United States v. Nasser

• Decision Date: 16 April 1973
• Docket Number: 18601.,No. 18600,18600
• Citation: 476 F.2d 1111
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arthur NASSER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard W. HAUFF, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

476 F.2d 1111 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Arthur NASSER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Richard W. HAUFF, Defendant-Appellant.

Nos. 18600, 18601.

United States Court of Appeals, Seventh Circuit.

March 5, 1973.

As Modified on Denial of Rehearing April 16, 1973.

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Maurice J. Walsh, Sherman C. Magidson, Terence Mac Carthy, Federal Defender Program, Chicago, Ill., for defendant-appellant.

James R. Thompson, U. S. Atty., Robert A. Filpi, and William T. Huyck, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, STEVENS and SPRECHER, Circuit Judges.

FAIRCHILD, Circuit Judge.

Appellant Arthur Nasser is an attorney, and between September, 1955 and May, 1963, he was employed by the U. S. Internal Revenue Service. He served first in the enforcement division and later in the Tax Court division of the office of regional counsel.

In December, 1965, he was indicted for violations, after leaving government service, of a conflict of interest statute,¹ and Nasser and Richard Hauff (not a federal employee) were indicted for conspiracy to cause violation of the same statute.

Count I charged that from December, 1963 until August, 1964, Nasser knowingly acted as attorney for August Circella in connection with an investigation of the 1958 and 1959 federal income tax liability of Circella, a matter in which Nasser had participated personally and substantially as an employee of IRS. The jury failed to agree on this count, and it was then dismissed, on motion of the government.

Count II was a similar charge involving the collection of Hauff's 1958 liability, and Count III a similar charge involving an investigation of Hauff's 1959 liability. The jury found Nasser guilty of both counts.

Count IV charged that beginning in December, 1963 Nasser, Hauff, and Circella conspired knowingly to have Nasser act as attorney for Hauff and Circella (not a defendant) in matters in which Nasser had participated personally and substantially as an employee of IRS. The jury found both Nasser and Hauff guilty on this count.

I. Claims that the Statute is Unconstitutional, at least as applied to Nasser.

A. Vagueness.

Appellants argue that § 207(a) violates the due process clause of the fifth amendment because of vagueness in that the employee must decide at his own risk (1) whether he participated "substantially" in a matter while he was employed ; and (2) whether the mode of participation is encompassed by the words "or otherwise."

We believe that the language of the statute is sufficiently definite to permit a fact finder to decide on the basis of the evidence whether defendant's participation fell within the proscribed conduct. Avoiding conflicts of interest is a traditional ethic of the legal profession. The standards are matters of common understanding and practice among attorneys. This statute proscribes perhaps as precisely as possible an unethical practice that can manifest itself in infinite forms. As the Supreme Court said of a different statute in United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1946):

"We think that the language Congress used provides an adequate warning as to what conduct falls under its ban, and marks boundaries sufficiently distinct for judges and juries fairly to administer the law in accordance with the will of Congress. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense."

B. Bill of Attainder.

Appellants argue that § 207(a) is a bill of attainder in violation of Article I, section 9 of the constitution because it is a legislative act that imposes "punishment" on a group without a judicial trial. They emphasize, both with respect to their bill of attainder claim, and the ex post facto argument later discussed, that the "punishment" to which they refer is not the penal sanction which would be judicially imposed for a completed violation of § 207(a), but "the disqualification which former employees in general, and Nasser, as a practicing attorney in particular, suffer as a result of their former employment by the Government."

The group punished by § 207(a), as they see it, consists of all government employees, and the punishment imposed is the restriction of their practice of law or similar activity after leaving the government so as to exclude representation of others in government matters in which the particular employee participated personally and substantially when he was an employee.

We are unable to agree with the analysis that this particular restriction is a punishment legislatively imposed upon a specified group. Rather, the statute is within the classification of a rule of general applicability for the accomplishment of a legitimate legislative purpose. The purpose of protecting the government, which can act only through agents, from the use against it by former agents of information gained in the course of their agency, is clearly a proper one. The restriction, against acting as agent or attorney for another in a matter in which the person participated personally and substantially as an officer or employee, is equally clearly a wholly rational means of pursuing that purpose.

Appellants rely on United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965), a case in which the Supreme Court struck down a law as a bill of attainder. That law disqualified all present and recent (within five years) members of the Communist Party from holding union office. The Court identified as a proper legislative purpose the exclusion from union office of persons likely to incite political strikes. The law did not provide for a judicial or quasi-judicial determination of which persons would have such intent, but was itself a legislative judgment that members of the specified group would have it and therefore constituted a bill of attainder. The Court deemed it impossible to rely upon a supposition that membership or recent membership in the Communist Party was "merely an equivalent, shorthand way of expressing those characteristics which render likely the incitement of political strikes." P. 456, footnote 31, 85 S.Ct. p. 1719.

It happened, also, that in Brown the Court explained why § 32 of the Banking Act of 1933, 12 U.S.C. § 78, is not a bill of attainder, although it may be said to impose a restriction upon those who fulfill certain specifications, as in the case now before us. Persons engaged in certain types of securities transactions are disqualified, by § 32, from serving at the same time as an officer, director, or employee of a member bank of the federal reserve system. After noting that the banking act provision does not inflict a deprivation upon a political group, the Court said it did not incorporate a judgment censuring any group of men, but was based on a conclusion "that the concurrent holding of the two designated positions would present a temptation to any man—not just certain men or members of a certain political party," and established an objective standard of conduct.

The conclusion underlying § 207(a), before us, that one who, after leaving government employment, acts for another in a matter in which he participated while in such employment, is likely to use against the government an advantage gained out of being the government's agent is a common sense conclusion similar to the one underlying the banking act provision considered by the Court. We have no difficulty in finding that § 207(a) is comparable, and deeming it a generally applicable rule of conduct rather than a bill of attainder.

C. Ex Post Facto Law.

When appellant Nasser became an employee of the United States, and during most of his service, he was subject to 18 U.S.C. § 284, 62 Stat. 698, a restriction on his practice of law or similar activity in the event of leaving government employment. A few months before he left, however, Congress revised and reenacted § 284 as § 207(a), effective in January, 1963.

The difference has been described in Senate Report No. 2213, Sept. 29, 1962, 2 U.S.Code Congressional and Administrative News, 1962, p. 3861, in part as follows:

"Section 207 replaces title 18, United States Code, section 284 dealing with postemployment activities. The latter prohibits a former employee of the Government, for a 2-year period following the termination of his employment, from prosecuting a claim against the United States involving any subject matter directly connected with which he was employed . . .

"Subsection (a) of section 207 provides that a former Government officer or employee . . . shall be permanently barred from acting as attorney or agent for anyone other than the United States in any matter in which the United States is a party or is interested and in which he participated personally and substantially in a governmental capacity. Thus, in addition to replacing the present 2-year disqualification with a lifetime bar, section 207(a) strengthens present law by going beyond claims for money or property to the whole range of matters in which the Government has an interest."

Appellants argue that § 207(a) as applied to Nasser is an ex post facto law in violation of Article 1, section 9 of the constitution because it more closely restricts post-employment activity than did the law in effect during most of his period of employment.

For reasons similar to those discussed with respect to the bill of attainder claim, we do not view the restriction on post-employment activity related to activity during employment as punishment for having been a government employee before the law was enacted.

As appellants argue, disqualification from practicing a profession, on account of offensive activity, may constitute punishment therefor and a law newly...