United States v. Glazer, Crim. A. No. 915.

Citation129 F. Supp. 285
Decision Date04 March 1955
Docket NumberCrim. A. No. 915.
PartiesUNITED STATES of America Plaintiff, v. Benjamin GLAZER, Defendant.
CourtUnited States District Courts. 3th Circuit. United States District Court (Delaware)

Leonard G. Hagner, U. S. Atty., and Newton White, Asst. U. S. Atty., Wilmington, Del., for the United States.

Robert C. Barab, Wilmington, Del., for defendant.

LEAHY, Chief Judge.

Defendant Benjamin Glazer was tried for attempting to bribe in violation of 18 U.S.C.A. § 201.1 Defendant at trial moved under Criminal Rule 29(b), 18 U.S.C., after the Government rested for the entry of a judgment of acquittal. Decision by the court was reserved. After both sides rested, the motion was renewed before charge and was renewed after the verdict of guilty. The ruling here is on the motion for judgment of acquittal.

1. To protect the public from evil consequences of corruption in public service the Congress crystallized in statute form what was punishable at common law. The elements of the crime embodied in § 201 which the Government was required to prove are:

a. An offer to bribe;

b. Such offer was made to an officer of the United States or a person at the time acting for or on behalf of the United States in an official function;

c. The offer was made to influence the officer or person in doing some act or performance of some duty in his official capacity.

2. In the instant case the alleged bribee was one Irving Plaien, a construction examiner of the Federal Housing Administration.2 In United States v. Birdsall, 233 U.S. 223, 34 S.Ct. 512, 58 L.Ed. 930, the Court held every act of a person acting on behalf of the United States which is within the range of his official duty comes within the statute, i. e., any defendant who has attempted "to influence his the official's decision or action on any question, matter, cause, or proceeding which may at any time be pending". The intent of Congress was the actions of federal officers or agents be protected in the broadest possible manner from attempts or offers to bribe. The cases emphasize the necessity for proving criminal intent, which is always a necessary element of the crime of bribery. Browne v. United States, 6 Cir., 290 F. 870; Cohen v. United States, 6 Cir., 294 F. 488. In short, to sustain defendant's conviction in the instant case the jury was required to conclude: (a) defendant in fact offered $100 to Plaien, and (b) defendant's intent at the time of the offer was (i) unlawfully to influence Plaien's decision, and (ii) to induce Plaien unlawfully to approve certain construction of a house which failed to meet FHA standards.

3. The facts at trial showed during the Spring and Summer of 1952, defendant was employed as building superintendent on a housing development known as Doverbrook Gardens. The Federal Housing Administration had issued a commitment to insure the mortgages on the houses to be built in this development. Construction had to be in accordance with FHA requirements.

The development consisted of a group of small one-story houses. The first house built was house No. 1, the sample house. The uncontradicted testimony of defendant and of Government witness Grampp was the slab utilized for this house was poured directly on the ground without stone. DX 3 shows this slab was approved, and there is no indication there was any difficulty concerning it. The next houses to be built were houses 2, 3, 87 and 88 (the houses actually involved in the present inquiry). The slabs of these houses were likewise poured without stone beds, and they were likewise approved.

Plaien's official function was to make certain construction meet the minimum standards fixed by the Minimum Property Regulations of the FHA. The Regulations (sometimes referred to as "MPR") are in evidence as DX 1. The only provision dealing with stone under the slabs is MPR § 406-E. The provision provides: "In semi-arid locations or where local experience has shown that water or dampness will not reach the slab under the conditions presented, slab may be placed directly on firm undisturbed soil without water proofing or the porous bed * * *." No evidence was introduced by the Government to show local conditions were such that water or dampness would reach the slabs of these houses under the conditions presented. Plaien testified on cross-examination water or dampness, to reach a concrete slab, must come from one of two sources: surface water or subsurface water.

Charles Brown, a qualified civil engineer, testified he has done civil engineering and surveying work throughout the Dover Area, testified test borings in the property on which these houses were built showed the water table (sub-surface water) was over 7 feet below the finished grade of the houses (i. e., no water was hit when he went down a distance of 7 feet), drainage conditions of the soil were good, and the yards surrounding each house were graded downward on all four sides. This testimony seems clear the facts are: (1) surface water would not reach the slabs because it would be carried away by the downward slope of the yards, and (2) subsurface water would not reach the slabs because it was over 7 feet below the slabs.

