Kemler v. United States, 3789.

Decision Date27 January 1943
Docket NumberNo. 3789.,3789.
Citation133 F.2d 235
PartiesKEMLER v. UNITED STATES.
CourtU.S. Court of Appeals — First Circuit

J. C. Johnston and Aaron J. Bronstein, both of Boston, Mass., for appellant.

Thomas P. O'Connor, Asst. U. S. Atty., and Edmund J. Brandon, U. S. Atty., both of Boston, Mass., for appellee.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

WOODBURY, Circuit Judge.

This appeal is from a judgment of the district court sentencing the defendant to a fine and imprisonment after he had been found guilty by a jury of violating Section 39 of the Criminal Code, 18 U.S.C.A. § 91.1

It appears that the defendant, who was born on May 28, 1910, was duly registered on October 16, 1940, in accordance with the provisions of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix § 301 et seq., and regulations promulgated thereunder, and that on May 24, 1941, he duly filed his selective service questionnaire. On September 8, 1941, he was classified by his local board as 1-H and on September 15 following he was duly notified thereof. It is conceded that under the regulations then in effect this deferred classification was appropriate for one of the defendant's age.

On January 26, 1942, the defendant received a notice from his local board to report to its examining physician on February 1 following for a physical examination. On the day before this examination was to take place the defendant presented himself at the examining physician's office; told the doctor that he was not a well man due to a heart condition, and offered the doctor $500 "if the doctor would examine him and defer him on the following day", or, in the words of the confession to be considered hereafter, "if he (the doctor) would say that his heart was weak." The doctor refused the offer, apparently with some warmth, and on February 1 when the defendant reported for physical examination according to the notice which he had received he was questioned by local and federal officers, as will appear in more detail hereafter, and then was placed under arrest.

The defendant does not deny, nor can he, that there is sufficient evidence to indicate that he offered the above sum of money to the doctor for the purpose of inducing the latter to certify that he was unfit for military service, but he contends that this action on his part was not in violation of the statute under which he was indicted and tried. We do not agree.

Writing such parts of the statute as are here material in one unbroken sentence it reads: "Whoever shall promise any money to any person acting for or on behalf of the United States in any official function, under or by authority of any department or office of the government thereof, with intent to influence his decision on any matter which may by law be brought before him in his official capacity, shall be fined and imprisoned."

It is admitted that the doctor to whom the money was offered had been regularly appointed as the medical examiner or examining physician of the defendant's local board and that he had duly and regularly qualified as such. From this it seems to us clear that the doctor, as such examining physician, if he was not an "officer of the United States", was at least a person called upon to act "for or on behalf of the United States in an official function under the authority of a department and office of the Government" as alleged in the count of the indictment under which the defendant was found guilty and sentenced. See United States v. Bordonaro, D.C., 253 F. 477. But the defendant contends that because of his deferred classification his local board could not legally order him to report for a physical examination until it had reclassified him as 1-A, which he says it had not done, and notified him thereof, which admittedly was not done, and therefore that if the doctor had examined him he would not in so doing either have been acting in an official function, or have been called upon to give a decision upon a matter which could by law have been brought before him in his official capacity.

We are not by any means persuaded that under the Selective Training and Service Act of 1940, and the regulations promulgated thereunder which were in force at the time the offer to bribe was made, the local board could not legally have ordered the defendant to report for a physical examination as it did, but we need not discuss this question because it seems to us beside the point. The question is not whether the defendant would have been legally justified in refusing to present himself for physical examination. He did present himself for that examination according to the notice which he had received. He did what he was told to do, but attempted to evade what he suspected might be the consequences thereof by offering a bribe and this, in our opinion, is sufficient.

The clear purpose of the statute is to protect the public from the evil consequences of corruption in the public service. Thus the gravamen of the offense described therein is the giving or offering of a bribe to a person acting on behalf of the United States for the purpose of influencing official conduct. Obviously no one would give or offer a bribe unless he expected to gain some advantage thereby, and since attempting to gain an advantage by this means is the evil which the statute is designed to prevent, it can make no difference if after the act is done the doer discovers that for some reason or another, be it a mistake on his part or a mistake on the part of some officer or agency of the United States, there was actually no occasion for him to have done it. The statute is violated when a bribe is given or an offer to bribe is made regardless of the occasion therefor, provided it is done with the requisite intent and provided the acceptor or the offeree of the bribe is a person of the sort described in the statute.

Considering the regulations as a whole, it seems to us clear that it was the examining physician's function to give physical examinations to such registrants as the local board sent to him and to report the results thereof to the board on forms sent by the board to him, but that it was not his function to determine what persons should come up for examination. There is no provision anywhere requiring that the doctor be shown a registrant's questionnaire, nor is there any provision requiring him to interview a registrant for any purpose other than to determine physical or mental condition. And the regulations are clear that the required physical examination included an examination for certain specified heart conditions. Thus we are of the view that if the doctor had examined the defendant he would have been acting in an official function and would have been called upon to render a decision upon a matter which could by law have been brought before him in his official capacity. The fact that before induction into the army the defendant would receive a more thorough physical examination does not affect his guilt under this statute. Sears v. United States, 1 Cir., 264 F. 257.

The suggestion that the doctor could not legally have examined the defendant on February 1, 1942, because he was then required to report the results of that examination upon a specified form which at that time had not been printed and distributed comes to nothing because the instructions to draft boards then in effect authorized the interim use of the old form previously used with two additional questions typewritten or stamped thereon.

The defendant further contends that he should be discharged for the reason "that a prosecution cannot be had under a general statute if there is a special statute governing the acts charged" and he cites as the applicable special statute sections 7 and 11 of the Selective Training and Service Act of 1940. Section 7 forbids the payment of bounties; the hiring or enlistment or induction of substitutes, or the payment of money in substitution for training and service under the Act, or liability therefor, and section 11 provides a penalty for knowingly making false statements of fitness or unfitness, or liability or nonliability for service, or otherwise evading either registration or service under the Act. Neither of these sections specifically covers the crime of bribery or attempted bribery. Under these circumstances it seems to us clear that the...

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    ...clear purpose of the statute is to protect the public from the consequences of corruption in the public service. Kemler v. United States, 1 Cir., 1942, 133 F.2d 235, at page 238. It is a major concern of organized society that the community have the benefit of objective evaluation and unbia......
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