# Petition — Blitstein v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 449 U.S. 1102

## Text

i
'

[

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. :

7%

VII.

ii

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

iv

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

Vv

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

75

’*

vi

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.

2
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,

3

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

7.

4
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

5

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-

*>

6

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)

7

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

8

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.

9

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).

10

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).

11

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).

12

(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.

13

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:

14

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).

15

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-*

-

16

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).

17

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.

a

18
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).

19

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.

20

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

22

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.

Il

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

23

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

24

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.

IV

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

25

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

7:

26

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).

27

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

7%

i

28
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.

Vv

Whether The Petitioner Was Entitled To Jury
Instructions Regarding the Legitimacy Of
Fee-Negotiations Between A Criminal De-
fense Lawyer And His Client.

29

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.

VI

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.

es

30
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

31
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-

|

32

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:

33

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

(c) That on this day I served three printed
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

la
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.

2a

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

3a

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

4a

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-

5a

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,

|

6a

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

7a
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-

9a

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,

i

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).

7%

'%

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.

7%

->

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.

7?

".

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.

29a

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

(c) Investigations of violations under this section
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.

(c) Whoever transmits in interstate commerce any
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0795%3A1. Public record. Not legal advice.