United States v. Thomas Gannon , 684 F.2d 433 ( 1981 )

PELL, Circuit Judge.

Appellant Thomas Gannon was convicted of 29 counts of violating The Real Estate Settlement Procedures Act of 1974, 12 U.S.C. §§ 2601, 2607(b) (1976) (RESPA), by accepting payments for Torrens filings which were in excess of those authorized by state law. Each extra payment was the basis of a separate count of the indictment. Appellant, a counterman in the Torrens section of the Cook County, Illinois Recorder of Deeds office, acknowledged that he received and accepted the excess payments from local bank representatives whose filings he had handled. He claims, however, that RESPA does not apply to these payments because they were “gratuities,” not “portions of the charges” made foi settlement services “other than for services actually performed.” 12 U.S.C. § 2607(b). A panel of this Court initially agreed with appellant’s interpretation and reversed his conviction. United States v. Gannon, No. 80-1108 (7th Cir., Nov. 3, 1980). This opinion follows an en bane rehearing.

I

The undisputed evidence presented at appellant’s trial reveals the following. The purpose of the Torrens section is to guarantee the title of Cook County real estate registered with it by issuing title certificates for the property. The counterman deals directly with the public by accepting land registration and transfer documents, examining the documents for correctness, transmitting the documents to other employees so that a new title certificate can be prepared if necessary, and charging and accepting the appropriate fees for these services. The fees are set by state statute and the countermen receive a salary in return for which they are to provide the public with prompt and courteous service. Since the fall of 1977, a sign has been displayed in the Torrens section which states:

ATTENTION

OFFICE REGULATIONS PROHIBIT MEMBERS OF THE STAFF FROM ACCEPTING GRATUITIES FROM ANY SOURCE IN THE CONDUCT OF OFFICIAL BUSINESS.

In addition, in the fall of 1977, appellant signed a typed statement which provides:

The undersigned hereby acknowledges and understands that the acceptance of gratuities from any source in the conduct of office business is strictly forbidden. Violators of this regulation will be subject to disciplinary action.

A number of the section’s customers are employees of various local banks or savings and loan institutions. The institutions are federally insured and use the Torrens services in the course of providing real estate loans. The bank employees can either phone ahead to the Torrens office for an appointment with a specific counterman, or can arrive at the office without an appointment and wait in a line for service. They can pay for the Torrens service either in cash or by check which is given to the counterman in return for a stamped receipt.

A number of bank employees testified at appellant’s trial that when they submitted the relevant documents and fees to appellant for Torrens registration or transfer, they gave two or three dollars to appellant in addition to the statutory amount. It is uncontested that appellant accepted these extra payments. The employees testified that they were told by their superiors, usually during training, that they should regularly make these additional payments to the countermen. Although there was no testimony that appellant requested or solicited these extra payments, one of the bank employees, Cheryl 01k, testified that after she ceased making the payments for her bank, appellant told her that she worked for a “cheap bank” and that if “something were not done,” the bank’s “work would not get done.” ¹ All of the bank employees testified that in return for the additional payments, they believed that they received “prompt” and good service from appellant.

II

The basis of this appeal is that these extra payments were unsolicited “gratuities,” which, although they may have violated state statutes or office regulations, did not violate RESPA because they were not the evil § 2607(b) was intended to address.

Section 2607 provides in pertinent part: § 2607. PROHIBITION AGAINST KICKBACKS AND UNEARNED FEES —BUSINESS REFERRAL

(a) No person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.

—SPLITTING CHARGES

(b) No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed.

—FEES, SALARIES, COMPENSATION, OR OTHER PAYMENTS

(c) Nothing in this section shall be construed as prohibiting ... (2) the payment to any person of a bona fide salary or compensation or other payment for goods or facilities actually furnished or for services actually performed.. . .

Appellant makes two arguments in support of his contention that § 2607(b) was not intended to apply to his actions. First, he claims that the gratuities were not a “portion” of the “charge made ... for the rendering of real estate settlement services.” Second, he contends that he performed real estate settlement services in return for the gratuities.

Regarding appellant’s first argument, we must initially recognize the findings made by the district court that the “gratuities were a regular portion of the payments for the rendering of settlement services,” and that the “[ajgents of the banks were given the impression that gratuities had to be paid in order to get the work done.” Appellant claims that these comments were not formal factual findings requiring the application of the “clearly erroneous” standard. We disagree with appellant’s characterization, however, irrespective of the standard applied, it appears the “comments” were adequately supported in the record.

