Hone Wu v. United States

• Decision Date: 15 September 1932
• Docket Number: 4698.,No. 4697,4697
• Citation: 60 F.2d 189
• Parties: HONE WU v. UNITED STATES. LEE FONG v. SAME.
• Court: U.S. Court of Appeals — Seventh Circuit

60 F.2d 189 (1932)

HONE WU v. UNITED STATES.

LEE FONG v. SAME.

Nos. 4697, 4698.

Circuit Court of Appeals, Seventh Circuit.

June 22, 1932.

Rehearing Denied September 15, 1932.

Charles F. Hille and David D. Stansbury, both of Chicago, Ill., for appellants.

George E. Q. Johnson, U. S. Atty., and Mary D. Bailey and Mary C. Whelan, Asst. U. S. Attys., all of Chicago, Ill., for the United States.

Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.

ALSCHULER, Circuit Judge.

These appellants were jointly indicted with another, and all were convicted and sentenced on an indictment of two counts charging, respectively, bribing and attempting to bribe a federal narcotic officer, and conspiracy to bribe the officer. Each was sentenced on each of the counts to imprisonment in the penitentiary, the sentences as to each count to be served concurrently.

The alleged errors are: (1) The indictment fails to allege that appellants had knowledge of the official character of the alleged officer. (2) The description in the indictment of the alleged officer as "Federal Narcotic Agent" is not sufficient, in that there is no allegation of the department in which he was purporting to act. (3) There appears no attempt to influence the officer with reference to matters wherein he had any duty. (4) There was no evidence to sustain the judgment against Lee Fong. (5) There was no evidence to sustain the conspiracy count.

In charging the crime of bribing an officer, the indictment must in some manner set out defendants' knowledge of the officer's official capacity. In Pettibone v. United States, 148 U. S. 197, 13 S. Ct. 542, 546, 37 L. Ed. 419, the court said: "It seems clear that an indictment against a person for corruptly, or by threats or force endeavoring to influence, intimidate, or impede a witness or officer in a court of the United States in the discharge of his duty, must charge knowledge or notice, or set out facts that show knowledge or notice, on the part of the accused that the witness or officer was such."

In Cohen v. United States (C. C. A.) 294 F. 488, 490, there was before the court an indictment in like form as that here. It was there held that the allegations in the indictment set out facts which sufficiently indicated that the alleged officer was in fact such. We quote with approval that court's discussion thereon:

"Doubtless also it would have been better for the draftsman of this indictment to allege in direct words the existence of this knowledge or belief by the respondent; but the sufficiency of the indictment, especially after conviction, is no longer tested by the nicety of expression once required. If by fair and reasonable construction, it alleges every essential element to make out the crime, it is sufficient. This indictment alleges that Cohen did unlawfully, knowingly, and willingly `offer and give five thousand dollars in money of the United States to Robert E. Flora, a person then and there acting for and on behalf of the United States in the official function and capacity of prohibition enforcement agent in charge,' etc.

"We pass by the question whether the force of the word `knowingly' is sufficiently carried over into the latter part of this allegation to meet the necessity for alleging scienter * * *; for we think the necessary knowledge or belief is sufficiently to be implied from other parts of the indictment. After thus reciting that Flora was a prohibition enforcement agent and that Cohen offered and gave him this money, the indictment proceeds to charge, not that this was done to influence the action of the man, Flora, but with an intent to cause the `said prohibition agent' to violate his official duty in three other particulars. These statements, in substance and in necessary effect, mean that Cohen understood and supposed that Flora was a prohibition agent with the necessary authority to do the things which he was to be bribed not to do. There can be no other reasonable construction, and they sufficiently allege all the scienter which was necessary to be stated. Clearly no allegation can be required that the respondent knows that the official capacity or function existed. Often, if not usually, he cannot have absolute knowledge. He offers the bribe because he supposes the one to whom he offers it has the necessary official function; and, if his supposition is right, he commits the offense denounced by the statute."

To like effect are Bradshaw v. United States, 15 F. (2d) 970 (C. C. A. 9), and Henderson v. United States, 24 F.(2d) 811 (C. C. A. 4).

We believe that from the allegations the necessary inference would flow that the defendants intended to bribe, and conspired to bribe, this man in his supposed capacity as a federal narcotic agent, and that the indictment is not in this respect subject to attack, particularly when, as here, its sufficiency was for the first...