Petition — Blitstein v. United States

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[

le Supreme Court, U.S.

RO -» |# FILED

No. 91 NOV 25 100

IN THE MICHAEL RODAK, JR TBH |

Supreme Court of the United States

OCTOBER TERM, 1980

MARTIN BLITSTEIN,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Tenth Circuit

PETITION FOR CERTIORARI

CHARLES LOUIS ROBERTS

Attorney of Record for

Petitioner

505 Caples Building

El Paso, Texas 79901

(915) 532-1601

SCOFIELDS' QUALITY PRINTERS. P. O. BOX 53096, N. O., LA. 70153 - 504/822-1611

| - 5

II.

Ill.

IV.

VI.

QUESTIONS PRESENTED

Whether the Petitioner presented a prima facie

case of prosecutorial vindictiveness against a

criminal defense lawyer which the prosecution

should have been required to rebut.

Whether the Petitioner should have been allow-

ed to present other instances of prosecutorial

vindictiveness against criminal defense lawyers

in order to buttress his claim of prosecutorial vin-

dictiveness and misconduct.

Whether the Petitioner presented a prima facie

case of prosecutorial misconduct which the pros-

ecution should have been required to rebut.

Whether the Petitioner was entitled to jury in-

structions regarding the legitimacy of fee-nego-

tiations between a criminal defense lawyer and

his client.

Whether the Petitioner could validly be convict-

ed of interstate travel under 18 U.S.C. 1952 to

commit extortion under 18 U.S.C. 875 by evi-

dence which only alleged fraudulent statements

by Petitioner coupled with a threat posed by

government or bodies with which the Petitioner

had no connection or control.

Whether the offense charged in the indictment,

to wit: interstate travel under 18 U.S.C. 1952 to

commit extortion under 18 U.S.C. 875, is an ac-

tual offense cognizable and punishable under

federal law. :

VII.

Whether the evidence introduced at trial and the

District Court’s charge to the jury amounted toa

variance from the offense charged in the indict-

ment, to wit: interstate travel under 18 U.S.C.

1952 to commit extortion under 18 U.S.C. 875.

iil

TABLE OF CONTENTS

Page

Questions PUMIONE Stet cb eee col, aa og i

Citations to Opinions Below ................005- 2

OE SER RGD eee. ee ee 2

Constitutional and Statutory Provisions

PEON <0 5 > Ghkea'ac Veto ts WA Ge kiee Vines Cheba Te 2

PAN ON MR GOOD ii i555 sie vc cek sv centeineees: 4

Reasons for Granting the Writ ................. 15

SI dig 04's boned Rabe Ves bende aeeweeuemetien 31

OU WE ANE UNDO ied a's kk vases vo-oe voc eb ee ba 32

EN rl ale Sai Bein Lone 4a ie kon Or etene os la

ETE Niics Basico a0 Vp selblvt deka ens 46d eeom 28a

SNE Se ou 6 v 0ib. cs np cts BAe heed bbe baeTS 30a

PRIMED hi-ni so ee wan' i colkatudebeen tote eeaes 31a

TABLE OF AUTHORITIES

Cases:

Blackledge v. Perry, 417 U.S. 21 (1974) ....... 19,20,23

Callanan v. United States, 223 F.2d 171 (Sth Cir.

1955) cert. denied 350 U.S. 862, Reh. de-

NNN PO RID, PAB ibaa 5 ce cheese rok os eo ok 28

Casias v. People, 415 P.2d 344 (Colo. 1900) ........ 12

Duran v. People, 360 P.2d 132 (Colo. 191) ........ 12

Fagin v. People, 484 P.2d 1216 (Colo. 1970) ........ 12

TABLE OF AUTHORITIES (Continued)

Page

Sacher v. United States, 343 U.S. 1 (1952) ........ 22,28

Stiron v. United States, 362 U.S. 212 (1960) ......... 31

United States v. Billingsley, 474 F.2d 63 (6th Cir.

1973), cert. denied 414 U.S. 819 ............. 28

United States v. Brown, 505 F.2d 261 (4th Cir.

eg OR RATE eee LEMS 2g OB yee Ny 30

United States v. Enmons, 410 U.S. 376 (1973) ....... 28

United States v. Falk, 479 F.2d 616 (7th Cir.

WE ei ii ads «Fees crieiins Ch ck Cee be eek 19,20,23

United States v. Heller, 579 F.2d 990 (6th Cir

a oes on cea ee agit so dk wae ee eb ee. paae's 29

United States v. Jeffers, 524 F.2d 253 (7th Cir

WE: Seco tuks cde ore Cine cheese lib Ssco eras 18

United States v. Karigiannis, 430 F.2d 148(7th Cir

Fi RRO PAIR, LU Tenge Fae DEBRA RSET |, «cain ne 30

United States v. Nardello, 393 U.S. 286 (1969) ....... 30

United States v. Seely, 570 F.2d 322 (10th Cir.

DFO ec cea Sd cehhe.ckA is ade ee 18

United States v. Steele, 461 F.2d 1148 (9th Cir

EE oes sks aha ku oe Cea e eae bn cath oe eee 23

United States v. Suddueh, 458 F.2d 1222 (10th Cir

SPAR xa s Waka k hn a eis ica he heb ce haa ec odes 18

Wick Wo v. Hopkins, 118 U.S. 356 (1886) .......... 23

Zamora v. People, 487 P.2d 1116 (Colo. 1971) ...... 12

TABLE OF AUTHORITIES (Continued)

Page

Statutes:

RGU. chicka ewes aebiecesas 60 oUn is 1,1i,2,4,29-31

Shy || RIPE. SG 2 ere Anene wr thay pra 2,3

8 8 a RGN AT ees i,ii,2-4,29-31

Other Authorities:

Amsterdam, Trial Manual for the Defense of Crim-

inal Cases (A.L.I. - A.B.A. 1967) at 2/29 ....... 26

Bailey and Rothblatt, Defending Business and

White Collar Crimes (Brancross Whitney

DE Ce Wiis GHA RUbG Ces chbeas kd eedén greok 26

Cohn, Ed. 3d Criminal Law Seminar (Central

i i Oe: fen cab ahmewes eee 26

Cee ens wer. SD od eens te dicccess 11

Devitt and Blackmar, 2 Federal Jury Practice and

Instruction §56.10 (3rd ed. 1977) ......... e000. 28

Maloney, Report on Prosecutorial Miscon-

duct, Natl. Assoc. of Criminal Defense Lawyers,

(August 23, 1980) 10 VOICE FOR THE DE-

FENSE 7-10 (Aug/Sept. 1980) ............... 20

Moses, Criminal Defense Source Book (Lakeland

PRU ROTTS Be Fas es ca cn dA aa he i os 26

Owen, Defending Cases Before Juries (Prentiss Hall

ROGET hans kes ones 0 vuwscnesbe canta eure 26

’*

TABLE OF AUTHORITIES (Continued)

Title 9 United States Attorney's Manual (memo of

Dec. 16, 1977 and Aug. 7, 1978 updating

Me i a eg eld ba 8,17

United States Constitution,

PO EEN SEND BOO SEES EE EE ee 2,3,19

Wice, The Private Practice of Criminal Law, 14

CRIMINAL LAW BULLETIN 396 (1978) ..... 26

22 CRIMINAL LAW REPORTER 2423 (Feb.

BE, DET ath Sacco th 8h.s Shee Creed ebhesses BVaees 8

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

MARTIN BLITSTEIN,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Tenth Circuit

PETITION FOR CERTIORARI

The Petitioner, MARTIN BLITSTEIN, respectfully

prays a Writ of Certiorari issue to review the judg-

ment and opinion of the United States Court of

Appeals for the Tenth Circuit entered in this proceed-

ing on July 14, 1980.

CITATIONS TO OPINIONS BELOW

The United States District Court for the District of

Colorado entered a judgment of conviction of this Peti-

titioner on November 30, 1978, as to two counts, (1)

wire fraud, (18 U.S.C. 1343); and (2) interstate travel

(18 U.S.C. 1952) to commit extortion (18 U.S.C. 875).

This conviction was made the subject of an appeal to

the United States Court of Appeals for the Tenth Cir-

cuit. The Tenth Circuit affirmed this conviction on July

14, 1980, in a slip opinion which has not yet been re-

ported, entitled: United States v. Blitstein, No. 78-2037

(July 14, 1980). This opinion is reproduced herein as |

Appendix A. The Petitioner thereupon filed a Petition for

Rehearing and Suggestion for Rehearing En Banc which was de-

nied by the Tenth Circuit on September 17, 1980. This

order denying re..caring is reproduced herein as

Appendix B.

JURISDICi.ON

The judgment of the United States District Court

was affirmed by the United States Court of Appeals.

The Petitioner's Petition for Rehearing was denied on Sep-

tember 17, 1980. Jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1) and Supreme Court Rule 22.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The United States Constitution, Amendment VI

reads in pertinent part: “In all criminal prosecutions,

the accused shall enjoy the right . . . to have the assis-

tance of counsel for his defense.”

2. 18U.S.C. 1343 reads in pertinent part: “Whoso-

ever, having devised or intending to devise any scheme

or artifice to defraud, or for obtaining money or prop-

erty by means of false or fraudulent pretenses, repre-

sentations, or promises, transmits or causes to be

transmitted by means of wire, . . . communication in

interstate ... commerce, ... for the purpose of exe-

cuting such scheme or artifice. . . .”

3. 18U.S.C. 1952 reads in pertinent part: “(a) Who-

ever travels in interstate ... commerce... with in-

tent to ... otherwise promote, manage, establish,

carry on, or facilitate the promotion, management,

establishment, or carrying on, of any unlawful activ-

ity,. . .as usedin this section ‘unlawful activity’ means

... extortion, in violation of the laws of the State in

which committed or of the United States . . . in inter-

state commerce any communication containing any de-

mand or request for a ransom or reward for the re-

lease of any kidnapped person, . . . (b) Whoever, with

intent to extort from any person, firm, association, or

corporation, any money or other thing of value, trans-

mits in interstate commerce any communication con-

taining any threat to kidnap any person or any threat to

injure the person of another .. . (c) Whoever trans-

mits in interstate commerce any communication con-

taining any threat to kidnap any person or any threat to

injure the person of another. . . (d) Whoever, with in-

tent to extort from any person, firm, association, or

corporation, any money or other thing of value, trans-

mits in interstate commerce any communsication con-

taining any threat toinjure the property or reputation

of the addressee or of another or the reputation of ade-

‘ceased person or any threat to accuse the addressee or

any other person of acrime. . .” (See Appendix C)

4. 180U.S.C. 875 reads in pertinent part: “(a) Who-

ever transmits in interstate commerce any communi-

cation containing any demand or request for a ransom

or reward for the release of any kidnapped person,. . .