To come within the scope of § 2607’s prohibitions, a charge need not be imposed pursuant to a state statute or local regulation, or even be the result of a specific demand by the counterman. HUD regulations provide that an “agreement or understanding” for the referral of business that is illegal under § 2607(a)

need not be verbalized but may be established by practice, pattern, or course of conduct pursuant to which the payor and the recipient of the thing of value understand that the payment is in return for the referral of business.

24 C.F.R. § 3500.14(c) (1980). We think a similar definition should be imposed upon the term “charge” in subsection (b). See Weiner v. Swales, 217 Md. 123, 141 A.2d 749, 750 (1958) (“charges” are “the expenses which have been incurred, or disbursements made, in connection with a contract, suit, or business transaction”). In this case, it is clear that the two- or three-dollar gratuities were as much a part of the “charge” imposed upon the customers as was the statutorily imposed segment. It is a reasonable inference from the evidence that in general, the continued “prompt” service was preconditioned upon the regular payment of these “gratuities.” The inference is buttressed by the testimony regarding the training information passed to the institutions’ employees which reflects that the custom of paying the “gratuities” was well established in the business community.² Any remaining doubt concerning the deontic nature of the extra payments was put to rest by appellant’s statement to Oik that if her bank did not “do something” about the cessation of the “gratuity” payments, the bank’s work “would not get done.”

Regarding appellant’s second argument, appellant concedes that in return for his salary from the Torrens office, it was his obligation to render all customers prompt and good service, and that the reasonable value of the services he rendered was equal to the statutory portion of the “charges” he imposed. Therefore, appellant must have accepted the extra payments for something other than rendering his settlement services. Appellant cannot avoid liability under § 2607(b) simply by refusing to perform his mandated duties unless he is given a “gratuity,” and thus claiming that he was “performing a real estate settlement service” in return for the extra payments.

The difficulty the panel focused upon in the original opinion concerned the construction of the phrase “received for”. In essence, the panel concluded that it would be impossible for a single individual to violate § 2607(b) because he could not both accept a portion of the charge “received foF’ the rendering of real estate settlement services, and also accept the same charge “other than for services actually performed.” If the services were not performed, the panel held, the charge could not have been received “for” the performance of those services. We think this construction of § 2607(b) is too restrictive.

Although it is true that, in general, a criminal statute must be strictly construed, United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 474, 30 L.Ed.2d 457 (1971) (citation omitted), it is also a well established rule of statutory construction that a court will presume against interpreting a statute in a way that will render it meaningless or ineffective. FTC v. Manager, Retail Credit Co., Miami Branch Office, 515 F.2d 988, 994 (D.C.Cir. 1975) (citations omitted). In this case, not only does the panel’s interpretation conflict with what we believe was the Congressional intent behind § 2607, but it also renders the statute ineffective in achieving even what the appellant contends is the more narrow Congressional intent.

Appellant claims that Congress did not intend § 2607(b) to apply to additional payments such as the one at issue in this case. Rather, he argues that the statute was intended to apply only to the practice some real estate companies had of splitting the charges they received for performing real estate settlement services with individuals who performed no service for the company’s customers in return. This split was usually intended to serve as compensation for the referral of business. Appellant relies in this argument on the subtitle of subsection 6(b), “Splitting Charges,” upon the examples in the legislative history of § 2607 and the HUD regulations interpreting the section. Both of these latter sources do, in fact, discuss only splitting scenarios and we fully agree with appellant that the splitting arrangement was foremost in Congress’ mind when it enacted RESPA and specifically § 2607(b). We disagree, however, that § 2607(b) was intended to deal with that problem exclusively.

