United States v. Raff, Crim. No. 12879.

• Court: United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
• Writing for the Court: Warren, Hill, Henkelman & McMenamin, Scranton, Pa., for Frederick J. Raff
• Citation: 161 F. Supp. 276
• Decision Date: 21 February 1958
• Docket Number: Crim. No. 12879.
• Parties: UNITED STATES of America v. Frederick J. RAFF and John P. Gilboy, Jr.

161 F. Supp. 276

UNITED STATES of America
v.
Frederick J. RAFF and John P. Gilboy, Jr.

Crim. No. 12879.

United States District Court M. D. Pennsylvania.

February 21, 1958.

161 F. Supp. 277

Oliver Dibble, Special Asst. to Atty. Gen., Robert J. Hourigan, U. S. Atty., Scranton, Pa., for plaintiff.

Warren, Hill, Henkelman & McMenamin, Scranton, Pa., for Frederick J. Raff.

Russell J. O'Malley, Joseph P. Brennan, Scranton, Pa., for John P. Gilboy, Jr.

JOHN W. MURPHY, Chief Judge.

In addition to the indictment, charging seven defendants, including Gilboy and Raff, with conspiracy to defraud the United States, objections to which were found to be without merit in an opinion filed to No. 12880, United States v. Gilboy, D.C., 160 F.Supp. 442, a separate indictment charged Raff with offering a bribe, 18 U.S.C.A. § 201; Gilboy with accepting and receiving a bribe, Id. § 202; both with conspiracy to defraud the United States, Id. § 371.¹ Raff attacks the sufficiency of Count I; Gilboy of

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Count II:² (a) it does not allege an offense; (b) it alleges two distinct offenses; (c) it is inconsistent with overt act 8 in Count III, overt act 31 in # 12880. Raff contends that Count III and # 12880 each charge the same conspiracy

§ 201 provides, "Whoever promises, offers, or gives any money or thing of value, * * * to any officer or employee or person acting for or on behalf of the United States, or any department or agency thereof, in any official function, under or by authority of any such department or agency * * *, with intent to influence his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, or with intent to influence him to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States, or to induce him to do or omit to do any act in violation of his lawful duty, shall be * * *."

§ 202, "Whoever, being an officer or employee of, or person acting for or on behalf of the United States, in any official capacity, under or by virtue of the authority of any department or agency thereof, * * * asks, accepts, or receives any money, * * * promise, undertaking, obligation, * * * for the payment of money * * *, with intent to have his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, influenced thereby, shall be * * *."

The indictment avers that in the construction of the Tobyhanna Signal Depot, a military installation in this district, the United States, the Department of the Army under the direction and control of the Secretary of the Army, and the Army Corps of Engineers, engaged Gilboy, O'Malley and Stopper, a partnership, as Architect-Engineer to prepare and furnish reports, designs, drawings, and specifications for the construction and erection of certain facilities at the Depot and to furnish technical supervision of the construction thereof. Such supervision included (a) furnishing a Resident Engineer and staff of assistants and other personnel to supervise construction at the Depot to assure the work was done in accordance with approved drawings and specifications; (b) making field tests of the work and report as to conformity or non-conformity to specifications of materials, equipment and workmanship.

Gilboy, one of the partners, was in control of the management and affairs of the partnership and, as such, was a person acting for and on behalf of the United States in an official function under and by authority of the Department of the Army, i. e., an Architect-Engineer under contract with the Department to supervise and inspect construction and work at the Depot; in charge of inspection, and charged with the duty of supervising the work of other inspectors and making reports thereon to a representative of the Department—the Contracting Officer of the Corps of Engineers. It became and was the duty of Gilboy in his official function under the contract to decide and act on questions and matters pending before him in the inspection of said construction; to decide whether it complied with specifications of the Department; to recommend its acceptance or rejection; approve or disapprove the work and recommendations of inspectors under him; to make and forward reports to the Contracting Officer of the Corps of Engineers of the Department of the Army.

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Merritt, Chapman and Scott, under a General Contract, with the United States and the Corps of Engineers, to construct and erect certain utility systems, including the water and heating systems, and certain buildings and site improvements at the Depot, subcontracted the constructing, erecting and installing of certain plumbing and heating systems at the Depot to Frederick J. Raff of Hartford, Connecticut.

Count I then charges that on or about June 1, 1952, "at Tobyhanna and Scranton" in this district, Frederick J. Raff "* * * unlawfully, wilfully, knowingly and feloniously did offer and promise to give and to pay certain money, to wit, the sum of Ten Thousand Dollars ($10,000.00) in lawful currency of the United States to the said John P. Gilboy, Jr., who, as the said Frederick J. Raff then and there well knew, was then and there a person acting for and on behalf of the United States in an official function and by authority of the Department of the Army, as aforesaid, with intent on the part of him, the said Frederick J. Raff, to influence the decisions and actions of the said John P. Gilboy, Jr., on any questions, matters, causes, and proceedings which might at any time be pending and which might be brought before him, the said John P. Gilboy, Jr., in his official capacity and place of trust, as aforesaid, to wit, the inspection on behalf of the Department of the Army of said construction, and thereby to make opportunity for the commission of a fraud on the United States of America."

Incorporating by reference the preliminary allegations, Count II charges that, on or about October 20, 1952, "at Tobyhanna and at Scranton" in this district, John P. Gilboy, Jr., "a person acting for and on behalf of the United States in his official capacity as Architect-Engineer under and by virtue of the authority of the Department of the Army did knowingly, wilfully, unlawfully, and feloniously accept and receive of and from Frederick J. Raff a certain sum of money, to wit, the sum of Ten Thousand Dollars ($10,000) in currency of the United States, with the intent to have his, the said John P. Gilboy, Jr.'s decisions and actions on questions and matters which might at any time be pending before him and which might be brought before him in his official capacity and in his place of trust and profit, aforesaid, influenced thereby, to wit, the decisions and actions of the said defendant in connection with the inspections, and reports thereon, of the aforesaid work performed and to be performed by the said Frederick J. Raff."

The clear purpose of the statute is to protect the public from the consequences of corruption in the public service. Kemler v. United States, 1 Cir., 1942, 133 F.2d 235, at page 238. It is a major concern of organized society that the community have the benefit of objective evaluation and unbiased judgment on the part of those who participate in the making of official decisions. "* * * society deals sternly with bribery which would substitute the will of an interested person for the judgment of a public official as the controlling factor in official decision. The statute plainly proscribes such corrupt interference with the normal and proper functioning of government." United States v. Labovitz, 3 Cir., 251 F.2d 393.

In the face of such sweeping language in the statute, and the purpose it was designed to accomplish, we find no reason to find any intent on the part of Congress that the statute must be narrowly construed to exclude any person or any conduct fairly within the broad statutory ambit. To both sections federal courts have given an extremely liberal interpretation. See Wilson v. United States, 4 Cir., 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 in the very words of the statute; each definitely informs the accused of the

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charge against him so that (1) he may prepare and present his defense without being surprised at the trial; (2) protect himself against another prosecution for the same offense. See United States v. Gilboy, supra, D.C., 160 F.Supp. 442; United States v. Angelo, 3 Cir., 1945, 153 F.2d 247, at page 250; United States v. Marcus, 3 Cir., 1948, 166 F.2d 497, at pages 500, 501, 503; Downs v. United States, 3 Cir., 1925, 3 F.2d 855, at page 857; United States v....