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United States v. Irwin

decided: December 10, 1965.


Moore, Smith and Anderson, Circuit Judges.

Author: Anderson

ANDERSON, Circuit Judge:

The appellant, Irwin, a certified public accountant since 1943, was indicted on December 1, 1964 on three counts: the first charged conspiracy with one Jeanne Lupesco, an employee of the Internal Revenue Service, to violate Title 18 U.S.C. §§ 201(b) and (f),*fn1 the second charged a violation of Title 18 U.S.C. § 201(b), alleging that Irwin had given his co-defendant Lupesco a sum of money with intent to influence her official actions relating to audits of the income tax returns of several of Irwin's clients; and the third charged him with a violation of Title 18 U.S.C. § 201(f), alleging that he had given Lupesco, as a public official, $400 for or because of her auditing the income tax returns of several of Irwin's clients. The court dismissed the first, or conspiracy count, at the close of the Government's case. The jury acquitted Irwin on the second count and convicted him on the third. The court entered judgment of conviction on the third count and sentenced Irwin to one year in prison; from this judgment Irwin appeals. We affirm the judgment below.

His principal ground of appeal is that the statute, § 201(f), under which he was convicted, is unconstitutionally vague on its face. He also raises questions concerning the admissibility of certain evidence, disclosure of grand jury minutes and entrapment.

The portions of Title 18 U.S.C. § 201(f), pertinent to this case, read as follows:

"Whoever * * * directly or indirectly gives, offers, or promises anything of value to any public official * * * for or because of any official act performed or to be performed by such public official * * *."

§ 201(a), in relevant part, defines a public official as "* * * [an] employee * * * acting for or on behalf of the United States, or any department, agency or branch of Government thereof * * * in any official function, under or by authority of any such department, agency, or branch of Government * * *" and defines an official act as "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in his official capacity, or in his place of trust or profit."

While the legislative history of this section is not illuminating, it is clear that in passing it in 1962, Congress consolidated and to some extent re-wrote several sections of Title 18, dealing with bribery and corruption, and also added some new provisions to buttress and make more effective the prevention of this kind of public wrong. Many of the provisions were placed in § 201. Of these subsections (b) through (e) define offenses which include the specific intent to influence or induce an official or witness, or, in the case of the official or witness permitting himself to be influenced or induced, as an essential element. Subsections (f) through (i), however, define offenses concerning which there is no mention of intent to influence or induce. The penalties for the first group are a maximum fine of $20,000 or three times the money equivalent of the thing of value, whichever is greater, and a maximum imprisonment for fifteen years, or both; while the penalties for the second group are a maximum of $10,000 fine or two years imprisonment or both.

The appellant's assertion that the provisions of § 201(f) are vague and uncertain are without merit. It is apparent from the language of the subsection that what Congress had in mind was to prohibit an individual, dealing with a Government employee in the course of his official duties, from giving the employee additional compensation or a tip or gratuity for or because of an official act already done or about to be done.

The awarding of gifts thus related to an employee's official acts is an evil in itself, even though the donor does not corruptly intend to influence the employee's official acts, because it tends, subtly or otherwise, to bring about preferential treatment by Government officials or employees, consciously or unconsciously, for those who give gifts as distinguished from those who do not. The preference may concern nothing more than fixing the time for a hearing or giving unusually prompt consideration to the application of a donor while earlier applications of non-donors are made to wait, even though there is no evidence that the donor sought the particular preference. Moreover, the behavior prohibited by § 201(f) embraces those cases in which all of the essential elements of the bribery offense (corrupt giving) stated in § 201(b) are present except for the element of specific intent to influence an official act or induce a public official to do or omit to do an act in violation of his lawful duty. The iniquity of the procuring of public officials, be it intentional or unintentional, is so fatally destructive to good government that a statute designed to remove the temptation for a public official to give preferment to one member of the public over another, by prohibiting all gifts "for or because of any official act," is a reasonable and proper means of insuring the integrity, fairness and impartiality of the administration of the law. It is clearly within the power of Congress to enact such a statute.

The appellant seeks to prove his point by suggesting hypothetical cases taken from the peripheral areas of the statute's scope; but he can derive no assistance from that source. He must show that, as applied to his own case, the statute was so vague and uncertain that he was not presented with an "ascertainable standard of guilt." Winters v. People of State of New York, 333 U.S. 507, 515, 68 S. Ct. 665, 92 L. Ed. 840 (1948). The facts of the present case bring it squarely within the provisions of § 201(f), construed in the light of the definitions in § 201(a). The statute furnished adequate warning to anyone of ordinary intelligence that the kind of conduct embarked upon by the appellant would constitute an offense. § 201(f) is not

"* * * a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application * * *."

Connally v. General Construction Co., 269 U.S. 385, at 391, 46 S. Ct. 126, at 127, 70 L. Ed. 322 (1926). The appellant was not "required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S. Ct. 618, 619, 83 L. Ed. 888 (1939). As long as the statute is clear as to the appellant's behavior, we need not be concerned that at the outer fringes of the statute's bounds there may be close or difficult cases.

"* * * One to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations ...

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