United States v. Apex Distributing Company

• Decision Date: 18 January 1957
• Docket Number: Cr. No. 6516.
• Citation: 148 F. Supp. 365
• Parties: UNITED STATES of America v. APEX DISTRIBUTING COMPANY, Inc., Albert A. Finer, Hubert O'Reilly.
• Court: U.S. District Court — District of Rhode Island

148 F. Supp. 365

UNITED STATES of America v. APEX DISTRIBUTING COMPANY, Inc., Albert A. Finer, Hubert O'Reilly.

Cr. No. 6516.

United States District Court D. Rhode Island.

January 18, 1957.

COPYRIGHT MATERIAL OMITTED

Joseph Mainelli, U. S. Atty., Providence, R. I., for plaintiff.

Jacob S. Temkin, Amedeo C. Merolla, Providence, R. I., for defendants.

DAY, District Judge.

This is an indictment which consists of seven counts. The defendants, Apex Distributing Company, Inc. and Albert A. Finer, have moved to dismiss it on the following grounds, viz.:

1. The indictment, as to Count I, contains allegations repugnant to each other.

2. The indictment, as to each of the Counts, does not inform the said defendants of the nature and cause of the accusation.

3. The indictment, as to each of the Counts, does not state facts sufficient to constitute an offense against the United States.

Count I charges as follows:

"From and after June 1, 1954, and continuously and at all times thereafter up to and including the date of this indictment, within the District of Rhode Island and elsewhere, Apex Distributing Company, Inc., a Nevada corporation, Albert A. Finer, alias John Doe, and Hubert O'Reilly, alias Richard Doe, (hereinafter referred to as the defendants) did wilfully, knowingly and unlawfully conspire, combine, confederate and agree together and each with the other,

"A. To defraud the United States of and concerning:

"1. Its governmental function and right to administer the business and affairs of the United States Navy, a Department of the United States (hereinafter referred to as the Department) and the rules and regulations duly issued and pertaining thereto, free from unlawful impairment, corruption, improper influence, dishonesty and fraud.

"2. Its governmental function and right to have the business and affairs of the United States Naval Construction Battalion Center, an agency of said Department (hereinafter referred to as the Agency) located in Davisville, within the District of Rhode Island, conducted on its behalf fairly, honestly and free from fraud, deceit, partiality, concealment, interference and corruption; and

"3. Its right to the conscientious, faithful, disinterested and unbiased judgment and determination of, and action by one Chief Pay Clerk, Wallace Albert Robinson, (hereinafter referred to as Robinson) an officer of said Department and officially connected with said Agency, concerning matters affecting said Agency, and to have such judgment, determination and action exercised free from corruption, partiality, improper influence, bias, dishonesty and fraud.

"B. To commit certain offenses against the United States, to wit:

"1. The crime of bribery in violation of Title 18, United States Code, Section 201;

"2. The crime of knowingly making false statements and entries in violation of Title 18, United States Code, Section 1001;

"3. The crime of knowingly and fraudulently obtaining from the United States moneys in excess of $100. by means of false and fictitious invoices in violation of Title 18, United States Code, Section 1003;

"4. The crime of knowingly making false, fictitious and fraudulent claims upon and against the United States in violation of Title 18, United States Code, Section 287;

"5. The crime of knowingly, and with intent to defraud and mislead, introducing and delivering for introduction into interstate commerce certain misbranded food in violation of Title 21, United States Code, Section 331 et seq. * * *"

Count I then sets forth in considerable detail the means by which the several objects of the conspiracy were to be accomplished and alleges certain specific overt acts which the government claims were performed by the defendants in furtherance of and for the purpose of carrying said conspiracy into execution.

In Hammerschmidt v. United States, 265 U.S. 182, at page 188, 44 S.Ct. 511 at page 512, 68 L.Ed. 968, the Supreme Court held:

"To conspire to defraud the United States means primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest."

See also Haas v. Henkel, 216 U.S. 462, 30 S.Ct. 249, 54 L.Ed. 569; Hills v. United States, 9 Cir., 97 F.2d 710; Braatelien v. United States, 8 Cir., 147 F.2d 888; United States v. O'Toole, D.C.R.I., 101 F.Supp. 123.

