United States v. Ketchum

• Decision Date: 25 June 1963
• Docket Number: No. 344,Docket 28083.,344
• Parties: UNITED STATES of America, Appellant, v. Addison Raymond KETCHUM, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

320 F.2d 3 (1963)

UNITED STATES of America, Appellant, v. Addison Raymond KETCHUM, Appellee.

No. 344, Docket 28083.

United States Court of Appeals Second Circuit.

Argued May 8, 1963.

Decided June 25, 1963.

Arthur I. Rosett, New York City, Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, Arnold N. Enker, Asst. U. S. Atty., for appellant.

Jules Ritholz, New York City, Corcoran, Kostelanetz, Gladstone & Lowell, New York City (Edward J. Daus, Jon H. Hammer, New York City, of counsel), for appellee.

Before MOORE, FRIENDLY and HAYS, Circuit Judges.

FRIENDLY, Circuit Judge.

Ketchum, formerly a Public Works Civil Engineering Adviser in the International Cooperation Administration (ICA) was indicted in the Southern District of New York for violating 18 U.S.C. § 281, now superseded by 18 U.S.C. § 203, 76 Stat. 1121 (1962). Section 281 made it a crime when any federal employee "directly or indirectly receives or agrees to receive, any compensation for any services rendered or to be rendered, either by himself or another, in relation to any proceeding, contract, claim * * * or other matter in which the United States is a party or directly or indirectly interested," before any Government department or agency. Each violation of the statute was punishable by fine of not more than $10,000 or imprisonment for not more than two years, or both.

Counts 1-8 of the indictment charged that Ketchum had received such compensation "in the amounts hereinafter set forth, for services rendered and to be rendered by himself and others," in relation to an agreement dated April 17, 1956, between the ICA and the National Economic Council of the Philippines and in relation to a contract dated January 4, 1957, apparently stemming from the earlier agreement, for the council's purchase of steel piles and related materials. This language was followed by a three column table, the respective columns being headed "Count," "Date Compensation Received," and "Compensation." The counts were numbers 1 through 8, the dates ranged from July 2, 1957, through April 12, 1958, and the compensation was in eight separate amounts totaling $130,656.11. Count 9 charged that Ketchum and one Thompson, see United States v. Thompson, 319 F.2d 665 (2 Cir., 1963), had conspired with corporations and other individuals in violation of 18 U.S.C. § 371 to defraud the United States in violation of § 281. The alleged conspiracy involved Ketchum's corruptly inducing the National Economic Council of the Philippines to incorporate in an invitation to bid on a contract for the reconstruction of a pier the exact specifications already prepared by one of the conspiring corporations, and also "to further preclude competition in the bidding on the aforementioned contract" by changing the terms from c.i.f to f.a.s. The overt acts charged were four deposits allegedly made in Ketchum's brokerage account in the Southern District of New York, corresponding in date and amount to the receipts alleged in Counts 1, 5, 6 and 8.

Ketchum moved to dismiss Counts 2-8 as being merely duplications of Count 1 and not stating separate offenses against the United States; Judge Dawson granted the motion in an opinion, D.C., 212 F.Supp. 53. The United States appealed to this Court under 18 U.S.C. § 3731, claiming that the district judge had misconstrued both the statute and the indictment and also that, even on the judge's view, he should not have dismissed Counts 2-8 but should at most have required the Government to consolidate the eight counts or to elect among them.

The case initially came before us on a motion by Ketchum contending that the Government should have taken its appeal directly to the Supreme Court. The argument was that the case was covered by the provision in 18 U.S.C. § 3731 for such a direct appeal by the Government "From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded," and therefore was not within the provision for an appeal by the Government to a court of appeals "From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof except where a direct appeal to the Supreme Court of the United States is provided by this section." We postponed decision whether to certify the appeal to the Supreme Court pursuant to the final paragraph of § 3731 pending argument on the merits before the same panel.

Ketchum's challenge to our jurisdiction rests on the proposition that the district judge's dismissal of Counts 2-8 of the indictment was based on a reading of 18 U.S.C. § 281 that would refuse to make a separate crime out of each receipt of compensation where the receipts were passive and in pursuance of a single course of conduct — a reading which the Government claims to be wrong. But, as the very statement of Ketchum's argument indicates, the dismissal must also have rested on a construction of the indictment as charging only a single corrupt course of conduct by Ketchum and passivity in his receipts — a construction which the Government contends not to be a necessary one. It is plain that if the United States did not dispute the correctness of the district court's construction of the statute and rested its appeal solely on an allegedly erroneous construction of the indictment, the appeal would be to this court rather than directly to the Supreme Court. United States v. Jones, 345 U.S. 377, 73 S.Ct. 759, 97 L.Ed. 1086 (1953). The same result should follow when the United States keeps both strings to its bow. On a direct appeal the Supreme Court is bound by the district judge's construction of the indictment. United States v. Borden Co., 308 U.S. 188, 193, 60 S.Ct. 182, 84 L.Ed. 181 (1939). To allow such an appeal in a case like this would thus leave his construction of the indictment wholly immune to review at the instance of the Government. This consequence was indeed inevitable under the Criminal Appeals Act as it was originally enacted, 34 Stat. 1246 (1907), and as it stood for 35 years, but was meant to be avoided by the Act of May 9, 1942, 56 Stat. 271, for the first time providing for an appeal by the Government to the courts of appeals from certain judgments in criminal cases not directly appealable to the Supreme Court. See United States v. Swift & Co., 318 U.S. 442, 63 S.Ct. 684, 87 L.Ed. 889 (1943). It would seem undesirable in the last degree to read the amended Act as requiring the Supreme Court to pass upon the application of a criminal statute to an indictment whose construction is itself in issue, in a case where the court of appeals, which Congress has authorized to review decisions involving the construction of indictments, would construe the indictment in such a way as to eliminate, alter or postpone the statutory issue. See United States v. Hastings, 296 U.S. 188, 193, 56 S.Ct. 218, 80 L.Ed. 148 (1935). The words of the Criminal Appeals Act do not compel such a reading; the purposes of Congress can be accomplished, without violence to the language, by reading the Act as saying that where a decision of a district court setting aside or dismissing an indictment or information, or a count thereof, as not within a statute as construed by it, rests in part on a construction of the indictment which the Government also contests, appeal will not lie directly to the Supreme Court but initially to the court of appeals — with the Supreme Court then being able to consider all pertinent issues on certiorari if it deems the case to warrant such review. United States v. Hastings, supra, 296 U.S. at 194, 56 S.Ct. at 220, 80 L.Ed. 148; United States v. Bitz, 282 F.2d 465, 469-471 (2 Cir., ...