Daniels v. United States

• Citation: 17 F.2d 339
• Decision Date: 07 March 1927
• Docket Number: No. 4828.,4828.
• Parties: DANIELS et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

17 F.2d 339 (1927)

DANIELS et al. v. UNITED STATES.^*

No. 4828.

Circuit Court of Appeals, Ninth Circuit.

January 31, 1927.

Petitions for Rehearing Denied February 21, 1927.

March 7, 1927.

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Bert Schlesinger and S. C. Wright, both of San Francisco, Cal., for plaintiff in error Appell.

R. P. Henshall and Robert R. Moody, both of San Francisco, Cal. (John W. Preston and Robert Duncan, both of San Francisco, Cal., of counsel), for plaintiff in error Daniels.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT and RUDKIN, Circuit Judges, and JAMES, District Judge.

GILBERT, Circuit Judge (after stating the facts as above).

The defendant Daniels contends that under the terms of the indictment and the evidence adduced to sustain it Jordan was bribed only to induce him to do that which it was illegal for him to refuse to do, and that hence no offense against the United States was either charged or proved, that the validity of the permits theretofore issued to the corporation and to Levis and Dean was not open to question; that Jordan's investigation to ascertain whether the permittees were entitled to withdraw and receive the intoxicating liquors under the permits was an investigation in violation of law; that the holding up of the withdrawals was an illegal act; and that the acceptance of the money by Jordan was a crime committed by the government through its agent Jordan, and was extortion.

Extortion is the taking or obtaining of anything from another by means of illegal compulsion or oppressive exaction (United States v. Deaver D. C. 14 F. 595), and the term implies that the money paid was extorted on the part of the one who received it, and was paid unwillingly by the one who paid it (United States v. Harned D. C. 43 F. 376). "The distinction between bribery and extortion seems to be that the former offense consists in offering a present or receiving one, the latter in demanding a fee or present by color of office," State v. Pritchard, 107 N. C. 921, 12 S. E. 50. It is clear that neither the evidence nor the indictment in the case at bar presents a charge of extortion. The defendant Daniels took the initiative, and was the active proponent of all that was done. All that Jordan did was to assent ostensibly to Daniels' offer, and receive the money. In support of his contention Daniels cites Wilson v. Bowers (D. C.) 14 F.(2d) 976, a case in which suit was brought to enjoin the collector of internal revenue from refusing to honor an application for withdrawals of specially denatured alcohol for which the complainant had received a basic permit; the complaint alleging that, so long as the permit is in force and officially unrevoked, no power exists to suspend the rights acquired thereunder pending the determination of a revocation proceeding before the department. The court granted the injunction, and held that the words of the Prohibition Act, "during the pendency of such action such permit shall be temporarily revoked," referred only to the period of review in the United States District Court given the permittee whose permit has been revoked, and that the provision was a mandatory requirement of the statute preventing any action to keep alive the permit or to stay the revocation thereof while the suit in equity was pending. But it does not follow from the ruling in that case that the indictment here falls short of charging an offense against the United States, or that the evidence was insufficient to go to the jury. For the indictment alleged that Jordan, as prohibition agent, was charged with the duty of investigating and ascertaining whether or not persons to whom permits had been issued under provisions of the National Prohibition Act were complying with those provisions and the regulations relating thereto, or had violated, or were attempting to violate, any of the provisions of the act or the regulations or their permits. Jordan was thus charged with the performance of official duties.

Section 39 of the Criminal Code provides as follows: "Whoever shall promise, offer, or give * * * any money * * * to any officer of the United States, or to any person acting for or on behalf of the United States in any official function, under or by authority of any department or office of the government thereof * * * 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 to induce him to do or omit to do any act in violation of his lawful duty, shall be fined * * * and imprisoned. * * *" "To constitute it official action, it was not necessary that it should be prescribed by statute; it was sufficient that it was governed by a lawful requirement of the department under whose authority the officer was acting." United States v. Birdsall, 233 U. S. 223, 231, 34 S. Ct. 512, 58 L. Ed. 930. In Rembrandt v. United States (C. C. A.) 281 F. 122, it was held that a prohibition agent who had seized and had control of liquors in course of transportation from one state to another under what purported to be permits issued by the prohibition director of the state to which they were going, on the ground that the permits were irregular, had such relation to the liquors so seized that a bribe given him to induce him to approve the permits was within section 39 of the Criminal Code, although he was without power to decide officially as to the legality of the seizure. Said the court: "It was practically within his power, no matter if against the law, or against the regulations, to say to the custodian: `I have made up my mind that these permits are good enough, and you will therefore release the liquor and let the claimant take it away.' * * * This was decision and action sufficient, and this matter was sufficiently pending before him in his official capacity, to satisfy both the indictment and the statute."

In Sears v. United States (C. C. A.) 264 F. 257, it was held in the case of an indictment for bribery of inspectors placed by authority of the War Department in the plant of a contractor for the manufacture of army shoes to make preliminary inspection of material used, but without official power to reject or accept, that it does not prevent their duties from being official duties. Said the court: "Final decisions frequently, perhaps generally, rest in large part upon the honesty and efficiency of preliminary advice." There can be no question but that the court could take judicial notice of Regulation 60, enacted by the Commissioner of Internal Revenue, and other regulations promulgated for the enforcement of the National Prohibition Act. "The general system which was thereupon adopted by the Commissioner, and has now been in force and operation throughout the country for several years is universally known, and we think we should take judicial notice of it." Crinnian v. United States (C. C. A.) 1 F.(2d) 643. Of like import are Browne v. United States (C. C. A.) 290 F. 870, and Cohen v. United States (C. C. A.) 294 F. 488.

It is also to be borne in mind that the contention that Daniels' act was rendered innocent by the fact that Jordan was bribed only to do that which it was his duty to do is answered by the fact that the case in hand does not involve alone a charge of bribery to induce the prohibition agent to return certain permits to the files, and this notwithstanding that Jordan testified that the money was paid solely to induce him to put back certain papers on the files. It involves also a charge of bribery to suppress investigation of permits theretofore issued and of the disposition of liquor made thereunder. It was the menace of such an investigation that induced Daniels to enter into negotiations with Jordan, and the indictment charges the intent of Daniels corruptly to induce Jordan to cease and omit all further investigation respecting said matters, and to permit the whisky to be withdrawn from the warehouses without completing said investigation and without making report thereon. It is immaterial therefore whether or not Jordan had authority to suspend permits or withdraw them from the files. He undoubtedly had authority to investigate permits theretofore issued and the disposition of the liquors obtained thereunder, and, in whatever light the transaction may be viewed, it is clear that under the indictment there was evidence to prove that money was offered and paid to induce Jordan's decision on a matter which by law was "before him in his official capacity," and to induce him to omit to do an act "in violation of his lawful duty." It is generally held that to constitute the offense of attempted bribery it is immaterial whether the official action sought to be influenced be right or wrong. "Nor is a public officer to be held acquitted of the charge of bribery because that which he agreed to accept as a bribe for doing, was no more than he was legally bound to do." 9 C. J. 405; Glover v. State, 109 Ind. 391, 10 N. E. 282; People v. Mol, 137 Mich....