could not
operate if the federal government were unable to rely
on recipients such as the City of Milwaukee to discover
whether subrecipients like WH had conflicts of interest
or violated other HUD regulations.
Moore did far more than simply remain silent in the face
of an alleged duty to disclose. She told affirmative false-
hoods to the City about the timing of her sister’s employ-
ment at WH; at one point, she lied about Allen’s relation-
ship to Cameron; and she deliberately concealed the
obviously important fact that she too was Cameron’s
daughter. The federal regulations, which Moore had
acknowledged in the form contract, expressly forbade these
dealings, and Moore had promised to follow those regula-
tions and to furnish relevant information to the City in the
governing contracts. The district court correctly refused
to dismiss the indictment, and it correctly found that
the evidence showed a duty to disclose based firmly in
HUD’s statutory program.
B. Jury Instructions
Closely related to her challenge to the indictment and the
evidence is Moore’s argument that the jury instruction on
duty to disclose was flawed. We review a trial court’s
instructions, albeit with great deference, to ensure that the
instructions taken as a whole accurately state the law and
are supported by the record. The instruction about which
Moore complains reads as follows:
The duty to disclose a particular fact to the executive
branch of the federal government or its agent arises
14 No. 04-2989
from requirements in federal statutes, regulations, or
government forms. When a person provides material
information, that person has an obligation to refrain
from telling half-truths or from excluding informa-
tion necessary to make that person’s statement accu-
rate.
As Moore sees it, this instruction fails to tell the jury that it
must acquit if the duty to disclose did not arise from a
federal statute, regulation, or government form, and it
erroneously does not inform them that 24 C.F.R. § 570.611“does not impose such a duty and cannot be relied upon to
satisfy the government’s burden.” We conclude that the
instruction, which includes “government forms” in the list
of possible sources of the duty to disclose, was adequate
here. This result follows from our interpretation of the duty
to disclose more generally.
Second, Moore contends that the instruction’s second
sentence is erroneous in that it “relieved the government of
its burden to prove beyond a reasonable doubt the duty to
disclose element.” The answer to this argument, however,
also follows from our discussion of the Calhoon case, supra.
Once a person begins to provide information, as Moore did
as she strove to salvage WH’s grants, she must “refrain
from telling half-truths or from excluding information
necessary to make that person’s statement accurate.”
C. Materiality
Moore also argues that the evidence failed to show that
her statements were material. In her view, they are not,
because the City of Milwaukee’s Ethics Code excludes
from its definition of “immediate family” persons who are
not receiving more than 50% of their support from the other
family member. Other HUD regulations sometimes define
the word “family” by reference to state-law provisions. She
also argues that the information is not material because the
No. 04-2989 15
“financial benefit” the family members received was salary,
and at a minimum the regulation’s language did not clearly
make the family members’ salaries material.
Given the language of 24 C.F.R. § 570.611(b), we have
no trouble concluding that Moore’s statements were mate-
rial. As we noted above, the regulation prohibits elected
officials who participate in decisions about block grant
funds from obtaining a financial benefit from a CDBG-
assisted beneficiary organization, “either for themselves or
those with whom they have business or immediate family
ties. . . .” Id. One does not lose family ties with adult
children, or other family members who are financially
independent. Moreover, even if there is some residual
vagueness, about which we have more to say below, that
does not imply that the information is immaterial. A
material statement is one that has a natural tendency to
influence, or that is capable of affecting, a government
function. See United States v. Puente, 982 F.2d 156, 159
(5th Cir. 1993). Every official involved with the CDBG
program testified that family relationships were material to
them. Marcia Bergeson, senior community planning and
development representative for HUD, was typical: she
testified that HUD considered “immediate family” to include
a mother-daughter relationship, and that had the City
known that Cameron’s various daughters were obtaining
financial benefits from WH, it would have either rejected
the WH application or have required WH to request an
exception. Indeed, the City’s actions in repeatedly informing
Cameron and WH about the potential conflicts issues and
in seeking information from Cameron and her daughters
about their relationships with each other and the non-profit
alone would be sufficient to demonstrate the information’s
materiality. Finally, the great lengths to which Cameron
and her daughters went to conceal their relationships with
each other and with the WH payroll demonstrate quite
16 No. 04-2989
effectively that Cameron, Moore, and Allen knew that the
information was material.
