Fall v. United States

• Citation: 49 F.2d 506,60 App. DC 124
• Decision Date: 06 April 1931
• Docket Number: No. 5171.,5171.
• Parties: FALL v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

60 App. DC 124, 49 F.2d 506 (1931)

FALL v. UNITED STATES.

No. 5171.

Court of Appeals of District of Columbia.

Argued February 3, 1931.

Decided April 6, 1931.

Wm. E. Leahy, Wilton J. Lambert and Frank J. Hogan, all of Washington, D. C., for appellant.

Leo A. Rover, U. S. Atty., of Washington, D. C., and Atlee Pomerene, of Cleveland, Ohio (Frank Harrison, of Cleveland, Ohio, of counsel), for the United States.

Before ROBB and VAN ORSDEL, Associate Justices, and COX, Justice, Supreme Court of the District of Columbia.

VAN ORSDEL, Associate Justice.

Appellant Albert B. Fall was convicted in the Supreme Court of the District of Columbia of the crime of bribery in violation of section 117 of the United States Criminal Code (18 USCA § 207); and from a judgment sentencing him to pay a fine of $100,000 with imprisonment for one year this appeal was prosecuted.

The indictment recites that President Taft on December 13, 1912, promulgated the following order: "It is hereby ordered that all lands included in the following list and heretofore forming a part of Petroleum Reserve No. 2, California No. 1, withdrawn on July 2, 1910, from settlement, location, sale or entry, and reserved for classification and in aid of legislation under the authority of the Act of Congress entitled An Act to authorize the President of the United States to make withdrawals of public lands in certain cases (36 Stat. 847 as amended, 43 USCA §§ 141-143), shall hereafter, subject to valid and existing rights, constitute Naval Petroleum Reserve No. 2, and shall be held for the exclusive use or benefit of the United States Navy until this order is revoked by the President or by Act of Congress. To this end and for this public purpose, the order of July 2, 1910, is modified and the withdrawal of that date is continued and extended insofar as it affects these lands."

The Act of Congress of June 4, 1920, 41 Stat. 813 (34 USCA § 524), provided as follows: "The Secretary of the Navy is directed to take possession of all properties within the naval petroleum reserves as are or may become subject to the control and use by the United States for naval purposes * * * to conserve, develop, use, and operate the same in his discretion, directly or by contract, lease, or otherwise, and to use, store, exchange, or sell the oil and gas products thereof, and those from all royalty oil from lands in the naval reserves, for the benefit of the United States."

On May 31, 1921, President Harding promulgated an Executive Order as follows: "Under the provisions of the Act of Congress approved February 25, 1920 (41 Stat. 437), authorizing the Secretary of the Interior to lease producing oil wells within any Naval Petroleum Reserve; authorizing the President to permit the drilling of additional wells or to lease the remainder of any part of a claim upon which such wells have been drilled, and under authority of the Act of Congress approved June 4, 1920 (41 Stat. 812, 813 (34 USCA § 524), directing the Secretary of the Navy to conserve, develop, use and operate, directly or by contract, lease, or otherwise, unappropriated lands in the Naval Reserves, the administration, and conservation, of all oil and gas bearing lands in Naval Petroleum Reserves Nos. 1 and 2 in California, and Naval Petroleum Reserve No. 3 in Wyoming, and Naval Shale Reserves in Colorado and Utah, are hereby committed to the Secretary of the Interior subject to the supervision of the President, but no general policy as to drilling or reserving lands located in a Naval Reserve shall be changed or adopted except upon consultation and cooperation with the Secretary or Acting Secretary of the Navy. The Secretary of the Interior is authorized and directed to perform any and all acts necessary for the protection, conservation, and administration of the said Reserves subject to the conditions and limitations contained in this order and of the existing laws or such laws as may hereafter be enacted by Congress pertaining thereto."

