Percy S. Marcus was indicted for the violation of Title 18 U.S.C.A. § 207, and was charged with the acceptance of a bribe of $600 while acting as an officer of the United States for the Office of Price Administration. The case was tried in the United States District Court for New Jersey to a judge and jury. 1 The accused was found guilty, was sentenced, and he appeals.
Appellant was employed as an Acting Supervising Investigator in the Office of Price Administration, and under the direction of a superior accompanied two others to ascertain whether automobile dealers were complying with regulations requiring the posting of ceiling prices upon automobiles offered for sale.
There is evidence to the effect that on February 27, 1946, appellant noticed sev *499 eral cars on the front of the Mann Motor Sales lot in Camden, marked “sold.” Marcus asked Harry Mann, the proprietor, if he could buy one of them, and was informed that they belonged to a southern dealer, but that if he would pay two or three hunderd dollars over ceiling registration, Mann could contact the dealer and let him know about it. Marcus testified, that thereupon he requested that the cars marked “sold” be moved to the back of the lot. Mann denied this, and testified that Marcus displayed his badge and charged that some of the cars were not posted and ordered Mann to appear in Newark on the following Tuesday.
Mr. Mayhew, sales manager for Mann Motor Sales, secured hotel accommodations at White Way Inn for appellant, and the two drove to the Inn, where they were joined by another couple at dinner. Appellant payed for the dinner, and went to his room. A little later Mayhew went to appellant’s room to pay his share of the check and to ascertain something as to appellant’s status. Although it is denied by appellant, Mayhew testified that appellant talked about an injunction that had been previously obtained against Mann Motor Sales for a prior violation. Whereupon Mayhew asked if he had to go to Newark, and the answer was, “I guess you do.” Mayhew then asked, “What do you want, $50.00?” to which appellant answered, “It’s only peanuts.” Mayhew then asked, “What do you want ?” The answer was, “$500.00.” Mayhew inquired as to where he, Mayhew, came in, and appellant said to make it $600, and he could have $100 of it. Appellant suggested that Mayhew should call Mann down right away, and Mayhew replied that he couldn’t reach him. Mayhew then left for Camden and related the happenings to Mann.
The testimony reveals two versions of what took place the next day. The government’s version, as told by Mann and Mayhew, is as follows: Mayhew went to Mann’s place of business and verified appellant’s position with the OPA. Upon receiving a telephone call from appellant as to how Mayhew had made out (listened to by Mann on a telephone extension), May-hew, at appellant’s request, made arrangements for Mann to meet appellant in an automobile at a given place on the road alone. When Mann met him, appellant said, “I want $600.00, or I can close you up because you got an injunction.” Mann says he was “scared” and gave it to him. A few minutes later Mayhew saw appellant, and asked, “What happened, Mr. Mann said you didn’t want anything * * * He have to pay nothing.” Appellant answer, “I got fixed up all right,” and he thereupon put $100 in May-hew’s pocket. Later, appellant telephoned Mann, and speaking in Jewish, said: ’“You talk too much,” and Mann answered, “I don’t talk nothing.” Later, appellant and Mann, at the former’s suggestion, met, and Marcus returned the $600.
Appellant, in testifying to his activities of that day, claims that he did not call Mann Motors, nor did he see anyone connected with it. Rather, he says, he drove to Camden and stopped at Merlin Motors, visited for awhile and breakfasted with the manager, Mr. Maxwell, all of which occurred at the time when he was allegedly with Mann. Appellant says he then returned to Newark with two other investigators, and denied that he had any transaction or conversation with Mann concerning payment of money. Mr. Maxwell, of Merlin Motors, corroborated appellant’s testimony as to their meeting, as also did Chester Earle, Merlin sales manager. Both of these men had known appellant for several years.
The Indictment.
The first question on appeal is whether the trial court erred in ruling that the indictment sufficiently charged a violation of Title 18, U.S.C.A. § 207.
Before proof was taken, a motion to dismiss the indictment was made, and the motion was received at the close of the government’s case, and at the close of the entire case, and each time it was denied. A motion in arrest of judgment was made and denied upon the same grounds.
*500 We quote the material part of the indictment in the margin. 2 '
It is argued that the indictment imports that Mann parted with the money unwillingly and involuntarily, which, in effect, charges the offense of extortion under 18 U.S.C.A. § 171 rather than bribery under 18 U.S.C.A. § 207. The section relating to “extortion” does not define the crime, but merely indicates the class of persons to which it applies and provides the penalty for its commission. It is profitless to analyze the elements of the'crime of extortion, since the indictment specifically sets out that the charge is that of bribery as defined by the United States code and uses the words of the specified code section in its charging part. The code section provides that any person within the section who
asks, accepts and receives
money is guilty of bribery under the section, and the indictment uses the same terms in its charge. We hold that the indictment properly charges the crime of bribery so far as the point under treatment is considered. We quote the material part of the section in the margin.
