United States v. Irwin
Decision Date | 10 December 1965 |
Docket Number | No. 33,Docket 29703.,33 |
Parties | UNITED STATES of America, Appellee, v. Louis IRWIN, Defendant-Appellant. |
Court | U.S. Court of Appeals — Second Circuit |
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Milton R. Wessel, New York City (Louis W. Bookhein, Jr., and Kaye, Scholer, Fierman, Hays & Handler, New York City, on the brief), for defendant-appellant.
Andrew J. Maloney, Asst. U. S. Atty., Southern District of New York (Robert M. Morgenthau, U. S. Atty., David M. Dorsen and John E. Sprizzo, Asst. U. S. Attys., Southern District of New York, on the brief), for appellee.
Before MOORE, SMITH and ANDERSON, Circuit Judges.
The appellant, Irwin, a certified public accountant since 1943, was indicted on December 1, 1964 on three counts: the first charged conspiracy with one Jeanne Lupesco, an employee of the Internal Revenue Service, to violate Title 18 U.S.C. §§ 201(b) and (f);1 the second charged a violation of Title 18 U.S.C. § 201(b), alleging that Irwin had given his co-defendant Lupesco a sum of money with intent to influence her official actions relating to audits of the income tax returns of several of Irwin's clients; and the third charged him with a violation of Title 18 U.S.C. § 201(f), alleging that he had given Lupesco, as a public official, $400 for or because of her auditing the income tax returns of several of Irwin's clients. The court dismissed the first, or conspiracy count, at the close of the Government's case. The jury acquitted Irwin on the second count and convicted him on the third. The court entered judgment of conviction on the third count and sentenced Irwin to one year in prison; from this judgment Irwin appeals. We affirm the judgment below.
His principal ground of appeal is that the statute, § 201(f), under which he was convicted, is unconstitutionally vague on its face. He also raises questions concerning the admissibility of certain evidence, disclosure of grand jury minutes and entrapment.
The portions of Title 18 U.S.C. § 201 (f), pertinent to this case, read as follows:
"Whoever * * * directly or indirectly gives, offers, or promises anything of value to any public official * * * for or because of any official act performed or to be performed by such public official * * *."
§ 201(a), in relevant part, defines a public official as "* * * an employee * * * acting for or on behalf of the United States, or any department, agency or branch of Government thereof * * * in any official function, under or by authority of any such department, agency, or branch of Government * * *" and defines an official act as "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in his official capacity, or in his place of trust or profit."
While the legislative history of this section is not illuminating, it is clear that in passing it in 1962, Congress consolidated and to some extent re-wrote several sections of Title 18, dealing with bribery and corruption, and also added some new provisions to buttress and make more effective the prevention of this kind of public wrong. Many of the provisions were placed in § 201. Of these subsections (b) through (e) define offenses which include the specific intent to influence or induce an official or witness, or, in the case of the official or witness permitting himself to be influenced or induced, as an essential element. Subsections (f) through (i), however, define offenses concerning which there is no mention of intent to influence or induce. The penalties for the first group are a maximum fine of $20,000 or three times the money equivalent of the thing of value, whichever is greater, and a maximum imprisonment for fifteen years, or both; while the penalties for the second group are a maximum of $10,000 fine or two years imprisonment or both.
The appellant's assertion that the provisions of § 201(f) are vague and uncertain are without merit. It is apparent from the language of the subsection that what Congress had in mind was to prohibit an individual, dealing with a Government employee in the course of his official duties, from giving the employee additional compensation or a tip or gratuity for or because of an official act already done or about to be done.
Connally v. General Construction Co., 269 U.S. 385, at 391, 46 S.Ct. 126, at 127, 70 L.Ed. 322 (1926). The appellant was not "required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). As long as the statute is clear as to the appellant's behavior, we need not be concerned that at the outer fringes of the statute's bounds there may be close or difficult cases.
"* * * One to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional."
United States v. Raines, 362 U.S. 17, at 21, 80 S.Ct. 519, at 522, 4 L.Ed.2d 524 (1960). The appellant argues that the words in the statute "for or because of" are obscure and confusing in relation to the element of intent. He asserts that they may mean either that the Government must prove a specific intent to influence as in § 201(b), or that they refer to an intent "less than" the intent stated in § 201(b) or that they mean no element of intent is required at all.
The intent to influence, accompanying the corrupt giving or accepting of something of value, is an essential element of § 201(b, c, d, e) which Congress dealt with in separate subsections, and for the violation of each of which it attached severe penalties. No similar provisions concerning corrupt giving and specific intent to influence or induce were included in § 201(f, g, h, i), and the penalty provided for a violation of any of those subsections was much less severe. Obviously Congress made a distinction between the two groups of subsections and purposely omitted from the latter group the description of the specific intent which was an essential element of the former.2
This does not mean, however, that intent is not an essential element of the offense set forth in § 201(f). Although the specific intent of subsections (b) through (e) are not required, nevertheless, to convict an accused under subsections (f) through (i), it is necessary that the Government prove that he committed the act prohibited knowingly and purposefully and not through accident, misunderstanding, inadvertence or other innocent reasons.
United States v. Crimmins, 123 F.2d 271, at 272 (2d Cir. 1941). See also United States v. Rappaport, 292 F.2d 261 (3d Cir. 1961), cert. denied 368 U.S. 827, 82 S.Ct. 48, 7 L.Ed.2d 31 (1961).
In addition, subsection (f) requires that the Government, to convict an accused, must prove that the purpose which he had in mind in making or promising to make a gift to a public official was to give additional compensation or a reward, gratuity or similar favor, by reason...
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