United States v. Martin Blitstein

626 F.2d 774
Court of Appeals for the Tenth Circuit·Decided September 17, 1980·No. 78-2037·Published·Cited by 46 cases

Opinions

BARRETT, Circuit Judge.

Martin Blitstein (Blitstein), a member of the Florida state bar, appeals from a jury conviction and subsequent sentencing judgment following verdicts of guilty on Counts II and V of an original five count indictment. 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.A. § 875(d) (extortion).

[776]*776 The Indictment as to Counts II 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 II and V charged:

Count II: Wire Fraud:

Paragraph One (1) of this count realleged all of the allegations contained in Count I except those contained in paragraph 4, which, in capsule form, charged that Blitstein and Kim Pease (Pease) “devised and intended to devise a scheme and artifice to defraud and for obtaining money by false and fraudulent pretenses, representations and promises from Clifford DeYoung, well knowing at the time that the said pretenses, 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 Colorado authorities for DeYoung’s arrest, and if arrested, 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 adverse 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 Blitstein and Pease, “On or about September 18,1978, in the State and District of Colorado, for the purpose of executing the aforesaid scheme and artifice to defraud and attempting to do so, transmitted and caused to be transmitted certain sounds by means of wire communications in interstate commerce, namely a telephone 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 elsewhere, Martin Blitstein and Kim Pease, did travel and cause travel of Martin Blitstein and Kim Pease in interstate 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: extortion in violation of Title 18, United States Code, Section 875, and thereafter did perform and attempt to perform acts to promote, manage, carry on and facilitate the promotion, management and carrying on of said unlawful activity, all in violation of Title 18, United 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 inferences to be drawn therefrom, in the light most favorable 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 DeYoung, 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 television 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 [777]*777acknowledged ownership. He was permitted to proceed on his flight because security officials were unable to locate a field testing “kit” for the purpose of identifying the substance in the vial. A member of the security force, Detective Handley, informed DeYoung 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 thereafter delivered the vial to the Denver Police Department for analysis of its contents. Significantly, an “offense report” was not prepared until September 25, 1978, and at no time during the period from the airport incident of September 9, 1978, until September 25, 1978, was Detective Handley contacted by either Blitstein 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 good lawyer in Denver. Several 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 owned and possessed the miniscule amount of cocaine contained in the vial found in his hand baggage and knew it to be contraband. Blitstein informed DeYoung that “they” could come down real hard on him if they wanted to, and that he might be in a lot of trouble.

On September 14, 1978, during a telephone conversation, Blitstein advised DeYoung that the laboratory analysis of the contents of the vial had come back “positive”, i. e., cocaine, and that if DeYoung sent him $5,000.00 immediately as a legal retainer, Blitstein would represent him. DeYoung complied by wiring Blitstein $5,000.00 that same day. The record shows that it was not until the following day, however, that Blitstein in fact inquired of the Denver Police Department’s Vice and Narcotics squad about DeYoung’s case and the results of 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. Ill, 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.

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United States v. Martin Blitstein, 626 F.2d 774 (10th Cir. 1980).

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