Rembrandt v. United States

• Decision Date: 12 May 1922
• Docket Number: 3618.
• Citation: Rembrandt v. United States, 281 F. 122 (6th Cir. 1922)
• Parties: REMBRANDT v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

281 F. 122

REMBRANDT v. UNITED STATES.

No. 3618.

United States Court of Appeals, Sixth Circuit.

May 12, 1922

Walter D. Meals, of Cleveland, Ohio (Reed, Meals, Orgill & Mashke of Cleveland, Ohio, on the brief), for plaintiff in error.

D. J Needham, Asst. U.S. Atty., of Cleveland, Ohio (E. S. Wertz U.S. Atty., of Cleveland, Ohio, on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge.

Section 39 of the Criminal Code(Comp. St. Sec. 10203) reads as follows, omitting those portions not now important:

'Whoever shall promise, offer or give * * * any money * * * to any officer of the United States, or 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 or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity * * * or to induce him to do or omit to do any act in violation of his lawful duty shall be fined * * * and imprisoned. * * * '

The National Prohibition Act(41 Stat. 319), in section 38 of title 2, provides that--

'The Commissioner of Internal Revenue and the Attorney General of the United States are hereby respectively authorized to appoint and employ such assistants, experts, clerks, and other employes * * * as they may deem necessary for the enforcement of the provisions of this act, but such assistants, experts, clerks, and other employes, except such executive officers as may be appointed by the Commissioner or the Attorney General to have immediate direction of the enforcement of the provisions of this act * * * and agents and inspectors in the field service, shall be appointed under the rules and regulations prescribed by the Civil Service Act.'

Transportation of intoxicating liquors is forbidden unless under authority of certain prescribed permits, and section 26 directs that when the Commissioner, his assistant or inspector, shall discover liquor being transported unlawfully, he shall seize the liquor.

The record in this case indicates that the Commissioner of Internal Revenue had appointed John F. Kramer as Federal Prohibition Director, Thomas E. Stone as Supervisor of Federal Prohibition, Maryland-Ohio Division, and Fred Counts as Prohibition Agent in charge of the Cleveland territory.In May, 1920, a quantity of liquor was being transported from Kentucky, through Cleveland, to New York, upon what purported to be permits issued by the New York Prohibition Director.This was brought to the attention of Mr. Counts.The permits were submitted to him.He thought they were irregular, and he seized the liquor and seems to have turned it over, apparently for safe keeping, to the United States marshal.He then reported the seizure and submitted the permits to the Division Supervisor, and, perhaps, through him to the Prohibition Commissioner, in order that full investigation might be had and decision made as to the regularity and validity of the New York permits.While the matter was in this shape, the respondent in this case, Rembrandt, offered and paid to Mr. Counts a large sum of money to approve these permits and 'get the thing cleared up.'Rembrandt was at once arrested by Counts, and then was indicted for violation of section 39, Criminal Code.He was convicted, and now seeks review.

The substantial point made is that the matter of the validity of the permits was not pending before Counts, so that the bribery penalized by section 39 could exist.This point was raised by demurrer to the indictment, and by the claim that the whole evidence did not justify conviction.There seems to be an entire lack of any...