(b) Whoever, with intent to extort from any person,

firm, association, or corporation, any money or other

thing of value, transmits in interstate commerce any

communication containing any threat to kidnap any

person or any threat to injure the person of another,

... (c) Whoever transmits in interstate commerce any

communication containing any threat to kidnap any

person or any threat to injure the person of another,

... (d) Whoever, with intent to extort from any per-

son,...any money, .. ., transmits in interstate com-

merce any communication containing any threat to in-

jure the property or reputation of the addressee or of

another ... or any threat to accuse the addressee or

any other person of acrime,. . .” (See Appendix D)

STATEMENT OF THE CASE

A. Introduction. The Petitioner was a criminal de-

fense lawyer based in Miami, Florida and a member of

the Florida Bar before his conviction in this cause, (RX

584-585). The Petitioner maintained a second resi-

dence in Vail, Colorado and decided to utilize a phone

line in that residence for legal practice in Colorado.

B. The Mortensen Case. The Petitioner entered his

first federal case in the District of Colorado in June of

1978, United States v. Mortensen, Cause No. 78-CR-109

(Judge Finesilver). Fromn June 26th to June 29th, 1978,

the Petitioner conducted an extensive and hotly con-

tested suppression hearing against Asst. U.S. Attor-

ney Nancy Rice. Prosecutor Rice then began an inves-

tigation into the factual allegations contained in a

Motion for Continuance filed by Petitioner in the Mortensen

case, (RIX 425). On June 30, 1978, Asst. U.S. Attor-

neys Nancy Rice and Rod Snow filed a Motion for Issuance

of the Rule to Show Cause why the Petitioner should not be

held in contempt as to factual statements in the Motion

for Continuance filed in the Mortensen case, (see RI 63, et

seq). The United States Attorney himself character-

ized this Motion, coming as it did during a criminal trial,

as unprecedented in his “practice of law,” (RIX 422-

423). The presiding judge, Judge Finesilver, refused to

hear the Motion, (RIX 429); therefore, Prosecutors

Snow and Rice brought it before another district judge.

Judge Winner heard the Motion from July 18th to 19th

and discharged the Petitioner, (RIX 431). According to

United States Attorney Dolan, Prosecutor Rice was

“very unhappy” with the result, (RIX 434). As a result

of this unprecedented motion during the pendency of

his trial, Dr. Mortensen moved for dismissal on the

grounds of governmental misconduct in seeking to in-

timidate his counsel, the Petitioner. Presiding Judge

Finesilver denied this Motion; however, he ordered that

“someone of senior experience” sit with Miss Rice

throughout the Mortensen trial, (RIX 446). In the Morten-

sen trial First Assistant Stuckey sat with Miss Rice, (RIX

446). During that trial, the Petitioner objected to a

question from Miss Rice on the grounds that she was

misrepresenting the evidence, (RIX 446-447). Follow-

ing this objection, First Assistant Stuckey threatened

the Petitioner to the effect that if he continued in that

vein, that the Petitioner was going to be taken “to the

mat hard,” (RIX 418); and that the remark was not a

threat, but a“ promise,” (RIX 449). The Mortensen cause

ended with an acquittal, and Miss Rice’s opinion that

the Petitioner “ought not to be practicing, etcetera” cir-

culated in the United States Attorney's office, (RIX

443).

C. The Investigation and Indictment of the Petitioner. On

September 9, 1978, Clifford T. DeYoung, an actor, was

detained at Stapleton Airport, Denver, Colorado after

an airport search had revealed 97 milligrams of co-

caine, (RII 3-4; RX 516-518, 547, 550). On September

18th, 1978, Mr. De Young contacted the United States

Attorney's office in Denver, Colorado through an

intermediary, (RIX 464), and the matter was referred

to Miss Rice, (RIX 469). Later, Miss Rice set up an inter-

view between Mr. DeYoung and his attorney Mr.

Dowling, (RIX 472-473, 478).' At that time, Assistant

1 Further testimony revealed that the usual course of business

would have been to refer this initial interview to the appropriate

agency. (RIX 474)

United States Attorney Munsinger admitted that he

and Miss Rice knew that the matter involved the Peti-

tioner, (RIX 471) and that he knew the feeling of Miss

Rice toward the Petitioner, (RIX 471-472). However,

Miss Rice was permitted to be present at the inter-

view, (RIX 472), and even participated, (RIX 473). Mr.

DeYoung and Mr. Dowling related to Prosecutors Rice

and Munsinger that:

A. ...Mr. DeYoung had been found with a

very minute amount of cocaine, yet Mr. De-

Young I think denied or said he didn’t know of

this, of it, and then at some point shortly

thereafter Mr. DeYoung was put into contact

with Mr. Blitstein and that Mr. Blitstein had

— and] think Miss Pease at various times had

in effect — well, not in effect — had attempt-

ed to get a large sum of money from Mr. De-

Young to represent him in a case which they

said was pending ina matter, something about

an arrest warrant which had been issued,

according to the representation Mr. De-

Young and Blitstein had made to them, and

that Mr. DeYoung had paid some money and

that apparently there was no cast...

(RIX 461)

In spite of her known and vehement feelings against

the Petitioner, Miss Rice was assigned investigative

duties to verify the surrounding facts of the search and

the case in general, (RIX 482-483). On October 2nd,

1978, Mr. De Young was issued a letter of no prosecu-

tion on the cocaine charge from the United States

Attorney, (RIV 62). On October 2nd, 1978, Prose-

cutor Munsinger called Mr. Thomas Casey at the Den-

ver District Attorney's office and during this “initial

call, (RIX 486), he advised Mr. Casey that Mr. De-

Young would be a witness for the government before a

federal grand jury, (RIX 485-486). At that time, the De-

Young matter had not been presented to the District

Attorney's office, (RIX 488; RVIII 278). Subsequently,

Mr. Casey called Detective Costigan assigned to the

airport, discussed the case, (RVIII 278), and “advised

him that [he] would not accept the [DeYoung] case for

filing,” (RVIII 279-280).

On October 3, 1978, a five count indictment was pre-

sented by Munsinger to a federal grand jury, (RI 1-5).

Prior tothis, the United States Attorney’s office did not

interview the Petitioner nor request that he be inter-

viewed, (RIX 463, 473-474). The United States Attor-

ney’s office did not inform the Petitioner of his “tar-

get” status nor permit him to testify before the grand

jury.2 Accordingly, the Petitioner and his paralegal

assistant were indicted on October 3, 1978, (RI 1). On

October 5, 1978, Mr. DeYoung was issued a letter of no

2 These procedures were contrary to Section 9-11.253 of Title 9

United States Attorney's Manual (memo of December 16, 1977 and

August 7, 1978 updating USAM 9-11.000) Criminal Division

United States Department of Justice; see also 22 CRIMINAL LAW

REPORTER 2423 (Feb. 15, 1978) at 2424.

prosecution from the Denver District Attorney's

office.

D. The Legal Proceedings Before and During Trial. The

Petitioner was arrested on October 18, 1978, in Flor-

ida under a warrant, and was arraigned on October

23rd, 1978, (RI 158). The Petitioner filed a lengthy

Motion for a Bill of Particulars to require the government to

spell out exactly what the Petitioner was charged with

in the indictment and how the government intended to

prove it, (RI 6, et seq). The Petitioner also filed a

lengthy Motion to Dismiss Indictment Based Upon Prosecu-

torial Misconduct supported by exhibits and documents

demonstrating the previously related facts, (RI 51-98).

The Court denied both Motions without requiring the

government to reply or conducting an evidentiary

hearing, (RI 158-159). During trial, the Court agreed to

hear some evidence regarding prosecutorial vindic-

tiveness and misconduct, (RIX 410, et seq); but refused

to hear other evidence, (RIX 401, et seq). Later, the

Court denied the Motion again saying that the Petition-

er had made “no showing” of “any vindictiveness” on

the part of the government, (RXI 893).

The Petitioner began trial on November 21, 1978 less

than 30 days after arraignment, (RI 158-159). Follow-

ing the trial testimony, the Petitioner requested two

jury instructions, (nos. 34 and 53), relating to the legit-

imate practice of law, (Sup. RI 3, 6); however, the Court

refused to give them, (Sup. RI 3, 6), and the Petitioner

specifically objected to their omission, (RXI 899, 901).

E. The Testimony at Trial. At trial Mr. DeYoung

testified that the cocaine was his, (RIV 20-21, 26); that

he knew it was cocaine, (RIV 20-21, 26) but that he did

not consent to the search which uncovered it, (RIV 9-

10).3 Mr. DeYoung was released from custody because

a field test kit was unavailable, but was informed that

he would be contacted if the substance seized tested out

as a controlled substance, (RII 3-4). Mr. DeYoung re-

turned to California where his theatrical lawyer, Skip

Brietenham recommended the Petitioner, (RII 4-5). On

September 13, 1978, Mr. DeYoung called the Petition-

er’s Vail, Colorado telephone number and the Defend-

ant later returned his call, (RII 5), telling Mr. DeYoung

that he would check on DeYoung’s case and call him

back. On September 14, 1978, Mr. DeYoung called the

Petitioner and was told by him that the test was posi-

tivet and to send him a $5,000 retainer which De-

Young did, (RII 7-8). Later, on the 14th, the Petitioner

and his paralegal assistant, Kim Pease traveled to Cali-

fornia and met with DeYoung, (RII 11-12). According

to DeYoung, the Petitioner quoted him a fee of $25,000

while stating that $50,000 was his regular fee, (RII 11).

The Petitioner and DeYoung discussed various legal

defenses including suppression, (RII 13-16); and the

Petitioner informed him that he, DeYoung, was facing

3 The testimony of the officers who actually performed the

search was that DeYoung did “consent,” (RX 518, 531).

