United States v. Bowles

• Decision Date: 31 October 1958
• Docket Number: Crim. No. 58-38.
• Citation: 183 F. Supp. 237
• Parties: UNITED STATES of America v. George L. BOWLES and Mayo S. Levenson.
• Court: U.S. District Court — District of Maine

183 F. Supp. 237

UNITED STATES of America v. George L. BOWLES and Mayo S. Levenson.

Crim. No. 58-38.

United States District Court D. Maine, S. D.

October 31, 1958.

Peter Mills, U. S. Atty., Portland, Me., for plaintiff.

John J. Flaherty, Richard S. Chapman and Sidney W. Wernick, Portland, Me., for defendants.

GIGNOUX, District Judge.

On August 14, 1958 an indictment was returned in this Court charging George L. Bowles and Mayo S. Levenson with violations of the conspiracy, bribery and conflict of interest statutes of the United States. 18 U.S.C.A. §§ 371, 201, 202, and 281.

The indictment is in five counts. It alleges generally that during the year 1955 the defendant Bowles was District Supervisor of the Bureau of Motor Carriers, Interstate Commerce Commission, at Portland, Maine; that the defendant Levenson was a practicing lawyer and attorney at law in Portland; and that on September 19, 1955 Levenson paid to Bowles, in his capacity as an employee of the United States acting on behalf of the Interstate Commerce Commission, two checks, each in the amount of $4,000, for services rendered by Bowles in connection with the sale of the controlling interest in Maine Freightways, Inc., an interstate trucking company operating under the jurisdiction of the Interstate Commerce Commission. It is alleged that the services thus rendered by Bowles consisted of attendance at a meeting in Levenson's office on August 6, 1955 and the writing of a letter dated September 20, 1955 for the purpose of assisting Levenson in consummating the sale of the controlling interest in Maine Freightways, on behalf of its then owners, by the use of Bowles' official position, by advising the prospective buyers that since the sale was being made to a non-carrier, it was not subject to Interstate Commerce investigation and approval under Section 5 of the Interstate Commerce Act (49 U.S.C.A. § 5).

Count I of the indictment charges the defendants with a conspiracy to defraud the United States in violation of 18 U.S. C.A. § 371.¹ It alleges that the defrauding of the United States consisted of defrauding it "of and concerning its governmental functions and rights," more particularly: (1) of its right to the honest and efficient administration of the affairs of the Interstate Commerce Commission, free from unlawful impairment and corruption by the defendants seeking to sell the controlling interest in an interstate motor carrier subject to Commission jurisdiction; (2) of its right to the honest, faithful and conscientious performance of their duties by Interstate Commerce Commission employees, free from solicitation and acceptance of money and things of value by such employees from persons, firms and corporations requesting explanations and interpretations of its statutes, rules and regulations; (3) of its right to the conscientious, faithful and honest services, decisions and actions of Interstate Commerce Commission employees, free from corruption, partiality, improper influence and dishonesty, and from the solicitation or acceptance of money and things of value by such employees from persons, firms and corporations concerned with the application, meaning, intent and interpretation of the Interstate Commerce Commission law and regulations, particularly as they relate to interstate carriers; and (4) of its right to insure that its employee neither directly nor indirectly received or agreed to receive any compensation for any services rendered or to be rendered by him in relation to any proceeding, contract, claim or other matter in which the United States is directly or indirectly interested before the Interstate Commerce Commission. Count I further alleges the commission of the above-mentioned overt acts for the purpose of effecting the objects of the conspiracy.

Count II of the indictment charges the defendant Bowles with receipt of a bribe in violation of 18 U.S.C.A. § 202.² It alleges that on or about September 19, 1955 Bowles, in his official capacity, received two $4,000 checks from Levenson "with intent to have influenced thereby" his "decision and action on a matter which might by law be brought before him in his official capacity," the matter being the above-mentioned transfer of the controlling interest in Maine Freightways, Inc.

Count III of the indictment charges the defendant Levenson with payment of a bribe in violation of 18 U.S.C.A. § 201.³ It alleges that on or about September 19, 1955 Levenson tendered two $4,000 checks to Bowles, in his official capacity, "with intent to influence" Bowles' "decision on a matter, to wit, the sale of the controlling interest in Maine Freightways, Inc. * * *, which might by law be brought before him * * * in his official capacity * * *."

