United States District Court, D. Columbia.
GERALD STONE, Plaintiff, Pro se, Irving, TX.
For SHAUN DONOVAN, Secretary, Department of Housing and Urban Development, Defendant: Oliver W. McDaniel, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
MEMORANDUM OPINION AND ORDER
CHRISTOPHER R. COOPER, United States District Judge.
This is but the latest of Gerald Stone's numerous attempts to reverse the consequences of his 2005 criminal conviction. Because Stone's claims are virtually identical to ones previously rejected by this court and others, the Court will grant the Secretary of Housing and Urban Development's motion to dismiss Stone's complaint.
The events surrounding Stone's conviction and sentence have been amply described in prior decisions cited in this opinion. The Court will highlight the most
pertinent facts. In 2005, Stone pled guilty in the U.S. District Court for the Northern District of Texas to tax evasion and to conspiracy to commit theft from an organization receiving federal benefits in excess of $10,000. United States v. Hildenbrand, 527 F.3d 466, 473 (5th Cir. 2008). A non-profit operated by Stone and his wife, Barbara Hildenbrand, bought houses from the U.S. Department of Housing and Urban Development (" HUD" ) at a discount through a HUD program (known as the Single Family Affordable Housing Program, or " SFAHP" ) offered to encourage home ownership among low- and moderate-income buyers. Id. at 470-71. Stone invoiced the non-profit and received payments for repair work on houses that he did not perform. Id. at 471-72. The fake invoices inflated the stated expenses of the non-profit, thereby increasing the allowable sale price of the houses. Id. at 471. Stone bought a yacht and a condo with the funds, and did not report this income on his tax returns. Id. at 471-73.
The District Court for the Northern District of Texas sentenced Stone to two years imprisonment and restitution, and ordered forfeiture of the yacht and condo. Id. at 473-74; Plea Agreement, at 4. The Fifth Circuit affirmed the sentence. Id. at 478. Stone's motion to vacate the sentence was denied by the district court. Stone v. United States, 2010 WL 2404281 (N.D. Tex. June 15, 2010) (adopting report and recommendation). The Fifth Circuit dismissed his appeal of the forfeiture order for lack of jurisdiction because Stone had no interest in the forfeited property at the time the district court entered the order. United States v. Stone, 435 F.App'x 320 (5th Cir. 2011).
After the proceedings in the Fifth Circuit, Stone brought three cases in this district against the Department of the Treasury, HUD, and Eric Holder in his capacity as Attorney General. See Stone v. Holder, 859 F.Supp.2d 48 (D.D.C. 2010) (consolidating three cases). All three sought to reclaim restitution payments and property seized as part of his sentence. Id. at 50. All three were dismissed because Stone did not meet his burden to establish that sovereign immunity had been waived. Id. at 52. The court also held that the suits were improper collateral attacks on Stone's sentence. Id. at 53.
In this complaint, Stone argues that there were no facts supporting his conviction under 18 U.S.C. § 666 for defrauding an organization receiving over $10,000 in federal benefits. See Compl. at 3. He relies on recent responses to Freedom of Information Act requests where, he contends, HUD and the Department of Justice deny evidence of loss by HUD. Compl. at 6-7. Without a financial loss to HUD, Stone argues, the non-profit he defrauded could not have received over $10,000 in federal benefits, as required by Section 666. Pl. Opp'n Mot. to Dismiss at 2, 7. The Secretary moves to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (6) for lack of subject matter jurisdiction and failure to state a claim.
II. Standard of Review
Federal courts are courts of limited jurisdiction. On a Rule 12(b)(1) motion to dismiss, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife,504 U.S. 555, 561, 112 S.Ct. ...