4 The government's own testimony revealed that the substance

was indeed cocaine, that Mr. DeYoung was knowledgeable about

that fact, (RIV 26), and that the substance had indeed tested out

positive on September 13th, 1978, (RVII 164, 172-173).

up to” fifteen years” and that Coloradolaw did not real-

ly distinguish between possession and sale.5

On the 16th of September, DeYoung agreed to make

partial payments on the fee in the form of two checks

totaling $10,000, (RII 18-19). On the 17th, Mr. De-

Young called Michael Dowling, his Colorado attorney,

and David Davis, a California attorney who was his

cousin, (RI 22-23). Pursuant to their advice, DeYoung

stopped payment on the checks, (RII 23). DeYoung was

then called by the Petitioner who asked him to rein-

state the checks so that the Petitioner would defend

him, (RII 26-27). According to DeYoung, the Petition-

er told him that he was going to be arrested, (RII 27-28),

and that the arrest could happen at the airport or that

he would be arrested in California and conveyed back

to Colorado “in chains,” (RII 27-29).¢ Mr. DeYoung re-

quested that the Petitioner call his cousin, Mr. Davis,

5 The trial Judge took judicial knowledge that simple possession

of cocaine, “COLO. STAT. REV. §12-22-302,” (RXII 931) is

punishable in Colorado as follows:

This is Section 2(b) of 12-22-322: “Except as provided in

certain other sections, whoever violates 12-22-302,” and

I have read a portion of that to you, “is guilty of a felony,

and upon conviction thereof shall be punished by a fine of

not more than $10,000 or by imprisonment in the State

Penitentiary for not less than two nor more than 15

years.” (RXII 932)

The Colorado Statute proscribing sale has a similar penalty range

of 10-20 years, (RXII 933).

6 Testimony fromthe government's own witnesses revealed the

well known fact that interstate prisoners were indeed transport-

ed in “some form of chains,” (RVII 214-215).

(RII 28). According to Mr. Davis, he chastised the Peti-

tioner for intimidating his cousin, Mr. DeYoung, (RV

23), whereupon the Petitioner told him that “time was

of the essence,” and that his cousin “would be arrest-

ed,””? (RV 27). Mr. Davis specifically asked the Peti-

tioner who was threatening to have DeYoung arrest-

ed himself, and Petitioner flatly denied that was his

meaning, (RV 27). The government rested its case on

extortion and fraud on the theories that: (1) the Peti-

tioner had falsely and extortionately predicted De-

Young’s arrest and his transportation back to Colo-

rado “in chains” (a) because of the de minimus amount

of drugs involved;8 and (b) because the search was bad;?

(3) that the Petitioner charged fees which were too

high; (4) that the Petitioner falsely and extortionately

told De Young’s cousin that De Young was going to be

arrested.

7 The government’s own witnesses testified that if the test

proved positive as it had, (RVII 164, 172-173), that Mr. DeYoung

“probably will” be arrested, (RIII 14).

8 Expert witness testimony established that 97 milligrams of co-

caine was a “usable” amount, in fact, four doses, (RXI 758-759).

Colorado cases have sanctioned prosecution of even a “minute

amount,”*see Casias v. People, 415 P.2d 344, 347 (Colo. 1966) deci-

sion upholding a conviction as to the “whitish residue” in a hypo-

dermic needle; Duran v. People, 360 P.2d 132 (Colo. 1961) where the

Colorado Supreme Court sitting en banc upheld a marijuana con-

viction of some “50 milligrams,” Zamora v. People, 487 P.2d 1116,

1118 (Colo. 1971) where another en banc Court upheld convic-

tion for a “trace” in a pipe; see also Fagin v. People, 484 P.2d 1216,

1217 (Colo. 1970) etcetera. i

9 See note 3, Supra.

F. The Conclusion of the Trial. The Trial Court grant-

ed a judgment of acquittal as to Counts Ill and IV of the

indictment, (RI 119). The jury acquitted Petitioner of

Count I, (RI 113, 115); convicted Petitioner of Count Il

and Count V, and acquitted codefendant Kim Pease of

all counts, (kI 113). The Petitioner was sentenced to

two years imprisonment, with eighteen months sus-

pended and six months to serve as toeach count served

concurrently and a $1,000 fine as to Count Il and a $2,-

000 fine as to Count V paid cumulatively, (RI 150).

6. The Tenth Circuit's Opinion. The Tenth Circuit's

Opinion in United States v. Blitstein, No. 78-2037 (July 14,

1980) is of little help in deciding the issues presented

herein. Factually, the panel did not point to any specific

extortionate act nor discuss extortion in theory or in

law, Opinion, pp. 1-26. As to fraud, the situation is simi-

lar, Opinion, pp. 1-26. As for Petitioner’s claim of vin-

dictive prosecution, the Tenth Circuit held:

We are not impressed by Blitstein’s effort to

present himself as the “target” for selective

and vindictive prosecution because of his pre-

vious “entanglements” with the office of the

United States Attorney... .

(Opinion at 18)

And as to the Petitioner's claim of prosecutorial mis-

conduct, the Court held:

There is nothing in this record evidencing

prosecutorial misconduct.

(Opinion at 24)

As for most of the issues presented herein, the Court

simply held:

We have carefully considered each of the re-

maining allegations of error advanced by Blit-

stein and hold that they are, individually and

cumulatively, without merit.

(Opinion at 22-23)

and:

The remaining issues raised by Blitstein

which have not been specially addressed or

discussed have been considered. We hold that

they are legally insubstantial.

(Opinion at 25)

Indeed, the Opinion of the Tenth Circuit carries the tone

of a rather intemperate polemic against the Petitioner,

so much so that one member of the panel disassociates

himself from the tenor of the Opinion, though not its re-

sult, (see Doule, Circuit Judge, specially concurring,

Opinion, at 26).

REASONS WHY THE WRIT

SHOULD BE GRANTED

Whether The Petitioner Presented A Prima

Facie Case Of Prosecutorial Vindictiveness

Against A Criminal Defense Lawyer Which

The Prosecution Should Have Been Re-

quired To Rebut. |

A. The Issue as Raised Below.

The Petitioner filed his Motion to Dismiss Indictment

Based on Prosecutorial Misconduct, which alleged among

other things that the” instant prosecution was prompt-

ed by and motivated by prosecutorial: vindictiveness

and reprisal,” (RI 51). The Petitioner raised this issue

upon appeal as Point of Error Ill, . . . “prosecutorial

misconduct and vindictiveness,” Appellant's Brief in Chief,

p. 13; and Petitioner reurged this point in his Petition for

Rehearing, pp. 6-7.

B. .The Prima Facie Case Presented Before and During Trial.

In order to show that his prosecution was the result

of prosecutorial vindictiveness, the Petitioner pre-

sented the following facts in his Motion, (RI 51-98), and

during trial:

1. That the Assistant United States Attorney

Nancy Rice had previously engaged in prosecutorial

vindictiveness by (a) seeking to hold Petitioner in con-

r-*

tempt during the pendency of criminal proceedings

against his client, (RI 63, et seq); (b) by taking her Motion.

to another judge when the presiding judge refused to

hear it, (RIX 429).

2. That Miss Rice was “very unhappy” with the un-

successful attempt to place Petitioner in contempt,

(RIX 434); and that Miss Rice aired her opinion that the

Petitioner should “not ‘be practicing” law in the United

States Attorney's office, (RIX 443).

3. That after Petitioner filed a Motion to Dismiss in

the Mortensen case, the presiding judge further embar-

rassed Miss Rice by requiring one of her superiors to sit

with her during the remainder of the Mortensen trial

which ended in acquittal, (RIX 446).

4. That during the Mortensen trial First Assistant

Stuckey who was sitting with Miss Rice and who was

the ranking criminal branch assistant, threatened the

Petitioner with being “brought to the mat, hard,” (RIX

418).

5. That this policy of threatening criminal defense

lawyers who vigorously defended “guilty” clients with

imprisonment or prosecution themselves was not

limited to Petitioner, (RIX 401-410).!°

10 Proof along this line was refused on the grounds that it was

irrelevant to the “particular charge of motion before the Court,”

(RIX 406).

6. That the first contact as to the DeYoung matter

was referred to Miss Rice, (RIX 469).

7. That the United States Attorney's office avoid-

ed its usual mode of procedure and instead of referring

the initial interview to the appropriate federal agency,

conducted the initial interview itself, (RIX 474).

8. That even though the United States Attorney’s

office knew that the Petitioner was involved, knew that

Miss Rice detested the Petitioner, and knew that Miss

Rice had previously exhibited her animosity through

her unprecedented attempt to see that Petitioner was

held in contempt, she was present and allowed to par-

ticipate in the initial interview, (RIX 472-473), and to

conduct the first stages of the investigation, (RIX 482-

483).

9. The Petitioner was not interviewed nor did the

United States Attorney notify him of his target status

nor allow him an opportunity to testify as set forth in

the guidelines set down in the United States Attor-

ney’s Manual, Title 9.11 |

10. The United States Attorney's office informed

the District Attorney's office that De Young would be a

government witness, (RIX 485-486), before the De-

Young case was presented to the Denver District

Attorney's office, (RIX 488; RVIII 278), and according-

11 See note 2, Supra.

ly, the Denver District Attorney's office declined the

DeYoung case on the same day, (RVIII 279-280).

11. That the government's case was presented to

the federal grandjury and then later to petit jury on the

theory and fact that the cocaine case against De Young

was not viable because of the “bad” search and because

it was not a“ usable” amount, (R VIII 285-286), when (1)

the United States had actual and constructive knowl-

edge that the search was a consent search, (RVII 537);

and that the amount of contraband, 97 milligrams, 83%

pure was a usable amount; (RXI 758-759); and when (2)

the United States itself had successfully prosecuted

consent searches and amounts similar to the De Young

case, 12

12. That the contempt action followed by this pros-

ecution was unprecedented, (RI 53; RIX 422-423).

C. The Response of the Lower Courts.

The Trial Court viewed this evidence which was pro-

duced almost wholly through the testimony of govern-

ment witnesses and the testimony of the Assistant

United States Attorneys themselves as “no showing”

of any “vindictiveness” on the part of the government,

(RXI 893). The Court denied the actual Motion and

12 Compare 80 milligrams of pure substance (RX 552) to 35

milligrams of pure substance, United States v. Jeffers, 524 F.2d 253

(7th Cir. 1975); see also United States v. Suddueh, 458 F.2d 1222 (10th

Cir. 1972); also the consent search in United States v. Seely, 570 F.2d

322 (10th Cir. 1978).

proffered exhibits, (RI 51, et seq), and did so without

government response on an evidentiary hearing, (see

RI 158-159). Later, during trial, the Court permitted a

portion of the defense testimony concerning this issue,

(RIX 410, et seq), andcontinued to deny the Motion. The

Court of Appeals, likewise found that'¢he above un-

contested facts constituted “nothing . . . evidencing

prosecutorial misconduct,” United States v. Dlitstein, Slip

Opinion, p. 24.

