Browne v. United States
| Decision Date | 19 July 1923 |
| Docket Number | 3637.,3636 |
| Citation | 290 F. 870 |
| Parties | BROWNE v. UNITED STATES. WATERBURY v. SAME. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Thomas B. Felder, of New York City, for plaintiffs in error.
F. L Eaton, Asst. U.S. Atty., of Detroit, Mich. (Earl J. Davis U.S. Atty., of Detroit, Mich., on the brief), for the United States.
Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.
After the Armistice, vast amounts of material scattered over the country and belonging to the government were left in the possession and control of the Ordnance Division of the War Department. These were to be disposed of by sale. For that purpose the Ordnance Salvage Board was organized, with its general organization in the War Department in Washington, and with 13 districts in the country, each having its local board. In the Detroit district, Lieut. Reamy was chairman of the committee on sales of the local board. Such sales were authorized by the Act of July 9, 1918 (40 Stat. 850), which provided that the President, through the department heads might sell war materials. The system of acting through Ordnance Boards was authorized by the Secretary of War. Maj. Waterbury was at Washington, in the Finance Division of the Ordnance Department. Capt. Nicholson was stationed at Detroit, as a disbursing officer. Browne was a civilian in New York, dealing in war materials. Browne, Waterbury, and Nicholson (and others) were prosecuted at Detriot upon two indictments. The first alleges a conspiracy to defraud the United States by bringing about a sale from Reamy to Browne of a lot of these materials at much less than the real value, and to accomplish this by bribe to be paid by Browne to Reamy. The second indictment charges a conspiracy to bribe an officer of the United States, in violation of section 39 of the Penal Code (Comp. St. Sec. 10203). Upon the trial Nicholson gave testimony for the United States, and all of the three named were convicted. Browne and Waterbury bring separate writs of error, but upon substantially the same record.
The outstanding and undisputed fact was that, during the pending purchase of these materials by Browne, he paid Nicholson $5,000 and Nicholson paid part of this to Reamy. Lieut. Reamy was acting under instructions of his superior officers, and no intimation of wrong is made against him. Browne contends that the money he paid was merely a personal loan to Nicholson, as a friendly act. Nicholson's story, if believed and taken with ordinary inferences, establishes the conspiracy as charged.
The first substantial question raised is as to the extent of Reamy's authority. It is said that he had no authority to sell, that a sale by him would not be an official act, and hence that there could be no conspiracy to bribe or to defraud by means of a bribe. We find no occasion to consider precisely how much right Lieut. Reamy had to make a sale without specific authorization from Washington. It is entirely clear that he was the chief representative of the War Department at Detroit in this connection, and that, whether or not he could himself make a valid sale, he could at least recommend to the department, and that his recommendation would be an official act, and would be of value to the expectant purchaser, while an adverse stand by him would probably block a sale. We consider this authority enough to make the necessary basis for an offense under section 39. The case is essentially similar in this respect to that of Rembrandt v. U.S. (C.C.A. 6) 281 F. 122, 124. We there held that the co-operation of the prohibition agent would be of substantial value and assistance to the person offering the bribe, and whether the agent had authority by himself to do the complete act which he was solicited to do therefore was not controlling. We apply the same principle here, and hold that sufficient authority on Reamy's part appeared, so that the course he might take in the desired direction would be official action within section 39, and would be 'acts done or omitted in violation of his lawful duty. ' See Haas v. Henkel, 216 U.S. 466, 480, 481, 30 Sup.Ct. 249, 54 L.Ed. 569, 17 Ann.Cas. 1112. We are cited to no authority to the contrary. With this view of the matter, the charge given was a sufficient response to the requests made.
It is said that the court charged the jury that the criterion upon this point was not how much authority Reamy had to make, or recommend, sales, but how much the defendants thought he had, and that they would be guilty, if they thought he had such authority, even though he had none in fact. Although no exception was taken to the charge in this respect, such an instruction would be so vitally erroneous upon the bribery count that it might be our duty to notice it, regardless of exception; but we do not so interpret the charge when taken all together. As we read the charge, this belief by defendants was an element in addition to actual authority by Reamy, both of which elements the jury must find to exist in order to convict. In other words, the court charged that belief by defendants that Reamy had authority was essential to make out their criminal intent, and if there was any error upon this subject it was in defendant's favor.
The defense chiefly relied upon is that of entrapment, and this is forceful enough to require careful examination. The story begins with personal conversations by Lieut. Reamy with Nicholson and Waterbury-- the first only an acquaintance, and the second until then a stranger-- in which conversations both of them seemed to urge their friend Browne as purchaser, and to carry the urging to such an extent, and to accompany it by such vague suggestions of benefit, as to raise Reamy's suspicions that they suggested an opportunity for him to accept a bribe, if he were willing; though it must be said that these remarks and comments, of themselves, would be totally insufficient in law to support any inference of a guilty intent. He then reported the matter of his suspicions to the Ordnance Department at Washington, and was instructed to let the matter take its course and develop into an offer of bribe, if it did so without any assistance or encouragement from him, and was instructed also as to plans for preserving satisfactory evidence of whatever happened.
Returning to Detroit, he sent word to Browne, at the address which had been furnished by the others, that bids for this material would be be received up to a certain date, and...
To continue reading
Request your trial
-
Davis v. United States
...Cir., 287 F. 641; Winkler v. United States, 9 Cir., 297 F. 202. 6 E.g., Green v. United States, 8 Cir., 289 F. 236, 238; Browne v. United States, 6 Cir., 290 F. 870, 875; Garske v. United States, 8 Cir., 1 F.2d 620; Kwong How v. United States, 9 Cir., 71 F.2d 71. 7 E.g., Swan v. United Stat......
-
Marron v. United States
...U. S. (C. C. A.) 286 F. 822, 824; Donegan v. U. S. (C. C. A.) 287 F. 641, 649; Agnello v. U. S. (C. C. A.) 290 F. 671, 684; Browne v. U. S. (C. C. A.) 290 F. 870, 875; U. S. v. Stafford (D. C.) 296 F. 702, 703; Sayers v. U. S. (C. C. A.) 2 F.(2d) 146. The property and papers of the defendan......
-
O'BRIEN v. United States
...288 F. 520 (C. C. A. 2); Zucker v. U. S., 288 F. 12 (C. C. A. N. J.); Ritter v. U. S., 293 F. 187 (C. C. A. Nev.); Browne v. U. S., 290 F. 870 (C. C. A. Mich.); Rossi v. U. S., 293 F. 896 (C. C. A. Colo.); Luterman v. U. S., 281 F. 374 (C. C. A. Pa.); Fisk v. U. S., 279 F. 12 (C. C. A. Tenn......
-
United States v. Raff
...States, 1 Cir., 1920, 264 F. 257, at pages 261, 262; Applebaum v. United States, 5 Cir., 1947, 164 F.2d 974; Browne v. United States, 6 Cir., 1923, 290 F. 870, at page 872. The intention was to influence his conduct in his official capacity and place of trust and to make opportunity for the......