United States v. Polakoff, 329.

• Decision Date: 28 June 1941
• Docket Number: No. 329.,329.
• Citation: 121 F.2d 333
• Parties: UNITED STATES v. POLAKOFF et al.
• Court: U.S. Court of Appeals — Second Circuit

121 F.2d 333 (1941)

UNITED STATES v. POLAKOFF et al.

No. 329.

Circuit Court of Appeals, Second Circuit.

June 28, 1941.

Louis Halle, of New York City (Irving Spieler and Samuel Mezansky, both of New York City, on the brief), for appellants.

Mathias F. Correa, U. S. Atty., of New York City (William F. Young and Robert L. Werner, Asst. U. S. Attys., both of New York City, of counsel), for the United States.

Before L. HAND, CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

On an appeal from a previous conviction in this case, a new trial was ordered because evidence improperly secured had been admitted. United States v. Polakoff, 2 Cir., 112 F.2d 888, certiorari denied 311 U.S. 653, 61 S.Ct. 41, 85 L.Ed. ___. At that time we expressed the view that the evidence was otherwise adequate to justify conviction. But the point now pressed upon us was not then directly considered; and in view of its importance, it merits further analysis. In effect it is that a corrupt endeavor to obstruct justice through influence of a court official requires an attempted debauching of that official, and not merely a use of otherwise legitimate arguments for concealed or falsified ends. The issue is seemingly raised by requests to charge, though we do not find their exact wording except as partially reproduced in defendants' assignments of error — in form so vague as to highlight the elusive nature of the attempted distinction.

The evidence, however, squarely presents the question. One Kafton, having pleaded guilty to violation of the federal narcotic laws, was out on bail awaiting sentence. Defendant Albert, who was in the bonding business, approached him and offered for a price to secure a low sentence for him. Actually Kafton was then acting as informer for the Narcotic Bureau, and he immediately reported the incident to that Bureau and was instructed to continue negotiations. A definite agreement was thereafter made whereby for $500 to be paid Albert the reduced sentence would be secured. Meanwhile Polakoff, also a bondsman, was attempting to influence the Assistant District Attorney in charge of the case to recommend a reduced sentence and to bring it before a certain judge who would probably reduce it still more, following his custom with respect to prosecutors' recommendations. Polakoff had known the attorney socially, and the latter and his wife had been entertained by Polakoff and his wife before any matters connected with this case arose. Polakoff thereafter, by repeated and importunate advances, tried to persuade the attorney to take the requested steps, at first saying that Kafton's bond had been written by his company (which was not the fact), and that he was trying to dispose of the case, among others so written; thereafter he laid his sole interest in the matter to the fact that a local politician wanted a short sentence for Kafton, that this politician was in a position to put men to work and had done so for several of Polakoff's friends, and that Polakoff felt indebted to him. Eventually, at a time when Polakoff and Albert both assured Kafton that the arrangement was going through, in response to which Kafton agreed to make the payment, and Albert made an advance of money to Polakoff, the two were arrested. Indictment, trial, and conviction followed.

Here it is clear that the attempted use of influence was doomed to failure from the beginning, since Kafton and the attorney and the government officials were working together and were fully apprised of all the facts which the defendants were concealing except where their purpose required disclosure. Defendants thus assert that, whether or not they were guilty of attempting to secure money by false pretenses, they were not guilty of any offense under the statute in question, 18 U.S.C.A. § 241; and they cite a statement from Rosner v. United States, 2 Cir., 10 F.2d 675, 676, to the effect that an intended bribery or an attempt to obtain money under false pretenses is not this statutory offense.

The statute, 18 U.S.C.A. § 241, goes back to § 2 of the Act of Mar. 2, 1831, 4 Stat. 487, 488, of which § 1 ___ now 28 U.S.C. A. § 385 ___ defined the power of the United States courts to punish for contempt. See Sinclair v. United States, 279 U.S. 749, 762, 49 S.Ct. 471, 73 L.Ed. 938, 63 A. L.R. 1258; Ex parte Savin, 131 U.S. 267, 274, 9 S.Ct. 699, 33 L.Ed. 150; United States v. Potash, 2 Cir., 118 F.2d 54, certiorari denied 61 S.Ct. 1103, 85 L.Ed. ___. It provides that "whoever corruptly * * shall endeavor to influence, intimidate, or impede any * * * officer in or of any court of the United States * * * or who corruptly * * * shall influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice therein" shall be subject to a fine or imprisonment or both. It is evident that our chief point of inquiry herein concerns the words "corruptly endeavor." Does one corruptly endeavor to obstruct justice if for supposedly disinterested reasons, though actually in expectation of financial gain, he uses what influence he has with the District Attorney to secure favorable disposition of a pending criminal case?

Exact precedents appear to be lacking, but the decisions under the statute are illuminating in their unwillingness to limit the court's protection from improper obstructions. In United States v. Russell, 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553, it is pointed out that the "endeavor," not the corruption — there of a juror — was the gist of the offense, and hence that "experimental approaches" towards...