Krichman v. United States

• Decision Date: 14 January 1920
• Docket Number: 123.
• Citation: 263 F. 538
• Parties: KRICHMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

263 F. 538

KRICHMAN v. UNITED STATES.

No. 123.

United States Court of Appeals, Second Circuit.

January 14, 1920

Edward Schoen, of Newark, N.J., for plaintiff in error.

Francis G. Caffey, U.S. Atty., of New York City (David V. Cahill Asst. U.S. Atty., of New York, of counsel), for the United States.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

ROGERS Circuit Judge.

The defendant has been convicted under an indictment which originally contained four counts. The first count charges that he unlawfully, willfully, corruptly, and knowingly did promise and offer money to Herman Zwillinger, who was then and there a person acting for and on behalf of the United States in an official function, under and by authority of the office of the Director General of Railroads of the government thereof, to wit, a baggage porter employed on and by the Pennsylvania Railroad Company, a common carrier which was then and there operated by the Director General of Railroads of the United States; that the promise and offer were made with the intent to induce Zwillinger to give and deliver to defendant in the city of New York certain trunks designated by defendant, and which would come into the possession of the railroad as baggage to be transported from the state of New York to other states, and which it would be the duty of Zwillinger to cause to be transported and to aid in transporting.

The second count charges that defendant offered to Zwillinger, a person acting for and on behalf of the United States in an official function under and by authority of the office of the Director General of Railroads, to wit, a baggage porter employed on the Pennsylvania Railroad, the sum of $50; that the offer was made to induce Zwillinger to violate his duty as such baggage porter, and to deliver to defendant a certain trunk containing furs, which was then in the possession of the railroad company as baggage, and was in course of transportation from the state of New York to the state of Pennsylvania.

The third count charges that defendant gave Zwillinger $45 with intent to induce him to deliver to defendant a trunk containing furs, which was in the possession of the railroad as baggage, and in course of transportation as already stated, and which trunk was not the property of either the defendant or of Zwillinger.

The fourth count was dismissed by the court, and the case went to the jury on the first three counts.

The indictment was brought under section 39 of the Criminal Code (U.S. Compiled Statutes (1916) vol. 10, p. 12610). The provision may be found in the margin. ^[1] The testimony in effect was as follows:

The baggage porter named in the indictment was employed in that capacity by the Pennsylvania Railroad at its station in the borough of Manhattan, New York City. The defendant was in the fur business. In November, 1918, he visited the Pennsylvania Station on several occasions and there had conversations with the baggage porter. On the first occasion the defendant inquired about the handling of trunks that passed through the hands of the porter at the station, and suggested that there were opportunities for the porter to make some money. The porter inquired how this could be done. The defendant explained that he would be willing to give the porter money for turning over to him trunks belonging to other people. The porter indicated willingness to consider the proposition and promptly reported the matter to his superiors. About two weeks later the defendant saw the porter at the station concerning a particular trunk, which it turned out had already passed beyond the control of the porter. On the night of that visit, the defendant telephoned the porter that another described trunk would arrive at the station the next day. On the following day the defendant appeared at the station and paid the porter $45 for delivering the trunk to him. The trunk was placed on a wagon, which was driven away from the Pennsylvania Station on the way to the Grand Central Station. Before the arrival at the Grand Central Station, the defendant got on the wagon and was then arrested by a railroad police officer. The trunk contained furs.

There are two questions raised in connection with this case: (1) Does the indictment on its face sufficiently allege the commission of the crime named in the section of the Criminal Code upon which the indictment rests? In other words, is a baggage porter employed as such on the Pennsylvania Railroad Company and discharging his duties in that capacity, while that common carrier is operated by the Director General of Railroads of the United States, a person acting for and on behalf of the United States in an official function? (2) Assuming that the above question is answered in the affirmative does the proof show that the baggage porter was a person acting for and on behalf of the United States in an official function; it not having been proved that at the time named the Pennsylvania Railroad was being operated by the Director General of Railroads.

As respects the first of these questions it is claimed that the indictment does not charge an offense, inasmuch as the baggage porter described therein is not a person acting for and on behalf of the United States in an official capacity. We think the question thus presented must be answered in the affirmative. In United States v. Birdsall, 233 U.S 223, 230, 34 Sup.Ct. 512, 514 (58 L.Ed. 930) the court had to pass upon the meaning of section 39 of the Criminal Code, and it declared that 'every action that is within the range of official duty' comes within the purview of the section. The court went on to say that--

'To constitute it official action, it was not necessary that it should be prescribed by statute; it was sufficient that it was governed by a lawful requirement of the department under whose authority the officer was acting.'

As we read the opinion in that case the court held it to be within the competency of the Department of the Interior to establish regulations and practices having the force of regulations, that all persons 'employed in its work' should render to the Commissioner whenever requested true reports and give disinterested and honest advice with respect to the performance of any duty devolving upon the Commissioner and that the giving and acceptance of bribes to influence the employes of the department in their action in such matters is within the section of the Criminal Code under which the indictment in that case as in this was laid. In that case the duty that was to be performed did not arise under any act of Congress, but was based on an established custom or practice of the Bureau of Indian Affairs to recommend to the executive or the judicial departments of the government as to whether clemency should be extended to or withheld from any person charged with or convicted of selling intoxicating liquors to Indians. The accused persons were special agents or officers appointed by the Commissioner of Indian Affairs, under the authority of the Secretary of the Interior, for the suppression of the liquor traffic among the Indians. The bribe was given to influence their report to the Commissioner of Indian Affairs as to whether that official should favor or oppose clemency in a particular case.

In Haas v. Henkel, 216 U.S. 462, 30 Sup.Ct. 249, 54 L.Ed. 569, one Holmes was indicted with Haas and another charged with conspiracy to commit an offense against the United States, which was to be accomplished by bribing Holmes to do certain acts in violation of his lawful duty not to give out advance information in respect to the condition of the cotton crop acquired in the performance of his official duty as an employe in the Department of Agriculture. He was an assistant statistician, and the indictment averred that he 'was an employe or an official in said Department (of Agriculture) and in the Bureau of Statistics. ' The indictments set forth that one of the governmental functions exercised by that department is the acquirement of detailed information in respect to the condition of the cotton crop; that under the custom, practices, and regulations of the Secretary all officers and employes are required to keep secret the information so gathered, and from in any way divulging same or giving out any information forecasting such report in advance of its official approval and promulgation. The indictments were held to be sufficient. Can it be that it was a criminal offense against the United States to bribe the assistant statistician to disclose the information, but not an offense against the United States to bribe a stenographer in the office to do the same thing? Are not both acting on behalf of the United States in an official function while employed in the department? If such a person is not within section 39, we can only say what the Supreme Court said in United States v. Hartwell, 6 Wall. 385, 395 (18 L.Ed. 830): 'If the subordinates are not within the act, there is no provision in the laws of the United States for their punishment in such cases. * * * We think it clear that it was not the intention of Congress to leave an omission so wide and important in the act. * * * '

In that case the indictment alleged that the defendant was an...