United States v. Lippman

• Decision Date: 27 February 1974
• Docket Number: No. 73-1689.,73-1689.
• Citation: 492 F.2d 314
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Noel Lee LIPPMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

492 F.2d 314 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Noel Lee LIPPMAN, Defendant-Appellant.

No. 73-1689.

United States Court of Appeals, Sixth Circuit.

Argued December 6, 1973.

Decided February 27, 1974.

Joseph P. Zanglin, Detroit, Mich., for defendant-appellant; Norman L. Lippitt, Detroit, Mich., Chris M. Youngjohn, Detroit, Mich., Lee C. Lippman, Detroit, Mich., of counsel.

Robert Plaxico, Dept. of Justice, for plaintiff-appellee; Ralph B. Guy, Jr., U. S. Atty., E. D. Mich., Laurence Leff, Atlee Wampler, Sp. Attys., Dept. of Justice, Detroit, Mich., Jerome M. Feit, Atty., Dept. of Justice, Washington, D. C., on brief.

Before CELEBREZZE and LIVELY, Circuit Judges, and WILSON,^* District Judge.

CELEBREZZE, Circuit Judge.

Appellant appeals his jury conviction of conspiracy and obstruction of communication to a criminal investigator of information relating to a violation of a federal statute, actions proscribed by 18 U.S.C. §§ 371 and 1510. Appellant, an attorney, and a co-defendant Staffel, a dentist, were charged with endeavoring by bribery and intimidation to prevent one Zuber from communicating information about violations of federal narcotics statutes. Before the trial, Staffel pleaded guilty to both counts of the indictment.

Staffel and Zuber had been involved in smuggling marijuana. Zuber was apprehended and threatened to implicate Staffel unless Staffel paid Zuber's expenses, legal fees and did some dental work for Zuber's wife under an agreement to support one another in event of trouble. Staffel retained Appellant as his attorney and Appellant later agreed also to represent Zuber. Zuber was continually asking Staffel for money to keep him from talking and Appellant was continually attempting to get Staffel to live up to his agreement to pay Zuber. At one point, Appellant gave Zuber $100 when Staffel had no money with him. Zuber eventually began cooperating with the authorities in obtaining evidence against Staffel and on several occasions carried a recording device into meetings with Staffel and Appellant.

Appellant raises several issues. First, he contends that the statute under which he was charged is unconstitutionally vague. 18 U.S.C. § 1510 (1967) provides:

(a) Whoever willfully endeavors by means of bribery, misrepresentation, intimidation, or force or threats thereof 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; or

Whoever injures any person in his person or property on account of the giving by such person or by any other person of any such information to any criminal investigator —

Shall be fined not more than $5,000, or imprisoned not more than five years, or both.

(b) As used in this section, the term "criminal investigator" means any individual duly authorized by a department, agency, or armed force of the United States to conduct or engage in investigations of or prosecutions for violations of the criminal laws of the United States.

It is asserted that the statute does not define an objective standard from which the trier of fact can determine whether the defendant's conduct obstructed the communication of information relating to a federal crime. In determining whether a statute violates the due process concept of vagueness, the Supreme Court has stated the standard to be applied:

We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct. 167, 168, 74 L.Ed. 508 (1930). Impossible standards of specificity are not required. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Jordan v. DeGeorge, 341 U.S. 223, 231-232, 71 S.Ct. 703, 708, 95 L.Ed. 886 (1951). (Footnote omitted).

We find that this standard is met by the statute before us. The language of the statute proscribes, in sufficiently clear terms, the obstruction of an investigation into a criminal matter by certain designated unlawful means. Clearly, an investigation was being made into the possible criminal activity of Staffel regarding his involvement in marijuana trafficking.

Appellant also asserts that the statute is overly broad in that it does not require that an actual investigation already have been commenced and that it attempts to include any information regarding any criminal violation. However, whether or not there may be circumstances in which this statute could be unconstitutionally applied, the rule is that "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, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). Therefore, we hold that 18 U.S.C. § 1510 is not unconstitutional on its face. In so holding, we note that we have previously found a similar state to be valid. Anderson v. United States, 215 F.2d 84 (6th Cir. 1954), cert. denied sub nom., Lewis v. United States, 348 U.S. 888, 75 S.Ct. 208, 99 L.Ed. 698, rehearing denied, 348 U.S. 922, 75 S.Ct. 291, 99 L.Ed. 723.¹

Appellant next contends that the indictment failed to set out in sufficient detail all the elements of the offense. It is asserted that neither of the two counts sufficiently identified the victim of the alleged endeavor to bribe, nor was it alleged that an actual investigation was taking place. We find no merit in either of these allegations. The statute does not require that an investigation be taking place, but prohibits the obstruction of any communication to an investigator. It is required that the defendant have actual knowledge that the intended recipient of the information be a federal criminal investigator. United States v. Williams, 470 F.2d 1339 (8th Cir. 1973), cert. denied, 411 U.S. 936, 93 S.Ct. 1912, 36 L.Ed.2d 396. We find that the indictment sufficiently alleged Appellant's knowledge and that Zuber was the intended victim of the bribe. The indictments alleged that as part of a conspiracy the defendants

"LEONARD A. STAFFEL, D.D.S., and NOEL LEE LIPPMAN, ESQ., would willfully and knowingly endeavor by means of bribery and intimidation to obstruct, delay and prevent the communication of information by one Edward Alfred Zuber relating to violations of Sections 176(a) 176a and 174 of Title 21 of the United States Code to Special Agents of the Federal Bureau of Narcotics and Dangerous Drugs;"

and that the defendants

"did willfully and knowingly endeavor and cause an endeavor by means of bribery and intimidation to obstruct, delay and prevent the communication of information by Edward Alfred Zuber relating to violations of Section 176(a) 176a and 174 of Title 21, United States Code of Special Agents of the Federal Bureau of Narcotics and Dangerous Drugs, United States Department of Justice."

It is asserted that the electronic eavesdropping conducted by Zuber on conversations between Zuber, Staffel and Appellant was conducted in violation of the fourth amendment. This contention is governed...