179 F.2d 905 (1st Cir. 1950), 4460, Malatkofski v. United States

Docket Nº:4460, 4461.
Citation:179 F.2d 905
Party Name:MALATKOFSKI v. UNITED STATES. SEIGEL v. UNITED STATES.
Case Date:January 25, 1950
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 905

179 F.2d 905 (1st Cir. 1950)

MALATKOFSKI

v.

UNITED STATES.

SEIGEL

v.

UNITED STATES.

Nos. 4460, 4461.

United States Court of Appeals, First Circuit.

January 25, 1950

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Jacob Spiegel, Boston, Mass. (Joseph J. Gottlieb and Thomas W. Lawless, Boston, Mass., with him on the brief), for appellants.

Joseph M. Hargedon, Assistant United States Attorney, Boston, Mass. (George F. Garrity, United States Attorney, Boston, Mass., with him on the brief), for appellee.

Before MAGRUDER, Chief Judge, and MAHONEY and WOODBURY, Circuit judges.

PER CURIAM.

Separate indictments were presented in the court below on December 6, 1948, charging Harry Malatkofski and his uncle Benjamin Seigel with offenses under 18 U.S.C. § 91 (1946 ed.). 1 The cases were tried together by order of the district court. Defendants were convicted upon verdicts of guilty, and each of them has taken an appeal.

18 U.S.C. § 91 (1946 ed.), so far as now relevant, provided as follows: 'Whoever shall promise, offer, or give, or cause or procure to be promised, offered, or given, any money or other thing of value, * * * 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, * * * shall be fined not more than three times the amount of money or value of the thing so offered, promised, given, made, or tendered, or caused or procured to be so offered, promised, given, made, or tendered, and imprisoned not more than three years.'

The indictment of Malatkofski charged that Malatkofski, at Boston, Massachusetts, on or about May 6, 1946, 'did knowingly and unlawfully give money, to wit, the sum of One Thousand Dollars ($1000.00), to an employee of the United States, a person acting for and on behalf of the United States Government in an official capacity, to wit, to Walter C. Cleary, Supply Officer of the Boston Regional Office of the Veterans' Administration, an agency of the United States Government, part of whose duties was the awarding of contracts to vendors for the sale of tools to the Veterans' Administration, * * * with the corrupt intent of influencing his action and

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decision in the awarding of said contracts, which matter came before him in his official capacity, in violation of Title 18, United States Code, Section 91.'

Seigel's indictment charged that Seigel, in Boston, Massachusetts, on or about May 6, 1946, 'did knowingly and unlawfully cause to be offered and given money, to wit, the sum of One Thousand Dollars ($1000.00), to an employee of the United States', etc., the remainder of the indictment following in the exact words of the indictment of Malatkofski, as above set forth.

Since the defendants were alleged 'to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses', they might, under Rule 8(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. have been joined as defendants in a single indictment. Under these circumstances the district court was authorized by Rule 13 to order the indictments to be tried together. Each defendant moved for a separate trial on the general ground (no details being specified) that standing trial with the other defendant would be prejudicial. These motions for severance were denied. In this there was no error. The matter lay in the discretion of the trial judge, and no extraordinary facts appear from which it could be said that denial of the motions was an abuse of discretion. See Stilson v. United States, 1919, 250 U.S. 583, 40 S.Ct. 28, 63 L.Ed. 1154. Throughout the trial, whenever evidence was introduced which was competent against one defendant and incompetent against the other, the judge duly admonished the jury that the evidence was received only as against the one defendant and must be disregarded by them in their consideration of the case of the other defendant. See United States v. Ball, 1896, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300.