D. Reasons Why the Writ Should be Granted.

The Petitioner argues that the twelve (12) points

above, (see I, B, Supra) constitute a prima facie showing

of prosecutorial misconduct in regard to the Petition-

er’s prosecution. This misconduct is actually a combi-

nation of the prosecutorial vindictiveness’? proscribed

by this Court in Blackledge v. Perry, 417 U.S. 21 (1974);

and the selective prosecution! proscribed by the Unit-

ed States Court of Appeals for the Seventh Circuit in

United States v. Falk, 479 F.2d 616 (7th Cir. 1973). Here

the government was able to punish a criminal defense

lawyer through prosecution for his vigorous defense of

a criminal client in the Mortensen case which was that

client’s right under the Sixth Amendment to the Unit-

ed States Constitution. The claim of vindictiveness is

further buttressed by the fact that this prosecution was

the second attempt at intimidation, the first being an

13 Point III, Appellant's Brief in Chief, at 13, 25-38.

14 Point Il, Appellant's Brief in Chief, at 3, 25-38.

unprecedented contempt effort brought by the same

Assistant before a non-presiding judge in the Mortensen

case. The other surrounding circumstances, also un-

controverted, presented an even darker picture. The

Petitioner argues that his twelve (12) points met the

threshold test of Blackledge, “vindictiveness” tending to

deter the exercise of constitutional rights, (Blackledge,

Supra, at 28); however, the Court failed to even require

the government to respond. Likewise, the twelve

points described above presented a prima facie case of

selective prosecution under Falk which should have re-

quired the government to go forward and rebut, Falk,

Supra, at 623-624.

The central issue is whether the government should

be able to single out and prosecute a criminal defense

attorney under the extraordinary circumstances pre-

sented here without more judicial supervision and re-

view than was received in this case. The defense bar

was lately awakened to the not so subtle intimidations

poised by such prosecutions and attempts to prosecute

and have begun studies of the form and the frequency

of this category of government misconduct.'’ The

dangers poised by such activities on the part of the

government cannot be overstated. The very hallmark

15. See Category “D. Harrassment of targeted individuals,”

specifically”1. defense attorneys” whose clients are used against

them in return for leniency in political prosecutions, Maloney, Re-

port on Prosecutorial Misconduct, Natl. Assoc. of Criminal Defense Lawyers,

(August 23, 1980), 10 VOICE FOR THE DEFENSE 7, 8-10

(Aug/Sept. 1980).

21.

of the adversary system utilized by our criminal sys-

tem is a vigorous and vocal criminal defense bar will-

ing to combat the vastly larger legions of government

in blow for blow contests. One who says that the pos-

sible loss of liberty, fortune, and a career, as this Peti-

tioner suffered, would not deter these brave warriors

in the least, knows little about human nature. Indeed,

there are some among us who have no relish for

martyrdom. Indictment itself, even coupled with a pos-

sible acquittal, would be asufficient chill tosome of our

fellows who fear loss of reputation and practice.

On the other hand, if criminal defense lawyers had

the power to indict prosecutors under similar circum-

stances and without judicial supervision (and on the

same reliable testimony, i.e., “criminal clients”), could

the prosecutorial branch properly carry its burden in

the adversary system? Considering its unprotected

position, the criminal defense bar must be shielded

from the intimidations which this court ntust recog-

nize would hamper even the government. And the

criminal defense bar must be protected by the courts

because there is no one else to protect them. Unlike the

prosecution, the defense bar has no constituency save

perhaps their criminal clients, a sizeable portion of

whom do not have the right to vote. The criminal de-

fense bar is not and has never been held in high esteem

by the general public or even by the legal profession. In-

deed, they are considered somewhat like a dog in the

manger. However, if the adversary works like we are

told it works, then that animal must remain in the

manger and must remain vocal. This Court once

promised:

But that there may be no misunderstand-

ing, we make clear that this Court, if its aid be

needed, will unhesitatingly protect counsel in

fearless, vigorous and effective performance

of every duty pertaining to the office of the

advocate on behalf of any person whatso-

ever.

(Sacher v. United States, 343 U.S. 1 [1952] at 13)

The Petitioner would simply ask this Court to recall

that promise, to recall the reasons for which it was

made, and to ask itself if the matters involved here do

not involve those reasons.

Whether The Petitioner Should Have Been

Allowed To Present Other Instances Of Pros-

ecutorial Vindictiveness Against Criminal

Defense Lawyers In Order To Buttress His

Claim Of Prosecutorial Vindictiveness And

Misconduct.

For these same reasons, the Petitioner argues that he

should have been allowed to present evidence: that a

policy of intimidation of defense counsel by threats of

prosecution had been implemented by the United

States Attorney’s office for the District of Colorado,

(RIX 401, et seq). Refusal of the District Court upon

objection by the government to permit the Petitioner

to present any evidence beyond his individual case (RIX

401), hampered him in the presentation of evidence of

prosecutorial misconduct, specifically, “vindictive pros-

ecution,” Blackledge, Supra, and “selective prosecution,”

Falk, Supra. This limitation runs afoul of clear holdings

by this Court,16 and the courts of appeal.17

Ill

Whether The Petitioner Presented A Prima

Facie Case Of Prosecutorial Misconduct

Which The Prosecution Should Have Been

Required To Rebut.

The Petitioner advances this point!* because (1) the

government misconduct here went beyond mere pros-

ecution and continued throughout trial; and (2) the sui

genesis nature of this issue has made this Petitioner

fearful of mislabeling the misconduct, which should

perhaps be characterized as “ prosecutorial misconduct

tending to impair the integrity of the adversary sys-

tem.” However, the Petitioner would point out that the

misconduct continued past the point of prosecution

16 Wick Wo v. Hopkins, 118 U.S. 356, 373 (1886).

17 Falk, supra, at 621; United States v. Steele, 461 F.2d 1148 (9th Cir.

1972).

18 -Raised as Point II and III, Appellant's Brief in Chief, at 25-38.

°s

through trial. Specifically, the government continued

to argue that the De Young prosecution was not viable

because of the minimal amount, and the “bad” search

even after it learned that this was not the case. For

example, the government continued to argue and pre-

sent testimony that the search was bad after its inter-

views of the officers who actually searched DeYoung,

(RX 536-537), revealed that it was a consent search,

(RX 517-518, 531); and the government sought to pre-

vent this exculpatory testimony of consent being avail-

able to the defense or the jury at trial by excusing the

witness before trial, (RX 537), and continuing to argue

that the search was questionable.

Whether The Petitioner Was Entitled To Jury

Instructions Regarding The Legitimacy Of

Fee-Negotiations Between A Criminal De-

fense Lawyer And His Client.

A. The Issue As Raised Below.

Prior to the charge below, the Appellant requested

the following jury instructions dealing with the pro-

fession of law:

LEGITIMATE ACTIVITIES

NOT RESTRAINED

The statute under which the charges are

based has no reference or bearing on action by

an attorney, honorestly [sic] acting and rep-

resenting clients. It has reference to and bears

on interference with interstate commerce by

the compulsory payment of money extorted

by a person for his own individual benefit.

(Sup RI 3)

You are instructed that with respect to the

charges contained in the indictment, the

specific amount of attorney fees either

charged or received is not relevant.

(Sup RI 6)

The Court denied these requests, (Sup RI 3, 6), and

thereafter, Petitioner’s trial counsel specifically ob-

jected to failure to include these charges in the Court's

charge, (RXI 899, 901). Failure to give these charges

was raised as Point of Error VI,.. . “the refusal to in-

struct the jury on the theory of the defense,” Appellant's

Brief in Chief, p. 15; and was reurged in Petitioner’s Peti-

tion for Rehearing, p. 10.

B. Reasons for Granting the Writ.

1. The Central Issue. The central issue here is

whether the courts should recognize that there are

legitimate activities in which a criminal defense lawyer

may properly rely on fear in charging a fee in a crimi-

nal case. All authorities in this field caution a criminal

attorney that one of his duties is to appraise the client

of the possible legal consequences of his deed.19 Sev-

eral scholarly works on the practical aspects of the

criminal law practice have recommended that the legal

consequences facing a client be presented in a graphic

manner?° so that the value of the service to be render-

ed will be realized by the client. Of course, even with-

out a relationship drawn by counsel there always ex-

ists a relationship between fear of punishment and

willingness to pay a fee at all. What client would pay a

lawyer if he did not fear conviction, imprisonment, or

other punishment? Similarly, a certain amount of fear

of death, disability, and pain often overcomes our

reluctance to pay practitioners of the medical profes-

sion. Once possib'« punishment is mentioned or real-

ized before hand by the client, fear of conviction and

punishment must be an element of the relationship be-

tween attorney and client. Once the District Court re-

fused the requested instructions concerning legiti-

mate activities in the practice of criminal law, the

Court's definition of extortion became a guided missile

aimed directly at the criminal defense bar:

It will be your duty to determine as a ques-

tion of fact as to whether or not the defend-

19 Amsterdam, Trial Manual for the Defense of Criminal Cases (A.L.I. -

A.B.A. 1967) at 2/29; Moses, Criminal Defense Source Book (Lakeland

Press 1974) at 25; Owen, Defending Cases Before Juries (Prentiss Hall

1973), at 9.

20 See Cohn, Ed. 3d Criminal Law Seminar (Central Book Co. 1963)

at 78; Wice, The Private Practice of Criminal Law, 14 CRIMINAL LAW

BULLETIN 396 (1978); Bailey and Rothblatt, Defending Business and

White Collar Crimes, (Brancross Whitney 1969) at 2).

ant knowingly and intentionally utilized an

actual fear within Clifford T. DeYoung with

the specific intent of inducing DeYoung to

part with his money or property, and when |

say an actual fear, | mean a present and

reasonable fear.

The law requires proof beyond a reason- .

able doubt that the fear was reasonable and

actual and that the defendant knew of and in-

tentionally used the actual fear because the

law does not hold any man responsible for the

unforseeable or the unreasonable actions of

those with whom he speaks or deals, but the

law does prohibit knowing and intentional use

of an existing fear when this is done with the

specific purpose of inducing another to part

with his money or property.

(RXII 929)

Assuming that this definition is correct generally

speaking, the lack of limiting instructions as proposed

here converts it into wide net capable of ensnaring

every member of the criminal defense bar. What de-

fense lawyer can honestly say that he does not use a

“fear” of prosecution, conviction, and punishment to

collect a fee in a criminal case? Under the charge with-

out limiting instruction, what status would be enjoyed

by a criminal defense lawyer who admonishes a crimi-

nal client that he will cease representing him if the fee is

not forthcoming as agreed? What status would be

enjoyed by a lawyer who justifies a criminal fee by

pointing to the possible undesirable consequences that

the client is facing? If these acts are criminal extortion,

then let the criminal bar be forewarned by this Court.

