Cohen v. United States
| Decision Date | 04 December 1923 |
| Docket Number | 3737. |
| Parties | COHEN v. UNITED STATES. [1] |
| Court | U.S. Court of Appeals — Sixth Circuit |
Albert H. Morrill and Hugh L. Nichols, both of Cincinnati, Ohio (Michael G. Heintz, of Cincinnati, Ohio, Edward F. Colladay of Washington, D.C., and Heintz & Heintz and Nichols Morrill, Stewart & Ginter, all of Cincinnati, Ohio, on the brief), for plaintiff in error.
James R. Clark, Sp. Asst. Atty. Gen. (Benson W. Hough, U.S. Atty of Columbus, Ohio, on the brief), for the United States.
Before DENISON and DONAHUE, Circuit Judges, and SATER, District Judge.
Cohen was convicted of violating section 39 of the Criminal Code (Comp. St. Sec. 10203) by offering and giving a bribe to one Flora, a prohibition agent, to induce him not to prosecute Cohen for having violated the National Prohibition Act (Comp St. Ann. Supp. 1923, Sec. 10138 1/4 et seq.). The reversal is sought for three reasons: (1) The indictment did not allege that the bribe was given with regard to a matter pending before the prohibition agent; (2) the indictment did not allege that Cohen knew that Flora was a prohibition agent; (3) the case was one of entrapment.
The pertinent portions of section 39 are quoted in the margin. [2] The indictment charges the giving of the money to the prohibition agent- 'with the intent to influence said prohibition enforcement agent in his decision and action regarding certain matters and proceedings which said prohibition enforcement then had under investigation * * * to wit, that said prohibition agent would refrain from prosecuting said Louis Cohen for unlawful sale and transportation of intoxicating liquor for beverage purposes in violation of title II of the National Prohibition Act.'
We have held that the prohibition enforcement agents are persons acting for the United States in an official function, and that their proposed conduct, even in matters which they cannot finally determine, constitutes action upon matters before them in their official capacity, or which may be in violation of their lawful duty, as specified in this section. Rembrandt v. U.S. (C.C.A.) 281 F. 122, 124.
The use of the words 'under investigation,' instead of the word 'pending,' is not a substantial variance. An investigation which is being conducted by the agent is a matter pending before him.
Doubtless an indictment under this section should sufficiently show both the fact that the person bribed was acting as an officer or in an official function and the fact that the one giving the bribe believed that he was dealing with an officer or one having an official function; otherwise, the necessary intent would not sufficiently appear, though it is not necessary that the officer should have the full authority which the other supposes him to have. Browne v. U.S. (C.C.A. 6) 290 F. 870, 872. Doubtless also it would have been better for the draftsman of this indictment to allege in direct words the existence of this knowledge or belief by the respondent; but the sufficiency of the indictment, especially after conviction, is no longer tested by the nicety of expression once required. If by fair and reasonable construction, it alleges every essential element to make out the crime, it is sufficient. This indictment alleges that Cohen did unlawfully, knowingly, and willingly 'offer and give five thousand dollars in money of the United States to Robert E. Flora, a person then and there acting for and on behalf of the United States in the official function and capacity of prohibition enforcement agent in charge,' etc.
We pass by the question whether the force of the word 'knowingly' is sufficiently carried over into the latter part of this allegation to meet the necessity for alleging scienter (see Blake v. U.S., 71 F. 286 290, 18 C.C.A. 117); for we think the necessary knowledge or belief is sufficiently to be implied from other parts of the indictment. After thus reciting that Flora was a prohibition enforcement agent and...
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