Buckley v. United States

• Decision Date: 12 July 1929
• Docket Number: No. 5479.,5479.
• Parties: BUCKLEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

33 F.2d 713 (1929)

BUCKLEY v. UNITED STATES.

No. 5479.

Circuit Court of Appeals, Sixth Circuit.

July 12, 1929.

COPYRIGHT MATERIAL OMITTED

Henry A. Williams, of Columbus, Ohio, and W. B. Turner and R. N. Brumbaugh, of Dayton, Ohio, for appellant.

Haveth E. Mau, U. S. Atty., of Cincinnati, Ohio.

Before DENISON, MACK, and MOORMAN, Circuit Judges.

DENISON, Circuit Judge.

Buckley and others were convicted of offering a bribe to an enforcement officer under the National Prohibition Act (27 USCA) to induce him to refrain from his official duty. Buckley alone appeals. The return, in the form of a printed record, not having been filed within the time fixed, the United States moved to docket and dismiss. Being satisfied that the failure to file was an inadvertence, the time for that purpose will be extended so as to cover the date of actual filing. Shea v. U. S. (C. C. A. 6) 224 F. 426. In connection with this motion, we directed briefs to be filed upon both sides upon the merits, and we heard oral argument thereon, thus practically advancing the case, in order that the delay in making the return should not have the effect of delaying the hearing.

The materiality and effect of the errors alleged can best be judged in connection with the facts. In October, 1928, Buckley was state treasurer of Ohio, approaching the end of his two-year term, and a candidate for re-election (he was re-elected in November). He was regarded as one of the leaders of one of the political parties and was thought to be very influential with other state officers. He was located at the state capitol at Columbus, which was also the location of the district headquarters of the national prohibition force covering the state. Some agents from this headquarters made a raid upon a brewery in Cincinnati, discovering there a quantity of beer having unlawful alcoholic strength. The brewery and its managers feared criminal prosecution and the loss of its permit. They engaged Gruber and Schrimper, Cincinnati lawyers, to look after their interests. Schrimper had been a member of the Legislature and was active in a Cincinnati political organization; Gruber let it be understood that he represented a large group of trade unions and was politically influential. The lawyers procured from a common friend a special introduction to Buckley and went to Columbus to see him. They told him the story of the raid — telling him, however (untruly), that the quantity of the illicit liquor was only four barrels. He told them that he was acquainted with John Eckhart, the Assistant National Prohibition Director for the district, and would get in touch with him, and that Eckhart would be glad to have their support in his candidacy for the position of prohibition commissioner of Ohio (to be appointed by the Governor after the then pending election). Buckley thereupon arranged and was present at an interview between the attorneys and Eckhart, at which they retold their story (a confession of their client's crime but falsely minimized); Buckley expressed his opinion that the offense was not serious and Eckhart acquiesced and let them understand that there would be no criminal prosecution. Eckhart denies this. In the same conversation they assured Eckhart that they and their organizations would support him for his desired position and use their influence to get the Governor to appoint him. Buckley explained to these lawyers how great his campaign expenses were, and they expressed an intention to contribute in exchange "for what you have done for us." They went back to Cincinnati, reported to their clients that they had succeeded in averting any criminal prosecution and anticipated no serious action about the permit, collected a fee of $1,500 for their legal services, and sent $250 to Buckley to help out on his "postage." He took the money and put it into his campaign fund account.

The story, so far stated, is either Buckley's own or is left substantially undisputed when he testified as a witness for himself. Whether the extent of his participation, thus confessed, in this scheme, would be alone enough to support a prosecution is not directly involved; but it is pertinent to other features of the case.

