Cohen v. United States

• Decision Date: 06 November 1944
• Docket Number: No. 10508.,10508.
• Citation: 144 F.2d 984
• Parties: COHEN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

144 F.2d 984 (1944)

COHEN et al. v. UNITED STATES.

No. 10508.

Circuit Court of Appeals, Ninth Circuit.

September 29, 1944.

Rehearing Denied November 6, 1944.

Harry Graham Balter, of Los Angeles, Cal., for appellant Albert Charles Schnee.

Cantillon & Glover, of Los Angeles, Cal., for appellant Emanuel Max Cohen.

Charles H. Carr, U. S. Atty., and James M. Carter, Asst. U. S. Atty., both of Los Angeles, Cal., for appellee.

Before MATHEWS, STEPHENS, and HEALY, Circuit Judges.

STEPHENS, Circuit Judge.

Appellants Cohen and Schnee were indicted upon two counts, to-wit, conspiring to defraud the United States and conspiring to ask a bribe. The jury found them guilty on both counts, but the court, on the ground that both counts referred to one conspiracy, sentenced each under the second count only.

Count two of the indictment charges that on or about March 6, 1943, while Cohen was the government appeal agent of the local draft board having jurisdiction under the Selective Training and Service Act of one James L. Sartor, Cohen and Schnee conspired to ask Sartor for money with the intent to influence Cohen's official action in a matter pending before Sartor's draft board, that is, the application of Sartor for a recommendation directed to the United States Army for an extension of his then existing furlough.

Sartor, while a registrant of Local Draft Board No. 199, Los Angeles, California, was duly selected for military service and, on October 14, 1942, was formally and actually inducted into the United States Army. At the time of his induction he was given a short furlough and thereafter was granted various extensions until March 8, 1943, when he was to report for active duty. The purpose of the furloughs was to enable Sartor to make some disposition of his holdings including a retail liquor store, a bar, and an equity in an apartment house. On February 11, 1943, Sartor requested an additional sixty days' deferment from active duty on the ground that he had not yet been able to settle his financial affairs. He was notified in return that a recommendation of his local selective service board would be necessary to his securing of a further extension.

Sartor consulted Cohen, who was the government appeal agent for his draft board. Cohen wrote a letter to the army officials briefly describing Sartor's property holdings and financial position and stating that Sartor requested a deferment on the basis of those facts. A friend advised Sartor that Cohen's letter did not comply with the condition set by the army and that he should speak to Cohen about obtaining a letter of recommendation from the draft board itself. Sartor asked Cohen for such a letter and was told that Cohen, himself, had no authority to make such a recommendation to the army. The evidence is conflicting as to subsequent events.

According to Cohen and Schnee, the secretary of Draft Board No. 199 inquired of the Coordinator of Selective Service whether the draft board had jurisdiction to make a recommendation with respect to Sartor and was answered in the affirmative. Cohen told Sartor that the board was to meet on Saturday, March 6, 1943. On Saturday morning Cohen consulted Schnee about an income tax problem entirely foreign to any phase of this case. During the course of the discussion Cohen, in his personal interest, asked Schnee to ascertain the condition of Sartor's liquor store and the price being asked for it. Cohen desired to purchase the business but for various reasons did not wish to publicize the fact. Schnee, using the name of Davis, had several telephone conversations with Sartor concerning the liquor store. Later Saturday morning Cohen saw Sartor, looked over the liquor store, and remarked that he was on his way to the draft board. At its meeting the draft board decided to recommend a thirty-day extension of Sartor's furlough. Immediately thereafter, Cohen again saw Sartor and informed him of the board's recommendation.

