U.S. v. Westbrook, 86-5234

• Citation: 817 F.2d 529
• Decision Date: 14 May 1987
• Docket Number: No. 86-5234,86-5234
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Preston WESTBROOK, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 529

817 F.2d 529

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Preston WESTBROOK, Defendant-Appellant.

No. 86-5234.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 3, 1987.

Decided May 14, 1987.

Nancy L. Worthington, Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Pamela J. Naughton, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Frank M. Murphy, III, San Diego, Cal., for defendant-appellant.

Appeal from the United States District Court for the Southern District of California.

Before WALLACE, TANG and ALARCON, Circuit Judges.

ALARCON, Circuit Judge:

Kenneth Preston Westbrook appeals his convictions of illegally purchasing and receiving military property belonging to the United States in violation of 18 U.S.C. Secs. 641 and 1024 (1982). Westbrook contends:

First. Section 1024 is unconstitutionally vague.

Second. The district court failed to dismiss several counts on the indictment which referred to the same set of facts as other counts.

Third. The district court should have dismissed the section 1024 counts because the indictment failed to state the proper criminal intent. We affirm.

I.

In 1982, the Federal Bureau of Investigation (hereinafter FBI) and the Naval Investigative Service (hereinafter NIS) commenced an investigation entitled "Operation Rip-Stop" to identify and prosecute marines and "surplus" dealers around San Diego, California involved in the theft and resale of military property from the Marine Corps Base at Camp Pendleton, California.

Westbrook, a surplus dealer, operated Vista Surplus in the Oceanside area. Westbrook purchased military property from an individual after being told that the property was stolen from Camp Pendleton. This occurred on nine occasions.

The FBI and the NIS also established an undercover store, Golden State Surplus (hereinafter GSS), near Camp Pendleton. Shortly after GSS opened, Westbrook visited the store and purchased military poncho liners from an undercover agent, although the agent told him that the property was stolen from marines at Camp Pendleton. Westbrook purchased gear from GSS on nine other occasions.

Finally, the FBI and NIS recruited several active-duty military policemen to attempt to sell their issued gear to surplus dealers. Westbrook bought military property from one of these servicemen. The military policeman told Westbrook that that he was a marine and that the gear he was selling was issued to him by the Marine Corps.

At the conclusion of the investigation, Westbrook's store was searched. Sales receipts were seized which revealed that Westbrook had purchased gear from marines since 1979. Agents traced the names of three marines who appeared frequently on the sales slips. The marines admitted stealing military property and selling it to Westbrook. Westbrook knew the individuals were marines and that they had stolen the military property when he purchased the property from them. Westbrook asked them to sell him more military equipment, to recruit other marines to do the same, and advised them how to conceal their activities.

Each of Westbrook's contentions are questions of law which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

II.

Westbrook contends that 18 U.S.C. Sec. 1024 is vague because "it fails adequately to guide and protect persons who are in the legitimate business of dealing in military surplus property." Section 1024 provides:

Whoever purchases, or receives in pledge from any person any arms, equipment, ammunition, clothing, military stores, or other property furnished by the United States under a clothing allowance or otherwise, to any member of the Armed Forces of the United States or of the National Guard or Naval Militia, or to any person accompanying, serving, or retained with the land or naval forces and subject to military or naval law, or to any former member of such Armed Forces at or by any hospital, home, or facility maintained by the United States, having knowledge or reason to believe that the property has been taken from the possession of or furnished by the United States under such allowance, or otherwise, shall be fined not more than $500 or imprisoned not more than two years, or both.

Westbrook argues that prohibiting surplus dealers and himself from purchasing or receiving military property "from any person" is unconstitutionally vague because "the entire military surplus industry of this country which is in the business of purchasing from the government used, rejected and surplus military equipment stands in peril of being prosecuted for a violation of Sec. 1024."

"A statute is void for vagueness if it fails to give adequate notice to people of ordinary intelligence concerning the conduct it proscribes, see Coates v. City of Cincinnati, 402 U.S. 611, 614 [91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971) ] ..., or if it invites arbitrary and discriminatory enforcement, Papachristou v. City of Jacksonville, 405 U.S. 156, 162 [92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972) ]...." Schwartzmiller v. Gardner, 752 F.2d 1341, 1345 (9th Cir.1984). "The threshold question in any vagueness challenge is whether to scrutinize the statute for intolerable vagueness on its face or whether to do so only as the statute is applied in the particular case." Id. at 1346. Since Westbrook challenges the statute as unconstitutionally vague both facially and in its application, we scrutinize each of the claims under separate headings.

A.

We first must decide whether section 1024 is vague on its face. Facial vagueness is not common because "ordinary canons of judicial restraint do not permit a party whose particular conduct is adequately described by a criminal statute 'to attack [the statute] because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit.' " Schwartzmiller, 752 F.2d at 1346 (quoting Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974)).

The Supreme Court has explained how we may determine whether facial statutory review is appropriate in response to a facial vagueness challenge. In a facial challenge to the vagueness of a law,

assuming the enactment implicates no constitutionally protected conduct, [the court] should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law.

Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191-92, 71 L.Ed.2d 362 (1982) (footnote omitted). Thus, the Court has recognized that a party has standing to challenge a statute facially if "no standard of conduct is specified at all," Parker, 417 U.S. at 757, 94 S.Ct. at 2562, that is, if the statute "is impermissibly vague in all of its applications." Hoffman Estates, 455 U.S. at 497; Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

Section 1024 is not facially unconstitutional for three independent reasons. First, section 1024 implicates no constitutionally protected conduct, substantial or otherwise. Second, section 1024 is not so vague as to specify "no standard of conduct" at all in any application. The standard of conduct which Congress prohibited under section 1024 is clear: A person who (1) purchases, or receives in pledge, (2) from any person, (3) United States military property furnished under a clothing allowance or otherwise, (4) having knowledge or reason to believe the property has been taken from the possession of the United States under such allowance, violates 18 U.S.C. Sec. 1024. Finally, as discussed infra in Section II.B. of this opinion, Westbrook's facial attack of section 1024 fails because an individual "who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to others." Hoffman Estates, 455 U.S. at 495, 102 S.Ct. at 1191 (footnote omitted). Thus, Westbrook is subject to the usual canons of restraint in the exercise of judicial review and may not attack section 1024 on its face, but only as applied to his conduct. Schwartzmiller, 752...