Perjury conviction reversed, but convictions for concealing debtor's property, transferring biological agent affirmed

U.S. v. Hale, 2014 WL 3906862 (8/12/14) (Ut.) (Published) - It was plain reversible error [the pro se motion did not preserve the issue where the district court refused to consider it because the defendant was represented by counsel]. to convict Mr. Hale of perjury where the question the government claimed he answered untruthfully was ambiguous as to whether it referred to the accuracy of his bankruptcy petition at the time it was executed or at the time of the questioning. There wasn't that much evidence Mr. Hale knew the petition information about the value of his property was false at the time he executed the petition. And the government even went back and forth in its interpretation of the question in its appellate brief. The Tenth orders an entry of a judgment of acquittal.

The Tenth upholds the conviction for concealing the "property" of the estate of the debtor in violation of 11 U.S.C. § 152(1). The real estate purchase contract Mr. Hale concealed was "property" under the statute because it was voidable, but not void. Under Utah law, Mr. Hale obtained an interest in the money promised under the contract, the trustee could have elected to ratify the agreement and so there was a right in the estate to that money.

Mr. Hale's constitutional challenge to 18 U.S.C. § 175, which prohibits transferring a biological agent, fails under plain error. On appeal he anticipated a Supreme Court ruling in Bond v. U.S., 134 S. Ct. 2077 (2014), that an analogous statute was unconstitutional because Congress couldn't implement an international treaty through the statute. But the Supreme Court avoided the question and so any unconstitutionality couldn't be plain. Mr. Hale couldn't benefit from the Supreme Court's holding that the analogous statute didn't cover the irritating chemicals involved in that case because in this case Mr. Hale mailed a substance to the trustee that he purported to contain hantavirus, a very dangerous thing. This would naturally be considered "terrorism." The Tenth also rejects Mr. Hale's unsympathetic argument that he didn't perpetrate a hoax in violation of 18 U.S.C. § 1038(a) because he actually did transmit a biological agent.