United States v. Donald Paul Hutson

843 F.2d 1232, 1988 U.S. App. LEXIS 4440, 1988 WL 30110
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 8, 1988
Docket87-1201
StatusPublished
Cited by52 cases

This text of 843 F.2d 1232 (United States v. Donald Paul Hutson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Donald Paul Hutson, 843 F.2d 1232, 1988 U.S. App. LEXIS 4440, 1988 WL 30110 (9th Cir. 1988).

Opinion

ALDISERT, Senior Circuit Judge:

The major question for decision in this appeal from a jury conviction and sentence for violating the federal extortion law, 18 U.S.C. § 876, is the constitutionality of the statute. Appellant Donald Hutson argues that the statute is overbroad and vague. Because we reject these challenges, we will consider Hutson’s additional contention that the government’s reference during his cross-examination to statements made by him in a magistrate’s pre-trial inquiry regarding eligibility for appointed counsel violated his rights under the fifth and sixth amendments to the United States Constitution. We determine that there was no reversible error, and thus will affirm Hut-son’s conviction.

Jurisdiction was proper in the district court based on 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291, and the defendant timely filed his appeal under Rule 4(b), F.R.App.P.

I.

Donald Hutson, a married man, is the jilted lover of Wanda Howard. After Howard married an Air Force officer, Hutson decided to recoup some of the money he spent on Howard while they were together. He wrote Howard on January 9, 1987, demanding a $10,000 payment on her alleged “debt.” Hutson’s “collateral” for this debt was sexually explicit photographs of the couple: 73 polaroids, 94 35mm pictures plus negatives, and four 8mm movies. Hutson enclosed four photos with his letter to “refresh [her] memory,” and gave her 30 days to send him the $10,000 by certified check, failing which he would send copies of the “collateral” to her parents, relatives, and associates.

On January 22, 27, and 31, Hutson sent Howard letters reminding her of the due date for cash payment. By this time, Howard had contacted the United States Postal Inspectors. On February 8, at the direction of the inspectors, Howard sent a personal check for $10,000 from Omaha to San Francisco, where it was placed in Hut-son’s post office box. Hutson retrieved it on February 11 and was arrested as he left the building with the cheek in his wallet. A grand jury subsequently indicted Hutson for each of the four mailings under the federal extortion statute, 18 U.S.C. § 876.

Hutson’s defense at trial was that he simply did not mail the letters. In his opening statement, defense counsel portrayed Hutson as a man who made a good living, and therefore had no motive to extort $10,000. In addition, Hutson testified at trial that he worked as a product manager for the private label division of McKes-son Drug Company. The government subsequently cross-examined Hutson about statements he made to the magistrate regarding his personal finances that enabled him to obtain court-appointed counsel. The government attempted to show that Hut-son had a cash shortfall of approximately $550 per month, and thus had a motive to *1234 extort money from Howard. The jury convicted Hutson on all counts.

II.

Hutson argues that the federal extortion statute is overbroad and vague and thus violates his first amendment rights. We exercise de novo review over Hutson's constitutional arguments. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Title 18 U.S.C. § 876 provides:

Whoever, with intent to extort from any person any money or other thing of value, knowingly so deposits [in any post office or authorized depository for mail] or causes to be delivered, as aforesaid, any communication ... addressed to any other person and containing any threat to injure the property or reputation of the addressee or of another ... shall be fined not more than $500 or imprisoned not more than two years, or both.

In Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982), the Supreme Court set out the analytical framework for overbreadth and vagueness challenges to statutory enactments:

In a facial challenge to the over-breadth and vagueness of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the over-breadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermis-sibly vague in all of its applications. [An individual] who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.

See also Schwartzmiller v. Gardner, 752 F.2d 1341, 1346-47 (9th Cir.1984). Application of the overbreadth doctrine to preclude enforcement of a statute is “strong medicine” to be employed “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973).

A.

Hutson’s overbreadth claim is based on Wurtz v. Risley, 719 F.2d 1438 (9th Cir.1983), where this court struck down on overbreadth grounds a Montana statute prohibiting intimidation. We believe there are major differences between the Montana statute and the federal law at issue here. The state statute provided that “[a] person commits the offense of intimidation when, with the purpose to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority any of [certain] acts.” Id. at 1439. We struck down the state law because the statutory language applied so broadly to threats of minor infractions, threats not reasonably likely to induce a belief that they would be carried out, and threats unrelated to any induced or threatened action, “that a great deal of protected speech [was] brought within the statute.” Id. at 1442. By comparison, the federal statute at issue in the present case proscribes only threats “to injure the property or reputation of the addressee or of another.” 18 U.S.C. § 876.

The extortion statute favorably compares with the federal retaliation statute, 18 U.S. C. § 1513, which punishes those who threaten to do bodily harm to or destroy or damage the property of an informant as retaliation for his informing. The retaliation statute survived constitutional challenge in United States v. Velasquez, 772 F.2d 1348 (7th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Diaz-Colon
First Circuit, 2025
Blandino v. Federico
D. Nevada, 2022
State v. Bowen
Court of Appeals of North Carolina, 2022
United States v. James Hobgood
868 F.3d 744 (Eighth Circuit, 2017)
United States v. Barry Halajian
671 F. App'x 629 (Ninth Circuit, 2016)
State of Tennessee v. Walter Francis Fitzpatrick, III
Court of Criminal Appeals of Tennessee, 2015
Ex Parte James Richard "Rick" Perry
Court of Appeals of Texas, 2015
Raineri Construction, LLC v. Taylor
63 F. Supp. 3d 1017 (E.D. Missouri, 2014)
United States v. Coss
677 F.3d 278 (Sixth Circuit, 2012)
State v. Strong
272 P.3d 281 (Court of Appeals of Washington, 2012)
Smithfield Foods v. United Food and Commercial
585 F. Supp. 2d 789 (E.D. Virginia, 2008)
Wisconsin Right to Life, Inc. v. Federal Election Commission
466 F. Supp. 2d 195 (District of Columbia, 2006)
Saidi v. State
845 So. 2d 1022 (District Court of Appeal of Florida, 2003)
United States v. Ramon Velarde-Gomez
224 F.3d 1062 (Ninth Circuit, 2000)
United States v. Muoio
Tenth Circuit, 2000
People v. Hickman
988 P.2d 628 (Supreme Court of Colorado, 1999)
Sanchez v. State
995 S.W.2d 677 (Court of Criminal Appeals of Texas, 1999)
United States v. Jackson
986 F. Supp. 829 (S.D. New York, 1997)
Santos v. United States
940 F. Supp. 275 (D. Hawaii, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
843 F.2d 1232, 1988 U.S. App. LEXIS 4440, 1988 WL 30110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-donald-paul-hutson-ca9-1988.