Nordgren v. United States, 12294.

• Citation: 181 F.2d 718,12 Alaska 671
• Decision Date: 24 April 1950
• Docket Number: No. 12294.,12294.
• Parties: NORDGREN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Alaska 671, 181 F.2d 718 (1950)

NORDGREN v. UNITED STATES.

No. 12294.

United States Court of Appeals Ninth Circuit.

April 24, 1950.

Howard D. Stabler, Juneau, Alaska, for appellant.

P. J. Gilmore, Jr., U. S. Attorney, Stanley D. Baskin, Asst. U. S. Attorney, Juneau, Alaska, for appellee.

Before HEALY, BONE and POPE, Circuit Judges.

HEALY, Circuit Judge.

Appellant was indicted and convicted under 18 U.S.C.A. § 91, 1946 ed.,¹ of offering and giving to one MacKenzie, a fishery patrol agent of the Fish and Wildlife Service of the Department of the Interior, alleged to be a person acting for and on behalf of the United States in an official function, a bribe with the intention of inducing MacKenzie to refrain from reporting that appellant had fished for salmon illegally in a closed area. He was sentenced to imprisonment for a period of fourteen months and fined the sum of $200. His brief on appeal specifies six errors, not all of which need be noticed.

His first contention is that the evidence failed to prove the offense charged in that MacKenzie was not shown to be a "person acting for or on behalf of the United States in any official function." The contention was advanced on the trial as one of law, that is, it appears predicated not so much on infirmities in the evidence as on appellant's construction of the statute. There was no objection to the form of the proof as to MacKenzie's status, nor was there any dispute concerning the facts bearing thereon. It was shown that he was employed during the period from June 18 to August 22, 1948, by the Fish and Wildlife Service of the Department of the Interior as a fishery patrol agent, being hired by one Ralston, the head law enforcement officer of the Service.² He was administered an oath of office and his salary was paid by Treasury check. The Service transported him by steamer on June 22 to Red Fish Bay, Baranof Island, and picked him up there at the termination of his work, a boat owned by the Service being left with him for his use in the interim. His duties were to observe the part of the Bay extending from the Second Narrows northerly to the Bay's head where a stream enters, that being an area officially closed to salmon fishing; to see that no one fished there; and to report to the Service any persons who fished in the forbidden area. He testified that "nothing much was said" to him "about arresting anybody," and he seems not to have felt that he had authority to apprehend offenders.

Appellant calls attention to the provisions of 48 U.S.C.A. § 227 to the effect that all employees of the Service, "designated by the Director, shall be considered as peace officers and shall have the same powers of arrest of persons and seizure of property" as have United States Marshals or their deputies. The point attempted to be made is that, since the evidence did not show that MacKenzie was appointed by the Director, he did not possess the powers of a peace officer and could not therefore be considered as performing an official function in the sense of the statute. However, the statute speaks of "officers" and "persons" in the disjunctive. It is not thought that an agent of the Service, performing the duties MacKenzie was authorized to discharge, need be designated by the Director or vested with the powers of a peace officer in order to bring his function within the statutory language. MacKenzie might, and did, exercise official functions apart from the making of arrests.

It is argued that MacKenzie's status was not different from that of the employee involved in Krichman v. United States, 256 U.S. 363, 41 S.Ct. 514, 515, 65 L.Ed. 992. Krichman bribed a baggage porter employed at the Pennsylvania terminal in New York City to induce him to deliver a trunk containing furs. At that time (during the first World War) the Pennsylvania road was being operated by a Director-General under presidential proclamation, as were all the railroads in the country. The question was whether the porter was a person acting for the United States in an official function. The court thought that the act aims to punish the bribery of those "exercising official functions under or by the authority of a department or office of the government." It observes that the statute was passed long before there was any thought of taking over the railroads, and that this was a circumstance to be considered in determining whether the situation was one intended to be dealt with by Congress. The government's situation in respect of the railroads was likened to its relations with wholly owned corporate entities, such as the Emergency Fleet Corporation. The court was of opinion that to include the baggage porter among those performing official functions for the United States was, in the circumstances, giving to the statute too broad an application.³

The decision is of no help to appellant. His case is more nearly akin to United States v. Birdsall, 233 U.S. 223, 34 S.Ct. 512, 58 L.Ed. 930, which had to do with the bribery of special agents of the Bureau of Indian Affairs employed in connection with the suppression of the liquor traffic among the Indians, that is to say, exercising functions under or by authority of a regular and long-established executive department. In the Birdsall case the statutory language was given a broad construction as applied to persons in that category. Consult, also, United States v. Ingham, D.C., 97 F. 935.

Appellant made timely objection to and has assigned as error the giving of an instruction that MacKenzie was "a person acting for and on behalf of the United States in the function of conserving and protecting the commercial salmon fisheries of Alaska, under and by authority of the Department of the Interior." The vice of the instruction is said to be that it charged the jury as a matter of law that MacKenzie was of the class of persons described in the statute, whereas the question whether he was or not should at the least have been left to the jury. We think the charge was not error. There was, as already indicated, no controversy as to the facts pertaining to the functions MacKenzie was performing, and the charge did not misdescribe his duties. Moreover appellant did not ask for an instruction submitting to the jury the question whether MacKenzie was performing an official function. The court in the course of its charge repeatedly informed the jury that it was their sole province to determine the facts.

Another claim is that the court was in error in refusing to admit proof of appellant's acquittal of charges of illegal fishing in the closed waters of Red Fish Bay on August 10, 15 and 16, 1948. On the trial of the instant case MacKenzie testified to appellant's having fished in those waters on one or the other or on several of those dates, as presumably he had done in the...