United States v. Adams, Cr. No. 8281.

• Decision Date: 23 October 1953
• Docket Number: Cr. No. 8281.
• Citation: 115 F. Supp. 731
• Parties: UNITED STATES v. ADAMS.
• Court: U.S. District Court — District of South Dakota

115 F. Supp. 731

UNITED STATES v. ADAMS.

Cr. No. 8281.

United States District Court D. North Dakota, Northwestern Division.

October 23, 1953.

P. W. Lanier, U. S. Atty., of Fargo, N. D., J. P. Stevens, Asst. U. S. Atty., of Minot, N. D., for plaintiff.

Roy A. Ilvedson and Kenneth G. Pringle (of Ilvedson, Pringle & Herigstad), and Halvor L. Halvorson, Jr., of Minot, N. D., and Charles L. Foster, of Bismarck, N. D., for defendant.

VOGEL, District Judge.

The indictment herein charges the defendant in three counts with a violation of 18 U.S.C.A. § 281. The pertinent part of that section is as follows:

"Whoever, being a Member of or Delegate to Congress, or a Resident Commissioner, either before or after he has qualified, or the head of a department, or other officer or employee of the United States or any department or agency thereof, directly or indirectly receives or agrees to receive, any compensation for any services rendered or to be rendered, either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter in which the United States is a party or directly or indirectly interested, before any department, agency, court martial, officer, or any civil, military, or naval commission, shall be fined not more than $10,000 or imprisoned not more than two years, or both; and shall be incapable of holding any office of honor, trust, or profit under the United States."

In substance, Count 1 of the indictment, which is illustrative of Counts 2 and 3, charges: That during all of the time mentioned therein there was pending in the United States District Court for the District of North Dakota a proceeding entitled United States v. 11,993.32 acres of land in Mountrail and McKenzie Counties, North Dakota (U. S. v. 679.19 Acres of Land, More or Less in McLean County, N. D., 113 F.Supp. 590); in which the United States was directly interested as party plaintiff and which proceeding was brought under the laws of the United States of America pertaining to eminent domain, in which certain parties named therein had appeared and claimed ownership to certain lands involved in the proceeding and had demanded compensation for the taking of such lands to be determined by trial by a jury.

That during all of the time mentioned in the count the defendant, Felix Adams, was an employee of the United States employed by the Soil Conservation Service, and that he did, between August 15, 1952, and October 14, 1952, within the District of North Dakota, directly agree to receive compensation for services to be rendered by him for the claimants in said action in that he agreed to appraise the lands of the claimants as a soil expert and to testify as an expert witness on behalf of said claimants as to the value of their respective lands upon the trial of said proceeding to be had in the United States District Court of North Dakota, upon which trial there would be at issue the amount of compensation the United States would be required to pay for the lands taken, and that for such appraisal service he and an associate of his were to receive a fixed compensation.

The defendant, through his counsel, has now moved that the indictment be dismissed upon the ground that it does not state facts sufficient to constitute an offense against the United States.

A hearing on the motion to dismiss was held and counsel on both sides presented orally their views with reference to the problem confronting the Court.

It is the position of the Government that, even though the indictment only refers to the proceeding as pending in the District Court of the United States for the District of North Dakota, that the subject matter or controversy upon which the suits were based was also pending before the Department of the Army, more specifically the Corps of Engineers for the Garrison District, and that therefore the defendant, in accepting compensation, was guilty of a violation of the criminal statute quoted above.

Taking judicial notice of its own records, this Court refers to the three cases noted in the indictment, and more specifically to its opinion in United States v. 679.19 Acres of Land, etc., found in D.C., 113 F.Supp. 590, 593:

"Point III.

"The Court erred in permitting the witness Felix Adams to testify.

"Felix Adams, at the time of trial, was an employee of the United States connected with the Soil Conservation Service. He was on annual leave from his employment at the time of trial and present in court in answer to a subpoena in behalf of the landowners. He had been attempting to prepare himself to become an expert land appraiser. He had been employed by the landowners to examine their various tracts of land and testify mainly with reference to the different soils and their productivity. Government counsel directed attention to Title 18 U.S.C.A. § 283, which, in substance, prohibits an officer or employee of the United States or any department or agency thereof from acting as agent or attorney for prosecuting any claim against the United States or aiding or assisting in the prosecution or support of such claim other than in the proper discharge of his official duties.

"Government counsel protested the use of the witness Adams by the landowners. The matter was discussed at some length in chambers. Adams was informed of the statute relied upon by the Government and subsequently, on the witness stand, refused to testify on the grounds that to do so might incriminate him. The Court felt that the statute was not applicable to the situation then confronting the witness and held that his testimony was competent and directed him to answer. Incidentally, in that regard it was brought out that in examining the landowners' farms Adams had done so on his own time and had made use of nothing belonging to the Government with the possible exception of tract maps which were available to anyone who asked for them.

"The identical situation with reference to the witness Adams arose in the second group of condemnation cases which was tried immediately following this one. In that case, the Government's objection to Adams' testimony was much more strenuously argued. The Court felt in both cases and still believes that the statute relied upon by the Government was not a bar to the giving of the testimony by the witness Adams for several reasons:

"First, the statute did not have in contemplation a situation such as that with which we are here dealing. The statute was passed by the Congress for the purpose of preventing Government employees from making use of private Government information to assist persons who had claims against the United States.

"Second, it was also passed by the Congress for the purpose of prohibiting Government employees who had access to Government files from obtaining therefrom information regarding persons who might possibly have claims against the Government and then soliciting the representation of the owners of such claims or assisting them in some way, thereby earning fees.

"In addition to the foregoing, the Court does not believe that the...