122 F. 738 | U.S. Circuit Court for the District of Massachusetts | 1903
(after stating the facts as above). The substance of the defendants’ contention on demurrer is that the words “for the purpose of defrauding the United States,” in section 5418, Rev. St. [U. S. Comp. St. 1901, p. 3666], and “to defraud the United States in any manner or for any purpose,” in section 5440 [page 3676], signify only direct pecuniary fraud by depriving the United States of money or property. Upon consideration of section 5418, and upon similar facts, this point was decided contrary to the defendants’ contention in United States v. Bunting (D. C.) 82 Fed. 883. The point was also considered, though not decided, by the Court of Appeals of the District of Columbia, in Palmer v. Calladay, June 18, 1901, reported in Washington Law Reporter, Vol. 29, No. 31, pages 532, 534, the opinion saying:
“It is claimed by appellee that to defraud the United States must mean to deprive it of money wrongfully, or of something of money value, and that a falsehood or trick by which its officers are deceived in the matter of selecting those who are to perform work for it could not be fraud against the United States. We do not agree to this proposition. The Civil Service Commission is a legal agency of the United States, created by act of Congress; and through it the President undertakes to find and appoint such persons as may best promote the efficiency of the civil service; and, to that end, regulations are prescribed, by means of which the age, health, character,’ knowledge, and ability for the branch of the service into which he seeks to enter, of each candidate, may be fully ascertained. If falsehoods are imposed upon the persons charged with the duty of ascertaining these qualifications, and made to take the place of facts, then the United States is defrauded—is deprived by*740 deceit of the knowledge justly due to its officers in the proper discharge of its business—and it is thereby liable to obtain a less efficient employee.”
The United States also cites the instructions tO' the jury in the case of United States v. Bates (tried in the Supreme Court of the District of Columbia March, 1902) to a similar effect. The contention of the United States is that the word “defraud” not only signifies pecuniary fraud, but has the broad meaning of depriving another of a right by deception or artifice.
The procuring by fraudulent representations of an appointment to office, or other action of the United States authorities, might involve no pecuniary loss to the United States, and yet involve a deprivation of right more serious than pecuniary loss. There is force in the argument that these penal statutes are to receive a strict construction, and that, upon the construction for which the United States contends, the statutes become of the greatest generality and breadth, including in their terms, perhaps, matters otherwise specifically provided for by statute, and for which penalties are provided different from those of the statutes in question. Moreover, if we assume that it was the intention of Congress that sections 5418 and 5440 [U. S. Comp. St. 1901, pp. 3666, 3676] should cover frauds other than direct pecuniary frauds, such as frauds in the procurement of appointments, and frauds in the procurement of action by the United States authorities, there still might remain a doubt whether it was the intention to include fraudulent deprivations of rights like those conferred upon the United States by the civil service laws.
While I do not regard the question as free from doubt, the government’s contention is supported by direct authority, and by an expression of the views of the judges of the Circuit Court of Appeals for the District of Columbia, and upon consideration of such arguments as have been presented, I am of the opinion that the demurrers should be overruled.