C. The Prior Opinions of This Court and the Courts

of Appeal.

e In United States v. Enmons, 410 U.S. 376 (1973), this

Court specifically excepted legitimate activities of labor

unions from criminal liability under the “Hobbs Act”

even though these activities met the technical defini-

tion of extortion, Enmons, at 398-400. In response to -

Enmons, the Circuit Courts did not cannibalize their ex-

tortion definitions, but instead developed a limiting in-

struction similar to those requested by this Petitioner,

see Devitt and Blackmar, 2 Federal Jury Practice and In-

struction §56.10 (3rd ed 1977); following Callanan v. Unit-

ed States, 223 F.2d 171, 175 (Sth Cir. 1955), cert. denied

350 U.S. 862, reh. denied 350 U.S. 926; also see United

States v. Billingsley, 474 F.2d 63, 65 (6th Cir. 1973), cert.

denied 414 U.S. 819. The Petitioner argues that the de-

nial of the limiting instructions is strictly contrary to

these holdings, and a clear danger to criminal defense

‘ counsel, Sacher, Supra, at 13.

Whether The Petitioner Was Entitled To Jury

Instructions Regarding the Legitimacy Of

Fee-Negotiations Between A Criminal De-

fense Lawyer And His Client.

The Petitioner’s actions as alleged at trial: (1) main-

taining that the laboratory test was positive; (2) advis-

ing DeYoung that he would be arrested; etcetera could

only be considered as fraudulent. There is no evidence

that the Petitioner had the power to bring prosecution

to bear against his own client. Indeed, when specific-

ally asked this question, the government’s own testi-

mony was that he disavowed this intent, (RV 27). In

United States v. Heller, 579 F.2d 990 (6th Cir. 1978), the

Sixth Circuit clearly held that a defendant who falsely

represented that he could intercede against the threats

actually posed by others could not be convicted of ex-

tortion, Heller, at 1000. The holding of the Tenth Cir-

cuit in this cause runs strictly counter to this case.

Whether The Offense Charged In The In-

dictment, To Wit: Interstate Travel Under 18

U.S.C. 1952 To Commit Extortion Under 18

U.S.C. 875, Is An Actual Offense Cognizable

And Punishable Under Federal Law.

VII

Whether The Evidence Introduced At Trial

And The District Court’s Charge To The Jury

Amounted To A Variance From The Offense

Charged In The Indictment, To Wit: Inter-

state Travel Under 18 U.S.C. 1952 To Com-

mit Extortion Under 18 U.S.C. 875.

A. The Basic Offense of Extortion.

The indictment charges interstate travel under 18

U.S.C. 1952 “with the intent to promote,” etcetera “an

unlawful activity, to wit: extortion in violation of Title

18, United States Code, Section 875,” (RI 5). The prob-

lem is that 18 U.S.C. 875 does not prohibit extortion

per se but only certain interstate activities. 18 U.S.C. |

1952 proscribes travel for “extortion” and “extortion”

is usually defined in terms of violation of “state law,”

United States v. Brown, 505 F.2d 261 (4th Cir. 1974), Unit-

ed States v. Nardello, 393 U.S. 286 (1969), United States v.

Karigiannis, 430 F.2d 148 (7th Cir. 1970). Although the

relevant acts occurred in California, neither Colorado

nor California law was plead, proved, or included in any

jury instruction. Because of this, and because 18 U.S.C.

§875 is really for different crimes with different

punishments, (see §875, (A), (B), (C), and (E)), the Peti-

tioner filed a lengthy Motion for a Bill of Particulars, (RI 51,

et seq.), which was promptly denied by the Court with-

out requiring the government to respond.

B. The Logical Inconsistency of the Charge.

To paraphrase the indictment and the statute the

Appellant was charged with interstate travel “with in-

tent to... carry on” and interstate “communication

containing [A] threat,” etcetera, (see RI 5; 18 U.S.C.

875). This is a nonsensical and illogical offense.

Specifically, the only evidence in this case was that the

Appellant and his paralegal traveled to California to

converse with the alleged victim personally, (see RII 10-

15). How could someone travel across a state line to

meet another with the intention of threatening this

person through an interstate communication? Suffice

it to say that there was no evidence adduced below to

support this legally unprecedented use of §1952 and

§875, nor was the jury so charged, (RXI 925-929).

C. Variance.

Looking at what 18 U.S.C. §875 does proscribe, we

notice that it is a penal statute dealing with “interstate

communications,” and actually prohibits interstate

communications containing threats to persons, prop-

erty, andreputation, 18 U.S.C. §875 (a), (b), (c), and (d).

Interstate communications of threats, etcetera,

which is the essence of 18 U.S.C. §875, was completely

ignored in proof, argument, and the Court's charge,

(RXII 925-929). Here, the variance between what was

charged in the indictment and what was submitted to

the jury at trial was so great as to permit proof of a dif-

ferent crime at trial than that alleged in the indict-

ment. When this occurs, this Court has held that it

operates as a constructive amendment to the indict-

ment and is prejudicial per se, Stiron v. United States, 362

U.S. 212, 218 (1960).

CONCLUSION AND PRAYER

Wherefore, the above premises considered, the

Petitioner prays that this Court grant a Writ of Cer-

tiorari to the United States Court of Appeals for the

Tenth Circuit.

Respectfully submitted,

CHARLES LOUIS ROBERTS

Attorney of Record for

Petitioner

505 Caples Building

El Paso, Texas 79901

(915) 532-1601

CERTIFICATE OF SERVICE

The undersigned attorney of record for Petitioner,

MARTIN BLITSTEIN, hereby certifies as follows:

(a) That I am a member of the bar of the

United States Supreme Court, and that I have

duly served all parties required by the Rules of

said Court to be served with the foregoing

Petition for Writ of Certiorari, as hereinafter

shown:

(b) That the names and addresses of the at-

torneys of record for the adverse party are as

follows:

Tie Honorable Wade H. McCree, Jr.

Solicitor General of the United State»

Department of Justice

Washington, D.C. 20530

Joseph Dolan

United States Attorney

Room C330

United States Courthouse

Drawer 3615

Denver, Colorado 80294

copies of the foregoing Petition for Writ of

Certiorari on the said Wade H. McCree, Jr.,

and the said Joseph Dolan, attorneys for said

Respondent, by depositing same in the Unit-

ed States post office, with first class postage

prepaid, properly addressed to said attorneys

for Respondent at their said addresses.

EXECUTED, this ___ day of November, 1980.

CHARLES LOUIS ROBERTS

Attorney of Record for

Petitioner

505 Caples Building

El Paso, Texas 79901

(915) 532-1601

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Filed: July 14, 1980

No. 78-2037

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN BLITSTEIN,

Defendant-Appellant.

Appeal from the United States District Court

For the District of Colorado

(D.C. No. 78-CR-324)

Charles Louis Roberts, El Paso, Texas (Arthur W. Tif-

ford and Melvyn Kessler, Miami, Florida, with him on

the briefs), for Defendant-Appellant.

Daniel Christopher, Assistant United States Attorney

(Joseph Dolan, United States Attorney, and Richard S.

Vermeire, Assistant United States Attorney, on the

brief), Denver, Colorado, for Plaintiff-Appellee.

Before BARRETT, DOYLE and LOGAN, Circuit

Judges.

BARRETT, Circuit Judge.

Martin Blitstein (Blitstein), a member of the Florida

state bar, appeals from a jury conviction and subse-

quent sentencing judgment following verdicts of guilty

on Counts II and V of an original five count indict-

ment. Count II charged Blitstein with violating 18

U.S.C.A. §1343 (wire fraud) and Count V charged him

with violating 18 U.S.C.A. §1952 (the Travel Act)

undertaken in violation of 18 U.S.C. §875(4) (extor-

tion).

The Indictment as to Counts Il and V

Blitstein was, as previously noted, found guilty of the

charges contained in Counts II and V of the original five

count indictment. Counts If and V charged:

Count Il: Wire Fraud:

Paragraph One (1) of this count realleged all of the

allegations contained in Count I except those contain-

ed in paragraph 4, which, in capsule form, charged

that Blitstein and Kim Pease (Pease) “devised and in-

tended to devise a scheme and artifice to defraud and

for obtaining money by false and fraudulent pre-

tenses, representations and promises from Clifford

DeYoung, well knowing at the time that the said pre-

tenses, representations and promises ... would be

false and fraudulent when made” [R., Vol. I, p. 1]. The

following false representations were specified: 1) a

warrant was about to be issued for DeYoung’s arrest

on charges of cocaine possession; 2) Colorado law made

no distinction between possession of small amounts of

narcotics for private use and possessing large amounts

for the purpose of sale or distribution; 3) on Monday,

September 18, 1978, a warrant was issued by Colo-

rado authorities for DeYoung’s arrest, and, if arrest-

ed, DeYoung would be placed in chains and pulled off

the movie set and embarrassed in the presence of his

friends and fellow workers; 4) Blitstein and Pease could

“take care” of the arrest warrant, criminal case and ad-

verse publicity if they received a total of $25,000.00,

which request was reduced to $15,000.00; 5) Blitstein

and Pease had associates who could somehow dispose

of the narcotics so that no case could be filed; and 6)

through the efforts of Blitstein and Pease the criminal

case involving DeYoung had been terminated.

Paragraph Two (2) of this count charged that Blit-

stein and Pease, “On or about September 18, 1978, in

the State and District or Colorado, for the purpose of

executing the aforesaid scheme and artifice to defraud

and attempting to do so, transmitted and caused to be

transmitted certain sounds by means of wire com-

munications in interstate commerce, namely a tele-

phone conversation between a telephone located in

Colorado and a telephone located in California, all in

violation of Title 18, United States Code, Sections 1343

and 2.” [R., Vol. I, p. 3].

Count V: Travel to Commit Extortion:

This count charged that “On or about September 15,

1978, in the State and District of Colorado, and else-

where, Martin Blitstein and Kim Pease, did travel and

cause travel of Martin Blitstein and Kim Pease in inter-

state commerce from Colorado to California, with the

intent to promote, manage, establish, carry on and

facilitate the promotion, management, establishment

and carrying on of an unlawful activity, to-wit: extor-

tion in violation of Title 18, United States Code, Sec-

tion 875, and thereafter did perform and attempt to

perform acts to promote, manage, carry on and facili-

tate the promotion, management and carrying on of

said unlawful activity, all in violation of Title 18, Unit-

ed States Code, sections 1952 and 2”. [R., Vol.I, p. 5].

Factual Background

On appeal, we must view the evidence, both direct

and circumstantial, together with all reasonable infer-

ence to be drawn therefrom, in the light most favor-

able to the government following a conviction. United

States v. Freeman, 514 F.2d 1184 (10th Cir. 1975); United

States v. Twilligear, 460 F.2d 79 (10th Cir. 1972).

