Pipkin v. United States, 16220.

• Decision Date: 22 April 1957
• Docket Number: No. 16220.,16220.
• Citation: 243 F.2d 491
• Parties: Odie Thomas PIPKIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

243 F.2d 491 (1957)

Odie Thomas PIPKIN, Appellant, v. UNITED STATES of America, Appellee.

No. 16220.

United States Court of Appeals Fifth Circuit.

April 22, 1957.

Lester L. May, Dallas, Tex., for appellant.

William N. Hamilton, Asst. U. S. Atty., Dallas, Tex., Heard L. Floore, U. S. Atty., Fort Worth, Tex., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.

HUTCHESON, Chief Judge.

Convicted of having asked, accepted, and received a bribe of $5000, in violation of the provisions of Sec. 202, Title 18 U.S.C., and sentenced to imprisonment and to pay a fine, defendant has appealed, presenting eighteen specifications of error. Of these Nos. 1 to 8 present in different forms the same general points: (1) that the court erred in not directing a verdict in his favor not on the ground that he did not accept and receive the $5000 but on the ground that defendant did not and could not under any circumstances have had any such influence in the granting of the contract involved as would make him guilty under the statute; and (2) that, if he was not entitled to a direction, the court erred in not properly submitting to the jury as an issue of fact whether or not he had or could have had any such influence.

Fully argued together in his brief, these constitute the errors on which he primarily relies, and specifications Nos. 9 to 18, though not argued in his brief, are urged upon us as also meritorious on the record individually and as a whole. The United States, in its brief, deals with each specification individually, opposing to each a counterpoint of its own.

Because we are of the clear opinion that the lack of merit of the greater part of the specifications of error, including especially specifications Nos. 9 to 17, is obvious, we shall not follow this course.

Dealing first with and disposing of appellant's argued assignments Nos. 1 to 8, that under the undisputed evidence or, if not, under a view of it which the jury might have taken, he could not have been guilty of the denounced offense and that he should either have had an instructed verdict or instructions should have been, but were not, given, submitting his defensive theory, we shall briefly and precisely give our reason for thinking that they present no case for reversal.

First and most important, we think we should say that appellant's request for an instructed verdict and for the giving of his special charge No. 3 is based upon a mistaken opinion as to the construction and scope of Sec. 202, the bribery statute, and that this in turn proceeds from his unwarranted reliance on the two cases he cites, Blunden v. United States, 6 Cir., 169 F.2d 991, and United States v. Waldin, D.C., 139 F.Supp. 156. If these cases go as far as the appellant contends for, and there is certainly warrant for so contending, we think the undisputed facts of this case go further in the direction of responsible guilt than the facts in those cases did, but, more important, we think it plain that they were not correctly decided, and that, as pointed out in Hurley v. United States, 4 Cir., 192 F.2d 297 and Wilson v. United States, 4 Cir., 230 F.2d 521, the statute is subject to no such restrictive construction.

When it comes to the facts of this case, it would be difficult, we think, to find a more conspicuous case of one asserting and having a sufficient position in connection with the proposed bribing to bring him directly within the offense denounced in the statute. Not denying, indeed admitting that he had accepted the bribe, one of his defenses, entrapment, put up the claim that he did so in order to catch or entrap Temco Company as a bribe giver. In addition, the evidence as a whole, including that of the defendant himself, clearly shows him to have been an employee who was in a position to influence the giving of the contract in question, and that the bribe theory on which he relies to escape punishment, that because his functions were purely advisory and he was not one who was required to make final decisions, he could not come within the bribery statute and was therefore entitled to a directed verdict, is wholly groundless.

For the same reason, that throughout the trial below, and especially in requesting the charge, he was proceeding on this misconception, there was no error in refusing his requested instruction No. 3.¹

This charge, carrying forward into it the same erroneous view which underlies his request for a directed verdict, asks in different form but to the same effect, such a verdict. If given, it would have told the jury that if they believed that he was not the contracting officer and that in his official position he was not able to deliver on the promise made and received as the consideration for the bribe, by making or guaranteeing the making of a contract, he could not be held guilty. This error in approach...