Opposition Brief — Kern v. United States

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No. 84-1336

Iu the Supreme Court of the Uni

OCTOBER TERM, 1984

CHARLES E. KERN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Rex E. Lge

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Cases:

Boyce Motor Lines, Inc. v. United States,

SEM EET ds ttick essed eusaeosnveces

Coates v. Cincinnati, 402 U.S. 611 ........

Colautti v. Franklin, 439 U.S. 379 ........

Kolender v. Lawson, 461 U.S. 352 ........

Screws v. United States, 325 U.S.91 ......

United States v. Fasolino, 586 F.2d 939 ...

United States v. Kelner, 534 F.2d 1020,

cert. denied, 429 U.S. 1022 .............

United States v. Mazurie, 419 U.S. 544 ....

United States v. Powell, 423 U.S. 87 ......

United States v. Wilson, 565 F. Supp.

tt —titeehvoseenteheSea te cnadia ces

Watts v. United States, 394 U.S. 705 ..... .

Constitution and statutes:

U.S. Const. :

EPMO ETI TTT TTT TT TTT Te

Amend. V (Due Process Clause) ......

Victim and Witness Protection Act

of 1982, Pub. L. No. 97-291, 96 Stat.

GROEN. conencccevsscnscesecseuecs

PEE S65 eecnsdeecckasascassncs

Pe ee ED 0.0.60 6-4006ceccnsnccdenses

TTT 3

II

Page

Constitution and statutes—Continued:

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SS Ps CORED in 056cebanene cen eeeeee eens 3

BS UBC. SSERIOE) onc ccsccaccass 1, 2, 3, 4, 5, 6

Miscellaneous:

S. Rep. 97-532, 97th Cong., 2d Sess.

re ee ep ee EN 3

In the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-1336

CHARLES E. KERN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that 18 U.S.C. 1512(a)(1), which

prohibits the knowing use of intimidation with intent to

influence the testimony of a witness in an official proceed-

ing, is void for vagueness and overbroad in violation of the

First and Fifth Amendments to the United States

Constitution.

l. Petitioner, a former Border Patrol agent, was con-

victed of knowingly intimidating and attempting to intimi-

date a fellow Border Patrol agent with intent to influence

his testimony before a federal grand jury, in violation of 18

U.S.C. 1512(a)(1).' He was sentenced to 18 months’ imprison-

ment.

‘Petitioner and a co-defendant, Lonnie E. Wiemers, were acquitted

of charges of deprivation of rights under 18 U.S.C. 242 and of conspi-

racy to violate 18 U.S.C. 1512(a)(1). Wiemers’ conviction for a substan-

tive violation of Section 1512(a)(1) was reversed on appeal for insuffi-

cient evidence (Pet. App. A9, Al4).

(1)

2

The evidence at trial showed that petitioner, co-defendant

Lonnie ‘iemers, and David Offutt were employed as

Border Patrol agents in El Paso, Texas, when Jorge

Dominguez, a twelve-year old boy, was chased and beaten

by two men he identified as Border Patrol agents. Wiemers

stated to Offutt that he and petitioner were responsible.

Offutt appeared before a grand jury investigating the

assault on May 3 and September 6, 1983; his testimony

implicated Wiemers and petitioner. Pet. App. A2-A3. Ina

confrontation between Offutt and petitioner in July, Offutt

told petitioner “you're going to get just what you got com-

ing, and I’m going to help you” (Pet. App. A4). Petitioner

responded “So are you” (idid.). Later that month, peti-

tioner (accompanied by an unidentified man) ordered a

rubber stamp reading “Fink Offutt,” and in July and

August the phrase was stamped on papers in Offutt’s mail

drawer, around the Border Patrol station, and on the office

bulletin board (Pet. App. A4-A5, A7). In August, in order

to escape this harassment, Offut requested a temporary

transfer to the nearby Ysleta Border Patrol station; shortly

before he was to start work there, a “Fink Offutt” sign was

posted outside that station. Finally, while driving home

after a meeting on September | with a government attorney

to discuss his grand jury testimony, Offutt observed peti-

tioner and Wiemers in a truck in front of his house. They left

as he approached; after he had followed them for a while,

they turned around and drove off (Tr. 638-639). This inci-

dent led Offutt’s wife to fear for their children’s safety;

because of this and because Offutt “had had all of it I could

take” (Tr. 640), he requested and received a transfer to

Idaho (Tr. 640-643; Pet. App. A5).

