188 F. Supp. 736 | M.D. Penn. | 1960
Defendant found guilty of offering a bribe, 18 U.S.C.A. § 201,
The indictment, pro tanto substantially in the words of the statute,
Citing Boykin v. United States, 5 Cir., 1926, 11 F.2d 484, and United States v. Smith, 3 Cir., 1956, 232 F.2d 570, defendant asserts
Rule 7(c), F.R.Crim.P., 18 U.S.C.A., provides: “The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged * * *. It need not contain * * * any other matter not necessary to such statement * * * .” See United States v. Debrow, 1953, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92; United States v. Amorosa, 3 Cir., 1948, 167 F.2d 596, 598 — only the basic facts, without particularity as to details. Butzman v. United States, 6 Cir., 1953, 205 F.2d 343, 348. Essential facts must of course be stated. United States v. Manuszak, supra, 234 F.2d at page 423; United States v. Smith, supra, 232 F.2d at page 572.
The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises defendant of what he must be prepared to meet and, in case other proceedings are taken
As to inspectors exercising official functions, see Sears v. United States, 1 Cir., 1920, 264 F. 257, 261-262; Whitney v. United States, 10 Cir., 1938, 99 F.2d 327, 329-330; United States v. Ingham, D.C.E.D.Pa.1899, 97 F. 935, 936. Every action within the range of official duty comes within the purview of § 201. See United States v. Birdsall, 1914, 233 U.S. 223, 230, 34 S.Ct. 512, 58 L.Ed. 930; United States v. Troop, 7 Cir., 1956, 235 F.2d 123, 124. As to the requisite intent, see 11 C.J.S. Bribery § 2c(2); Buckley v. United States, 6 Cir., 1929, 33 F.2d 713, 718; Henderson v. United States, supra, 24 F.2d at page 812; United States v. Labovitz, 3 Cir., 1958, 251 F.2d 393, 394; Krogmann v. United States, 6 Cir., 1955, 225 F.2d 220, 225; United States v. Marcus, supra, 166 F.2d at page 501. As to knowledge, see United States v. Combs, D.C.E.D.Ky.1947, 73 F.Supp. 813, discussing United States v. Balint, 1922, 258 U.S. 250, 251, 42 S.Ct. 301, 66 L.Ed. 604, and United States v. Behrman, 1922, 258 U.S. 280, 288, 42 S.Ct. 303, 66 L.Ed. 619; then see 11 C.J.S. Bribery, supra, Id., and § 9f; 8 Am.Jur. Bribery, § 26; Hone Wu v. United States, 7 Cir., 1932, 60 F.2d 189, 190, but see Chiaravalloti v. United States, supra, 60 F.2d at page 193; Bogileno v. United States, 10 Cir., 1930, 38 F.2d 584, 586; Cohen v. United States, 6 Cir., 1923, 294 F. 488, 490; Bradshaw v. United States, 9 Cir., 1926, 15 F.2d 970, 972; Henderson v. United States, supra, Id.; Anderson v. United States, 6 Cir., 1954, 215 F.2d 84, 88-89; United States v. Amorosa, supra, 167 F. 2d at page 598.
As to alleging duties and acts, see Ap-plebaum v. United States, 5 Cir., 1948, 164 F.2d 974, 975; Schneider v. United States, supra, 192 F.2d at pages 500-501, Biggs J.; Butzman v. United States, supra, Id.; Henderson v. United States, supra, 24 F.2d at page 812; cf. United States v. Palmiotti, 2 Cir., 1958, 254 F.2d 491, 495.
The gravamen of the offense is the offering of a bribe to a person acting for an agency of the United States for the purpose of influencing official conduct. Obviously no one would offer a bribe unless he intended to gain some advantage thereby. The statute is violated when an offer to bribe is made regardless of the occasion therefor provided it is done with the requisite intent and the offeree is a person of the sort described in the statute. Kemler v. United States, 1 Cir., 1943, 133 F.2d 235, 238; United States v. Troop, supra, 235 F.2d at page 125; United States v. Labovitz, and Krogmann v. United States, all supra, Id.
