U.S. v. Stafford

• Decision Date: 06 November 1987
• Docket Number: No. 86-5268,86-5268
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Marty STAFFORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1479

831 F.2d 1479

UNITED STATES of America, Plaintiff-Appellee, v. James Marty STAFFORD, Defendant-Appellant.

No. 86-5268.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 1987.

Decided Nov. 6, 1987.

Gary A. Feess, Los Angeles, Cal., for plaintiff-appellee.

James T. Duff, Los Angeles, Cal., for defendant-appellant.

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

Before PREGERSON, NELSON and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

James Stafford appeals the district court's imposition of two consecutive four-year sentences under 18 U.S.C. Secs. 1510 (obstruction of criminal investigations) and 1952 (interstate travel in aid of racketeering enterprises). Stafford contends that Congress did not intend to punish his conduct under both statutes and that the district court therefore should have vacated one of the sentences. We affirm.

BACKGROUND

Stafford pled guilty to Counts 21 and 22 of the indictment. Count 22 charged that he violated 18 U.S.C. Sec. 1510 by "willfully endeavor[ing] by means of bribery" to prevent a witness in Louisiana from informing the FBI of certain federal criminal offenses. Count 21 charged that Stafford violated 18 U.S.C. Sec. 1952 ("Travel Act") by (1) traveling from California to Louisiana with the intent to commit an unlawful activity, namely the offense charged in Count 22; and (2) actually committing that offense.

The district court sentenced Stafford to four years confinement on each count, with the sentences to run consecutively. Stafford moved the court pursuant to Fed.R.Crim.P. 35(a) to vacate either one of the two sentences on the ground that Congress did not intend to punish his conduct twice. The court denied his motion. Stafford timely appeals from that final order. We have jurisdiction under 28 U.S.C. Sec. 1291.

ANALYSIS

The legality of the sentence imposed by the district court is a question of law that this court reviews de novo. United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1309, 94 L.Ed.2d 153 (1987). The Supreme Court has identified the framework of analysis for determining whether Congress intended separate punishment for multiple offenses arising from a single activity. ¹ When congressional intent cannot be clearly inferred from the statutory language or

                legislative history, the Court employs the rule of statutory construction announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).    See, e.g., Ball v. United States, 470 U.S. 856, 861-64, 105 S.Ct. 1668, 1671-73, 84 L.Ed.2d 740 (1985);  United States v. Woodward, 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985);  Albernaz, 450 U.S. at 340-43, 101 S.Ct. at 1142-45.  The Blockburger test, however, only establishes a presumption of congressional intent and does not control when Congress' intent regarding separate punishment can be clearly inferred from the statute's language or legislative history.    Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 2412, 85 L.Ed.2d 764 (1985).  In the present case, neither the language of the Travel Act nor its legislative history clearly indicates Congress' intent regarding separate punishment for violation of the Act and for the offense constituting the underlying "unlawful activity."    Therefore, we look to the Blockburger test
                

I. THE BLOCKBURGER ANALYSIS

The Blockburger test looks to whether each offense

requires proof of a different element.... [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. "The assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes." Ball, 470 U.S. at 861, 105 S.Ct. at 1672. ²

The first step under Blockburger is to identify the elements of the offenses at issue. The obstruction of a criminal investigation statute provides:

(a) Whoever willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator shall be fined not more than $5,000, or imprisoned not more than five years, or both.

18 U.S.C. Sec. 1510(a). The Travel Act provides:

(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to--

(1) distribute the proceeds of any unlawful activity; or

(2) commit any crime of violence to further any unlawful activity; or

(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,

and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

(b) As used in this section "unlawful activity" means ... extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.

18 U.S.C. Sec. 1952. Thus, the elements of a Travel Act offense are: "(1) interstate commerce or use of an interstate facility (2) with intent to promote an unlawful activity and (3) a subsequent overt act in furtherance of that unlawful activity." United States v. Tavelman, 650 F.2d 1133, 1138 (9th Cir.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1429, 71 L.Ed.2d 649 (1982).

Clearly the Travel Act has an interstate travel element that section 1510 does not. Therefore, proof of a section 1510 offense will not necessarily prove a Travel Act offense. Stafford argues, however, that a section 1510 offense would always be proved if a Travel Act conviction could be had for crossing state lines to perform the activity prohibited by section 1510. Thus, Stafford contends, the Travel Act subsumes the predicate section 1510 offense, and punishment for both offenses is improper.

It is no answer to Stafford's argument that the requisite "unlawful activity" for a Travel Act offense could include activity other than the commission of a section 1510 offense. (The Travel Act defines "unlawful activity" to include, among other things, "extortion, bribery, or arson" in violation of state or federal law. 18 U.S.C. Sec. 1952(b).) The Supreme Court in Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), reversed the imposition of consecutive sentences for felony murder and rape where the rape was the requisite felony for invoking the felony murder offense. The Court, applying the Blockburger analysis, ³ found the rape to be a necessary element of the felony murder, even though five other enumerated offenses (e.g., kidnapping) could serve as the predicate felony. Id. at 693-95, 100 S.Ct. at 1438-40. The Court held that listing six possible predicate felonies in a single felony murder statute had the same effect as six separate statutes, each defining felony murder in terms of a different felony. Id. at 694, 100 S.Ct. at 1439. The logic of Whalen applies to the Travel Act, which defines "unlawful activity" to include various federal and state offenses. Therefore, section 1510 and the Travel Act would be separate offenses for purposes of the Blockburger test only if section 1510 required proof of a fact beyond those required to sustain a conviction under the Travel Act for performing or attempting to perform activity unlawful under section 1510. ⁴

We agree with the Fourth and Sixth Circuits that the Travel Act and its predicate offense will ordinarily constitute separate offenses for purposes of the Blockburger test. See United States v. Teplin, 775 F.2d 1261, 1265 (4th Cir.1985); United States v. Finazzo, 704 F.2d 300, 307-08 (6th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3543, 77 L.Ed.2d 1392 (1983). The Travel Act does not require the commission of the predicate offense; rather, only an "attempt[ ] to promote" the unlawful activity, 18 U.S.C. Sec. 1952(a), with "a subsequent overt act in furtherance of that unlawful activity." Tavelman, 650 F.2d at 1138; see also United States v. Jones, 642 F.2d 909, 913 (5th Cir.1981) (subsequent facilitating act required by Travel Act need only make the unlawful activity easier and need not itself be unlawful). Thus, proof of a Travel Act violation will not ordinarily prove a violation of the underlying offense.

Stafford claims, however, that this logic does not automatically apply to section 1510. Stafford argues that any subsequent overt act to further the activity prohibited by section 1510 is itself sufficient to The unambiguous language of section 1510, however, refutes Stafford's contention. Section 1510 prohibits "willfully endeavor[ing] by means of bribery to obstruct, delay, or prevent" communication of information to a criminal investigator. 18 U.S.C. Sec. 1510(a). The statute does not prohibit "endeavors to bribe," but rather "endeavors to obstruct communication" through the use of bribery. The only defensible interpretation of the statute is that "by means of bribery" restricts the form of the punishable endeavor to obstruct communication. ⁵ On its face, the statute requires actual bribery; we refuse to read attempted bribery or efforts at bribery into the statute where Congress has not included such language.

violate section 1510. If section 1510 criminalizes any effort to facilitate the bribery of an informant, including preparations for the bribe (e.g., the arrangement of a meeting with the informant and the securing of the intended bribery money), then we believe section 1510's "endeavor" and the Travel Act's "attempt[ ]" would be synonymous. In that case, violation of the Travel Act for...