3. At trial, the court instructed the jury on the elements

of Section 1512(a)(1) (Tr. 1050):

In order to establish the offense of intimidation with

intent to influence the testimony of a person in an

3

official proceeding, the Government must prove three

essential elements beyond a reasonable doubt:

First, that the Defendants used intimidation or

attempted to do so.

Second, that the Defendants acted with intent to

influence the testimony of David Offutt with respect to

an official proceeding.

And third, that the Defendants acted knowingly and

willfully.

The term “intimidation” means to make timid or

fearful, to inspire or affect with fear, or to deter as by

threats.

2. Petitioner contends that the term “intimidation” in 18

U.S.C. 1512(a)(1) is inherently vague and failed to put him

on notice of what conduct was prohibited by the statute. He

also asserts that it poses “a danger of arbitrary and discrim-

inatory enforcement” (Pet. 4). The court of appeals, in

upholding the constitutionality of the statute, noted “the

statute's facial clarity” and held that the “notion of intimi-

dation is not so indefinite as to fail to put ordinary people

on notice of what conduct is proscribed” (Pet. App. Al3).?

The statute under which petitioner was convicted is part

of the Victim and Witness Protection Act of 1982, Pub. L.

No. 97-291, 96 Stat. 1248 et seg. The Senate Report indi-

cates that the amendments were intended to “lower{] the

threshhold of seriousness for commission of an intimida-

tion offense.” S. Rep. 97-532, 97th Cong., 2d Sess. 14

(1982). Concerning Section 1512(a), the Report stated (id.

at 15):

?The last sentence reproduced at Pet. App. A13 is missing a line of the

court of appeals’ opinion. The sentence should read:

This argument overlooks the fact that not all forms of speech and

conduct are protected by the constitutional guarantees of freedom

of speech and association.

4

Current law * * * does not address the most com-

mon form of intimidation—verbal harassment. Tes-

timony given to the ABA suggested that sometimes

innocent acts, such as telephoning a victim to say hello,

coming to his home, or even driving a motorcycle by,

may be extremely effective in preventing a victim or

witness from testifying. This type of activity is not

covered by section 1503 which requires corruption,

threats or force for an offense. Section 1510 includes

intimidation as a method of obstructing criminal inves-

tigations in addition to force, threats, bribery and

misrepresentation; however, nowhere is intimidation

defined. The Committee believes a clear and straight-

forward prohibition of such activity will increase

prosecution of such cases, where warranted.

The Due Process Clause of the Fifth Amendment

requires that a criminal statute “define a criminal offense

with sufficient definiteness that ordinary people can under-

stand what conduct is prohibited and in a manner that does

not encourage arbitrary and discriminatory enforcement.”

Kolender v. Lawson, 461 U.S. 352, 357 (1983). Section

1512(a)(1) easily meets that standard.

In considering challenges to statutes as unconstitution-

ally vague, this Court has held that the existence of a

scienter requirement as a necessary element of the offense

“does much to destroy any force in the argument that

application of the [statute] would be so unfair that it must

be held invalid.” Boyce Motor Lines, Inc. v. United States,

342 U.S. 337, 340 (1952).4 In Screws v. United States, 325

‘The scienter requirement similarly guards against arbitrary and

discriminatory enforcement, since the prosecution must persuade the

trier of fact that the defendant actually intended the prohibited result.

