Shaw v. United States

• Decision Date: 14 February 1957
• Docket Number: No. 14568.,14568.
• Citation: 244 F.2d 930
• Parties: John D. SHAW, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

244 F.2d 930 (1957)

John D. SHAW, Appellant, v. UNITED STATES of America, Appellee.

No. 14568.

United States Court of Appeals Ninth Circuit.

February 14, 1957.

COPYRIGHT MATERIAL OMITTED

Harold J. Butcher, Anchorage, Alaska, for appellant.

William T. Plummer, U. S. Atty., and Lloyd L. Duggar, Asst. U. S. Atty., Anchorage, Alaska, for appellee.

Before FEE and BARNES, Circuit Judges, and MURRAY, District Judge.

JAMES ALGER FEE, Circuit Judge.

John D. Shaw was convicted by a jury of having been employed in an agency of the United States and, within two years after such employment or service had ceased, having prosecuted or acted as counsel, attorney or agent for prosecuting a claim against the United States involving a subject matter directly connected with which he was so employed or performed duties.¹

The jury recommended leniency, and he was sentenced to pay a fine of $100 by the court. He appeals from this judgment.

The facts shown by the evidence are almost uncontroverted. The Alaska Railroad is owned by the United States and operated as an agency of the United States. Shaw was employed by the Alaska Railroad as an Assistant Chief Dispatcher, usually during the hours from 5:00 p. m. to midnight. During the day, Shaw was clerk in the law office of Harold J. Butcher, attorney for appellant in this case. Under the Alaska statute, Shaw had filed an application to study law under Butcher, a practicing attorney, with a view to taking the territorial bar examination. Shaw was pursuing both employments at the time of the Rainbow collision, which was the subject of the action, George Dushon vs. The United States, Civil No. A-7605, in the District Court of the Territory of Alaska, to which reference will subsequently be made.

According to the allegation of the information,

"* * * on March 24, 1950, the said John D. Shaw was directly connected with and performed duties relating to an accident which occurred at or about 5:15 P.M. on said day when Extra Train No. 562 South, of the Alaska Railroad came into collision with a gas car and trailers attached, operated by a government contractor, at or near Rainbow at mile 91.7 on the Alaska Railroad."

The evidence showed that Shaw was Assistant Chief Dispatcher of the Alaska Railroad on March 24, 1950, after 5:00 p. m. Although he was in complete charge of the office in the absence of the Chief Dispatcher and operating the north control board, Extra Train No. 562 South was proceeding under orders dispatched from the south board at the time of the collision. The latter board was then operated by Kerwin Frank under the supervision of Shaw. One of the train crew reported the collision to Kerwin by telephone. The latter was so much affected by the mischance that he asked Shaw to take over the south board telephone and handle the matter. Shaw talked to the crew and gave directions for the return of the train to Anchorage with the dead and wounded. He also directed ambulances to meet them there and arranged for doctors and hospitalization. Upon completion of this emergency service, Shaw made an official report of the incident on the regular train dispatcher's sheet. Shaw continued in his employment in the dispatcher's office until November 15, 1951. During this time, for almost twenty months, he had access to all of the records therein. Until some time in 1951, Shaw was also employed in the office of Butcher as a law clerk.

Shaw attacks the information on the ground that it states only that "John D. Shaw was employed by the Alaska Railroad, a government agency," and not that he had "been employed in any agency of the United States." Exception was also taken on the ground that the court instructed the jury that the "government must prove beyond a reasonable doubt * * * that the defendant was employed by a governmental agency, the Alaska Railroad." (Emphasis supplied.) These are most tenuous objections. The Alaska Railroad is owned by the United States and is operated as an agency of the United States.²

Counsel for defense was asked to stipulate "that the Alaska Railroad is a Governmental agency" and answered:

"Mr. Davis: I would suggest that the Alaska Railroad is owned and operated by the Government. I do not know whether it can be considered a Governmental agency, that may be a technical term."