Notwithstanding the examples in the legislative history and the regulations, the overall purpose of § 2607 was set forth more broadly in Senate Report No. 93-866, May 22, 1974, which reported out of committee the bill that eventually became § 2607. That report succinctly stated that one of the purposes of the bill was “to eliminate the payment of ... unearned fees in connection with settlement services provided in federally related mortgage transactions, and for other purposes .. .,” 1974 U.S.Code Cong. & Ad.News 6546, 6548, 6554, and characterizes subsection (b) as prohibiting the “acceptance of any portion of any charge for the rendering of a real estate settlement service other than for services actually performed.” Id. at 6556 (emphasis added). While the title of a section of a statute should not control or vary the plain meaning of the statute itself, nevertheless the title of § 2607, “Kickbacks and Unearned Fees,” appears to fortify the position that the Congressional intent was for a broader application than that ascribed to it by the appellant. Congress’ aim was to stop all abusive practices that unreasonably inflate federally related settlement costs to the public. Id. at 6547, 6548. Although the focus of immediate Congressional concern may have been the splitting of fees between the recipient of the charge and unrelated third parties, the arrangement we view here is no less an example of an “abusive practice” or imposition of an “unearned fee,” unreasonably increasing the cost of settlement services to the banks, and ultimately to the public at large. As stated previously, appellant concedes that the reasonable value of the services he rendered was equal to the statutory portion alone of the “charge” he levied. It should be noted in this regard that the Senate report stated: “To the extent that the payment is in excess of the reasonable value of the . .. services performed, the excess may be considered a kickback or referral fee proscribed by section 7 [§ 2607].” Id. at 6551.

At best, the bank employees were receiving a benefit in the form of expedited service. The cost for this service, however, was ultimately being paid by the bank’s customers in return for a benefit that at most could be described as speculative or tangential. We think this conduct was within the Congressional concern manifested by § 2607(b). The fact that appellant kept the entirety of the extra payments instead of passing a portion of them along to an unrelated third party does not, in our opinion, render his conduct less abusive or insulate him from liability under that statute.

Given the Congressional goal of protecting the public from abusive practices that unreasonably inflate settlement costs, we see no reason to overturn the district court’s construction of § 2607(b) that achieves this objective. We believe a single individual can violate § 2607(b) by receiving in his official capacity a “charge” for the rendering of settlement services, but personally keeping a portion of the charge in fact for something other than the performance of those services. In this ease, appellant in his official role imposed and received a “charge” that incorporated not only a statutorily imposed segment, but also a “gratuity” that was ostensibly required by appellant in order to get the services properly performed. At the same time, because the prompt service was already due the bank employees under state law once the statutory fee was paid, the extra payment must have been accepted in fact for something “other than services actually performed.” This conduct violated § 2607(b). The panel’s construction of the statute has an additional difficulty. Even if we were to assume a more narrow Congressional intent behind § 2607, that is, an attack solely upon the “splitting” situations, the panel’s construction would not achieve Congress’ desired result. The two-party scenario, no less than the one-party situation we review here, is a potential victim to a construction that technically defines the phrase “receive for.” In the two-party situation, the real estate company employee, or counterman, would receive a “charge” “for the performance of real estate settlement services.” However, because he would pass along a portion to a third individual who did nothing for the customer in return, neither the total charge nor the portion passed along would be within the panel’s narrow definition of § 2607(b). Because nothing was performed for the customer in return for at least part of the charge, that portion of the charge could not have been received “for” the performance of real estate settlement services. The remaining portion, on the other hand, would have been received in return for the services; yet that portion would also not be subject to § 2607 because actual services were performed in its return. Under the panel’s construction, therefore, the statute would be rendered meaningless, except possibly in those rare instances where the unreasonably inflated charge is officially sanctioned. We do not believe such a construction is desirable or necessary in this case and thus adopt the district court’s construction which achieves Congress’ intent.³

Ill

Appellant also challenges § 2607 as being unconstitutionally vague. Although it is true that a statute which sets forth its provisions in terms so vague that individuals “of common intelligence must necessarily guess at its meaning ... violates the first essential of due process of laws,” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926), we do not find that this principle has any application here. Our interpretation of § 2607(b) is a logical application of the Congressional policies underlying RESPA, see United States v. Chiarella, 588 F.2d 1358, 1369 (2d Cir. 1978), rev’d on other grounds, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980), and the fact that no prior case has involved the precise fact situation we address here is not dispositive. All that is necessary is that a “clear and definite statement of the conduct proscribed antedate” the action alleged to be criminal. United States v. Persky, 520 F.2d 283, 288 (2d Cir. 1975) . We hold that this standard was met in this case.