It is then charged that immediately following the promulgation of the Executive Order of President Harding, Albert B. Fall, in pursuance thereof, as Secretary of the Interior, assumed and undertook the administration and conservation of the properties mentioned in the Executive Orders; and that at the time of the committing of the offense charged he was an officer of the United States in an official capacity, and while acting in that capacity he assumed and undertook to dispose of the so-called royalty oil which had accrued and which was to accrue to the United States during the period specified under leases and contracts made and to be made of lands in said Naval Reserves, and to make further similar leases and contracts covering lands in the Naval Reserves.

The indictment further charges that defendant, "without advertisement and request for or permission of competitive proposals and bids," made a contract with the Pan American Petroleum & Transport Company for the construction in the territory of Hawaii of storage tanks of the capacity of 1,500,000 barrels to be filled with fuel oil in consideration of the United States delivering to said corporation at the places of production in the Naval Reserves and in further consideration of giving to said corporation a lease "carrying the privilege of extracting petroleum oil from the entire unleased portion of said Naval Petroleum Reserve."

It is also charged that in pursuance of the authority assumed by defendant and by virtue of the Executive Order, "there then became and was pending before said Albert B. Fall, in his said official capacity, the question and matter of his decision and action upon said negotiations; that Edward L. Doheny, on November 30, 1921, was the president and director of said Pan American Petroleum and Transport Company and was actively engaged in the conduct of its business affairs"; and that Albert B. Fall, as Secretary of the Interior, and in connection with the administration of the Naval Petroleum Reserves located within the state of California, unlawfully and feloniously accepted from Edward L. Doheny, on November 30, 1921, the sum of $100,000, with intent to have his decision influenced in approving and making the contracts and lease in question between the United States and the Pan American Petroleum & Transport Company, in accordance with the agreements and negotiations theretofore conducted between defendant and Doheny.

Prior to the trial on this indictment, a second indictment was returned by the grand jury for the District of Columbia charging defendant and Edward L. Doheny with conspiracy to defraud the United States in violation of section 37 of the Criminal Code (18 USCA § 88). This indictment in substance charged that defendant and Doheny had agreed on and prior to November 30, 1921, that defendant, in consideration of the payment to him on that date by Doheny of the sum of $100,000, would award to the Pan American Company the same contracts and lease set out in the bribery indictment.

The government elected to proceed to arraignment and trial on the conspiracy indictment, the trial resulting in a verdict of not guilty. Defendant then interposed a demurrer to the indictment charging him with bribery on the broad ground that inasmuch as defendant was acting without jursdiction in the making of the contracts and lease, and in a capacity not authorized by law, he could not be guilty of bribery. This demurrer was overruled, whereupon the defendant submitted four special pleas to the indictment, in substance that the judgment and acquittal in the conspiracy case was res adjudicata as to the present case, and that to subject defendant to trial in the bribery case would be to twice put him in jeopardy in violation of the Fifth Amendment of the Constitution of the United States.

We will consider the points relied upon by counsel for defendant in the order in which they are presented. It is contended that there can be no bribery of an official to do a particular act unless the law requires or imposes upon him the duty of acting; and that, inasmuch as the Executive Order of May 31, 1921, has been declared by the courts to be void, no legal authority was imposed upon defendant as Secretary of the Interior to proceed with the administration of the Petroleum Reserves, and there could be no bribery for the inducing of any action on the part of the defendant in respect of the leasing of these Reserves.

Section 117 of the Criminal Code (18 USCA § 207) provides 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, * * * 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 punished, etc.

It is clear, we think, that defendant in these transactions not only assumed to exercise the authority attempted to be conferred by the Executive Order, but that he acted under color of authority. In the case of Pan American Petroleum & Transport Co., et al. v. United States, 273 U. S. 456, 47 S. Ct. 416, 419, 71 L. Ed. 734, where the contracts in question were set aside on the ground of fraud, the court, considering the authority exercised by defendant in connection with the execution of the contracts and leases in question, said: "E. L. Doheny controlled both companies. Fall was active in procuring the transfer of the administration of naval petroleum reserves from the Navy Department to the Interior. And, after the executive order was made, he dominated the negotiations that eventuated in the contracts and leases. From the inception no matter of policy or action of importance was determined...