Count IV of the indictment also charges the defendant Levenson with payment of a bribe in violation of 18 U.S.C.A. § 201.⁴ It alleges that on or about September 19, 1955 Levenson tendered two $4,000 checks to Bowles, in his official capacity, "with intent to make opportunity for the commission of a fraud on the United States, to wit, to defraud the United States of and concerning its governmental functions and rights in the following particulars, its right to the conscientious, faithful, uninfluenced, unbiased and honest services, decisions, actions and performances of its employee, George L. Bowles * * *."

Count V of the indictment charges the defendant Bowles with unlawful receipt of compensation in violation of the federal "conflict of interest" statute, 18 U. S.C.A. § 281.⁵ It alleges that on or about September 19, 1955 Bowles, in his official capacity, "directly received compensation for services rendered by himself, in relation to a proceeding in which the United States was directly interested, before the Interstate Commerce Commission," namely, directly received two $4,000 checks from Levenson as compensation for services rendered to Levenson in relation to the above-mentioned transfer of the controlling interest in Maine Freightways, Inc. Count V also charges that, by making the payment of $8,000 to Bowles, the defendant Levenson aided and abetted Bowles in the unlawful receipt of that compensation, in violation of the general "aiding and abetting" statute, 18 U.S.C.A. § 2.⁶

On August 29, 1958, prior to plea, each defendant filed a motion attacking the indictment under Rule 12 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. The motion filed by the defendant Bowles included four separately stated motions to dismiss, as follows:

I. A motion to dismiss the indictment in its entirety on the ground that it was brought, presented to the Court, and filed with the Clerk, while another indictment concerning and covering the same transactions was pending in the Court and had not been dismissed.

II. A motion to dismiss Counts I, II, III and IV of the indictment on the ground that they are improper and illegal in that said counts are either identical with or substantially the same as four counts of a prior indictment which was still pending in Court and had not been dismissed at the time the present indictment was brought, presented to the Court and filed with the Clerk.

III. A motion to dismiss Count I of the indictment in its entirety on the ground that it fails to set forth matters which, in contemplation of law, may be deemed to constitute the offense in violation of 18 U.S.C.A. § 371 which Count I purports to charge.

IV. A motion to dismiss Count I of the indictment in its entirety on the grounds that (a) the allegations in Count I pertaining to the defrauding of the United States cannot, in contemplation of law, function as the basis for the particular offense in violation of 18 U.S.C.A. § 371 which Count I purports to charge, and (b) the remaining allegations in Count I are so vague and uncertain that they cannot, in contemplation of law, or in compliance with the Constitution of the United States (specifically the Fifth and Sixth Amendments thereof), be deemed to charge the crime in violation of 18 U.S.C.A. § 371 which Count I purports to allege.

The motion filed by the defendant Levenson included six separately stated motions to dismiss. The first four motions were identical with those included in the motion filed by the defendant Bowles as hereinabove stated. The fifth and sixth motions were as follows:

V. A motion to dismiss Count IV of the indictment on the ground that its allegations are so vague and uncertain that they cannot, in contemplation of law, or in compliance with the Constitution of the United States (specifically the Fifth and Sixth Amendments thereof), be deemed to charge the crime in violation of 18 U.S.C.A. § 201 which Count IV purports to allege.

VI. A motion to dismiss that portion of Count V of the indictment which charges the defendant Levenson with aiding and abetting the defendant Bowles in the unlawful receipt of compensation, in violation of 18 U.S.C.A. § 2, on the ground that, in contemplation of law, Levenson, by making the alleged payment of $8,000, to Bowles, cannot be deemed thereby to have aided and abetted the commission of a violation of 18 U.S.C.A. § 281 in such manner as to become guilty of a violation of 18 U.S.C.A. § 2. More specifically, it is alleged that the law does not permit a charge of aiding and abetting to lie under the circumstances set forth in Count V of the indictment.

Extensive briefs having been filed, hearing on the aforesaid motions was held before this Court on September 30, 1958, all parties being represented by their respective attorneys. At the close of the hearing the Court announced from the Bench its rulings denying the first two motions (to dismiss the indictment in its entirety and to dismiss Counts I, II, III and IV of the indictment in their entirety), filed by both defendants, and also denying the fifth motion (to dismiss Count IV of the indictment) filed by the defendant Levenson. The Court reserved its ruling upon the third and fourth motions (to dismiss Count I...