Willcher v. United States
| Decision Date | 19 September 1979 |
| Docket Number | No. 13189.,13189. |
| Citation | 408 A.2d 67 |
| Parties | Arthur L WILLCHER, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Thomas C. Green, Washington, D. C., for appellant. Arthur L. Willcher, Washington, D. C., also entered an appearance, pro se.
Regina C. McGranery, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the brief was filed and the case was argued, and John A. Terry, Michael W. Farrell and Eric B. Marcy, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before NEWMAN, Chief Judge, and GALLAGHER and HARRIS, Associate Judges.
A jury found appellant guilty of unlawful solicitation of money from an indigent whom he had been appointed to represent under the District of Columbia Criminal Justice Act, D.C.Code 1978 Supp., §§ 11-2601 et seq.1 Appellant seeks reversal of his conviction on three grounds: (1) the unconstitutionality of the applicable penal provisions of the Act;2 (2) improper cross-examination of appellant, by means of his testimony before a grand jury regarding a prior solicitation incident; and (3) the erroneous inclusion of statutory background on the Criminal Justice Act in the trial court's final charge to the jury. We affirm.
A. The Government's Evidence
On October 17, 1976, Ferdinand Diaz was stopped by the police for driving a motorcycle without a tail light. When a police check revealed the motorcycle was stolen, Diaz was arrested for unauthorized use of a vehicle, receipt of stolen property and possession of implements of a crime.
The following day, appellant visited Diaz in the lockup, and introduced himself as a court-appointed attorney. During a brief conversation, appellant advised Diaz of the felony charges against him, the consequences of a felony conviction, and the possibility of reducing the charge to a misdemeanor. Diaz recalled appellant's making general inquiries about his background and family, and then asking whether the family would be willing to send money to get him out of jail.
Diaz testified further that the sum of $500 was mentioned by appellant. Although he understood appellant to be asking for money to pay legal fees, he admitted on cross-examination that appellant never mentioned "legal fees," but only inquired whether Diaz' parents might be able to raise $500. At the presentment later that day, Judge Sorrell entered a formal order appointing appellant to represent Diaz3 and set a $2,000 surety bond.
After his preliminary hearing on October 21, Diaz testified he never saw appellant again. On November 3, Diaz spoke with Helen Holland, a volunteer with the Visitors Service Center, and asked her to contact his parents in Texas and Mr. Willcher. Diaz also mentioned to Mrs. Holland that appellant had requested $500. After speaking to Mrs. Diaz, Mrs. Holland called appellant's office and left a message. When appellant returned her call, Mrs. Holland mentioned the family's concern for Ferdinand, and asked what steps had been taken to secure his release. According to Mrs. Holland, appellant asked
Mrs. Holland reported the $1,000 request to her supervisor and to an attorney at the Public Defender Service, who advised her to speak with the United States Attorney's Office. On November 10, 1976, Mrs. Holland placed a call to appellant from the prosecutor's office. The conversation was tape-recorded and transcribed:
Mrs. Holland had a third conversation with appellant on November 15. At that time she informed him that the family was willing to send money. Appellant dictated a message to Mrs. Holland, to be sent by Mr. Diaz with a $1,000 check to Mrs. Holland. Mrs. Holland recorded the message in shorthand, transcribing it immediately into longhand:
Dear Mr. Willcher: We are hereby retaining you to represent our son, Fernando Diaz, in the criminal charges that are pressed against him. You are to be paid as a private attorney, even though we know that he is entitled to free services from an attorney under the Criminal Justice Act. Signed Mr. and Mrs. Diaz. Enclosed check for $1,000.00. The address is Arthur Willcher, 1700 Pennsylvania Avenue, Northwest, Suite 187.
Mr. Diaz sent a telegram with substantially the same message to appellant's office, followed on November 18 by a letter and $1,000 check.
A new attorney was appointed to represent Diaz. Diaz later pleaded guilty to attempted unauthorized use of a motor vehicle (a misdemeanor).
Appellant testified in his defense. He did not dispute that conversations with Diaz and Mrs. Holland took place; rather his defense was that he never solicited money for his own legal services. He testified that at the initial conversation with Diaz in the cellblock, he mentioned the sum of $500 in the course of telling Diaz that a bondsman might require collateral above the usual 10% because of his lack of community ties. Appellant recalled telling Mrs. Holland on November 3 that he hoped to get Diaz' charge reduced to a misdemeanor, and to that end would have to retain someone with more power and influence to bargain with the prosecutor's office. He estimated the cost of retaining another attorney to handle the matter at $1,000. The November 10 conversation, he testified, referred to the prior discussion about hiring a "private" attorney. Appellant told Mrs. Holland, for that reason, to leave the payee on the check blank. He admitted dictating the letter to Mrs. Holland over the telephone on November 15, but emphasized that the check was to be sent to Mrs. Holland.
Appellant testified that he filed the check and the letter, destroying both after he spoke with someone at the prosecutor's office concerning a breakdown of the charge. It was appellant's testimony that another attorney, Harvey Black, had put him in touch with the Assistant United States Attorney.
Mr. Black testified that appellant had discussed the Diaz case with him, and asked for a suggestion as to who might be retained for negotiation with the United States Attorney's office.
Initially appellant launches a constitutional attack on D.C.Code 1978 Supp., § 11-2606(b), on the grounds of vagueness and overbreadth. He contends, as he did before the trial court, that the ambiguities inherent in the statutory language "entitled to be compensated" and "services rendered," and the imprecise description of prohibited activity, required dismissal of the information.
To survive a vagueness challenge, a statute must satisfy the due process requirements of adequate notice and non-discretionary standards. See, e. g., Parker v. Levy, 417 U.S. 733, 752, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), quoted in District of Columbia v. B.J.R., D.C.App., 332 A.2d 58, 60, cert. denied, 421 U.S. 1016, 95 S.Ct. 2425, 44 L.Ed.2d 685 (1975). The evil of a vague statute is that it fails to provide clear notice of the conduct forbidden, and invests the police with excessive discretion to decide who has violated the law. District of Columbia v. Walters, D.C.App., 319 A.2d 332, 335, 337, cert. denied, 419 U.S. 1065, 95 S.Ct. 650, 42 L.Ed.2d 661 (1974).
Our task is to determine, therefore, whether the statutory section is "sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties," or whether it is so vague that "men of common intelligence must...
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