U.S. v. Salazar

Decision Date04 November 1983
Docket NumberNo. 82-1588,82-1588
Citation720 F.2d 1482
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Eloy SALAZAR, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Jeffrey R. Edelman, Denver, Colo., for defendant-appellant.

Charles H. Torres, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., Denver, Colo., was also on brief), for plaintiff-appellee.

Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant Eloy Salazar was convicted, after a jury trial, on two counts 1 of unlawful acquisition and possession of food stamps in violation of 7 U.S.C. Sec. 2024(b). Defendant appeals his conviction on four grounds. He argues that (1) Sec. 2024(b) is unconstitutionally vague; (2) the indictment under which he was charged is insufficient; (3) the Government unconstitutionally singled him out for prosecution; and (4) the conduct of the Government agents investigating him was so outrageous as to violate the Due Process Clause of the Fifth Amendment. We disagree with all of defendant's contentions and affirm.

I

During March and April of 1981, the Inspector General's Office of the United States Department of Agriculture (USDA) and the Police Department of Denver, Colorado, were engaged in a joint investigation of illegal food stamp trafficking. The Denver Police Department identified the Pier II Bar at 3730 Federal Boulevard, Denver, Colorado, as a site of possible food stamp trafficking. Agent William F. Smith of the Inspector General's Office and Detective Robert H. Taberas of the Denver Police Department's Anti-Fencing Unit (the agents) went to the Pier II Bar on two occasions in an undercover capacity to investigate.

On March 27, 1981, the agents met with defendant, a patron of the Pier II Bar, and sold him $325 worth of food stamps for $160. A similar transaction occurred on April 21, 1981. Each transaction was the subject of separate counts of the indictment.

Defendant moved to dismiss the indictment on the grounds that Sec. 2024(b) is unconstitutionally vague; that the indictment is insufficient; and that the defendant is the victim of selective enforcement of the statute. I R. 2-3. Defendant later filed a supplemental motion to dismiss the indictment, alleging that the agents' conduct of the investigation violated the Due Process Clause of the Fifth Amendment. Id. at 23-24. The district court denied the motions. Id. at 75.

In the trial before the jury, the Government called the agents as witnesses. They testified that they met with defendant in the Pier II Bar on March 27 and April 21, 1981. On these occasions, defendant purchased the $325 worth of food stamps offered for sale by the agents. Defendant paid $160 for the food stamps in the first transaction and $170 in the second sale. III R. 20-23, 33-35; IV R. 507.

Defendant admitted at trial that these transactions occurred. He testified that he acted for a different third party on each occasion; he purchased the food stamps for the third party, using the third party's funds. Defendant also testified that he did not use any of the food stamps or make a profit on either transaction. IV R. 41-45.

II Vagueness

Section 2024(b) of Title 7 of the United States Code, in pertinent part, provides:

[W]hoever knowingly ... acquires ... or possesses [food stamp] coupons ... in any manner not authorized by this chapter or the regulations issued pursuant to this chapter shall, if such [food stamps] ... are of a value of $100 or more, be guilty of a felony ....

Neither the statute nor the regulations promulgated thereunder authorize the acquisition of food stamps for cash in the manner described at trial in the present case. 2

Defendant argues that Sec. 2024(b) is unconstitutionally vague. He contends that "[t]he phrase 'in any manner not authorized by this chapter or the regulations issued pursuant to this chapter' is impermissibly vague in that it fails to establish reasonable standards for determining guilt or innocence." Brief for Appellant at 3. We find this argument to be without merit.

The Supreme Court enunciated the standard for evaluating whether a particular statute is unconstitutionally vague in non First Amendment areas in Hoffman Estates, Inc. v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982) (quoting Grayned v. City of Rockford, 408 U.S. 104 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972) (footnotes omitted)):

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.

See also General Stores, Inc. v. Bingaman, 695 F.2d 502, 503 (10th Cir.1982); Hejira Corp. v. MacFarlane, 660 F.2d 1356, 1365 (10th Cir.1981).

Section 2024(b) is not unconstitutionally vague under this standard. The regulations provide a detailed description of the authorized means of acquiring food stamps. See supra note 2. The statute and regulations together give sufficient notice of the proscribed conduct and provide adequate standards for enforcement.

Defendant argues that the statute is vague because it prohibits all means of acquiring food stamps if they are "not authorized" by the statute or regulations. Defendant contends that to avoid this vagueness infirmity, the statute must specifically delineate what is prohibited. Brief for Appellant at 3. We know of no constitutional mandate for such a legislative drafting decision.

Defendant also argues that Sec. 2024(b) is unconstitutionally vague because of its alleged uncertain application in a number of hypothetical situations. Id. at 3-4. We need not consider these examples, for as the Supreme Court recently stated, one "who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." Hoffman Estates, supra, 455 U.S. at 495, 102 S.Ct. at 1191. See also United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975) ("[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand."); Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974) ("One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.").

Defendant's vagueness challenge also fails in light of the nature of the offense under Sec. 2024(b). The Supreme Court has held that "a scienter requirement may mitigate a law's vagueness." Hoffman Estates, supra, 455 U.S. at 499, 102 S.Ct. at 1193. See also Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 685, 58 L.Ed.2d 596 (1979); Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945) ("[T]he requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid."). We have held that scienter is required for conviction under Sec. 2024(b). See United States v. O'Brien, 686 F.2d 850, 853 (10th Cir.1982) ("[K]nowledge that one's acquisition of food stamps is not authorized by statute or regulation is an essential element of 7 U.S.C. Sec. 2024(b).").

In the present case, the trial judge instructed the jury that specific intent is required for conviction under Sec. 2024(b). 3 Moreover, the Government asked defendant on cross examination: "You knew you were not authorized to purchase those [food] stamps during your discussion with [the undercover agents]?" Defendant replied: "more or less." IV R. 49. We agree with the view of other circuits that a vagueness challenge to Sec. 2024(b) in these circumstances is without merit. See United States v. Marvin, 687 F.2d 1221, 1228 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1768, 76 L.Ed.2d 342 (1983) (vagueness challenge to Sec. 2024(b) failed because specific intent essential element of the offense); United States v. Goyette, 458 F.2d 992, 993 (9th Cir.1972) (per curiam) (Because defendant "admitted at trial that he knew his purchase [of food stamps] was unlawful [, h]is contention that the [predecessor to Sec. 2024(b) ] is void for vagueness borders on the frivolous.").

We are satisfied that the statute is not void for vagueness.

III

Sufficiency of the indictment

Defendant alleges that the indictment is defective because it specifies "merely the date of the alleged offense and the dollar amount ($325.00) of the [food stamps]. The indictment contains no further detail as to the conduct relied upon to establish the charge. Moreover, there are no allegations as to the 'manner' in which the supposed acquisition or possession was unauthorized." Brief for Appellant at 4. We are not persuaded.

We examine the sufficiency of an indictment under the following two-part test:

First, the indictment must contain the elements of the offense and sufficiently apprise the defendant of what he must be prepared to meet; second, it must be such as to show to what extent he may plead a former acquittal or conviction as a bar to further prosecution for the same cause.

United States v. Radetsky, 535 F.2d 556, 562 (10th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976). See also United States v. Bailey, 444 U.S. 394, 414, 100 S.Ct. 624, 636, 62 L.Ed.2d 575 (1980); Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); United States v. Elliott, ...

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