United States v. Canella

• Decision Date: 26 November 1945
• Docket Number: No. 17817.,17817.
• Citation: 63 F. Supp. 377
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. CANELLA.

63 F. Supp. 377

UNITED STATES v. CANELLA.

No. 17817.

District Court, S. D. California, Central Division.

November 26, 1945.

Charles H. Carr, U. S. Atty., and E. A. Tolin, Asst. U. S. Atty., both of Los Angeles, Cal., for plaintiff.

Otto Christensen, of Los Angeles, Cal., for defendant.

YANKWICH, District Judge.

The defendant, Joseph James Canella, a colonel in the United States Army, in an indictment filed on June 23, 1945, is charged with the violation of Section 207, 18 U.S. C.A. Specifically, he is charged with asking, accepting and receiving a sum of money from a person with intent to influence his action, acting in his official capacity as Post Quartermaster, in awarding a certain army contract.

The Section, under which the prosecution is instituted, dates back to 1853. It has undergone many changes and its present form dates to March 4, 1909, Chap. 321, Sec. 117, 35 Stats. 1109. The aim of the section is to punish officers of the United States for accepting bribes. The offense can only be committed by one, who is such an officer or who is acting for, or on behalf of, the United States in any official capacity. See my opinion in United States v. Furer, D.C.Cal.1942, 47 F.Supp. 402. The givers of bribes are not punishable under this section, but under Section 91, 18 U.S.C.A., although it has been held that persons not officers may be guilty of conspiracy with an officer to commit the crime denounced by Section 207, 18 U.S.C.A., despite the fact that the officer alone could be guilty of the substantive offense. O'Leary v. United States, 7 Cir., 1931, 53 F.2d 956.

The gist of the offense is not the execution of the agreement for which the bribe is taken, but the acceptance of money, contracts or gratuities with the understanding that the officer's official conduct shall be influenced. Fall v. United States, 1932, 60 App.D.C. 124, 49 F.2d 506; Whitney v. United States, 10 Cir., 1938, 99 F.2d 327. The official act which it is sought to influence need not be one specifically described by statute. It is sufficient if it is within the scope of the duties of the officer under the regulations of the department in which he is acting. Daniels v. United States, 9 Cir., 1927, 17 F.2d 339. As said by Mr. Justice Hughes in United States v. Birdsall, 1914, 233 U.S. 223, 230, 231, 34 S.Ct. 512, 514, 58 L.Ed. 930: "Every action that is within the range of official duty comes within the purview of these sections. There was thus a legislative basis (United States v. George, 228 U.S. 14, 22, 33 S.Ct. 412, 57 L.Ed. 712, 715) for the charge in the present cases, if the action sought to be influenced was official action. To constitute its official action, it was not necessary that it should be prescribed by statute; it was sufficient that it was governed by a lawful requirement of the Department under whose authority the officer was acting (Rev.Stat., § 161 5 U.S.C.A. § 22, Benson v. Henkel, 198 U.S. 1, 12, 25 S.Ct. 569, 49 L.Ed. 919, 922; Haas v. Henkel, 216 U.S. 462, 480, 30 S.Ct. 249, 54 L.Ed. 569, 577, 17 Ann.Cas. 1112.) Nor was it necessary that the requirement should be prescribed by a written rule or regulation. It might also be found in an established usage which constituted the common law of the Department and fixed the duties of those engaged in its activities. United States v. Macdaniel, 7 Pet. 1, 14, 8 L.Ed. 587, 592. In numerous instances, duties not completely defined by written rules are clearly established by settled practice, and action taken in the course of their performance must be regarded as within the provisions of the above-mentioned statutes against bribery. Haas v. Henkel, supra." And see, Cooper v. O'Connor, U.S.App., 1938, 69 App.D.C. 100, 99 F.2d 135, 139, 118 A.L. R. 1440; Whitney v. United States, 10 Cir., 1938, 99 F.2d 327, 330.

The defendant has filed a motion to dismiss the indictment and to abate the prosecution and a demurrer.

The fundamental ground in both is that the indictment charges a substantive offense based on acts committed by the defendant while exercising his official capacity as an officer of the United States Army, that such act constitutes a violation of his oath as an officer of the United States Army, and that, consequently, he is not amenable to prosecution in the civil courts of the United States.

Jurisdiction of the court is challenged on this ground.

The demurrer also urges the general ground that "the said Indictment does not state facts sufficient to charge the said defendant (a) with having committed any crime or offense against the United States of America; (b) the matters and things alleged in said Indictment do not constitute an offense against the laws of the United States of America."