According to Sartor, Cohen, who it must be recalled had formerly admitted his own lack of authority to make a recommendation to the army, told Sartor on Saturday morning, March 6, that one Davis would help him secure the desired extension. Davis spoke to him over the telephone and stated that a sixty-day extension would cost $2000. Later he saw Cohen again and commented upon Davis' proposition. Cohen dismissed the matter saying it was between Sartor and Davis; Cohen did not mention the action taken by the draft board. Davis telephoned again and, when Sartor suggested a price of $500, promised to see what he could do. Later in the day Davis informed Sartor by telephone that for $500 he could get only a thirty-day extension; Davis instructed him to put the money in an envelope and deliver it to the manager of a nearby theatre. (Without any question whatever the said manager was a distinterested and innocent participant in the affair.)

Sartor, accompanied by several others including one Donovan from the police department, handed an envelope containing some money to the theatre manager. (Schnee insisted it was an inventory of Sartor's business that he had asked Sartor to deliver.) After a lengthy discussion the theatre manager relinquished the Sartor envelope to police officer Donovan. With Donovan listening in, the manager telephoned Schnee, whose remarks indicated that Davis was in fact Schnee. Agents of the Federal Bureau of Investigation took charge of the matter. Finally, the conspiracy charge herein was filed against Schnee and Cohen.

In the meantime, mistakenly believing Cohen's letter was the draft board recommendation requested, army officials had granted Sartor an additional sixty-day furlough, which was subsequently cancelled before its expiration.

The indictment herein attempts to charge the crime of conspiracy, 18 U.S.C.A. § 88, to commit bribery as defined by 18 U.S.C.A. § 207. The latter section decrees that: "Whoever, being an officer of the United States, or a person acting for or on behalf of the United States, in any official capacity, under or by virtue of the authority of any department or office of the Government thereof * * * shall ask, accept, or receive any money * * * with intent to have 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, or in his place of trust or profit, influenced thereby, shall be fined * * * and imprisoned * * *." Appellants contend that count two of the indictment fails to state an offense against the United States, even assuming the allegations therein contained to be true, because Sartor's draft board had no jurisdiction to recommend an extension of furlough for one already inducted into the army, because such a recommendation was in no way related to Cohen's duties as a government appeal agent, and therefore because Cohen was connected with the matter in no official capacity. Schnee acted in no official status with respect to the United States, and it is only because of Cohen's position that a conspiracy to commit an offense under § 207 would be possible.

We have not been able to find in the Selective Service Act, 50 U.S.C.A.Appendix, § 301 et seq., or in the regulations promulgated thereunder any provision specifically authorizing the local draft board or its appeal agent to recommend furlough extensions for one already inducted into the army; we have found nothing vesting in the board or its appeal agent any jurisdiction at all over an inductee. Unquestionably, one actually inducted is subject to military jurisdiction. Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. ____. However, with respect to a furlough extension such as that requested by Sartor it is the policy and practice of the military authorities to require a recommendation of the extension by the local draft board of the applicant. According to the testimony of an army liaison officer, to follow any other procedure would in effect "nullify the procedure of the Selective Service System in ordering a man in, so we make it a rule."

That local boards habitually have performed duties in connection with inductees is evident from various memoranda issued by the National Headquarters of the Selective Service System. Local Board Memorandum No. 80, issued January 10, 1942, discusses separation of inducted men from active military service and their transfer to the Enlisted Reserve. It reveals a duty of cooperation between civil and military authorities: "After a man has been inducted into military service he passes into military control and questions concerning his retention in or separation from active service are responsibilities of the War Department. All final determinations must be made by the military authorities and it is the expressed intention and desire of the War Department that such determinations be made in accordance with the facts presented and in the best interests of all concerned. It is the function of all elements of Selective Service, when called upon through proper channels, to assist the War Department with information and recommendation consistent with the facts." Emphasis added.

The responsibilities given local boards in connection with the granting of furloughs to men immediately following their induction into the army shows a history of local board recommendation of such furloughs to the War Department. See Memoranda to All State Directors, No. I-415 dated April 17, 1942, and No. I-423 dated May 18, 1942, and State Director Advice No. 204 dated May 8, 1943. There can be no doubt that the War Department regularly requested a statement...