5

U.S. 91, 101-102 (1945) (plurality opinion), the Court

stated:*

[T]he requirement of a specific intent to do a prohi-

bited act may avoid those consequences to the accused

which may otherwise render a vague or indefinite

statute invalid. * * *[Wyhere the punishment imposed

is only for an act knowingly done with the purpose of

doing that which the statute prohibits, the accused

cannot be said to suffer from lack of warning or knowl-

edge that the act he does is a violation of law. The

requirement that the act must be willful or purposeful

may not render certain, for all purposes, a statutory

definition of the crime which is in some respects uncer-

tain. But it does relieve the statute of the objection that

it punishes without warning an offense of which the

accused was unaware.

Section 1512(a)(1), which makes unlawful the knowing use

of, or attempt to use, intimidation with the intent to influ-

ence a witness's testimony, contains such a requirement.*

Without suggesting that there is any uncertainty respect-

ing the application of the statute to the conduct for which he

was convicted, petitioner argues (Pet. 5) that a greater

degree of specificity is required of this statute because it is

capeble of reaching speech and conduct protected by the

First Amendment. Cf. United States v. Powell, 423 U.S.

‘This language from the plurality opinion in Screws was cited with

approval in Colautti v. Franklin, 439 U.S. 379, 395 n.13 (1979), in

which this Court invalidated a state statute that employed an ambigu-

ous term and that lacked a scienter requirement.

‘The jury instructions, to which petitioner does not object, clearly

informed the jury that in order to convict, they had to find that peti-

tioner intended to intimidate Offutt. Thus, unlike Coates v. Cincinnati,

402 U.S. 611, 613 (1971), upon which petitioner relies (Pet. 5), it is clear

in this case that petitioner's conviction was based on the jury's finding

about his own intent.

6

87, 92 (1975); United States v. Mazurie, 419 U.S. 544, 550

(1975). However, as noted above, the statute at issue here is

narrowly drawn. The fact that intimidation can be, and

often is, accomplished by speech does not, without more,

infringe First Amendment rights.* In Watts v. United

States, 394 U.S. 705, 707 (1969), this Court held that 18

U.S.C. 871(a), which makes it unlawful “knowingly and

willfully” to make a threat against the life of the President of

the United States, is constitutional on its face. In so doing,

the Court stated (394 U.S. at 707):

Nevertheless, a statute such as this one, which makes

criminal a form of pure speech, must be interpreted

with the commands of the First Amendment clearly in

mind. What is a threat must be distinguished from

what is constitutionally protected speech.

The Court there found (id. at 708) that the statute requires a

true “threat,” not mere “political hyperbole.” So too in this

case, so long as the government has proven intimidation

with intent to influence testimony and not merely conversa-

tion and association lacking a proven improper purpose,

the First Amendment is not implicated.’

*Here, of course, petitioner's conduct, wh.ch included sitting in his

truck in front of Offutt’s house while Offutt was away, extended beyond

speech.

7As the court of appeals noted (Pet. App. Al3), the only other

decision discussing the constitutionality of Section 1512(aX1) is United

States v. Wilson, 565 F. Supp. 1416 (S.D.N.Y. 1983). However, as the

court in Wilson observed (id. at 1430), convictions under similar sta-

tutes have been upheld although based solely on speech. E.g., United

States v. Kelner, 534 F. 2d 1020 (2d Cir.), cert. denied, 429 U.S. 1022

(1976) (conviction upheld under 18 U.S.C. 87S(c), which prohibits

transmission in interstate commerce of a communication containing a

“threat to injure the person of another™), United States v. Fasolino, 586

F.2d 939 (2d Cir. 1978) (conviction upheld under 18 U.S.C. 1503, which

makes it unlawful, “by threats * * * or by any threatening letter or

communication, [to] endeavor{] to influence, intimidate, or impede”

officers of the court and jurors).

7

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

Rex E. Lee

Solicitor General

Marcu 1985