Each defendant moved for dismissal of the indictment against him on the ground that it did not state facts sufficient to constitute an offense against the United States. These motions were properly denied. On this point, defendants advance what seems to us to be a hypercritical reading of the indictments. It is contended that under the statute it is an essential element of the offense that the intent must be to influence the decision of the official in a 'matter * * * which may at any time be pending, or which may by law be brought before him in his official capacity'; in other words, that the specified time element requires the allegation of one of two alternatives, either that the matter be a pending one or that it be one which may come up in the future. And so, it is urged that the indictments are insufficient in that they 'refer only to a past matter', great emphasis being placed upon the word 'came' in the concluding clause, 'which matter came before him in his official capacity'. But the indictments charge that the money was paid to Cleary, the Supply Officer, 'with the corrupt intent of influencing his action and decision in the awarding of said contracts'. That must have been meant by the pleader to refer to matters which had not already been decided and disposed of by the Supply Officer before the bribe was given. Hence the clause 'which matter came before him in his official capacity' might indeed be treated as surplusage, since it merely refers back to Cleary's constantly recurring procurement duties, already set forth in the language, 'part of whose duties was the awarding of contracts to vendors for the sale of tools to the Veterans' Administration'. At most the use of the word 'came' was a grammatical infelicity. See Stumbo v. United States, 6 Cir., 1937, 90 F.2d 828, 831: 'The question we have to decide is not whether the present indictment is a model pleading, or whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, so that the judgment may be a bar to further proceedings against him for the same offense.' The present indictments amply meet that test. See also Hartwell v. United States, 5 Cir., 1939, 107 F.2d 359, 362; Norris v. United States, 5 Cir., 1946, 152 F.2d 808.

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Malatkofski and Seigel both moved for judgments of acquittal at the close of the government's case. These motions were properly denied, for the government's evidence warranted conviction of both defendants, as we shall proceed to show; in fact, quite strongly indicated their guilt. Furthermore, the language of Cohen v. United States, 6 Cir., 1923, 292 F. 488, 491, is applicable here: 'While the record shows a motion to instruct made at the close of the government's evidence, it does not show such a motion at any later time, and it is a familiar rule that such a motion is waived if the defendant proceeds to put in evidence on his own behalf, as he did here, and if the motion is not renewed at the close of all the evidence. Upon a record so framed, the appellate court will not consider the objection that the verdict is not supported by substantial evidence, unless the injustice done by the verdict seems clear and gross; but there was not in this case that miscarriage which would be required in order to persuade us to this unusual course.'

It was established that Cleary was duly detailed as Acting Supply Officer of the Boston Regional Office of the Veterans' Administration on April 22, 1946, and that on May 6, 1946, he was appointed Supply Officer. In the administration of the veterans' vocational training program, when Cleary as Supply Officer received from the officer in charge of veteran trainees a certificate that certain tools were required by a trainee, it was a part of his duties to procure such tools for the trainee by placing an order therefor in the open market, provided the purchases for a single trainee were in amounts less than $100. Malatkofski was employed by five or six hardware dealers around Boston as a salesman on commission. In seeking out business, Malatkofski made the acquaintance of Cleary at the Boston Regional Office early in the spring of 1946. Cleary placed a large number of orders for purchases of tools through Malatkofski. The latter may not have known Cleary's official title or the official chain of authority under which he was appointed. But he admittedly knew that Cleary 'was giving out orders on veterans' tools', and 'thought he was purchasing agent', which was a not inaccurate description of Cleary's actual duties. As a matter of law, and the district court so told the jury, Cleary in his official capacity, first as Acting Supply Officer and later as Supply Officer, was acting for the United States in making purchases of tools for veteran trainees; and the jury was certainly warranted in finding that Malatkofski had sufficient knowledge of Cleary's official duties. See Daniels v. United States, 9 Cir., 1927, 17 F.2d 339, 343; Buckley v. United States, 6 Cir., 1929, 33 F2d 713, 717; Cohen v. United States, 6 Cir., 1923, 294 F. 488, 490-91.

Cleary, as a witness for the government, admitted his own participation on the receiving end of the bribe transaction. He testified that on May 5, 1946, he and Warren Brown, another employee of the Regional Office having to do with tools for veteran trainees, went to the home of Malatkofski and...

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