296 F. 667 | 4th Cir. | 1924
The writ of error was dismissed as to the defendant Conti at his own request.
The demurrer to the indictment was properly overruled. Redundant as was the statement of the charge, it could not be misunderstood. Its meaning was this: On or about August 22, 1922, S. J. Maxey, a federal prohibition agent, and another person unknown, on searching the place of business of the defendants^ the Black Cat Café, 1191/s Eenchurch street, Norfolk, Va., found a number of forged bottled-in-bond government revenue stamps, which the defendants intended to use for the purpose of defrauding the United States. On the night of August 23, 1922, the defendants met T. J. Maxey and another agent qnd offered to pay them $150, or any amount they might name, to give them protection, to refrain from reporting them for bribery and attempt to defraud the United States, and to return the-forged stamps. In pursuance of the offer, Conti, on behalf of himself and de Marco, paid Maxey, federal prohibition agent, $150 as a bribe.
The indictment was laid under section 39 of Penal Code (Copip. St. § 10203) which makes it a crime to—
“promise, offer, or give, or cause * * * to be promised, offered, 'or given, any money or other thing of value * * * to any person acting for or on behalf of the United States in any official function, under or by authority of any department or office * * * with intent to influence his decision or action on any question, matter, cause, or proceeding which may at any time be-pending * * * -or to induce him to do or omit to do any act in violation of his lawful duty.”
The objections to the indictment seem to us technical in the extreme.. Everybody knows that the term “federal prohibition officer” is used to designate an officer of the United States charged with the enforcement of the national prohibition statute. Everybody knows too, that it is the official duty of such officer to report the finding of forged revenue stamps. The.charge that Conti paid the money on behalf of himself and de Marco, was a charge that de Marco participated in the payment. The bill of particulars demanded by the defendants removed the only uncertainty in the indictment by stating that the other agent whom the defendants attempted to bribe was Eeimster, a federal narcotic agent. It-contains no charge'not found in the indictment.
The defendant complains that the jury were instructed that they could convict on proof of mere possession of forged stamps, without proof of fraudulent intent. This was the language of the judge:
“It seems to be admitted, and tbe law is that no person may have in his possession or use or counterfeit or forge any government revenue stamp, the purpose of which is to affect the Revenue of the United States. These stamp® are used, as a witness told you, to enable people who legally have whisky in bonded warehouses to withdraw it for the purpose of selling it to people who are licensed to buy it, and, when it is bought in bottles rather than in bulk, it is required by the statute to mark them with these stamps. Of course, we all know enough of the prohibition situation, to know that one purpose of the use of these stamps is not so much to defraud the government as to defraud the purchaser of the whisky. A man who is disposed to buy whisky and sees one of these government stamps on it is more easily deceived into the belief that it is legitimate goods, to the extent of its purity at any rate. But the use of these stamps and the possession of these stamps is prohibited by law.”
It seems evident that the use and possession referred to in the Iasi sentence was the use and possession for the fraudulent purposes which had just been set out for the charge. The jury could not have received the impression that if the defendants innocently had in their possession forged stamps they could be convicted.
Besides, the evidence proved beyond all controversy that if the forged stamps were in possession of the defendants it was a possession with fraudulent intent. The unexplained concealment by placing the stamps behind, a picture on the wall was conclusive evidence of intent to use them fraudulently.
On the subject of entrapment, the court said to the jury:
“I do not think a question of entrapment really enters into a situation of that kind, but if you gentlemen are of contrary opinion and believe this was a scheme on the part of Maxey to entrap this man, who was an innocent man, to make him offer a bribe for the purpose of arresting him, that would be an immoral thing which the courts,would not sustain.”
This was certainly correct as far as it went, and there was no request for anything additional on the subject. But, aside from that, the testimony of Conti about a request of the officer for a gift of his diamond pin, relied on by the defendants, furnished no basis for the defense of entrapment.
Affirmed.