The situation in United States v. Smith, supra, 232 F.2d 570, where two different statutes and extraneous elements were involved is not apposite. Boykin v. United States, supra, 11 F.2d 484, was decided prior to Rule 7(e). See Pallett v. United States, 5 Cir., 1956, 228 F.2d 671, 672, and cf. Shields v. United States, 1928, 58 App.D.C. 215, 26 F.2d 993, 996; Capone v. United States, 7 Cir., 1932, 56 F.2d 927, 930, 932, 933; Schneider v. United States, supra, Id.
Applying the foregoing principles, we hold that the indictment was sufficient. Defendant’s motion in arrest of judgment and for judgment of acquittal on that score will be denied.
Viewing the evidence including all inferences reasonably deducible therefrom in favor of the government, United States v. Laurelli, D.C.M.D.Pa.1960, 187 F.Supp. 30, there was substantial competent evidence that in the construction of certain buildings for the United States Army Corps of Engineers at the Tobyhanna Signal Depot in this district, John B. Kemmel Inc., a Pennsylvania corporation of which defendant was president and principal stockholder, was the paint
When pursuant to defendant’s request additional samples were about to be taken defendant offered Walter P. Golden, Assistant Chief Inspector, $250 for himself and John J. O’Donnell, the Chief Inspector, if instead of taking samples according to the prescribed procedure they would permit defendant to substitute three samples he had with him in his car and in turn substitute them for samples previously taken. When defendant was informed that his conduct constituted an attempt to bribe a government agent he replied, “Well, you fellows didn’t see any money”.
Without pursuing the evidence further, the foregoing is sufficient to establish a violation of § 201. Defendant’s motion for judgment of acquittal on that ground will be denied.
The statute reads: “Whoever promises, offers, or gives * * * In our charge we carefully explained the essentials required to be proved. At common law, United States v. Worrall, Cir.Ct.D.Pa., 1798, 28 Fed.Cas. pp. 774, 776, No. 16,766; Annotation, 52 A.L.R. 816, 820, and under § 201; United States v. Michelson, 2 Cir., 1948, 165 F.2d 732, 733, affirmed 1948, 335 U.S. 469, 470-471, 69 S.Ct. 213, 93 L.Ed. 168; Luns-ford v. United States, 10 Cir., 1952, 200 F.2d 237, 238, an offer to bribe is a separate offense. According to the weight of authority, an actual tender of the bribe is not necessary to perfect the offense, “any expression of ability to produce a bribe being sufficient”. 8 Am.Jur. Bribery, § 10. “The offense * * * is complete without the tender or production of the money offered * * * .” 11 C.J.S. Bribery § 2c(l), p. 844; and see 3 Wharton’s Criminal Law and Procedure (Anderson’s 1957 Ed.), § 1383, p. 776. The offer itself constitutes the overt act. 52 A.L.R. supra at page 821; 11 C.J.S. Bribery § 6, p. 858, note 62. The language of United States v. Troop, supra, 235 F.2d at page 124, “We hold the offense of attempted bribery of a Federal Officer is complete upon the tender of the bribe to such Officer with intent to influence his decisions and acts in an official capacity”, placed in its proper context, is not contra. There the money was actually turned over to the agent who accepted it for the purpose of prosecution. Defendant contended that the invalidity of the search warrant precluded the possibility of there being an offer or giving of a bribe.
If an actual tender were necessary, the actual exhibition of the bribe would never be made until after the official had been seduced and signified his willingness to be corrupted. 8 Am.Jur. supra, Id.
Although an actual tender of the bribe is not necessary to perfect the offense, mere acts of preparation will not suffice. 8 Am.Jur. Bribery, § 10 Supp.; 3 Wharton op. cit. supra, Id.; see and cf. Com. v. Willard, 1955, 179 Pa.Super. 368, 372-375, 116 A.2d 751; State v. Lowrie, 1952, 237 Minn. 240, 54 N.W.2d 265, 266-267, where contact was lacking.
Defendant contended in error that an offer per se does not amount to an overt act; that to sustain a conviction the government must prove an actual physical tender of the money; that the proof showed only that he was negotiating, or at most promised money. The government argued there was no basis in the evidence to support such contentions. The charge was making an offer. The facts were for the jury. If defendant did what the evidence indicated, his conduct amounted, as a matter of law, to an offer. The statute includes “promises” as one of the possible methods of committing bribery. As to the effect of such inclusion, see United States v. Hood, 1952, 343 U.S. 148, at page 151, 72 S.Ct. 568, 96 L.Ed. 846. Conceivably a case where a promise alone is involved may arise. If the government’s evidence is believed, this is not such a case.
