McGregor v. United States

• Decision Date: 15 November 1904
• Docket Number: 542.
• Citation: 134 F. 187
• Parties: McGREGOR v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

134 F. 187

McGREGOR v. UNITED STATES.

No. 542.

United States Court of Appeals, Fourth Circuit.

November 15, 1904

A. E L. Leckie and William S. Bryan, Jr. (Charles A. Douglas, on the brief), for plaintiff in error.

Charles J. Bonaparte and John C. Rose (Morris A. Soper, on the brief), for defendant in error.

Before GOFF, Circuit Judge, and BRAWLEY and PURNELL, District Judges.

GOFF Circuit Judge.

The grand jury of the United States for the district of Maryland on the 25th day of June, 1903, found an indictment containing 14 counts against the plaintiff in error and one Columbus Ellsworth Upton. The first and second counts of the indictment were drawn under section 5440 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 3676). The first count charged the defendants with conspiring with one Charles E. Smith to defraud the United States. It was alleged in that count that said defendants were clerks in the Post-Office Department of the United States, in the office of the general superintendent of the free delivery system; that said Smith, with whom they so conspired, was a dealer in leather goods in Baltimore, and that he was, in furtherance of said conspiracy, to submit to the superintendent of the free delivery system a sample pouch, convenient for the use of letter carriers, and offer to furnish pouches like said sample in lots of 1,000 each, at 90 cents per pouch, the said defendants and Smith then and there knowing that such price was greatly in excess of the real value of said pouches, and greatly in excess of the price at which the government could procure the same elsewhere. And it was further set forth that the defendants were to use their influence and official positions to have such offer to Smith accepted, they to conceal from the First Assistant Postmaster General, who by law was the person authorized to accept such offer, the fact that such price was excessive, and then that said Smith, on the consummation of the sale and the receipt of the sum of 90 cents per pouch, was to pay said defendants 40 cents for each pouch so bought and paid for. In this count the three conspirators were charged, one or the other of them, with doing 28 overt acts in pursuance of the object of such conspiracy.

The second count, after stating the official positions of said defendants in character like as they were set forth in the first count, went on to charge that said Smith had theretofore furnished pouches to the government at the price of 90 cents each, which was greatly in excess of the real value of the pouches, and the price at which such pouches could have been purchased by the department, as defendants well knew, and the count then set forth the conspiracy to be that the defendants should use their official positions to secure additional orders for Smith, and that they should be paid by him 40 cents on each pouch for which additional orders should be given. This count designates 14 overt acts done by some of the three conspirators in furtherance of the object of the conspiracy, these acts being the same as 14 of the 28 set forth in the first count.

The counts of the indictment from 3 to 10, inclusive, were based upon section 1781 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 1212). The third count charged that the defendants, at Baltimore, on the 3d day of October, 1902, being officers and agents of the United States, took and received $2,000 from Charles E. Smith for procuring and aiding to procure for said Smith a contract from the Post-Office Department to furnish that department with 5,000 leather pouches at the price of 90 cents each. The fourth, fifth, and sixth counts, with the exception of the dates, were identical with the third. The seventh count charged that said Smith had offered the general superintendent of the free delivery system of the Post-Office Department of the United States government to furnish that department leather pouches for the use of letter carriers in lots of 1,000 at 90 cents each; that the defendants were officers and agents of the government, and that prior to the commission of the offense charged they had procured and aided to procure the First Assistant Postmaster General to accept said offer and contract with Smith for 5,000 of said pouches at the rate mentioned, and that on the 2d day of October 1902, at Baltimore, the said defendants being then and there officers and agents of the government, did take and receive $2,000 from Smith for procuring and aiding to procure for him said contract. Except as to the dates, the eighth, ninth, and tenth counts are identical with the seventh.

From 11 to 14, inclusive, the counts are drawn under section 1782 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 1213). Count 11 charges that before the commission of the alleged offense the said Smith had offered to furnish the general superintendent of the free delivery system of the Post-Office Department of the United States leather pouches for the use of letter carriers in lots of 1,000 at 90 cents each; that the defendants were officers and clerks in the employ of said government, and that they had rendered certain services to Smith, in that they had procured and aided to procure the said department, through the First Assistant Postmaster General, to accept the offer of said Smith for 5,000 of such pouches, and that afterwards, on the 22d of October, 1902, at Baltimore, the defendants, officers and clerks as aforesaid, unlawfully did receive certain compensation, to wit, the sum of $2,000, then and there paid by Smith for their services so rendered. Except as to the dates mentioned, the twelfth, thirteenth, and fourteenth counts are identical with the eleventh.

When called upon to plead to the indictment, each of the defendants moved to quash it on the ground that inadmissible testimony had been considered by the grand jury. The motion to quash was overruled by the court, after which the defendants demurred to the indictment, and to each and every count thereof, which demurrer was overruled. The defendants then pleaded not guilty to each count, and also filed a special plea to each count. To the first and second counts the special please set up that the Post-Office Department had purchased from one Maurice Runkel pouches similar to those mentioned in said counts for 90 cents each, and that, if the pouches mentioned in the indictment had not been purchased from Smith at 90 cents, pouches no better would have been purchased from Runkel at 90 cents, and that the United States suffered no pecuniary loss by the pouches having been purchased from Smith instead of from Runkle. The special pleas to the other counts each set forth that the defendant McGregor was a third-class clerk in the Post-Office Department of the United States, and that the was not an official of the United States in the sense in which that term is used in the statute of the United States under which such counts of the indictment had been drawn. The United States demurred to said special pleas, and to each of them, and the court sustained such demurrer. The defendants then moved to quash the indictment, alleging as a reason therefor its duplicity, and this motion the court also overruled. They then moved that the government be required to elect on which count of the indictment it would proceed to trial, and this motion was overruled. The sections of the Revised Statutes before mentioned, under which the indictment was drawn, read as follows:

'Sec. 5440. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years or to both fine and imprisonment, in the discretion of the court.'

'Sec. 1781. Every member of Congress or any officer or agent of the government who, directly or indirectly, takes, receives, or agrees to receive, any money, property, or other valuable consideration whatever, from any person for procuring, or aiding to procure, any contract, office, or place, from the government or any department thereof, or from any officer of the United States, for any person whatever, or for giving any such contract, office, or place to any person whomsoever, and every person who, directly or indirectly, offers or agrees to give, or gives, or bestows any money, property, or other valuable consideration whatever, for the procuring or aiding to procure any such contract, office or place, and every member of Congress who, directly or indirectly, takes, receives, or agrees to receive any money, property, or other valuable consideration whatever after his election as such member, for his attention to, services, action, vote, or decision on any question, matter, cause, or proceeding which may then be pending, or may by law or under the Constitution be brought before him in his official capacity, or in his place as such member of Congress, shall be deemed guilty of misdemeanor, and shall be imprisoned not more than two years and fined not more than ten thousand dollars. And any such contract or agreement may, at the option of the president, be declared absolutely null and void; and any member of Congress or officer convicted of a violation of this section, shall, moreover, be disqualified from holding any office of honor, profit, or trust under the government of the United States.

'Sec. 1782. No Senator, Representative, or Delegate, after his election and during his continuance in office, and no head of a department, or other officer or clerk in the

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