When Schrimper brought this money to Buckley two or three days later, they had further conversation about "protection" for the Cincinnati breweries. Schrimper says: Buckley opened the subject by saying he understood the Cincinnati breweries were willing to pay $5 a barrel for protection; that this sum ought to be equally divided between the Cincinnati lawyers and Buckley; that he could arrange it with Eckhart so that Eckhart would notify him and he (Buckley) would notify Cincinnati in advance when raids or examinations were to be made; and that he (Buckley) out of his half of the protection money would take care of Eckhart. Schrimper indicated that his clients would join in this arrangement. Buckley had him stay over night, they had "a few more drinks," and the next day Buckley told him that Eckhart had been seen and agreed. Schrimper telephoned the "good news" to Gruber and went back to Cincinnati.

Buckley says, in substance: This suggestion for protection and payment was the proposition of Schrimper; Schrimper said the amount of this one-half to me would probably run $300 per week; I said I did not think Eckhart would accept; the next day I told Eckhart of the offer to pay $300 a week for "protection" at Columbus; he first refused to have anything to do with it, and I told him I thought he would say that because he was "not that kind of a man"; I reported to Schrimper Eckhart's refusal. Eckhart says, in substance: On the first interview I told these people only that the matter of canceling the permit was for my superior, Mr. Woodruff, and that the matter of criminal prosecution was for the district attorney. A little later Buckley came to me and reported to me that Schrimper offered to pay for advance information as to raids at the rate of $2.50 per barrel, which money would be divided between Buckley and me, and I would get $300 a month; I expressed my surprise at any such proposition being made to me, or by him, and the impossibility of accepting it; he said he supposed I would take it that way. Finally, desiring full information as to what was going on in this line and to keep the thing open, I told him I would join in the plan and would tip him off in advance as desired. I immediately notified my superior, the director, and the assistant district attorney, and they advised me to get what evidence I could, which would show that Buckley was really proposing such a scheme; and whatever I did thereafter was following their advice. Accordingly I told Buckley (untruly) that the permit hearing was set for November 9th, and that inspections would be made in Cincinnati "next week." He wanted to know the exact date; I could not tell, but advised him "to notify them to stay in the clear all next week." He repeated his assurance of his political support and influence in my behalf. He was to keep me informed as to his whereabouts on a southern trip on which he was starting, and it was arranged that, as soon as I learned the day of the Cincinnati inspection, I would wire him, "I will meet you on Wednesday," or whatever the day might be. Accordingly, Buckley wired several successive addresses. I wired to the Chattanooga address, "Nothing definite"; to New Orleans, "Will meet you on Wednesday"; and to Little Rock, "No meeting in Cincinnati for a week or ten days." Buckley acknowledged receipt.

Schrimper says Buckley before leaving on his trip arranged to wire him whenever word came from Eckhart; that from Chattanooga, Buckley, over a fictitious name, O'Brien, wired Schrimper, "Wire received this morning saying nothing definite on date of diagnosis * * * am in daily touch with physician"; that from New Orleans, over his own name, he wired Gruber, "Applicants examined Cincinnati Wednesday," and over the fictitious name, O'Brien, wired Schrimper, "Outside lawyers will examine papers Cincinnati Wednesday as they are on the way. Have briefs in good shape Wednesday morning"; and from Hot Springs, "There will be no meeting in Cincinnati for a week or ten days. This is the direct word received today from the judges."

Buckley concedes that he sent these messages; that their purpose was in each instance to convey the information he had received from Eckhart; that by "physician" and "judge" he referred to Eckhart; by "diagnosis," inspection; by "applicants," "papers," by "briefs," the breweries; and by "outside lawyers," inspectors, and that he adopted this cipher and the fictitious name for concealment. His explanation is that he supposed Eckhart was acting in good faith with the Cincinnati parties, and that, as a friendly act, he was willing to help Eckhart carry out the plan.

Thereafter there were three conversations between Buckley and Eckhart, each of which was partially recorded through a concealed dictagraph and a listening stenographer. In each of these Buckley was led to speak of the fact that he had kept the Cincinnati parties advised during his trip, to refer to and explain "the offer that you made me in your office that the Cincinnati breweries would pay me $300 a month for tips," or to make other general references and statements confirmatory of the...