This general attack is not particularized in any respect in the memorandum which accompanies the motions. And no argument was presented at the hearing. So the problem is not any specific flaw pointed out to the court, but whether, on the whole, the indictment alleges the facts with "sufficient clearness to show a violation of law" and apprise the defendant of the crime with which he is accused. See Johnson v. United States, 9 Cir., 1932, 59 F.2d 42, 44.

This principle is stated by the Supreme Court in United States v. Behrman, 1922, 258 U.S. 280, 288, 42 S.Ct. 303, 304, 66 L. Ed. 619, in this manner: "It is enough to sustain an indictment that the offense be described with sufficient clearness to show a violation of law, and to enable the accused to know the nature and cause of the accusation and to plead the judgment, if one be rendered, in bar of further prosecution for the same offense. If the offense be a statutory one, and intent or knowledge is not made an element of it, the indictment need not charge such knowledge or intent." And see: Hagner v. United States, 1932, 285 U.S. 427, 431-433, 52 S. Ct. 417, 76 L.Ed. 861; Zuziak v. United States, 9 Cir., 1941, 119 F.2d 140, 141; Frankfort Distillers v. United States, 10 Cir., 1944, 144 F.2d 824, 830.

We go to the indictment.

It charges the offense with more than ordinary particularity. The capacity of the defendant is averred very clearly. The matters which called for his official action are stated in detail. Then, with great fullness, the indictment alleges not only the acceptance of the bribe, but its acceptance in his official capacity, with the aim of having his official conduct influenced. The entire matter is then summed up in Paragraph 8 of the Indictment in these words:

"On or about July 6, 1942, the defendant Joseph James Canella, within the Southern District of California, Central Division, did unlawfully, wilfully, knowingly, corruptly and feloniously ask, accept and receive a sum of money, to-wit: Five Hundred Dollars lawful money of the United States of and from the aforesaid Leo Windolph with intent to have his, said defendant's, decision and action in his official capacity concerning the question and matter of action on said bids for the supply of liquified petroleum gas fuel and services in connection therewith, for use at the aforesaid Santa Ana Army Air Base, decided and acted upon by defendant favorably to the said Leo Windolph and Robert D. Windolph doing business as Windolph Bros., so that the defendant acting in his official capacity for and on behalf of the United States would accept and cause the acceptance of the aforesaid bid submitted by the aforesaid Robert D. Windolph and Leo Windolph doing business as Windolph Bros., and would award and cause a contract to be awarded to said Robert D. Windolph and Leo Windolph, doing business as Windolph Bros., for the supply of liquified petroleum gas fuel and services in connection therewith, for use at the aforesaid Santa Ana Army Air Base would be executed and delivered to the aforesaid Robert D. Windolph and Leo Windolph, doing business as Windolph Bros., and that they would be permitted to enter upon and continue in the performance thereof with the continuing approval, aid and favorable decision and action of defendant in his official capacity as post quartermaster of the Santa Ana Army Air Base in all matters concerning their performance and rights and obligations under such contract."

When to these allegations we apply the touchstone of the wording of the section itself, and of the interpretations placed on it by the Courts in the cases already referred to, the conclusion is inescapable that the indictment charges, with sufficient particularity, a specific offense against the United States committed by the defendant. See: Sharp v. United States, 8 Cir., 1905, 138 F. 878; McGrath v. United States, 2 Cir., 1921, 275 F. 294.

The really serious question which the defendant raises both in his motions and in the demurrer is that this court has no jurisdiction to try him. And that to assume such jurisdiction, even with the Army's consent, which has been given in this case, and to deprive him of the right to be tried by court martial, is to deny him due process.

The basis for this argument is that the Articles of War, 10 U.S.C.A. Secs. 1471-1593, provide a complete penal code punishing the offenses of persons subject to military law.

At the outset, it may be stated that we find no Article of War which punishes directly or specifically bribery of the type charged here.

Fraud against the Government is punished by Article 94, 10 U.S.C.A. § 1566. Of course, the acceptance of money by an army officer for the purpose of influencing his conduct might be considered a fraud and prosecuted as such. United States v. Furer, D.C.Cal.1942, 47 F.Supp. 402. The defendant refers us to Articles 56, 10 U.S.C.A. § 1528, and 87, 10 U.S.C.A. § 1559. But Article 56 denounces bribery only in conjunction with false mustering. Article 87 merely punishes an officer who is "interested in the sale of any victuals or other necessaries of life brought into such garrison, fort, barracks, camp, or other place for the use of the troops." I do not think that either article is...