Clifford De Young, an actor by profession, arrived at

Stapleton International Airport in Denver, Colorado,

on September 9, 1978, from Greeley, Colorado, where

he had been on location during filming of the NBC tele-

vision movie “Centennial”. He planned to fly to his

home near Los Angeles, California. Following a routine

x-ray search of his hand carried baggage, DeYoung

consented to a general weapons check of the baggage.

The security guard conducting that check discovered a

small vial containing a substance later identified as less

than one gram of cocaine. The vial was confiscated by

airport security personnel after one of the guards

attached to the security unit questioned DeYoung

briefly about his occupation and ownership of the vial.

DeYoung acknowledged ownership. He was permit-

ted to proceed on his flight because security officials

were unable to locate a field testing “kit” for the pur-

pose of identifying the substance in the vial. A member

of the security force, Detective Handley, informed De-

Young that he would be contacted if an analysis of the

substance in the vial determined it to be a controlled

substance and if there was a “sufficient amount for

filing of a case”. [R., Vol. VII, p. 61]. Handley there-

after delivered the vial to the Denver Police Depart-

ment for analysis of its contents. Significantly, an

“offense report” was not prepared until September 25,

1978, and at no time during the period from the air-

port incident of September 9, 1978 until September 25,

1978, was Detective Handley contacted by either Blit-

stein or his paralegal, Pease. [R., Vol. VII, p. 78].

After DeYoung arrived in California, he contacted

his business attorney about the matter, expressing his

concern and his need for a goodlawyer in Denver. Sev-

eral days later DeYoung was referred to Blitstein,

whose office was located in Vail, Colorado. DeYoung

phoned Blitstein in Vail on September 12, 1978, and

after relating the circumstances to Blitstein, DeYoung

was given assurances by Blitstein that he would “check

into it” and contact him further. DeYoung informed

Blitstein during this initial conversation that he own-

ed and possessed the miniscule amount of cocaine con-

tained in the vial foundin his hand baggage and knew it

to be contraband. Blitstein informed DeYoung that

“they” could come down real hard on him if they want-

ed to, and that he might be in a lot of trouble.

On September 14, 1978, during a telephone conver-

sation, Blitstein advised DeYoung that the laboratory

analysis of the contents of the vial hadcome back “ posi-

tive”, i.e., cocaine, and that if DeYoung sent him $5,-

000.00 immediately as a legal retainer, Blitstein would

represent him. DeYoung complied by wiring Blitstein

$5,000.00 that same day. The record shows that it was

not until the following day, however, that Blitstein in

fact inquired of the Denver Police Department's Vice

and Narcotics squad about DeYoung’s case and the re-

sults ©f the test. It was then that Lieutenant Steve

Metros informed Blitstein that the substance tested

positive as cocaine and that Blitstein should contact a

Detective Costigan to determine whether DeYoung

would be “filed on”. [R., Vol. III, pp. 4-6].

On September 15, 1978, Blitstein’s paralegal, Pease,

phoned DeYoung in California and informed him that

he was going to be placed under arrest and that the case

was very serious. She stated that because of the

seriousness of the case she and Blitstein had to fly to

California to confer with DeYoung face to face.

Neither Pease nor Blitstein had contacted Detective

Costigan at that time or before they left for California

that same day. DeYoung met them at the Los Angeles

airport and drove them to his home. Enroute, Blitstein

informed De Young that his fee would be $25,000.00 to

handle the case. There are discrepancies in the testi-

mony with respect to what was said during the course

of the meeting in California. However, the jury ob-

viously believed the foilowing testimony of DeYoung,

which was substantially corroborated by another

witness:

While driving to DeYoung’s home, and after Blit-

stein stated that his fee for representing DeYoung

would be $25,000.00, De Young replied that this was

“pretty steep”. Blitstein responded that he was giving

DeYoung a “break” inasmuch as his regular fee would

be $50,000.00. Pease then remarked that Blitstein was

| *

a |

the greatest drug lawyer in the country. At De-

Young’s residence, Blitstein discussed with De Young

various legal defenses which should be considered and

Blitstein stated that De Young was facing from three to

fifteen years in prison because Colorado law does not

distinguish between a person “caught” with a small

amount of cocaine for personal use and a large amount

held for sale. Blitstein also related to De Young aspects

of his legal career, stating that there were people who

wished to make a movie of his life. The following morn-

ing, Pease asked DeYoung for $20,000.00. DeYoung

replied that he did not have that much money in the

bank. Pease then instructed DeYoung to make out two

checks payable to Blitstein — one in the amount of $7,-

500.00 and one in amount of $2,500.00. DeYoung com-

plied. Blitstein and Pease departed.

The following day, DeYoung phoned Michael Dow-

ling, a Colorado attorney, and DeYoung’s cousin,

David B. Davis, a California attorney specializing in

criminal law. Davis advised him to stop payment on the

two checks he had written payable to Blitstein. De-

Young did so, and shortly thereafter he received a

phone call from a Paul Meyer, who identified himself as

a financial partner of Blitstein. Meyer inquired why

DeYoung had stopped payment on the two checks.

Later, Blitstein and Pease phoned DeYoung. Blitstein

told DeYoung that a warrant for his arrest had been

issued and that De Young should“ reinstate” the money

so that Blitstein could defend him. Blitstein warned De-

Young that the minute he arrived at the Denver air-

port there would be a policeman waiting for him and

that the police would come out to the movie location set

and drag him off in chains because the police are ani-

mals and would like to humiliate him. DeYoung then

stated to Blitstein that he would provide the money,

but that he wanted Blitstein to speak with his cousin,

attorney Davis. Blitstein phoned Davis, who told Blit-

stein that he believed Blitstein had acted unpro-

‘fessionally by reason of his flight to California and his

subsequent coercion and intimidation of DeYoung.

Further, Davis stated that Blitstein’s telephone re-

marks to DeYoung that an arrest warrant had been

issued and that DeYoung would go to prison were un-

professional, coercive and intimidating. Pease came on

the line and said to Davis that Blitstein was a great and

competent lawyer, highly experienced in criminal law

and the “biggest dope lawyer in this area”. Blitstein told

Davis that he had reduced De Young’s fee to $25,000.00

because he liked him, that time was of the essence, and

that unless De Young made the checks good within the

next two hours, there would be a warrant issued for

DeYoung’s arrest. Blitstein said “once the evidence

leaves Denver” [for Miami] he could not control it any

longer. When Davis asked what he meant, Blitstein said

that the evidence was going to be analyzed in Miami

and “his people” could take care of it but it would have

to be done within the next two hours. This telephone

conversation terminated when Blitstein asked Davis

what he planned totell De Young. Davis responded that

10a

it was none of Blitstein’s business. Thereafter, Davis

phoned DeYoung and advised him that he was getting

“ripped off” and that there was “no evidence there is a

case”.

Blitstein phoned DeYoung again and stated that

Davis was a fool, an incompetent who knew nothing

about Colorado law. DeYoung then reinstated the

checks and so informed Blitstein, who advised De-

Young to wire the money. Blitstein congratulated De-

Young and remarked that DeYoung would now have

nothing to worry about. DeYoung thereafter spoke

with Attorney Dowling of Telluride, Colorado, and

again stopped payment on the checks in question. At a

later date, Pease contacted De Young at a Denver motel

and remarked to him that he was heading for jail be-

fore Blitstein got him off. The testimony of attorney

Davis, De Young’s cousin, was corroborative of a sub-

stantial and significant portion of DeYoung’s testi-

mony.

Blitstein testified in his own defense to the fullow-

ing: After obtaining the $5,000.00 retainer from De-

Young on September 14, 1978, he contacted an officer

with the Denver Police Department Vice and Narcotic

Section the following day and learned that the forensic

laboratory test showed that the vial contained cocaine

and that a warrant would probably issue; Blitstein was

told he should contact the agent in charge, Mr. Costi-

gan; within an hour, Blitstein phoned De Young and ad-

lla

vised him of the police report and arranged the meet-

ing in California; during the personal conferences in

California with DeYoung, Blitstein simply explained to

DeYoung what could happen if he were prosecuted and

advised that there were certain procedures which could.

be used to avoid “public” arrest; he denied stating to

DeYoung that he made any of the alleged material mis-

representations contained in the indictment (as testi-

fied to by DeYoung, and corroborated in substantial

part by Davis) and, instead, he stated that he request-

ed the $25,000.00 fee in order to represent DeYoung

on that which he believed to be an impending prosecu-

tion.

Blitstein further testified that: He did not at any time

represent to DeYoung or Davis that a warrant had

been issued by Colorado officials for De Young’s arrest

involving the drug charge; the $25,000.00 fee would

have involved all legal representation of DeYoung in-

volving issuance of a warrant, pretrial motions, and

trial; he would make every effort to see that De-

Young’s arrest be accomplished quietly so as to avoid

embarrassment and undue publicity; and during the

telephone conversation of September 18, 1978, he in-

formed DeYoung that no warrant had been issued and

no charges filed against him as of that date and that he

(Blitstein) was happy about it.

Detective Costigan, to whom Blitstein was referred

for the purpose of determining whether any charges

°*

12a

would be filed against De Young, testified that he was

never contacted by Blitstein or Pease. [R., Vol. VII, p.

139]. One David Neff, a Deputy United States Mar-

shal, testified that he spoke with Pease on September

14th and 15th and informed her that there was no fed-

eral warrant outstanding for DeYoung. [R., Vol. VIII,

pp. 211, 217].

Trial Court's Instructions

The trial court’s instructions, which are not chal-

lenged on appeal, were prefaced by the Court's prelim-

inary advisement to the jury that their basic function is

“a search for the truth.” The Court instructed, inter alia,

that: The jurors were the sole judges of the facts; the

defendant is cloaked with the presumption of inno-

cence throughout the trial and must be acquitted un-

less the jurors are satisfied beyond a reasonable doubt

of his guilt after acareful and impartial consideration of

all the evidence in the case; in deciding the case, the jury

must consider both direct and circumstantial evidence;

the words “scheme and artifice” as used in the statute

include a plan or course of action intended to deceive

others, and to obtain by false and fraudulent pre-

tenses, representations or promises money or prop-

erty from the persons so deceived; a statement or rep-

resentation is false or fraudulent within the meaning of

the statute if known to be untrue or made with reck-

less indifference as to its truth or falsity and made or

caused to be made with the intent to deceive; a false or

13a

fraudulent representation may be made by statements of half-truths

or the concealment of material facts as well as by affirmative state-

ments of facts; if the jury should find that the statements

and representations made by the defendant over the

wire were made with a good faith belief in their truth,

the jury should acquit the defendant; under the extor-

tion count (Count V) the jury must find that the

defendant, following the interstate travel from Colo-

rado to California, performed acts of extortion by

threatening to cause the arrest of DeYoung for the

purpose of influencing him to pay money; and that the

term “fear” in relation to extortion or threat to extort

does not necessarily refer to physical fear or fear of vio-

lence but includes fear of economic loss or an adverse

effect upon a profession or reputation. [R., Vol. XII, pp.

