Crinnian v. United States

• Decision Date: 02 July 1924
• Docket Number: No. 4006.,4006.
• Citation: 1 F.2d 643
• Parties: CRINNIAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

1 F.2d 643 (1924)

CRINNIAN v. UNITED STATES.

No. 4006.

Circuit Court of Appeals, Sixth Circuit.

July 2, 1924.

Robert T. Speed, of Detroit, Mich., for plaintiff in error.

Frederic L. Eaton, Asst. U. S. Atty, of Detroit, Mich. (Delos G. Smith, U. S. Atty., of Detroit, Mich., on the brief), for the United States.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

DENISON, Circuit Judge.

Crinnian was a prohibition agent. He was indicted and convicted for soliciting and accepting a bribe in violation of section 117 of the Criminal Code (Comp. St. § 10287). It appears without dispute that Stinson and his wife were operating a hotel and drinking place in Wyandotte, near Detroit; that Crinnian and others repeatedly purchased intoxicating liquor there; that on the occasion in question, and as Crinnian came out from a private room, where he had been with Stinson, a $20 bill was picked up from the floor near him. It is the claim of Mr. and Mrs. Stinson that Crinnian had been soliciting a bribe as a condition of not prosecuting them; that they paid him this money after they had duly set the scenery, so that they could get sufficient evidence against him; and that the bill was thrown by him from his pocket as he saw he was about to be arrested. It is his claim that the whole occurrence was a "frame-up," for the purpose of deterring him and other prohibition agents from too much activity; that his cultivation of their acquaintance and his private talks with them had been for the purpose of getting "tips" on liquor selling; and that the $20 bill had either been surreptitiously put in his pocket by Stinson, or else never in fact had been in the pocket. As these conflicting claims are decided, Crinnian was guilty or innocent.

In this court the indictment is attacked because it does not sufficiently show that Crinnian was one of the persons specified in section 117 as being subject to bribery. The indictment charges that the defendant, "who was then and there an officer and employe of the United States, to wit, a federal prohibition agent, stationed at Detroit and acting under the direct control and orders of James R. Davis, federal prohibition director for the state of Michigan, did then and there unlawfully, willfully, feloniously, fraudulently, and knowingly ask for a certain large sum of money, to wit, $25, with the intent to have his decision and action on certain questions, matters, causes, and proceedings, which might be brought before him in his official capacity as a prohibition enforcement agent, influenced thereby."

Plaintiff in error relies upon the recent decision of the Circuit Court of Appeals of the Second Circuit, in Heaton v. U. S., 280 Fed. 697, to the effect that there are no such officers or employes known to the law as "federal prohibition agents," and that hence, in the absence of any allegation that Crinnian was acting "under or by authority of any department or office of the government," there could be no conviction. The case cited seems to support the contention of plaintiff in error, but we cannot be content to take the same view which that court took. The question is new in this court. In Rembrandt v. U. S., 281 Fed. 122, 124, we sustained an indictment under this section, but there was an express allegation that the person receiving the bribe, and called a prohibition agent, was "acting by authority of a department of the government." In Browne v. U. S. (C. C. A.) 290 Fed. 870, we took judicial notice of a situation not prescribed by statute, through which various agents represented the Secretary of War, and we considered one of them as within section 117; but the point now raised was not involved or considered.

It is true, as said by the Second Circuit Court of Appeals, that neither the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.), nor any other statute, creates or provides for, or recognizes, by that name, prohibition agents, except as "agents and inspectors in the field service" are named in title 2, § 38; but that is not the end of the inquiry. The statute confides its enforcement to the Commissioner of Internal Revenue, and it provides (sections 1 7 and 28) that the enforcement shall be, under regulations to be adopted by the Commissioner, through assistants and agents to be appointed by him. The general system which was thereupon adopted by the Commissioner, and has now been in force and operation throughout the country for several years is universally known, and we think we should take judicial notice of it. The Commissioner of Internal Revenue has delegated the general execution of the act to an assistant, officially called the federal prohibition commissioner. He has appointed in each state a prohibition director for that state; under the prohibition commissioner or the state prohibition director are supervising agents, or "agents in charge" of a smaller district; and the immediate execution throughout the country is carried on by field agents, known simply as "prohibition agents." Regulation 60, first issued shortly after the passage of the National Prohibition Act, signed by the federal prohibition director and the Commissioner of Internal Revenue, and approved by the Secretary of the Treasury (of which we have several times taken notice), plainly contemplates in many ways (sections 1 d, 1 c, 7, 8, 9, 13 b, 96) the existence of the system of enforcement just described, although it does not expressly create the different official positions. This regulation has been frequently amended or added to by later ones, constantly recognizing the existence of this system and its component parts. For example, regulation 285, dated August 16, 1922, signed by the Commissioner of Internal Revenue, is directed to "the prohibition commissioner, his assistants and agents." It provides a practice for revocation by the federal prohibition commissioner, or any assistants or agents designated by him, of permits which have been granted. Regulation 289, dated August 28, 1922, is upon the same general subject. It makes reference to and points out the duties in this practice of "all prohibition directors and other prohibition officers," "state prohibition directors in the several states" "an assistant director," a "divisional chief of general prohibition agents, or other prohibition officers," "a prohibition director within whose jurisdiction the alleged violation was committed," "the prohibition commissioner, Washington, D. C.," "the director in the district where the hearing was held." This regulation is signed by the prohibition commissioner, but is approved by...