The Offer of Bribe

4. Plaien's testimony was some time in the Spring of 1952, defendant said he wanted to eliminate stone beneath the slabs so as to save $40 a house. He said Plaien "would be taken care of". Plaien's testimony continued:

"Q. Did you have a conversation with him shortly subsequent to this occasion? A. On my next visit to the project, the very next visit, I had occasion to use the phone in his office, and when I had completed my call, Mr. Glazer approached me from the rear of the room with his hand extended. In it he held some folded money, a packet of folded money. I drew back instinctively without touching the money, without being aware of the amount, and I asked, `What is that for?' He answered, `It is for you.' I then told him that I thought I had made myself perfectly clear on a previous visit, that in the event I hadn't I would restate my position. And I did. I warned him about offering me more money, and I told him he wasn't worth enough to buy me. Mr. Glazer merely smiled, shrugged his shoulders and said: `Well, everybody takes money.'"

Nazelrod testified at some time in 1952, he went into a building where Glazer's office was located. The door of the office opened, and Plaien came out saying something to the effect he could be bought but Glazer did not have enough money to buy him. Then defendant Glazer came out with money in his hand and told Nazelrod Plaien would not take the money.

The Indictment

5. The indictment charges Glazer offered the sum of $100 to Plaien "with intent to unlawfully influence the decision of said Irving R. Plaien in approving or disapproving building construction performed under the said Benjamin Glazer and to induce said Irving R. Plaien unlawfully to approve said building construction which failed to meet the official standards of the Federal Housing Administration * * *".

6. Not every offer of money to a construction examiner is a violation of the statute, and the Government failed to prove the intent necessary to constitute the offense charged. The statute, 18 U.S.C. § 201, makes criminal only a promise or offer of money, etc., with certain specified intent. Consequently, the indictment charges an offer of money with a specified intent; to wit, "intent unlawfully to influence the decision of said Irving R. Plaien * * * and to induce said Irving R. Plaien unlawfully to approve said building construction which failed to meet the standards of the Federal Housing Administration * * *".

7. In charging the jury, I said: "In order for you to find defendant guilty under this indictment, you must find, beyond a reasonable doubt, an offer was made by defendant to Plaien as alleged, and that the purpose or intent of the offer was to influence Plaien's decision and induce an unlawful approval. In other words, even if you find beyond a reasonable doubt defendant offered money to Plaien, you must, in order to find him guilty of the offense charged, also find beyond a reasonable doubt the purpose of the offer was to influence Plaien to make an unlawful decision and to induce him to approve construction which did not meet FHA specifications. Thus, if you find an offer was made, but such offer was intended as a gift or gratuity with no intent to influence Plaien's official actions unlawfully, then your verdict must be not guilty."

I also said:

"Under § 406E of the Minimum Property Requirements of FHA, the builder is entitled to place the concrete slab directly on firm soil without a stone bed, if local experience has shown water and dampness will not reach the slab under the conditions presented. In order for you to find defendant sought unlawfully to influence the decision of Plaien and to induce him to approve building construction which failed to meet the official standards of FHA, you must find the government has proved beyond a reasonable doubt that the use of a concrete slab without a stone bed would not meet the standards of § 406E which I have just explained to you.

"In determining whether or not the approval of concrete slabs placed without stone beds would have been unlawful, you may take into consideration the question of whether slabs without a stone bed were permitted by FHA on this or other houses on the same development."

8. The question of defendant's intent to make either a bribe or a gift was a fact determination found by the jury against defendant. Defendant's argument the law of this district and circuit, where the Government's case depends upon circumstantial evidence, is the "burden is upon the Government to exclude beyond a reasonable doubt every reasonable hypothesis other than guilt", has lost its force in the light of the recent announcement of the Supreme Court in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 137, where Mr. Justice Clark wrote: "The petitioners assail the...

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3 cases
  • United States v. Raff
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • February 21, 1958
    ...1956, 230 F.2d 521, at page 524; United States v. Schanerman, 3 Cir., 1945, 150 F.2d 941, at page 943, and United States v. Glazer, D.C.Del. 1955, 129 F.Supp. 285, at page 286. Assuming all well plead allegations to be true, Count I as to § 201, Count II as to § 202, each plead an offense i......
  • U.S. v. Rasco, 87-2505
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 11, 1988
    ...the absence of proof of the exact value of the bribe mandates a reversal of his conviction. In support, Rasco cites United States v. Glazer, 129 F.Supp. 285 (D.Del.1955). In Glazer, the indictment alleged that the defendant offered a $100 bribe to an agent of the Federal Housing Administrat......
  • United States v. Labovitz
    • United States
    • U.S. Court of Appeals — Third Circuit
    • January 13, 1958
    ...his position that bribery under § 201 must be directed at the accomplishment of unlawful action, the appellant cites United States v. Glazer, D. C.Del.1955, 129 F.Supp. 285. We are not sure that the language used in that decision was so intended. In any event, a correct judicial statement o......

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