“In determining the sufficiency of the notice a statute must of necessity be examined in light of the conduct with which the defendant is charged.” United States v. National Dairy Products Corp., 372 U.S. 29, 33, 83 S.Ct. 594, 598, 9 L.Ed.2d 561 (1963); diLeo v. Greenfield, 541 F.2d 949 (2d Cir. 1976) . “Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his conduct is proscribed.” National Dairy, supra 372 U.S. at 32-33, 83 S.Ct. at 597-598 (citation omitted). In this case, appellant certainly knew from the sign in the Torrens office and the statement he signed that his practice of accepting the extra payments was improper and that the extra payments were not “bona fide.” Thus, he cannot claim that he was unfairly surprised that his conduct was illegal, only that it was proscribed under this specific statute. It is well established, however, that in light of the strong presumption of validity that attaches to Acts of Congress, the fact that individuals may differ regarding whether or not certain marginal offenses fall within a specific statute’s terms does not by itself render the statute unconstitutional. Id. at 32, 83 S.Ct. at 597. Furthermore, this ease has not presented any potential for discretionary enforcement of the statute, nor have the facts shown that the statute has been arbitrarily or discrimi-natorily invoked. Int’l Society for Krishna Consciousness, Inc. v. Rochford, 585 F.2d 263, 267 (7th Cir. 1978). We find, therefore, that § 2607(b) is sufficiently definite to pass constitutional muster.

IV

Appellant next challenges the sufficiency of the Government’s evidence, claiming that the Government failed to prove that the “gratuities” were actually paid by the bank’s customers, and that it failed to prove that appellant knew that the extra payments were paid by the bank’s customers.

Regarding appellant’s first complaint, the Government established that many of the extra payments were passed, on directly to the bank’s customers, and when the evidence is viewed most favorably to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), it is a reasonable inference that the remaining payments also were passed on to the customers at least indirectly. Furthermore, appellant has failed to support his implication that the banks, when they were representing their customers, were not themselves members of the “public” as that term is used in the legislative history of § 2607.

As to the second element of appellant’s argument, we have found no support in the legislative history for the contention that the Government’s burden in a § 2607 prosecution includes a showing that appellant knew that each payment was being passed on directly to the bank’s customers. Contra, United States v. Pawelek, No. 79 CR 498 (N.D.Ill.1979). Congress’ intent was to make illegal any abusive practice that unreasonably inflated the cost of real estate settlement services to the public. The fact that appellant may not have had knowledge as to whether or not specific payments were passed on directly to the bank’s customers does not render his acceptance of the extra payments less abusive, or have a bearing upon whether or not the bank’s customers eventually bore an increased and unwarranted cost. Because the ultimate source of the bank’s funds was its customers, a sense of realism alone should have informed appellant that the customers would eventually bear the cost of the extra payments. We hold this is sufficient to meet any degree of knowledge required under § 2607(b).

V

Appellant’s final challenge is based upon the disparity between the sentences imposed upon him and the other countermen in related prosecutions. See Pawelek, supra, Snow, supra, and Nadjari, supra. This court will not infringe upon the trial court’s discretion in sentencing absent a clear showing of gross abuse of that discretion. United States v. Mitchell, 625 F.2d 158, 162 (7th Cir. 1980), cert, denied, 449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247. A sentence generally will not be reviewed if it is within the statutory limits, id.; United States v. Dorzynski, 418 U.S. 424,440-41, 94 S.Ct. 3042, 3051, 41 L.Ed.2d 855 (1974) (citations omitted), and “disparity in sentences is not a predicate for appellate review.” United States v. Amick, 439 F.2d 351, 371 (7th Cir. 1971), cert, denied, 403 U.S. 918, 91 S.Ct. 2227, 29 L.Ed.2d 694. The record in the instant case reveals that the trial judge was fully aware of the other RESPA sentences and considered only the facts of the case before him. The sentence also was within the statutory limitations of RESPA. In these circumstances, we will not disturb the district court’s discretion.

Affirmed.

1 . Initially upon being informed that Oik’s bank would cease making the payments, appellant said, “Fine. No problem,” and for a period of time Oik’s filings were handled “normally.”

2 . The conclusion that the practice was widespread is further supported by the fact that the Government has secured the conviction of several other countermen for violating § 2607(b) by accepting these extra payments. United States v. Pawelek, No. 70 CR 498 (N.D.Ill. 1979); United States v. Snow, No. 70 CR 500 (N.D.Ill.1979); United States v. Nadjari, No. 70 CR 501 (N.D.Ill.1979).

3 . The only district judges that have addressed the question of whether or not § 2607(b) applies to this situation are in accord with our interpretation. United States v. Pawelek, No. 70 CR 498 (N.D.Ill.1979); United States v. Snow, No. 70 CR 500 (N.D.Ill.1979); United States v. Nadjari, No. 70 CR 501 (N.D.Ill.1979).