Count I in part "A" clearly alleges that one of the objects of the conspiracy of the defendants was to defraud the United States of and concerning certain of its governmental functions. In my opinion the interference with or obstruction of a governmental function by the means alleged in Count I is a fraud upon the United States within the meaning of Title 18 U.S.C.A. § 371.

The defendants, however, contend that Count I is fatally defective because it does not allege that Robinson had certain duties to perform in an official capacity and that he was acting on an official matter in his official capacity and because it is alleged therein that the defendants knew that he had no authority to place orders under the contract which had been procured by the defendants. I find no merit in these contentions. Count I alleges that Robinson was an officer of the United States Navy. When the bribee is an officer of the United States there is no need to show that he was acting in an official capacity. It is sufficient to allege and show that the bribe was given with intent to influence him to commit or aid in the committing of any fraud on the United States. Wilson v. United States, 4 Cir., 230 F.2d 521; Hurley v. United States, 4 Cir., 192 F.2d 297; Canella v. United States, 9 Cir., 157 F.2d 470. In Hurley v. United States, supra, the Court said, 192 F.2d at page 300 —

"When the bribee is an officer of the United States, there is no necessity to show that he was acting in an official capacity, in order to make out a case under 18 U.S.C.A. § 201. We hold, therefore, that since Sergeant Nichols was an officer of the United States, it was not necessary to allege or prove that he was acting in an official function. To hold otherwise would be to make the words `officer or employee' completely nugatory. It is sufficient if it be shown that the bribee was an officer of the United States and that the bribe was given `with intent to influence him to commit or aid in committing * * * any fraud, on the United States' or with intent `to induce him to do or omit to do any act in violation of his lawful duty.' * * *

"If Congress had intended that an officer or employee must be acting in an official function to violate § 201, why were the words `officer or employee' inserted in the statute? The term `person acting for the United States in an official function' is broad enough to include officers and employees. We do not believe that Congress so intended, but rather a distinction was drawn between officers or employees on the one hand, and persons acting for the United States in an official function on the other. * * *"

This distinction between officers of the United States and persons acting for the United States in an official function is, I believe, also clearly recognized in the case of Kemler v. United States, 1 Cir., 133 F.2d 235, cited by the movants. See also Kellerman v. United States, 3 Cir., 295 F. 796. In Canella v. United States, supra, the Court said, 157 F.2d at page 481 —

"* * * Canella apparently overlooks the fact that whenever officers of the United States army take any action whatever in regard to the army their official duties are involved. The United States is entitled to army officers who do not corruptly sell their recommendations to anyone on any subject."

Since it is alleged that Robinson was an officer of the United States Navy, it is immaterial that he lacked authority to place the orders in question. As stated in Hurley v. United States, supra, 192 F.2d at page 300 —

"In view of these decisions, it would indeed be anomalous to say that a case is not made out where the bribee has the power to accomplish the illegal result, but not the authority. The gist of the offense here is the giving of money to an officer of the United States to impede the success of a lawful function of government."

Generally speaking, an indictment must contain sufficient allegations to inform the accused of the nature of the offense and apprise him of the charges against him so that he may properly prepare his defense and avail himself of his conviction or acquittal against a further prosecution for the same offense. Armour Packing Co. v. United States, 209 U.S. 56, 28 S.Ct. 428, 52 L.Ed. 681; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; Enrique Rivera v. United States, 1 Cir., 57 F.2d 816.

In my opinion Count I insofar as it charges a conspiracy to defraud the United States of and concerning the governmental functions therein specified is legally sufficient. Cf. Glasser v. U. S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.

As hereinbefore stated, Count I also charges in part "B" thereof that other objects of the alleged conspiracy were to commit certain specific offenses against the United States. No details or particulars as to any of said crimes are given. For example, the first of said objects is stated to be: "The crime of bribery in violation of Title 18, United States Code, Section 201." There is no identification of the person whom the defendants planned to bribe, no statement of his connection with the United States government, no description of the bribe which was promised, offered or given or of the purpose for which it was promised or offered or given. There is a similar complete lack of particulars with respect to the remaining crimes alleged to have been objects of the alleged conspiracy.

While it is true that where the object of a conspiracy is to commit a crime, the crime to be committed need not be described with the same degree of particularity that might be...