Schneider v. United States, 12501.

• Decision Date: 11 December 1951
• Docket Number: No. 12501.,12501.
• Parties: SCHNEIDER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

192 F.2d 498 (1951)

SCHNEIDER v. UNITED STATES.

No. 12501.

United States Court of Appeals Ninth Circuit.

August 21, 1951.

Rehearing Denied December 11, 1951.

Jacob W. Friedman, New York City (Louis M. Leibowitz, New York City, of counsel), for appellant.

John B. Tansil, U. S. Atty., Billings, Mont., Emmett C. Angland, Asst. U. S. Atty., Great Falls, Mont., for appellee.

Before DENMAN, Chief Judge, and BIGGS (sitting by special designation), and STEPHENS, Circuit Judges.

BIGGS, Circuit Judge.

The defendant, Schneider, was indicted in the court below for an offer and for the payment of money to an officer of the United States in violation of Section 201, Title 18 United States Code. He was tried, was found guilty and has appealed. Taking those inferences from the evidence most favorable to the prosecution, as we must, the following appears.

Schneider was the successful bidder for the purchase of scrap wool and cotton materials, property of the United States and located at an Army air base in Montana. On November 22, 1948, pursuant to telephone conversations referred to hereinafter, he came to the air base to arrange for the shipment of the scrap. On his arrival he suggested to Sergeant Aulgur that "a deal be made between the two of us". Later, when Lieutenant Apperson, the Base Salvage Officer, met Schneider at a warehouse on the base, the latter proposed that he and the Lieutenant substitute some other salvage material for the scrap which he had purchased. Schneider told the Lieutenant that he would give him money which was in his brief case. Lieutenant Apperson's attitude toward this proposed bribery was noncommital on the surface but he promptly informed the FBI as to what had taken place. He was told not to encourage Schneider but to accede to anything that Schneider wished.

On the next day much salvage material, which had not been purchased by Schneider, was taken from a warehouse. This material, as well as the items which had been purchased by Schneider, was loaded into a freight car under his direction. Later in the day in a hotel room in Great Falls Schneider handed $1,500 to Lieutenant Apperson. As soon as the Lieutenant reached the lobby of the hotel he handed an envelope containing the money to agents of the Federal Bureau of Investigation. Schneider's indictment and trial followed.

We will take up seriatim, with one exception,¹ the points on which Schneider relies for reversal.

(1) Sufficiency of the Indictment. Schneider asserts that the indictment is insufficient as a matter of law because it does not describe the duties or official functions of Lieutenant Apperson. Cases are cited where indictments have been held insufficient under Section 201, Title 18, United States Code (or its predecessor statute, 18 U.S.C. (1940 ed.) Section 91) because the duties or official functions of the person who received the money were not set out. United States v. Kemler, D.C.Mass., 44 F. Supp. 649; United States v. Patterson, D.C. Fla., 286 F. 760; Boykin v. United States, 5 Cir., 11 F.2d 484.

The first count of the indictment is set out in the footnote.² Lieutenant Apperson is described as: "First Lieutenant, United States Air Force and Base Salvage Officer of the Great Falls United States Air Force Base." No further details as to his duties are given in the indictment but it is alleged that the intent was to influence his decision "in his official capacity". The second count of the indictment is couched in substantially the same language except that it charges the actual payment of money to Apperson.

The statute³ itself and the cases construing it or its predecessor make it clear that no violation of the law can take place unless the individual bribed or attempted to be bribed is an officer or employee or person acting for or on behalf of the United States or a department or agency thereof, and that the bribe or the offer is in connection with his line of duty. The duties of him to whom the offer is made or the bribe given are most pertinent. But we are of the opinion that the description in the indictment is adequate and sufficient under the ruling of this court in United States v. Bickford, 9 Cir., 168 F.2d 26, 27-28. As was there said, under Rule 7(c) of the Federal Rules of Criminal Procedure, 18 U.S. C.A., an indictment is valid if sufficient facts are stated to inform the defendant of the offense with which he is charged and if the averments are sufficiently definite and certain to safeguard him from a second prosecution for the same offense. The salutary rule of the Bickford case is applicable here.

It should be noted that the statute makes it a crime to offer money or to pay money to an officer of the United States "to induce him to do or omit to do any act in violation of his lawful duty * * *". If any air base salvage officer should fail to prevent or to report an unauthorized removal of government property from the base knowing that such a removal was contrary to law he would fail in his lawful duty. This would be true whether or not he possessed specific authority to sell the property. Cf. Cohen v. United States, 9 Cir., 144 F.2d 984, 987. The broad language and obvious intent of the Act here under consideration does not permit the drawing of such fine distinctions of exact duties as those sought to be maintained by the defendant. We can conceive of situations where more specific allegations as to an officer's duties would be necessary in order to show that the act or omission to which the bribe was directed was within the scope of official conduct. But this is not such a case. Apperson's official duties, as the indictment clearly alleges, required him to protect the government property on the base and Schneider's bribe was offered to destroy that protection.

(2) Sufficiency of Proof of Officer's Authority to Act. It is the defendant's contention that there was not sufficient evidence to prove an intent on his part to influence Lieutenant Apperson's decision in a matter pending before him in his official capacity. This is to state in effect that there was no proof of Schneider's intent to induce the Lieutenant to violate his duty by adding unpurchased salvage material to that bought legitimately by the defendant. In this connection the defendant simply makes the bald argument that since Lieutenant Apperson had no authority to negotiate a sale of goods taken illegally from the warehouse, Schneider's payment of money to the Lieutenant did not fall within the reach of the statute. But there is ample evidence to support the conclusion that Schneider offered the bribe to Lieutenant Apperson to cause the latter to fail to do his duty as the Base Salvage Officer. It is clear from the Regulations, received in evidence, by which Lieutenant Apperson's conduct as a Base Salvage Officer was required to be governed that a Base Salvage Officer acts for the Commanding Officer in respect to all salvage activities at the installation; that the Base Salvage Officer is responsible for all property turned over to him and that he is required to exercise "strict supervision over all transactions and will use due caution and diligence to prevent irregularities or opportunities for fraud and/or collusion." See USAF Supply Manual (AF Manuel 67-1), Department of the Air Force, Part I.f (1), Plaintiff's Exhibit No. 1., p. 572. The validity of the Regulations are not attacked in any way.

Schneider's intent to influence Lieutenant Apperson to the end that Schneider might steal salvage material from the United States is amply demonstrated from the evidence.

(3) Alleged Improper References Made to Other Offenses or to Schneider's Conduct. During his opening statement the Assistant United States District Attorney stated that Lieutenant Apperson would testify as to conversations which he had had with Schneider to the effect that Schneider had told him that he was operating on "a very large scale in all the eastern depots". Schneider's counsel immediately objected and charged that this narrative was prejudicial. The court sustained the objection and stated that the jury would be warned in the instructions that they should not consider these statements or any evidence of such a nature. Counsel for the United States apologized to the court, to the jury and to opposing counsel and stated if the evidence which he intended to offer was not admissible he would join with the court and with the defendant's counsel in asking the jury to disregard it. The matter was not pursued further and the defendant's counsel asked no instructions from the court relevant to this issue and none were given.

If the United States had had evidence which it could have offered to prove that Schneider had stated to Lieutenant Apperson that he was operating on "a very large scale in all the eastern depots", the opening statement objected to would have been in order and such evidence properly could have been received. Schneider's own statements as to other crimes of a like nature committed by him would have been admissible to show a course of conduct or a general design on his part to violate the law. The testimony also would...