The court was then asked to take judicial notice that, under 48 U.S.C.A.,³ "The Alaska Railroad is established as a Governmental agency" but it directed proof be taken on the matter. John E. Manley, the witness on the stand, testified he had been Assistant General Manager of the Alaska Railroad since 1949, and also testified to the following facts to which counsel for defense stipulated: that the Secretary of the Interior "is the head of the Department of the Interior," that the Alaska Railroad receives "all of its instructions" "from the office of the Territorial Government, Department of the Interior," which is under "The Office of the Secretary of the Interior." This was certainly sufficient basis for giving the instruction above noted.

The court also read the statute to the jury down to the penalty clause, including the words, "whoever, having been employed in any agency of the United States," and told the jury thereafter:

"You are instructed as a matter of law that the Alaska Railroad is a governmental agency within the meaning of the above quoted statute. You are further instructed as a matter of law that a claim against the United States as used in said statute, means a demand against the Government for money or property."

The present objection that the statutory words, "agency of the United States," were not used and the colloquial phrase "governmental agency" was substituted is captious. Obviously, in Alaska "government" means United States in colloquial parlance. In the civil action above referred to, there was an attempt to recover from the United States because of claimed negligence of employees of the Alaska Railroad as an agency of the United States, as the record of the instant case proves. There was no other government involved in the prior civil case or this criminal case except the government of the United States. A glance at the present record shows that all attorneys, the witnesses and the presiding judge used the word "government" not only as synonymous with "United States" but almost exclusively as shorthand to designate "the government of the United States." The evidence in this case makes it perfectly clear and without contradiction that Shaw was an employee of the Alaska Railroad and that this entity was an agency of the United States. This could have been decided as a question of law. There was no error in failure to instruct the jury as to the meaning of "agency" or failing to define "government" as "United States."

Defendant urges that the information does not use the statutory words "prosecutes" or "for prosecuting." As has been noted above, the court read the statute in part to the jury, as well as the text of the information, and read the words from the statute "prosecutes or acts as counsel, attorney, or agent for prosecuting." The court told the jury that the government must prove each of the following elements, among others, beyond a reasonable doubt, to-wit:

"That the defendant prosecuted or acted as counsel, attorney, or agent for prosecuting a claim against the United States;

"That the claim which defendant prosecuted or for which he acted as counsel, attorney, or agent in prosecuting, involved subject matter directly connected with defendant\'s former employment or service with the Alaska Railroad;

"That the defendant prosecuted or acted as counsel, attorney or agent for prosecuting such claim within two years after his employment with the Alaska Railroad had ceased."

The technical answer to this point is short. Defendant did not except to the failure of the court to define these words and did not present any requested instruction defining either. But the real answer is practical. If the jury found that the defendant did the acts described in the information, as a matter of law, he was either prosecuting the action or acting as an attorney, counsel or agent for prosecuting the claim against the government. There can be no doubt that a person who allows his name to be placed on a complaint as attorney for plaintiff in an action is prosecuting the underlying claim as a matter of law. Since this fact is admitted, the finding was correct and the conclusion was inevitable. It made no difference whether defendant did more or not. But the record shows he did a great deal more in investigating and interviewing witnesses and serving subpoenas. It is implicit in the record that he persisted therein up to the time there was a suggestion from others that he was acting illegally. Only a short time before trial, he signed a document on August 27, 1952, associating George B. Grigsby, Esq., as an additional attorney in the cause. His former employer said that, in the event of recovery, he had intended to pay Shaw a part of the fee and to be very liberal in the division. He cannot avoid the fact that Shaw was prosecuting the action now on appeal on the basis that so far there is no recovery and therefore no fee to him.

The information proceeds:

"That between the dates of March 24, 1950, and March 22, 1952, said period being within two years of the date when the said John D. Shaw left the employ of the Alaska Railroad, the said John Shaw acted as counsel and agent for plaintiffs in the preparation of a suit against the United States on behalf of persons injured in the aforementioned accident.

"That from March 22, 1952 until January 20, 1953, said period being within two years of the date when the said John D. Shaw left the employ of the Alaska Railroad, the said John D. Shaw acted at attorney and agent for plaintiffs in the case of George Dushon et al. v. United States, Civil No. A-7605, a suit against the United States brought by the said John D.

...