Hurley v. United States, 6305.

• Decision Date: 05 November 1951
• Docket Number: No. 6305.,6305.
• Citation: 192 F.2d 297
• Parties: HURLEY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

192 F.2d 297 (1951)

HURLEY et al. v. UNITED STATES.

No. 6305.

United States Court of Appeals Fourth Circuit.

Argued October 1, 1951.

Decided November 5, 1951.

Thomas J. Kenney, Baltimore, Md. (James S. Morrow, Jr., Baltimore, Md., on brief), for appellant John Comi.

Maurice T. Siegel, Baltimore, Md., on brief for appellant Eugene Hurley.

Bernard J. Flynn, U. S. Atty., Baltimore, Md., for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This appeal is from a criminal conviction in the United States District Court for the District of Maryland. Appellants, Hurley and Comi, along with one Nelson, were indicted and convicted of (1) bribery under 18 U.S.C.A. § 201, and (2) conspiracy under 50 U.S.C.A.Appendix, § 462. This appeal is from the bribery conviction under § 201.

Nelson, at the time of the incidents out of which this prosecution arose, was a sergeant in the United States Army, attached to the Maryland Military District Motor Pool. He had formerly been stationed at the Baltimore Induction Station, where he was acquainted with a Sergeant Nichols, a member of the United States Air Force.

On February 23, 1951, Nelson approached Nichols, who was still attached to the induction center. On the following day they met, and Nelson asked Nichols if there was anything he could do to keep a man out of the armed forces. Nelson told Nichols that the man he had in mind was one Hurley and that he, Nichols, could expect compensation for whatever he could do. Nichols then told Nelson to have Hurley come to see him at the induction station. Hurley had already passed the armed forces physical examination and had been ordered to report for induction on March 5, 1951.

On February 26, 1951, Hurley visited Nichols at the induction center. Nichols informed Hurley that he could do nothing for him at that time as the risks were too great. After this conversation, Nichols reported the incident to his commanding officer.

On March 3, 1951, at the instigation of the F. B. I., Nichols went to Nelson's home and arranged a meeting between Hurley and himself for the following evening, in a Baltimore restaurant. At the appointed hour, Hurley, accompanied by Comi, arrived at the meeting place. Comi, it appears, was the father of Hurley's sweetheart. Nelson was also present. Comi and Hurley agreed that $450.00 was a fair price for Nichols' services. Once the price had been set, Hurley borrowed Comi's car, went and procured the money, gave it to Comi, who in turn counted out $450.00 and passed it over to Nichols. Shortly afterwards, Comi, Hurley and Nelson were arrested, and this prosecution followed.

At the trial it was shown that Sergeant Nichols was in charge of the men being processed at the induction center. He testified, however, that he had nothing to do with the actual physical examination nor could be make any recommendation as to whether a prospective inductee should be accepted or rejected for military service. He did state although he could not legally prevent a man's induction, illegally he could.

At the conclusion of the trial, the jury returned a verdict of guilty on both counts, and all three parties, Nelson, Comi, and Hurley, were sentenced for three years and fined $1,000.00 on each of the two counts. Comi and Hurley have appealed to us.

Appellants' main contention is that both the indictment and the evidence fail to show an offense under 18 U.S.C.A. § 201, in that it was never alleged nor proven that Sergeant Nichols acting in an official function could prevent the induction of Hurley into the armed forces. With this contention we cannot agree.

The pertinent language of § 201 reads as follows: "Whoever promises, offers, or gives any money or other thing of value * * * to any officer or employee or person acting for or on behalf of the United States, or any department or agency thereof, in any official function * * * with intent to influence his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may * * * be brought before him to his official capacity, or in his place of trust or profit, or with intent to influence him to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States, or to induce him to do or omit to do any act in violation of his unlawful duty, shall be fined * * *."

As we read § 201, there are three categories of persons whose conduct it forbids to be influenced: (1) officers of the United States: (2) employees of the United States; and (3) persons acting for the United States in any official function. The phrases "officer or employee" and "person acting for or on behalf of the United States * * * in any official function" must be read in the disjunctive. See Nordgren v. United States, 9 Cir., 181 F.2d 718, 720. The phrase "in any official function," therefore, modifies only the word "person" and not "officer or employee."

It is well established that for an offense to be made out under § 201, a person acting for the United States must be doing so in his official capacity. Krichman v. United States, 256 U.S. 363, 41 S. Ct. 514, 65 L.Ed. 992; United States v. Birdsall, 233 U.S. 34 S.Ct. 512, 58 L.Ed. 930. In the Krichman case, supra, 256 U.S. at page 366, 41 S.Ct. at page 515, the Court, however, had this to say: "Not every person performing any service for the government, however humble, is embraced within the terms of...