915-941].

Issues on Appeal

On appeal, Blitstein contends that his conviction

should be set aside in that: (1) The facts are insuffi-

cient as a matter of law to sustain his conviction due to

(a) insufficiency of evidence that he devised or prac-

ticed a scheme to defraud, (b) insufficiency of evidence

that he extorted or attempted to extort money from

DeYoung, and (c) insufficiency of evidence that he

traveled in interstate commerce on September 15,

1978, with intent to carry on extortion on September

18, 1978; (2) the totality of the circumstances in this

case constitutes selective prosecution of an attorney

v*%

14a

specializing in criminal defense cases for his financial

arrangements with clients such as to merit dismissing

the indictment; (3) the totality of the circumstances in

this case constitutes prosecutorial misconduct by way

of reprisal and vindictiveness based upon previous his-

tory between Blitstein and the federal prosecutors

justifying dismissal of the indictment; (4) venue was

not properly laid in the District Court as to Count V of

the Indictment, since the undisputed facts establish

that the District of Colorado was the district from

which Blitstein commenced his travel; (5) the trial court

denied Blitstein due process of law and a fair trial by

permitting and sanctioning prosecutorial misconduct

involving (a) cross-examination of Blitstein concern-

ing undetermined bar charges, and (b) prejudicial argu-

ment and inflammatory comments; and (6) the above

and foregoing procedural errors, commencing with the

denial of Blitstein’s motion for a Bill of Particulars, and

terminating with thé refusal to instruct the jury onthe

theory of the defense in iandem, substantially preju-

diced Blitstein and denied him due process of law and a

fair trial.

Discussion and Disposition

Blitstein contends that the facts are insufficient as a

matter of law to sustain his conviction under Counts Il

and V, with specific failure to establish (a) that he de-

vised or practiced a scheme to defraud, (b) that he ex-

15a

torted or attempted to extort money from DeYoung,

and (c) that he traveled in interstate commerce on

September 15, 1978, with intent to carry on extortion

on September 18, 1978.

The evidence in support of the jury’s verdict, con-

trary to Blitstein’s contention, is substantial. Failing to

attack the weight of the evidence with cogent, con-

vincing argument, Blitstein instead has sounded the

alarm on behalf of the entire criminal defense bar in

contending that if the procedure exercised by Blitstein

in this case be fraud,”. . . this court. . . [should] quick-

ly forewarn the Criminal Defense Bar.” [Reply Brief of

appellant p. 8]. Again: “Simply stated: Mr. Blitstein

found not a single published opinion of law previously

determining or reviewing a lower court juagment

determining that an attorney's insistence on the pre-

payment of a fee, especially when working on criminal

defense matters, demonstrated an intent to defraud.”

[Opening Brief of appellant, p. 19]. We are unimpress-

ed. The clarion call rings hollow before this Court. The

protest of concern for the “Criminal Defense Bar” is, in

our view, unrepresentative of those who honor their

status as officers of the court.

A complete review of the record establishes that the

evidence, direct and circumstantial, together with all

reasonable inferences to be drawn therefrom, firmly

and substantially supports the jury’s verdict. Blitstein

defrauded his client, DeYoung, by means of a series of

16a

sordid acts, practices and pretenses which, in totality,

can fairly be defined as lies, blatant misrepresenta-

tions, and a scheme designed tocheat. The learned trial

judge, at the hearing for final disposition following

trial, said it all:

I know what it means to a lawyer because I

have been one for over fifty years, but I have

consistently felt that those of the so-called

white collar group who commit offenses

against the laws of either the state or the

nation should be punished just as those in the

so-called blue collar group or some of those

who are less fortunate than we sometimes

characterize as the derelicts of society.

Yes, you have had a good education. You

climbed high, in a relatively short time, but

there is a bigger obligation on the part of those

who reach heights such as you have, than

there is of those who have never been able, for

whatever reason, to reach any height of

success.

I am of the opinion, sir, from the evidence in

this case, that you have treated the practice of

law as a business rather than as a profession.

Most lawyers are mighty proud of being

lawyers and we have to act with propriety

each day to gain any respect from the popu-

lace, from the people.

17a

Lawyers are too much looked down upon

and often unjustly, but when we convert what

is animportant profession to a business where

we reach out for money — I have heard you

say that you have never turned down aclient

because they weren’t able to pay.

MR. BLITSTEIN: Yes, sir.

THE COURT: But I have heard the evi-

dence in this case where you sought first $50,-

000, $25,000, down to $15,000, and you did

get $5,000 in cash, and there was no case filed

against Mr. DeYoung in any court in connec-

tion with the transaction that occurred at —

Stapleton Airport on September 9, 1978.

* * *

You didn’t make any threats in the sense of

injuring a person physically. There was cer-

tainly some evidence that the man was not

only in fear because of the circumstances in

which he found himself, but that that fear in-

creased because of the statements which you,

the evidence showed, made to him regarding

the probable consequences of his act.

This is not the first time that I have had the

unpleasant task of sentencing a colleague at

the bar, a lawyer, but we must hold ourselves

up to the highest degree of recognizing that

the law applies to every man, and 1 underline

every man, regardless of his position in life,

18a

his status, his economic condition, his educa-

tion or his upbringing.

[R., Transcript of Proceedings, December 19,

1978, pp. 7-9].

The trial court entered concurrent sentences of two

years on each count, but directed that all but six

months thereof be suspended and that the six months

be served in a treatment type institution, and at the

conclusion of that period Blitstein be placed on proba-

tion for the balance of the term. The Court also assess-

ed a fine of $1,000.00 on Count II and $2,000.00 on

Count V.

High standards of moral and ethical conduct have

historically been imposed upon members of the legal

profession, regardless of their expertise and status

among their peers. Those who use the tools of the legal

profession to prostitute its high standards of ethical

and moral conduct serve only to destroy the admirable

goals and aims of our criminal justice system. Appellant

Blitstein’s conduct in the case at bar was demeaning of

his obligation to serve the public good.

Il.

Blitstein’s contentions that the “totality of the cir-

cumstances” constitutes selective prosecution of an

attorney specializing in criminal defense cases, and

shows prosecutorial misconduct by way of reprisal and

19a

vindictiveness based upon previous history between

Blitstein and federal prosecutors justifying dismissal of

the indictment, border on the frivolous. The conten-

tions do not find support in the record. Beyond this,

these contentions are made by insinuation, innuendo,

and completely unfounded, wholly speculative “opin-

ions” advanced both in the briefs and in the course of

oral argument.

That there existed prior “friction” and strained rela-

tions between Blitstein and members of the staff of the

United States Attorney for the District of Colorado

appears to be true and somewhat interesting, but it is

no more than that. In the give-and-take of litigative

combat, it is hardly news tolearn that the zeal of oppos-

ing counsel results in heated head-to-head combat.

We are not impressed by Blitstein’s effort to present

himself as the “target” for selective and vindictive pros-

ecution because of his previous “entanglements” with

the office of the United States Attorney. Attached to

Blitstein’s Motion for Change of Venue or Continu-

ance Based Upon Prejudicial Pre-Trial Publicity is ar

Exhibit “I” consisting of an article appearing in the

Rocky Mountain News which relates that Chief Judge Fred

M. Winner of the United States District Court for the

District of Colorado dismissed a charge lodged by Blit-

stein that he had been intimidated by the United States

Attorney's office leading tothe instant indictment. The

article reads in part:

20a

Winner said Blitstein’s allegations were “a

contrived charade and a ploy” aimed at play-

ing “games with the court and with our sys-

tem of justice.”

Blitstein, who is under federal indictment

for extortion and wire fraud, claimed he was

intimidated by the U.S. attorney’s office dur-

ing the drug trial of Breckenridge dentist Jeff-

rey Mortenson, who later was acquitted.

* * *

During the dentist’s trial, Blitstein accused

Assistant U.S. Attorney Nancy Rice of making

false statements. During a recess, Assistant

U.S. Attorney Richard Stuckey told Blitstein

that he resented the accusation against Ms.

Rice and if it happened again, he would take

Blitstein “to the mat — hard.”

* * *

But in a sharply worded eight-page opin-

ion, Winner said, “If Mr. Blitstein is so easily

intimidated, he should retire from the trial

bar... . If a statement by an opposing lawyer

saying that something will be vigorously pur-

sued drives a lawyer from a case, that lawyer

should confine his practice to office work, and

he certainly should not try criminal cases in 40

federal courts in a short span of 10 years” (as

Blitstein claimed he had).

* a *

21a

“From my personal observation, ‘intimi-

dated counsel’ has been in the pits before and

he can take good care of himself in a rough and

tumble trial”, Winner said.

[R., Vol. I, p. 49].

We echo the views expressed by Chief Judge Winner.

We find then quite applicable to the “vindictive and

selective” contention advanced by Blitstein on this

appeal, particularly inasmuch as this record is abso-

lutely barren of any proof that the Government failed

or refused to prosecute others similarly situated to Blit-

stein. It is the obligation of a criminal defendant to

demonstrate that the government’s prosecution of him

was based upon clearly impermissible discriminatory

grounds such as race, religion or his exercise of first

amendment rights to free speech. United States v. Moss,

604 F.2d 569 (8th Cir. 1979), U.S. App. Pndg.; United

States v. Torquato, 602 F.2d 564 (3d Cir. 1979), cert. denied

U.S. And mere failure to prosecute other

offenders is no basis for a finding of denial of equal pro-

tection. The conscious exercise of some selectivity in

enforcement is not per se a federal constitution viola-

tion. Oyler v. Boles, 368 U.S. 448 (1962); Cook v. City of

Price, Carbon Cty., Utah, 566 F.2d 699 (10th Cir. 1977);

United States v. Brookshire, 514 F.2d 786 (10th Cir. 1975).

Moreover, there is a presumption that prosecution for

violation of the criminal law is in good faith. United States

v. Bennett, 539 F.2d 45 (10th Cir. 1976), cert. denied 429

U.S. 925 (1976).

22a

In light of the record before us and given the fact that

Blitstein was found guilty by an impartial jury of the

violations charged in Counts II and V based on the evi-

dence adduced, we hold that the presumption of good

faith is firmly established. The trial court did not err,

following an evidentiary hearing, in ruling that the in-

stant prosecution did not deny Blitstein equal protec-

tion of the law and was not vindictive.

