32 F. Supp. 432 | D.N.J. | 1940
The following statute is involved herein: “Whoever * * * being the head of a department, or other officer or clerk in the employ of the United States, shall, directly or indirectly, receive, or agree to receive, any compensation whatever for any services rendered or to be rendered to any person either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter or thing in which the United States is a party or directly or indirectly interested, before any department, court-martial, bureau, officer, or any civil, military, or naval commission whatever, shall be fined not more than $10,000 and imprisoned .not more than two years; and ’ shall moreover, thereafter be incapable of holding any office of honor, trust, or profit under the Government of the United States.” 18 U.S.C.A. § 203.
Count two of the indictment charges that defendant in the same capacity “on or about the 15th day of February A. D. 1935” did “willfully, corruptly, unlawfully and feloniously * * * agree to receive from the said Ferdinando Barile the sum of three hundred dollars * * * as compensation for services rendered to the said Ferdinando Barile by the said Bayard I. Reisley before the said Veterans Administration, in relation to the aforesaid matter of awarding disability benefits to the said Ferdinando Barile”.
The defendant has demurred to the indictment upon the following grounds:
1. The indictment is defective in that it does not show by direct averment that the defendant is a “clerk in the employ of the United States” as required by the statute.
2. The indictment improperly alleges that the offense was committed “on or about the 15th day of February A. D. 1935”.
3. The indictment fails to .allege that defendant received or agreed to receive compensation-“directly” or “indirectly” as required by the statute.
4. The indictment is defective, because it contains a material erasure.
Objection number one arises out of the designation of defendant as a “clerk in the employ of the United States, to ' wit, contact representative”. Defendant' cites cases to the effect that a clerk as contemplated by the indictment is a person employed in an office to keep records or accounts. It is argued that a contact representative has entirely different duties; namely, as counsel expressed it in the vernacular — one who “gets around” to see the veterans. Hence, defendant argues the two positions are repugnant. In the case of United States v. Booth, C.C., 148 F. 112, involving the same statute before us, the defendant was designated as a “receiver” for a land office of the United States. , On demurrer it was held that such a person is an “officer” of the government, and, hence, falls within the purview of the statute. It is to be observed that in that case none of the magic words of the statute were used, i. e., “head of a department”, “other officer or clerk in the employ of the United States”. But it was held that a receiver is an officer of the government, and, accordingly, the demurrer was overruled. In the case at bar defendant is definitely named “clerk”. The only question is whether the parenthetical designation as “contact representative” nullifies the primary appellation. Confined as we are within the four corners of the indictment on demurrer we cannot hold that a contact representative is not a clerk, or an officer. At most the term is vague, but since the defendant is actually named a clerk, we think the objection untenable. Of course, if it should appear during the trial that the defendant’s duties are beyond the intendment of the statute, appropriate motions may at that time be made.
The obj ection to the allegation that the crime was committed “on or about the 15th day of February A. D. 1935” is prompted by the fact that the indictment was found on February 8, 1938, only seven days before the three-year statute of limitations would have expired, and that the phrase “on or about” is elastic enough to include a date beyond the three-year period. Hence, it is said time is of the essence, and accordingly, the allegation is too vague.
The case of Thompson v. United States, 3 Cir., 283 F. 895, 897, discusses the term “on or about” as follows: “The averment that the crime was committed ‘on or about the 11th day of March’ did not limit the commission of the offense or offenses to that precise day. It might have been committed on that very day or at a time near that day. United States v. McKinley et al. (C.C.) 127 F. 168. ‘The common understanding of the words “on or about,”
It is seen that the allegation of time is only a formal matter. In this case it is not a necessary ingredient of the crime, and it does not become so because of the substantial exhaustion of the period contained in the - statute of limitations. If defendant intends to plead the statute of limitations, he may do so. If he wants a particularization as to time, he may seek it. As a matter of law the allegation as to the date of the offense in the indictment is sufficient.
The third objection on demurrer is actuated by the following excerpt from the statute in question (18 U.S.C.A. § 203) : “Whoever * * * shall, directly, or indirectly, receive, or agree to receive, any compensation whatever for any services rendered or to be rendered to any person * * * shall be fined * *
Count one of the indictment charges that the defendant, Bayard I. Reisley, did “receive from * * * Ferdinando Barile, =:= * t]le sum 0f one hundred dollars * * as compensation for services rendered to Ferdinando Barile.”
Count two of the indictment charges that the defendant Bayard I. Reisley, did “agree to receive from * * * Ferdinando Ba-rile the sum of three hundred dollars * * as compensation for services rendered to =:= * * Ferdinando Barile”.
The defendant argues that the indictment should charge that he received money directly or indirectly, and that he agreed to receive money directly or indirectly, failure of which constitutes a deprivation of his constitutional right to be informed with certainty the nature of the charges against him. The absence of this acuteness of language can cause no confusion or surprise on the trial of defendant, and it cannot prejudice him. The means defendant utilized in receiving or agreeing to receive compensation are unimportant. The important point is whether or not he received or agreed to receive compensation, and that point is charged in the indictment. Defendant is apprised of his complicity regardless of whether he acted vicariously or for himself. The objection is without merit.
The final objection concerns an alleged alteration in the indictment. The defendant states that the copy of indictment furnished him contained the allegation that he received certain money “as compensation for services of to the said Ferdinando Barile by the said Bayard I. Reisley”. The original indictment in its present state contains the phrase “as compensation for services rendered to the said Ferdinando Barile by the said Bayard I. Reisley”. Defendant suggests that the
The demurrer is overruled.
