United States v. Levine, 343.

• Citation: 129 F.2d 745
• Decision Date: 27 July 1942
• Docket Number: No. 343.,343.
• Parties: UNITED STATES v. LEVINE.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

129 F.2d 745 (1942)

UNITED STATES v. LEVINE.

No. 343.

Circuit Court of Appeals, Second Circuit.

July 27, 1942.

Milton H. Friedman, of New York City, for appellant.

Mathias F. Correa, U. S. Atty., of New York City (John C. Hilly, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before SWAN, CHASE, and FRANK, Circuit Judges.

CHASE, Circuit Judge.

The defendant was an employee of the Market Administrator for the New York Metropolitan Milk Marketing Area from September 3, 1940, to July 21, 1941. The Market Administrator was selected by the Secretary of Agriculture pursuant to Order No. 27 creating the New York Metropolitan Area issued by the Secretary by virtue of the powers vested in him by Public Act No. 10, 73rd Congress, reenacted and amended to become 7 U.S.C.A. Chap. 26A, § 671 et seq. and § 601 et seq., commonly called the Agricultural Marketing Agreement Act of 1937. Defendant's duties consisted of receiving market surplus claims from milk handlers and checking them for accuracy as to the number of pounds diverted, the amount shipped, the mileage and the routes followed. These individual claims for payment were not rechecked by anyone else; only the totals were reviewed. For this work and for the making of an economic analysis of market service payments the defendant received an annual salary of $2,000.

In connection with these duties the defendant had such facts at his disposal as led him to believe that he could effect substantial savings to Sheffield Farms Company, Inc., one of the milk producers in the New York area. At first, on July 2, 1941, after conferring with Wellwood, Sheffield's production manager, about possible savings, the defendant applied to him for a position with the company. Later, on July 14th, pursuant to a further conference with Wellwood and Grean, Sheffield's legal adviser, defendant concluded that he could be of more help if he retained his position with the Market Administrator where he would have continued access to the records of other milk handlers and "would be able to use his influence in standing off investigations or some reaudits" of Sheffield's accounts. He asked as payment for these services a $3,000 initial payment and $5,200 a year payable weekly. On July 21st a final conference was held to settle details at which he produced papers from the files of the Administrator and at which the $3,000 payment was placed on a desk. Defendant picked it up and was thereupon apprehended by Federal Bureau of Investigation officers who had been waiting in the next room.

At the trial which was held before a jury a verdict of guilty was returned under an indictment charging the defendant with accepting and receiving a bribe while acting for and in behalf of the United States in an official capacity with the intent to have his decision and action in matters brought before him influenced thereby. On December 10, 1941 the defendant was sentenced to two years in a federal penitentiary.

The appeal presents three questions, (1) whether defendant was acting for or in behalf of the United States in an official capacity, (2) whether the bribe was accepted to influence his decision in a matter to come before him in his official capacity and (3) whether the New York Market Administrator, and hence defendant, was an agency of the United States.

This last point is based upon the technicality that proof was not submitted at the trial that the Market Administrator had ever filed the bond required to qualify him for the position. The Government submitted in evidence a certified copy of the appointment by the Secretary of Agriculture of Nikitas John Cladakis as Market Administrator for the New York area effective May 28, 1940. Since that appointment was not made conditional upon the filing of the bond, there can be no doubt but that Cladakis was in fact the lawfully appointed Market Administrator. In the absence of proof to the contrary we may assume that the appointment was entirely proper.

Section 117 of the Criminal Code, 18 U.S.C.A. § 207, under which defendant was indicted and convicted applies by its terms only to persons who are officers of the United States or persons acting for or in behalf of the United States or of Congress in an official capacity. While it is clear that this does not include every employee of the United States, Krichman v. United States, 256 U.S. 363, 41 S.Ct. 514, 65 L.Ed. 992, we think that defendant was such a person as falls within the scope of the section. Pursuant to §§ 8c(3) and (4) of the Agricultural Marketing Agreement Act of 1937, 7 U.S.C.A. § 608c(3) and (4), the Secretary of Agriculture was given authority to issue orders to effectuate the declared policy of the Act. In exercise of this authority the Secretary issued Order No. 27 effective September 1, 1938, creating a "New York metropolitan milk marketing area" and providing for a "market administrator" to carry out the further provisions of the order. Sec. 927.2...