United States v. Dietrich

• Decision Date: 04 January 1904
• Citation: 126 F. 664
• Parties: UNITED STATES v. DIETRICH et al.
• Court: U.S. District Court — District of Nebraska

126 F. 664

UNITED STATES v. DIETRICH et al.

United States Circuit Court, D. Nebraska.

January 4, 1904

Indictment for conspiracy under section 5440 of the Revised Statutes (U.S. Comp. St. 1901, p. 3676), returned into the District Court November 16, 1903, and remitted to the Circuit Court under section 1038 (U.S. Comp. St. 1901, p. 723). The offense charged, as set forth in the indictment is:

'That Charles H. Dietrich and Jacob Fisher, late of the said district of Nebraska, within said judicial circuit heretofore, to wit, on the twentieth day of April, in the year of our Lord, one thousand nine hundred and one, at the city of Hastings, Adams county, within the district and state of Nebraska, and within the jurisdiction of this court then and there being, and the said Charles H Dietrich then and there being a member of Congress of the United States of America, to wit, a member of the Senate of the said United States of America, then and there duly elected, qualified, and sworn according to law to perform the duties of his said office, and he, the said Charles H Dietrich, and he, the said Jacob Fisher, did then and there unlawfully, corruptly, and wickedly conspire, combine, confederate, and agree together and with each other to commit an offense against the United States and to violate a law of the United States, to wit, section one thousand seven hundred and eighty-one of the Revised Statutes of the United States, by the said Charles H. Dietrich then and there fraudulently, willfully, corruptly, unlawfully, and knowingly agreeing with the said Joseph Fisher to take and receive the sum of one thousand three hundred dollars from the said Jacob Fisher for procuring and aiding to procure a certain office for the said Jacob Fisher, to wit, the office of United States postmaster at Hastings, state of Nebraska, from the government of the United States, and the said Jacob Fisher by then and there agreeing to give to the said Charles H. Dietrich the said sum of one thousand three hundred dollars for procuring and aiding to procure a certain office for him, the said Jacob Fisher, to wit, the said office of United States postmaster at Hastings, state of Nebraska, from the government of the United States, he, the said Jacob Fisher, then and there well knowing the said Charles H. Dietrich to be a member of Congress of the United States of America, to wit, a member of the Senate of the said United States of America, as aforesaid.'

This is followed by the specification of an overt act charged to have been done by Fisher to effect the object of the conspiracy. In support of a demurrer to the indictment the defendants urge: (1) An agreement between a member of Congress and another person whereby the former agrees to receive from the latter, and the latter agrees to give to the former, a bribe under the circumstances described in the indictment, cannot be made the subject of a prosecution for conspiracy under section 5440. (2) Two defendants are in a single count of the same indictment severally charged with distinct and several offenses.

W. S. Summers, U.S. Atty., and S. R. Rush, Asst. U.S. Atty.

John C. Cowin and R. A. Batty, for defendants.

Before VAN DEVANTER, Circuit Judge, and MUNGER, District Judge.

VAN DEVANTER, Circuit Judge (after stating the facts as above).

This indictment is predicated upon section 5440 of the Revised Statutes (U.S.Comp. St. 1901, p. 3676), which, as amended by the act of May 17, 1879, c. 8, 21 Stat. 4 (U.S.Comp.St. 1901 p. 3676), provides:

'If two or more persons conspire either to commit an offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court.'

The gravamen of the charge is that the defendants conspired-- united in purpose and agreed together-- to commit an offense against the United States, and the object of the conspiracy is stated to have been--

'To violate a law of the United States, to wit, section one thousand seven hundred and eighty-one of the Revised Statutes of the United States, by the said Charles H. Dietrich then and there fraudulently, willfully, corruptly, unlawfully, and knowingly agreeing with the said Jacob Fisher to take and receive the sum of one thousand three hundred dollars from the said Jacob Fisher for procuring and aiding to procure a certain office for the said Jacob Fisher, to wit, the office of United States postmaster at Hastings, state of Nebraska, from the government of the United States, and the said Jacob Fisher by then and there agreeing to give to the said Charles H. Dietrich the said sum of one thousand three hundred dollars for procuring and aiding to procure a certain office for him the said Jacob Fisher, to wit, the said office of United States postmaster at Hastings, state of Nebraska, from the government of the United States.'

