Martin v. United States

• Decision Date: 18 January 1922
• Docket Number: 76.
• Citation: 278 F. 913
• Parties: MARTIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

278 F. 913

MARTIN v. UNITED STATES.

No. 76.

United States Court of Appeals, Second Circuit.

January 18, 1922

Defendant was a special agent of the Department of Justice, attached to the Bureau of Investigation in New York City. One Daus, a German subject, applied to the State Department for a visa upon his passport in order to permit him to visit the United States. He named, as a reference, one Leo Levy, a retired stockbroker and an American citizen. The State Department, in accordance with its routine, referred the Daus application to the Department of Justice for examination of the persons named as references, and, in due course, the duty was assigned to defendant. Levy was formally requested by defendant to call at the bureau for examination and he did call on defendant on November 16, 1920. Levy explained that he wished to aid Daus, who was his brother-in-law, to pass through the United States on his way from Cuba to Germany, as Daus was a sick man, and wished to avoid a three-weeks crossing in a small vessel from Cuba. Levy told defendant that, 'if there were any incidental expenses connected with expediting the matter,' he would not object to paying them.

After asking Levy some formal questions, defendant told him to obtain two affidavits from reputable merchants as to the character of Daus and to return later in the day. This Levy did. After defendant had read the affidavits he said, according to Levy: 'There are two ways of doing this thing. One is the regular way, which * * * may take weeks, and which may take months. Then again there is another way, according to which matters can be considerably expedited. But that * * * will cost you money. * * * You know those fellows down in Washington want to be greased. * * * They are not down there for their health. ' Martin said it would cost $300, and when Levy demurred, saying he did not like to pay $300, unless he felt 'sure there is going to be a favorable result,' defendant answered: 'All you will have to agree to * * * will be to pay for the preliminary expenses, the incidental expenses, in connection with sending a man down to Washington,' and the amount named was $30, to the payment of which Levy agreed, and thereupon defendant said: 'All right; * * * you will hear from me further.'

Defendant did not transmit the affidavits through the Washington office, as was his duty. Instead, he retained them from November 16th to November 23d, and on the latter date wrote to Metcalf, an employee of the Department of Justice at Washington, inclosing the affidavits and stating: 'I promised to forward these affidavits with the idea in view that, if the State Department * * * are shown these affidavits, no doubt it will expedite the matter, and therefore take the liberty of asking you, at your earliest convenience, to take up this matter at your earliest convenience. ' No copy of the letter was made for the files of the local bureau, nor any record made thereof. Metcalf (the propriety of whose conduct is not questioned) and defendant had been acquainted for some years, first having met in official relationship. Metcalf's duties were not, in any way, concerned with visa references. Metcalf carried out defendant's request, and delivered the letter and affidavits to an employee of the Department of State at Washington, and the letter thus became part of the official file of that department.

Having learned from Metcalf that the application had been granted defendant, on November 24th, informed Levy by telephone accordingly. At that time, defendant's official duties in this connection were ended. On cross-examination, it developed that on November 16th, after Levy's conversation with defendant, he communicated the substance of the conversation to an employee of the Department of Justice whom he happened to know. Thus it was that on November 26th Levy telephoned from an office of the Department of Justice in New York to defendant at the latter's home, and a stenographer in the Department of Justice took down the conversation, at the end of which Levy said that he was willing 'to go through with it,' and defendant said 'That is all right.'

On December 1st, defendant called at Levy's office and collected the $30 for the pretended expenses of sending a man to Washington. At the same time defendant showed Levy a letter written by an employee of the State Department to Metcalf, stating that the application had been granted. Metcalf mailed that letter to defendant, pursuant to a telephone request made by defendant, when he called Metcalf at Washington, and inquired whether the latter had heard anything in regard to the application. On December 7th Levy called upon the defendant, pursuant to the latter's suggestion. Levy was then acting with the knowledge of Lamb, Division Superintendent of the Department of Justice, and defendant's superior. Levy handed defendant $270 in currency, contained in an envelope. Defendant drew from his pocket a long envelope, addressed and bearing postage. He placed the envelope, containing the money given by Levy, in the larger envelope, sealed that envelope, and placed it in his pocket. The envelope was obtained from one Newman, a special agent, and defendant admitted he had given the envelope to Newman to mail. It was addressed to Frederick L. Kramer, 120 Broadway, and on the back bore the writing, 'E.P.M., 197 Highland Place, Brooklyn, N.Y.'

The defendant resided in New Rochelle. His sister resided at the return address written on the back of the envelope addressed to Kramer. Kramer, an attorney, was an old friend of defendant, and had permitted him to use his office on previous occasions as a mailing address. Defendant did not testify, although a statement made by him to Lamb, after he had attempted to mail the $270, was introduced as part of the prosecution's case.

Slade & Slade, of New York City (David H. Slade, of New York City, of counsel), for plaintiff in error.

William Hayward, U.S. Atty., and John E. Joyce, Asst. U.S. Atty., both of New York City.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

MAYER Circuit Judge (after stating the facts as above).

1. It is contended that the seventh count fails to charge a crime, because the statute fails to define extortion. Section 85 of the Criminal Code reads as follows:

'Every officer, clerk, agent, or employee of the United States, and every person representing himself to be or assuming to act as such officer, clerk, agent, or employee, who, under color of his office, clerkship, agency, or employment or under color of his pretended or assumed office, clerkship, agency, or employment, is guilty of extortion, and every person who shall attempt any act which if performed would make him guilty of extortion, shall be fined not more than five hundred dollars, or imprisoned not more than one year, or both.'

Attention is called by defendant to sections 332 and 333 of the Criminal Code (Comp. St. Secs. 10506, 10507), where the expression 'an offense defined in any law of the United States' is used, and to section 340 (Comp. St. Sec. 10514), which provides: 'The crimes and offenses defined in this title shall be cognizable in the Circuit and District Courts, * * * ' as prescribed in R.S. Secs. 563, and 629 (Comp. St. Sec. 991). Briefly stated, the argument is, first, that in any event the statute must define the crime of extortion; and, secondly, that under section 340, supra, the crime is not cognizable in the national courts, because not defined 'in this title.'

An examination of the Criminal Code and of the Revised Statutes will show that, in a considerable number of instances, crimes denounced have not been defined. Some of these statutes, in substantially their present form, have been on the books for over or nearly a century. Thus R.S. Sec. 5286 (Comp. St. Sec. 10177), as to military expeditions against people at peace with the United States, had its origin in a statute of 1794; section 5368 (Comp. St. Sec. 10463), as to piracy, in a statute at least as early as 1819; and the statute here under consideration (section 85), as to extortion, in a statute at least as early as 1825. 'Steal,' for instance, is not defined in Criminal Code, Secs. 36 and 47 (Comp. St. Secs. 10200, 10214); nor 'forge' in sections 27 and 30 (Comp. St. Secs. 10191, 10194); nor 'rob,' in section 46 (Comp. St. Sec. 10213); and the illustrations could be multiplied.

Thus by a long history of practical construction by the Legislature and by the decisions of the courts, resort is had either to the commonlaw definitions...