3
See United States v. Sutter, 7 Cir.,
Appellant also made a motion in the district court to dismiss the indictment for the reason that it fails to sufficiently allege that he was a “person acting for or on behalf of the United States, in any official capacity” as required by the statute, citing Kellerman v. United States, 3 Cir.,
In the instant case it is alleged in the indictment “That during the months of February and March in the year 1946, one Percy S. Marcus was an officer of the United States, to wit, District Enforcement Supervisor, Automotive Unit, Rent and Durable Goods Enforcement Section of the Office of Price Administration, duly appointed and acting under the authority of the Office of Price Administration of the United States and the laws of the United States relating to the appointment, compensation and duties of officers and employees of the Office of Price Administration and assigned to duty in the State of New Jersey in the examination and investigation of persons, firms and corporations engaged in or operating businesses subject and amenable to the regulations promulgated by the Office of Price Administration with relation to the sale and purchase of new and used automobiles.” There is then set out in detail the duties the accused was pursuing when, according to the allegations, he accepted a bribe for influencing him in such duty.
The appellant’s office and duties, as alleged in the indictment, brings him within the scope of the statute, to-wit: “an officer of the United States,
or
a person acting for or on behalf of the United States, in any official capacity, under or by virtue of the authority of any department or office of the Government thereof * * (Emphasis ours, the statute is in the disjunctive.) The Kellerman case, supra, is not authority for the position taken by appellant. The specific words of the statute need not be used in the indictment. In Hagner v. United States,
It is argued that an “officer of the United States” within the statute is one who is appointed by the President et cetera, or by the courts, or by the head of some executive department of the government, and the appellant cites cases. It is also stated that the head of a department means a member of the President’s cabinet and not a mere bureau head. This, however, is a question of proof as to whether he actually was an officer or whether he was performing an official function within the meaning of the statute.
The next contention is that the indictment fails to state that appellant accepted the bribe with intent to have his official action influenced thereby. Where an indictment alleges facts which set forth the elements of the offense though it is not done in the words of the statute, such indictment is sufficient in law. The statute requires that the asking, accepting or receiving of money, etc., be done “with intent to have 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, influenced thereby.” The alleged facts in the questioned indictment are ample from which the inference of intent may flow. See Pettibone v. United States,
Proof of the Indictment.
The next issue raised on appeal is that the court erred in ruling that the government had sufficiently established violation of Title 18, U.S.C.A. § 207, and in submit-ing that issue to the jury. The question arises whether the proof presented established the offense as charged.
*502 The jury was told by the court that the indictment charged a violation of the statute in question, and that it was its duty to determine whether the government had established the facts charged, beyond a reasonable doubt.
The appellant argues that extortion and not bribery was proven, since the testimony, such as it was, only showed that the defendant, by use of his official position, compelled Mann to unwillingly part with his money; to prove bribery, it must be established that Mann voluntarily parted with his money.
The contention is .based upon the testimony of Mann, that appellant said to Mann, “I want $600.00, or I can close you up or you get a — because you got an injunction. * * * He told me if I don’t give him the $600.00, he would close me up because I had an injunction. I got scared and gave it to him.”
It is well to note that there is credible testimony that Mann had the $600.00 when he met appellant, which accorded with the testimony that appellant and Mayhew had conversed in the hotel as follows: “Q. What was said? A. About being an injunction against it and how hard it would be if anything should happen, have to go to Newark and all that kind of stuff. I [Mayhew] asked him [appellant], ‘What do you want — $50.00?’ He said that was only peanuts. I said, ‘What do you want?’ He said $500.00, so I said, ‘Where do I come in?’ He said, ‘Make it $600.00 and I will give you $100.00.’" Here is direct testimony that appellant asked, for the money, and the asking was in effect repeated if Mann’s testimony was correct about what occurred when appellant and Mann met in the automobile. There, according to the testimony, appellant received the money.
The evidence is well believable that Mann found himself in circumstances from which he would pay well to be exculpated. Appellant was well advised of the situation, and, if Mayhew and Mann are to be credited, Mann was quite willing to go forward with the deal concocted by appellant and Mayhew. The gain to Mann was to be helped out of his predicament, and there is room enough for the jury to judge that the money was not paid
unwillingly
or
involuntarily.
