Bogileno v. United States, 113.
| Decision Date | 05 February 1930 |
| Docket Number | No. 113.,113. |
| Parties | BOGILENO v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William T. Burris, of Pueblo, Colo., for appellant.
Charles E. Works, Asst. U. S. Atty., of Denver, Colo. (Ralph L. Carr, U. S. Atty., of Antonito, Colo., on the brief), for the United States.
Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.
Appellant was convicted on two counts of an indictment and sentenced to imprisonment for three years and fined on the first count and to imprisonment for three years on the second count. He contends that the offenses charged are defined by section 241, title 18, U. S. Code (18 USCA § 241), which fixes the maximum imprisonment at one year; rather than by section 91, which fixes the maximum at three years. He also claims that section 241 is a special statute, that section 91 is a general statute and that a general statute cannot be resorted to where there is a special statute covering the case. Stoneberg v. Morgan (C. C. A.) 246 F. 98; Snitkin v. United States (C. C. A.) 265 F. 489; McClintic v. United States (C. C. A.) 283 F. 781; Jackson v. Cravens (C. C. A.) 238 F. 117. So far as relevant to this case section 91 is in these words:
"Whoever shall * * * 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 induce him to do or omit to do any act in violation of his lawful duty, shall be fined" etc.
The part of section 241 on which appellant relies to support his contention reads thus:
"Whoever corruptly * * * shall endeavor to influence * * * any witness, in any court of the United States or before any United States commissioner * * * or shall endeavor to influence, obstruct, or impede, the due administration of justice therein, shall be fined" etc.
The first numbered section is directed against the use of money or any valuable thing to influence an officer of the United States, or one acting on behalf of the United States in any official function, to do or omit to do any act in violation of his official duty. The last numbered section is directed against a corrupt endeavor to influence any witness in any court of the United States, or before any United States commissioner, or to corruptly endeavor to influence, obstruct or impede the due administration of justice therein. A consideration of the charge in each count leads us to the conclusion that it states the offense defined by section 91, and not the offense defined by section 241; and therefore the contention is not sound. In fact, it is our view that as between the two sections, 241 is a general act. It covers the corrupting of any witness in any United States court or before any United States commissioner in any cause, and all manner of obstruction of justice in any of those tribunal; whereas section 91 is a special statute covering only the unlawful use of a valuable consideration to influence any officer of the United States or anyone discharging official functions for the government, to act contrary to his legal duty. Each count states that on May 16, 1927, one Lukens and one Bowman were acting for and on behalf of the United States in an official function, as prohibition agents, under and by virtue of the authority of the Treasury Department of the United States government, appointed by the Commissioner of Internal Revenue, and that while so acting, and pursuant to their lawful duty, they arrested and detained appellant for violation of the Act of Congress known as the National Prohibition Act. That on said day they caused a complaint to be filed before a named United States commissioner at Durango, Colorado, charging appellant with the possession of intoxicating liquor, to wit, whisky, in violation of said National Prohibition Law (27 USCA). The first count then charges that appellant, unlawfully and knowingly gave to said Lukens and Bowman on said day, while they were acting for and on behalf of the United States in said official function, $400 for the purpose of influencing and causing them to release appellant and to refrain from appearing against him in the said proceeding then pending against appellant before said United States commissioner. And the second count charges that on said day appellant unlawfully and knowingly gave to said Lukens and Bowman, while acting for and on behalf of the United States in said official function, $400 with intent to induce them to omit to appear as witnesses and produce evidence of violation of said National Prohibition Law in the cause then pending against appellant before said United States commissioner.
Appellant further correctly contends that a necessary element of the offense defined by section 91 is knowledge on the part of one attempting to unlawfully influence an officer that he is such officer, and he claims there is no charge in either count that appellant knew at the time he gave the two prohibition agents the $400 that they were officers or acting in the discharge of official functions. It is true that there is no direct charge of that sort, but it will be observed from what has been said that each count charged that appellant knowingly gave $400 to said Lukens and Bowman, "while acting for and on behalf of the United States in the official function as hereinbefore in this indictment related, * * * with intent on the part of the said Caesar Bogileno then and there to influence the actions of the said Lukens and Bowman as said prohibition agents." This, we think, is the equivalent to a charge that appellant knew at the time he gave them the $400 that they were officers or acting in an official function for the United States.
It is also argued the court erred in refusing to instruct in favor of appellant at the close of all the testimony. This requires a consideration of the evidence. Lukens made written complaint, under oath before the United States commissioner on May 16, 1927, charging appellant with unlawful possession of whisky, and each count of the indictment charges that the $400 was given to Lukens and Bowman on that day and that the cause and proceeding was then pending against appellant before the United States commissioner. Immediately on the charge being made by Lukens before the commissioner, Lukens and Bowman went to the jail in Durango where appellant was held and brought him before the commissioner for arraignment. The $400 was given to them by appellant as they were going from the jail to the commissioner's office. The testimony as to that occurrence is very brief, and is this: Lukens testified that on the way from the jail to the commissioner's office the defendant said: As he said that he reached in his pocket and pulled out two rolls of bills and handed one to witness and one to Bowman. Witness then told defendant he would be charged with bribery. Bowman testified: On the way to the commissioner's office the defendant said: "I have got that money now." And Lukens said: "Where is it?" He said, "Here," and defendant took two packages and handed one to Lukens and one to witness; then Lukens told him he was going to charge him with bribery. There was $400 in the two packages. Defendant testified he gave $400 to Lukens and Bowman, he knew they were prohibition agents the night they took him into custody; "I gave them the money to have them arrested." It may be conceded this evidence falls...
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