United States v. Kemler

• Decision Date: 21 April 1942
• Docket Number: No. 15651.,15651.
• Citation: 44 F. Supp. 649
• Parties: UNITED STATES v. KEMLER.
• Court: U.S. District Court — District of Massachusetts

44 F. Supp. 649

UNITED STATES v. KEMLER.

No. 15651.

District Court, D. Massachusetts.

April 21, 1942.

COPYRIGHT MATERIAL OMITTED

Edmund J. Brandon, U. S. Atty., and Thomas P. O'Connor, Asst. U. S. Atty., both of Boston, Mass., for plaintiff.

Aaron J. Bronstein and J. C. Johnston, both of Boston, Mass., for defendant.

FORD, District Judge.

The indictment in this case alleges a violation by the defendant of Section 39 of the Criminal Code, 18 U.S.C.A. § 91.¹

The defendant moves to quash the indictment and demurs to it, asking dismissal, relying on several grounds. The grounds dealt with here are those argued in the defendant's brief.

First, the defendant alleges in both his motion and demurrer that the indictment is duplicitous, in that two or more distinct offenses are charged in the same count. The government argues only one offense is created by the statute but different means or modes of committing the offense are specified and it has charged the crime by only one method which will be discussed later. It is well settled that if one offense is created, all the means of committing it may be charged in a single count in the conjunctive, without the count being open to the charge of duplicity, and proof of the commission of any one of the means will be sufficient to sustain a conviction. United States v. Dembowski, D.C., 252 F. 894. Thus, the indictment is not defective because it charges the defendant "did * * * promise and offer to give money * * *".

But a more difficult question to answer is whether the indictment is defective in that it charges Dr. Musgrave was "an officer and person acting for and on behalf of the United States in an official capacity * * *". The government attempts to meet the argument by contending it has alleged only one charge in the indictment, to wit, bribery of an officer, and that the words "person acting for and on behalf" are descriptive, surplusage, and add nothing to the indictment. To be sure, an officer of the United States is usually, in the performance of his duties, a person acting for or on behalf of the United States. But it is equally true that one may be guilty by bribing one not an officer, as for instance, an employee acting for or on behalf of the United States in an official capacity. These are two different classes of persons. Cf. Shields v. United States, 58 App.D.C. 215, 26 F.2d 993. I do not believe these words are descriptive and for that reason surplusage; they embrace the ingredients of a crime. Cf. Creel v. United States, 8 Cir., 21 F.2d 690, 691. Though the government could have charged bribery of an officer alone and described him as one who was acting for or on behalf of the United States in an official capacity, it did not do so. See Henderson v. United States, 4 Cir., 24 F.2d 811. The government charged the defendant, in addition, with bribing one "acting for and on behalf of the United States"— the crime of bribery denounced in the statute by a different means or method than denounced in bribery of an officer. I conclude the government, as far as the pleading goes, was warranted in doing this, however, for the reason that the statute, also in this regard does not create separate and distinct offenses but one offense by different methods. Malaga v. United States, 1 Cir., 57 F.2d 822; Ching Wan et al. v. United States, 9 Cir., 35 F.2d 665; Turner v. United States, 57 App.D.C. 39, 16 F.2d 535; United States v. Dembowski, supra; Ackley v. United States, 8 Cir., 200 F. 217. The fact different persons may be involved in the different means is of no moment. United States v. Scott, C.C., 74 F. 213.

The contention of the defendant that in the event of a subsequent prosecution an inspection of the record will prevent his knowing whether or not he is in double jeopary, is without merit. He is charged with bribing Dr. Musgrave. He cannot be tried again for it. If another indictment is silent as to the name it can be supplied by extrinsic evidence.

Inasmuch as the government will, in all probability, seek another indictment because of what is said later, it might be better pleading, in order to avoid any charge of duplicity, to indict the defendant in two separate counts.

The next point raised by the defendant is that the charge is no offense against the laws of the United States, in that the person sought to be bribed is not an officer of the United States. In the view I take of the indictment, the government is not compelled to prove, in order to warrant a conviction, that Dr. Musgrave is an officer of the United States. If it proves that Dr. Musgrave was either an officer or one acting for or on behalf of the United States, with the other essential elements, a conviction will be sustained. Consequently, there is no compulsion at this time to pass upon the question whether Dr. Musgrave is an officer of the United States in the constitutional sense. However, I believe Dr. Musgrave was an officer of the United States within the meaning of this statute. He was appointed by the...