Although the defendant under the circumstances was not entitled thereto, in our charge, without indulging in semantics,
Defendant’s motion for a new trial will be denied.
. “Whoever promises, offers, or gives any money * * * to any officer or employee or person acting for or on behalf of the United States, or any department or agency thereof, in any official function, under or hy authority of any such department or agency * * * with intent to influence his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, or loith intent to influence him to commit or aid in committing, or to
. At a time and place, named within the district, defendant “did offer money, to wit, $250.00, to Walter P. Golden, Assistant Chief Inspector, under the Resident Engineer, Corps of United States Engineers, for himself and John J. O’Donnell, Chief Inspector under the Resident Engineer, Corps of United States Engineers, both being employees acting for an agency of the United States, in an official function, by authority of said agency, with intent to induce Walter P. Golden and John J. O’Donnell to do acts in violation of their lawful duty.”
. Henderson v. United States, 4 Cir., 1928, 24 F. 2d 811, 812; Chiaravalloti v. United States, 7 Cir., 1932, 60 F.2d 192, 193; 8 Am.Jur. Bribery § 20; United States v. Raff, D.C.M.D.Pa.1958, 161 F.Supp. 276, 279-280; Schneider v. United States, 9 Cir., 1951, 192 F.2d 498, 500; and see Wilson v. United States, 4 Cir., 1946, 230 F.2d 521, 524; United States v. Marcus, 3 Cir., 1948, 166 F.2d 497, 501.
. First raised after defendant rested without presenting any evidence on his own behalf.
As to the scope of review — the indictment and plea, not the evidence — see United States v. Bradford, 2 Cir., 1952, 194 F.2d 197, 201; the arraignment, cf. Johnson v. United States, 1912, 225 U.S. 405, 409-411, 32 S.Ct. 748, 56 L.Ed. 1142; and see Com. v. Weldon, 1946, 159 Pa. Super. 447, 449, 48 A.2d 98, as to undisputed facts in determining adequacy of notice of the crime charged. As to vagueness, see Barnard v. United States, 9 Cir., 1926, 16 F.2d 451, 453; defects of form, United States v. Williams, 5 Cir., 1953, 203 F.2d 572, 573; Hagner v. United States, 1932, 285 U.S. 427, 429-431, 52 S.Ct. 417, 76 L.Ed. 861; Finn v. United States, 4 Cir., 1958, 256 F. 2d 304, 307; United States v. Butch, D.C. E.D.Pa.1958, 164 F.Supp. 678, 681; cf. United States v. Manuszak, 3 Cir., 1956, 234 F.2d 421, 423; bill of particulars, Rule 7(f) Id.; Rosen v. United States, 1896, 161 U.S. 29, 35, 16 S.Ct. 434, 40 L.Ed. 606, but see Pipkin v. United States, 5 Cir., 1957, 243 F.2d 491, 494.
. See and cf. United States v. Russell, 1921, 255 U.S. 138, 143, 41 S.Ct. 260, 65 L.Ed. 553; Anderson v. United States, supra, 215 F.2d at page 88.
. “ * * * The statute refers to a specific act * * * the giving of money to a Government official. Although considerable planning and preparation may precede the actual transfer of the money * * * the essence of the offense is the actual transfer of the money at the time and place where it occurs, accompanied by the unlawful intent. Prepara
. See United States v. Pagano, 2 Cir., 1955, 224 F.2d 682, 684; Boyce Motor Lines v. United States, 1952, 342 U.S. 337, at pages 340-341, 72 S.Ct. 329, 331, 96 L.Ed. 367, “In Sproles v. Binford, 1932, 286 U.S. 374, 52 S.Ct. 581, 587, 76 L.Ed. 1167, * * * Chief Justice Hughes * * * said: * * * * The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding. * * * The use of common experience as a glossary is necessary to meet the practical demands of legislation.’ ”
As to possible confusion by additional instruction, see and cf. Holland v. United States, 1954, 348 U.S. 121, at pages 139— 140, 75 S.Ct. 127, 99 L.Ed. 150.