Mann was willing to buy what he very greatly desired. Appellant, it seems, could deliver. In the circumstances both were willing tradesmen in the despicable bargain according to the testimony of Mann and Mayhew. We find that the conviction under the bribery statute was lawful. See United States v. Harned, D.C.,
It is urged by appellant that it was not sufficiently alleged or proved that he was an officer of the United States. The point has already been discussed, that the allega *503 tion in the indictment was insufficient, and has been decided. The question now is whether it was proven.
It is contended that “an officer of the United States,” within the meaning of the statute, is one appointed by the President by and with consent of the Senate, or by the President alone, the courts of law or the head of some executive department of the government; that the head of a department means one of the members of the President’s cabinets and does not include .a bureau head. Further, it is argued that there likewise is no proof that he was acting for or on behalf of the United States in an official capacity as required by the statute.
The ultimate facts on the narrow issue .are alleged in the indictment, and there is ample evidence in the record in support. The testimony elicited from members of the OPA establishes that appellant was an officer appointed by the OPA department head, and describes his duties as an acting •supervising investigator.
The next step in proof is whether there •was sufficient evidence in support of the •allegations that appellant, as an officer of the OPA, was an officer of the United States within the meaning of the statute.
We agree to the proposition that an •officer of the United States is one appointed by the Président by and with advice and consent of the Senate, or by the President alone, the courts of law or the head of some executive department of the government. See Art. II, section 2, of the ■Constitution. The defendant was not appointed by the President, hence the immediate inquiry is whether the party appointing him was the head of a department.
In United States v. Germaine,
Appellant finally argues for a reversal of the judgment because the court refused to give a proffered instruction on the subject of alibi. In the statement of fact we referred to the testimony of two persons to the effect that appellant was elsewhere than on the highway where and when testimony in the case connects him and Mann with the delivery of $600 by the latter to the former.
By the weight of authority it is held that the instructions on the presumption of innocence of the accused, and of the necessity of fastening every necessary element of the crime charged upon the accused beyond a reasonable doubt, are *504 not enough in cases involving the necessary presence of the accused at a particular time and place, when the accused produces testimony that he was elsewhere at the time. If the accused requests an instruction as to the burden of proof on his1 alibi, an instruction on the subject must be given so as to acquaint the jury with the law that the government’s burden of proof covers the defense of alibi, as well as all other phases of the case. Proof beyond a reasonable doubt as to the alibi never shifts to the accused who offers it, and if the jury’s consideration of the alibi testimony leaves in the jury’s mind a reasonable doubt as to the presence of the accused, then the government has not proved the guilt of the accused beyond a reasonable doubt. See cases cited at the end of the next succeeding paragraph.
The appellee claims otherwise, hut cites no authorities. He claims, however, that the proffered instruction unduly states details of the case, and for that reason the court was right in refusing to give it. We think it clearly states the situation, but even if it did not, since an instruction on the issue was requested, it was the court’s duty to itself compose and give a proper instruction on the subject. Falgout v. United States, 5 Cir.,
See Goldsby v. United States, supra, 160 U.S. page 77, 16 S.Ct. page 219,
The judgment of conviction is reversed and the cause is remanded for retrial.
Notes
A11 places mentioned or referred to herein are within the State of New Jersey.
The charging part of the indictment reads as follows: “* * * Percy S. Marcus so being an officer and employee of the Office of Price Administration, did wilfully, corruptly, unlawfully and fe-loniously for the sake of gain and contrary to the duties of his office and under color thereof did ask, accept and receive from the said Harry Mann the sum of .$600 and did then and there charge that in his examination and investigation of the activities of the said Harry Mann, operating as Mann Motor Sales as aforesaid, he had discovered that the said Harry Mann had violated the regulations of the Office of Price Administration as aforesaid with relation to the sale and purchase of new and used automobiles, but if the said Harry Mann would pay to him, the said Percy S. Marcus, the sum of $600, that he, the said Percy S. Marcus would not report the said violations to the proper officers and officials of the Office of Price Administration, to the proper officers of the United States or to anyone else and that he would not recommend prosecution or any other action against the said Harry Mann with respect thereto.”
“Whoever, being an officer of the United States, or a person acting for or on behalf of the United States, in any official capacity, under or by virtue of the authority of any department or office of the Government thereof; or whoever, being an officer or person acting for or on behalf of either House of Congress, or of any committee of either House, or of both Houses thereof, shall ask, accept, or receive any money, or any contract, promise, undertaking, obligation, gratuity, or security for the payment of money, or for the delivery or conveyance of anything of value, with intent to have 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, influenced thereby, shafl * * * ” suffer the penalty provided. 18 U.S.C.A. § 207.
In Daniels v. United States, 9 Cir.,
In United States v. Panchella, D.C.E.D.Pa.,