Section 1781 of the Revised Statutes (U.S.Comp.St. 1901, p. 1212) makes it an offense against the United States (1) for a member of Congress or any officer or agent of the government to directly or indirectly take, receive, or agree to receive any money, property, or other valuable consideration whatever, from any person, for procuring or aiding to procure any contract, office, or place from the government or any department thereof, or from any officer of the United States, for any person whatever, or for giving any such contract, office, or place to any person whomsoever; (2) for any person to directly or indirectly offer or agree to give, or give, or bestow any like consideration for the procuring, or aiding to procure, any such contract, office, or place; and (3) for any member of Congress to directly or indirectly take, receive, or agree to receive any such consideration after his election as such member, for his attention to, services, action, vote, or decision on any question, matter, cause, or proceeding which may then be pending, or may by law or under the Constitution be brought before him in his official capacity, or in his place as such member of Congress. The section therefore describes three principal offenses, each composed of essential elements enumerated in its description., o charge that the object of a conspiracy was to violate this section, without saying more, leaves it uncertain which of these offenses is intended to be described, and whether the essential elements of any of them are present. The rules of criminal pleading require greater certainty and precision than this, and the statement in this indictment that the object of the conspiracy was to violate section 1781, while not harmful, adds nothing to the indictment. Eliminating this, the charge is that the defendants conspired-- united in purpose and agreed together-- to commit an offense against the United States, by Dietrich agreeing to receive a bribe from Fisher for procuring the appointment of the latter as postmaster, and by Fisher agreeing to give to Dietrich this bribe for that service. In other words, the conspiracy charged is an agreement between a member of Congress and a citizen, whereby a stated bribe was to be received by the former and given by the latter as the price of the former's abusive or perversive use of the influence incident to his official station. The making of such an agreement is not a conspiracy within the terms of section 5440, but is a several and substantive offense under section 1781 upon the part of each of the parties, and this without the doing of any overt act in pursuance thereof. The latter section, as before stated, specifically covers the act of a member of Congress who received, or agrees to receive, any money, property, or other valuable consideration for procuring or aiding to procure for another an office from the federal government; and it also specifically covers the act of any person who gives, or agrees to give, a like consideration for such service or aid. As the transaction is stated in the indictment, it was Dietrich who agreed to receive the bribe, not Fisher and Dietrich. The charge is not that two or more persons agreed among themselves to corruptly obtain the aid of another, a member of Congress, in securing the appointment of some aspirant to a federal office, nor is it that two or more members of Congress agreed among themselves to obtain from another person a reward or compensation for their services or aid in securing such an appointment. Such an agreement would constitute a conspiracy to commit an offense against the United States, and, if followed by the doing of any act by one of the conspirators to effect its object, would be punishable under section 5440. There is therefore nothing in the suggestion that if the agreement charged in this indictment does not constitute a conspiracy within section 5440 there can be no conspiracy to commit any of the offenses defined in section 1781. The agreement or transaction stated in this indictment was immediately and only between two persons, one charged with the intended taking and the other with the intended giving of the same bribe. Concert and plurality of agents in such an agreement or transaction are, in a sense, indispensable elements of the substantive offenses, defined in section 1781, of agreeing to receive a bribe and of agreeing to give one. A person cannot agree with himself, receive from himself, or give to himself. The concurrent and several acts of two persons are necessary to the act of agreeing, receiving, or giving. In this respect, agreeing to receive a bribe from another and agreeing to give...