IIT.

Blitstein argues that venue was not properly laid in

the District Court as to Count V of the Indictment in-

asmuch as the undisputed facts established that the

District of Colorado was the district from which Blit-

stein commenced his travel. He relies upon Spinelli v.

United States, 382 F.2d 871 (8th Cir. 1967), rev'd on other

grounds, 393 U.S. 410 (1969) for the proposition that a

substantive violation under the Travel Act statute

occurs after the travel took place, i.e., actual crossing of

the state line. We decline to adopt the Spinelli interpre-

tation of the statute. In our view, venue was properly

laid in the United States District Court for the District

of Colorado.

We are persuaded that the interpretation of the

Travel Act venue statutes set forth in United States v.

Polizzi, 500 F.2d 856 (9th Cir. 1974), cert. denied, 419 U.S.

1120 (1975), is correct. The court there heldthat”. . .a

defendant can be prosecuted for traveling in violation

of section 1952, or for aiding and abetting such travel,

23a

in any district in which the travel occurred.” 500 F.2d at

p. 899.

This Court observed in United States v. Villano, 529 F.2d

1046 (10th Cir. 1976), cert. denied, 426 U.S. 953 (1976)

that the Travel Act statute covers those who travel in

interstate commerce or use interstate facilities with the

intent to promote unlawful activity. The plain

language of the statute covers the activity charged to

Blitstein in the case at bar. In pertinent part it reads:

18 U.S.C. §1952:

Whoever travels .. . or uses any facility in

interstate or foreign commerce, including the

mail, with intent to ... (3) otherwise pro-

mote, manage, establish or carry on, ... any

unlawful activity, and thereafter performs or

attempts to perform any of the acts specified

... Shall be fined or imprisoned.

(b) as used in this section “unlawful activ-

ity” means. . . (2) extortion. . . in violation of

the laws of .. . the United States.

In our view, the statute, on its face, encompasses the

illegal activity charged to Blitstein. The travel here in-

volved originated in Colorado in order to promote,

manage, and carry on the unlawful activity of extor-

tian, i.e., travel from Colorado to California for the

purpose of extorting from DeYoung exorbitant fees in

a “case” wherein no prosecution had been initiated or

any arrest warrant issued.

24a

IV.

We have carefully considered each of the remaining

allegations of error advanced by Blitstein and hold that

they are, individually and cumulatively, without merit.

During his direct examination, Blitstein testified at

length that: He was a litigation specialist with exien-

sive experience in the criminal practice, primarily as a

drug defense attorney who had appeared in many,

many courts since he was admitted as a member of the

Florida bar in 1968 [R., Vol. X, p. 586]; his fee schedule

for narcotics violations “be they large or small” was

$50,000.00 and his per diem rate out of his Miami law

office was $3,000.00 [R., Vol. X, pp. 622, 623]; that he

was not a member of the Colorado bar and would have

to retain local counsel out of a portion of his fee [R.,

Vol. X, p. 623]; that in the past ten years he had ac-

cumulated in excess of a million dollars in unpaid bills

[R., Vol. X, p. 627]; and that he was not a“run-of-the-

mill” inexpensive lawyer. [R., Vol. X, p. 636]. Thus,

Blitstein did not hesitate to elevate himself as a mem-

ber of the bar with outstanding credentials and repu-

tation. On cross-examination, Blitstein was asked

“there was a period of 45 days during that period (since

his admission to the Florida bar in 1968), was there not,

when your license to practice was suspended?”, to

which Blitstein responded, “yes, sir.” [R., Vol. XI, p.

720]. The trial court admitted this cross-examination

predicated on Blitstein’s extensive testimony about his

outstanding experience and professional reputation as

25a

a specialist in the field of criminal defense, particularly

in relation to drug-offense cases, where he was much

sought after. The trial court admitted this cross exam-

ination over objection not in relation to Blitstein’s

“character as such” but probative of the truthfulness or

untruthfulness of his status with the professional bar,

pursuant to Fed. Rules Evid. rule 608(b), 28 U.S.C.A.

No error occurred. Blitstein injected his good reputa-

tion as a member of the bar by reason of his extensive

testimony aforesaid, thus opening the door to the very

limited impeachment evidence which did not in any-

wise involve criminal proceedings. Cf. United States v.

Heath, 580 F.2d 1011 (10th Cir. 1978), cert. denied, 439

U.S. 1075 (1979). The extent of cross-examination is a

matter within the trial court’s discretion which will not

be disturbed in the absence of proof of abuse of dis-

cretion. United States v. Speir, 564 F.2d 934 (10th Cir.

1977), cert. denied, 435 U.S. 927 (1978); United States v.

Hodges, 480 F.2d 229 (10th Cir. 1973). See also: United States

v. Giese, 597 F.2d 1170 (9th Cir. 1979), cert. denied,

U.S.

There is nothing in this record evidencing prosecu-

torial misconduct. The record must show prosecutor-

ial misconduct rising to the level of plain error in the

absence of an objection or request for corrective in-

structions. United States v. Jones, 578 F.2d 1332 (10th Cir.

1978), cert. denied, 439 U.S. 913 (1978); United States v.

Bishop, 534 F.2d 214 (10th Cir. 1976); Fed. Rules Cr.

Proc., rule 52(b), 18 U.S.C.A.

26a

The totality of the Government's evidence was

strong. Where the evidence against the accused is

strong, the appellant must show that the prejudice he

claims constitutes plain error. Hail v. United States, 404

F.2d 1367 (10th Cir. 1969). A conviction will not be dis-

turbed on appeal where it is clear, after a careful re-

view of the whole record, that the alleged errors did not

deprive the appellant of his substantial rights. United

States v. Bishop, supra; United States v. Lemon, 497 F.2d 854

(10th Cir. 1974). Such is the case here. Cf. United States v.

Williams, 445 F.2d 421 (10th Cir. 1971), cert. denied, 404

U.S. 966 (1971). A review of the record satisfies us that

Blitstein received a fair trial.

The remaining issues raised by Blitstein which have

not been specially addressed or discussed have been

considered. We hold that they are legally insubstan-

tial. United States v. Brown, 600 F.2d 248 (10th Cir. 1979),

cert. denied, U.S. (1979); United States v. Porth, 426

F.2d 519 (10th Cir. 1970), cert. denied, 400 U.S. 824

(1970).

WE AFFIRM.

DOYLE, Circuit Judge, specially concurring.

I concur fully in the judgment. Although I agree with

the legal conclusions of the majority and am also in

agreement with the reasoning contained in the major-

ity opinion, I am unable to subscribe to the entire opin-

27a

ion. My disagreement is with the characterizations of

the defendant personally that are found in the major-

ity opinion. It is only because they are unnecessary and

not because I am sympathetic to the defendant.

The appellant is not before us in a disbarment pro-

ceeding, and although I can understand the desire of

the majority to emphasize that as a member of the bar

he should have observed the high standards which the

profession exacts, the facts here speak for themselves

and render it unnecessary to add tothe lengthy and ex-

plicit statement of the evidence and to the legal effects

which flow from that description.

28a

APPENDIX B

SEPTEMBER TERM — SEPTEMBER 17, 1980

Before Honorable Oliver Seth, Honorable William J.

Holloway, Jr., Honorable Robert Hh. McWilliams,

Honorable James E. Barrett, Honorable William E.

Doyle, Honorable Monroe G. McKay, Honorable James

K. Logan, and Honorable Stephanie K. Seymour, Cir-

cuit Judges.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus No. 78-2037

MARTIN BLITSTEIN,

Defendant- Appellant.

This matter comes on for consideration of appellant's

petition for rehearing with suggestion for rehearing en

banc together with appellant’s corrected petition for

rehearing and suggestion for rehearing en banc.

Upon consideration whereof, the petition for re-

hearing and corrected petition for rehearing are de-

nied by the judges who were members of the panel who

rendered the decision sought to be reheard.

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The suggestion for rehearing and the corrected peti-

tion for rehearing and suggestion for rehearing en banc

having been transmitted to the members of the panel

and the judges of the Court who are in regular active

service and no member of the panel nor judge in regu-

lar active service having requested a vote on such sug-

gestion, the suggestion for rehearing en banc and cor-

rected suggestion for rehearing en banc are denied.

ls} HOWARD K. PHILLIPS

HOWARD K. PHILLIPS

Clerk

A true copy.

!s) THERESA SMITH

Deputy Clerk

| 30a

APPENDIX C

§1952. Interstate and foreign travel or transporta-

tion in aid of racketeering enterprises

(a) Whoever travels in interstate or foreign com-

merce or uses any facility in interstate or foreign com-

merce, including the mail, with intent to—

(1) distribute the proceeds of any unlaw-

ful activity; or

(2) commit any crime of violence to fur-

ther any unlawful activity; or

(3) otherwise promote, manage, estab-

lish, 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 (1) any business enterprise involving gambling,

liquor on which the Federal excise tax has not been

paid, narcotics, or prostitution offenses in violation of

the laws of the State in which they are committed or of

the United States, or (2) extortion, bribery, or arsor in

violation of the laws of the State in which committed or

of the United States.

3la

involving liquor or narcotics shall be conducted under

the supervision of the Secretary of the Treasury.

Added Pub.L. 87-228, §1(a), Sept. 13, 1961, 75 Stat.

498, and amended Pub.L. 89-68, July 7, 1965, 79 Stat.

212.

APPENDIX D

§875. Interstate communications

(a) Whoever transmits in interstate commerce any

communication containing any demand or request for a

ransom or reward for the release of any kidnapped per-

son, shall be fined not more than $5,000 or imprisoned

not more than twenty years, or both.

(b) Whoever, with intent to extort from any per-

son, firm, association, or corporation, any money or

other thing of value, transmits in interstate commerce

any communication containing any threat to kidnap

any person or any threat to injure the person of an-

other, shall be fined not more than $5,000 or im-

prisoned not more than twenty years, or both.

communication containing any threat to kidnap any

person or any threat to injure the person of another,

32a

shall be fined not more than $1,000 or imprisoned not

more than five years, or both.

(d) Whoever, with intent to extort from any per-

son, firm, association, or corporation, any money or

other thing of value, transmits in interstate commerce

any communication containing any threat toinjure the

property or reputation of the addressee or of another

or the reputation of a deceased person or any threat

to accuse the addressee or any other person of acrime,

shall be fined not more than $500 or imprisoned not

more than two years, or both.

June 25, 1948, c. 645, 62 Stat. 741.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.