Dropps v. United States

• Decision Date: 01 July 1929
• Docket Number: No. 8219.,8219.
• Citation: 34 F.2d 15
• Parties: DROPPS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

34 F.2d 15 (1929)

DROPPS v. UNITED STATES.^*

No. 8219.

Circuit Court of Appeals, Eighth Circuit.

July 1, 1929.

E. W. Swenson, of Foley, Minn., for appellant.

Lewis L. Drill, U. S. Atty., and George A. Heisey, Asst. U. S. Atty., both of St. Paul, Minn.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and OTIS, District Judge.

OTIS, District Judge.

In the District Court appellant was found guilty of violating section 117 of the Criminal Code (section 207, title 18, U. S. C. 18 USCA § 207) and was sentenced to imprisonment in the United States penitentiary at Leavenworth for three years and to pay a fine of $100. He has appealed from that judgment on the grounds, first, that the indictment charges no offense within section 117, and, second, that that section is unconstitutional. The sufficiency of the indictment was not questioned in the District Court.

Section 117 is as follows: "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, or any contract, promise, undertaking, obligation, gratuity, or security for the payment of money, or for the delivery or conveyance of anything of value, 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 not more than three times the amount of money or value of the thing so asked, accepted, or received, and imprisoned not more than three years; and shall, moreover, forfeit his office or place and thereafter be forever disqualified from holding any office of honor, trust, or profit under the government of the United States."

The indictment here, clearly intended to be brought under this section, charged that the appellant "Charles Dropps then and there being an officer of the United States and a person acting for and on behalf of the United States in an official capacity, to-wit: a prohibition agent of the prohibition bureau of the treasury department of the United States of America, and while acting in said official capacity, unlawfully, wilfully, knowingly, feloniously and corruptly did ask for and receive from one Charles Dusha a sum of money, to-wit: fifty dollars ($50.00) with intent then and there to influence the official action and decision of him, the said Charles E. Dropps, in his official capacity as said `prohibition agent' of the prohibition bureau of the treasury department of the United States of America in arresting the said Charles Dusha and one Fred Komoruski for a violation of a law of the United States, to-wit: the National Prohibition Act; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."

1. Notwithstanding the sufficiency of the indictment was not attacked in the court below, the question whether it charges any offense may be raised here for the first time. Shilter v. United States (C. C. A.) 257 F. 724, 725; Sonnenberg v. United States (C. C. A.) 264 F. 327, 328; McGrath et al. v. United States (C. C. A.) 275 F. 294, 295.

2. The argument of the appellant in support of his contention that the indictment charges no offense within section 117 is that the law does not eo nomine provide for such an officer as a prohibition agent. Undoubtedly that is true if only the statutes enacted by the Congress are considered. The National Prohibition Act does not mention "prohibition agents," but it repeatedly refers to "agents" who are to participate in the enforcement of the act. Sections 5, 11, 45, 61, title 27, U. S. C. (27 USCA §§ 5, 11, 45, 61). And it expressly authorizes the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, to prescribe regulations for carrying out the provisions of the act. Section 4, title 27, U. S. C. (27 USCA § 4). Such regulations have been prescribed from time to time. Therein the "agents" authorized to be appointed by the National Prohibition Act repeatedly are designated as "prohibition agents" (e. g. see section 123, regulation 2, approved by the Secretary of the Treasury, September 2, 1927. See, also, an excellent discussion of this subject in Crinnian v. United States (C. C. A. 6) 1 F.(2d) 643, 644). The law, which includes the regulations, does then use the very term "prohibition agent" employed in the indictment here. When the National Prohibition Act and the regulations are read together it is clear that a "prohibition agent," as that term is used in the regulations, is an "agent," as that term is used in the act. The Supreme Court of the United States at least twice has ascribed to "prohibition agents" the powers of "agents" under the act. Steele v. United States, 267 U. S. 505, 45 S. Ct. 417, 69 L. Ed. 761; Maryland v. Soper, 270 U. S. 9, 46 S. Ct. 185, 70 L. Ed. 449. It is now, moreover, a matter of universal knowledge, of which judicial notice may be taken, that prohibition agents are the agents used in the field under the Treasury Department in the enforcement of the act. Crinnian v. United States, supra. It was sufficient, so far as the present contention is concerned, to charge without more that the appellant was a prohibition agent. Charging that charged that he was an official having duties imposed on him by law and exercised by him "under or by virtue of authority of a department of the government." But here, in addition to alleging that the appellant was a prohibition agent, the indictment also specifically alleged that he was a "person acting for and on behalf of...