Moore next argues that the term “financial benefit”
excludes salaries and that HUD at one time had interpreted
the regulation in just that manner (although HUD later
excised the language on which she relies). Therefore, she
concludes, the fact that she and her sisters were collecting
salaries cannot be material and the regulation is, in this
respect as well, vague. The record shows, however, that the
fact that Cameron’s daughters were receiving salaries from
WH had the potential to affect the City’s decision on
awarding block grants. The City considered the salaries to
be the type of financial benefit that triggered a conflict of
interest. City officials so advised Cameron from the time of
her election, and they made their position clear again and
again. Furthermore, a decade-old HUD interpretation based
on out-of-date language in a regulation does not make those
salaries any less material.
D. Concealment
Moore also claims that she took no affirmative steps
to conceal her relationship with her mother, but our account
of the evidence above shows that the jury was not required
to accept this view. The first problem is that here, as
elsewhere in her appeal, she construes the charged offense
too narrowly. As the government points out, she lied in two
letters about her sister’s status as an alleged former
employee of WH, when the sister was still on the payroll
months after the termination dates Moore supplied. Moore
herself used two different names on her checks: she identi-
fied herself as Moore when writing them from WH to
Perine’s Maintenance, and she endorsed them as Perine on
the back. The jury was entitled to regard this as at least
circumstantial evidence of concealment.
No. 04-2989 17
E. Vagueness of HUD Regulation
Moore offers two reasons to find the HUD conflict-of-
interest regulation to be vague: first, that it does not define
the term “immediate family,” and second, that it does not
specify whether “salary” is included in “financial benefits.”
This vagueness is enough, in her view, to preclude a
conviction on due process grounds, because a criminal
statute must provide “fair warning . . . in language that the
common world will understand.” United States v. Lanier,
520 U.S. 259, 265 (1997) (quoting McBoyle v. United States,
283 U.S. 25, 27 (1931)). The government counters that the
alleged vagueness of the HUD regulation is irrelevant,
because Moore was convicted under § 1001, not the regula-
tion, and she is not arguing that § 1001 is too vague.
In Bryson v. United States, 396 U.S. 64 (1969), the
Supreme Court upheld a conviction under § 1001, holding
that the constitutionality of the underlying statute (§ 9(h)
of the National Labor Relations Act) was irrelevant. It
reasoned that “a claim of unconstitutionality will not be
heard to excuse a voluntary, deliberate and calculated
course of fraud and deceit. One who elects such a course
as a means of self-help may not escape the consequences by
urging that his conduct be excused because the stat-
ute which he sought to evade is unconstitutional.” Id. at
68 (quoting Dennis v. United States, 384 U.S. 855, 867
(1966)). See also United States v. Lawton, 366 F.3d 550,
553-54 (7th Cir. 2004); United States v. Weatherspoon, 581
F.2d 595, 601 (7th Cir. 1978). The only distinction between
Bryson, Lawton, and Weatherspoon, on the one hand, and
Moore’s case, on the other, is that the former involved
false statements and the latter involved scheming to
avoid disclosing material information. Once the duty to
disclose is established, however, as we are satisfied it is
here, that distinction is of no importance.
As in Bryson, the jury in this case necessarily found that
Moore acted knowingly or intentionally. Her conviction does
18 No. 04-2989
not depend on any mistake of law with regard to the scope
of the HUD regulations as reflected in Milwaukee’s form
contract. It rests instead on her repeated decisions to avoid
revealing her relationship with Cameron, to give false
information about her sister’s continued employment at
WH, and to provide misleading information designed
to throw the City off the track. The City unquestionably had
the authority to ask Moore the questions it did, and the
information she gave and withheld was material. That is
enough.
III
Moore, along with her other family members, engaged
in a scheme to conceal material facts from the City of
Milwaukee, in its role as administrator of federal block
grant funds. Specifically, she withheld material facts from
the City and consequently HUD about the family’s violation
of the conflict-of-interest rules. Finding no merit in any of
her arguments, we AFFIRM the judgment of the district
court.
No. 04-2989 19
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-2-06