United States v. Remington

• Decision Date: 10 April 1933
• Docket Number: No. 374.,374.
• Citation: 64 F.2d 386
• Parties: UNITED STATES v. REMINGTON.
• Court: U.S. Court of Appeals — Second Circuit

64 F.2d 386 (1933)

UNITED STATES v. REMINGTON.

No. 374.

Circuit Court of Appeals, Second Circuit.

April 10, 1933.

George F. Humphrey, of Albany, N. Y. (Daniel H. Prior, of Albany, N. Y., of counsel), for appellant.

Oliver D. Burden, U. S. Atty., of Syracuse, N. Y. (Roger O. Baldwin, Asst. U. S. Atty., of Syracuse, N. Y., of counsel), for the United States.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge.

The defendant, Remington, was a federal prohibition agent assigned to work under the agent in charge of the Albany office of the Prohibition Bureau. In January, 1932, he participated with other agents in raiding a speak-easy belonging to one Bastian, who testified that six days later he gave Remington $200 and the latter promised to "lay off." The money which Bastian had for this purpose had been previously examined by government agents, who made a list of the numbers of the bills. Almost immediately after the alleged bribe was given, these same agents examined money in Remington's pockets and found $120 in bills bearing the numbers they had listed. Forty dollars of this sum was concealed in one of his gloves. In his own behalf Remington testified that he had received nothing from Bastian. He explained the presence of the money by the story that he had placed with Attorney Bloch a $5 bet on an unknown horse, and that later in the day Bloch told him the horse had won and paid over to him $123. Bloch denied it. The jury returned a verdict of guilty.

The appellant contends that the record contains no evidence of the crime charged in the indictment. This contention is possible because of a curious confusion in the record as to the indictment upon which the defendant was tried. The record contains copies of two indictments, one bearing the certificate of the clerk of the District Court, the other, without his certificate, being included by stipulation. The certified indictment charges that on January 20, 1932, the defendant accepted money from Henry Bastian and in consideration thereof agreed to omit the performance of certain acts pertaining to his official duties as an employee of the Bureau of Prohibition in the United States Department of Justice, appointed to enforce the National Prohibition Act (27 USCA § 1 et seq.). By way of inducement, the indictment explains that the defendant's agreement related to the suppression of evidence in a pending proceeding which resulted from a raid upon premises occupied by said Bastian at 424 Second avenue, Albany, N. Y., on January 14, 1932. The uncertified indictment is identical with the one just described except that its inducement refers to a raid on January 14, 1932, upon premises occupied by Bastian at 22 Clinton street, Albany. All the evidence related to a raid at the latter address; so far as appears, the premises on Second avenue were never raided. In consequence, the appellant argues that there is no evidence of the crime charged in the certified indictment, which, he asserts, we are bound to accept as the one tried.

If the clerk made an error, the appellee should have obtained a correction of the record by the court below. In re Wight, 134 U. S. 136, 10 S. Ct. 487, 33 L. Ed. 865; Lincoln Nat. Bank v. Perry, 66 F. 887 (C. C. A. 8). This court cannot change the record as it is sent to us. See Goodenough, etc., Co. v. Rhode Island, etc., Co., 154 U. S. 635, 14 S. Ct. 1180, 24 L. Ed. 368. We shall assume with the appellant that we must accept the clerk's certificate as to the indictment brought on for trial. However, the objection is, at best, only a matter of variance between pleading and proof. The substance of the crime charged was the taking of a bribe to suppress evidence. This was obtained by a raid on January 14th upon premises occupied by Bastian. Whether the premises were located on Second avenue, as charged, or on Clinton street, as proved, was not material, unless the defendant was deprived of an opportunity to prepare his defense. Sharp v. United States, 138 F. 878 (C. C. A. 8); Meyers v. United States, 3 F. (2d) 379 (C. C. A. 2); Brady v. United States, 41 F.(2d) 449 (C. C. A. 7). He did not claim to be taken by surprise; no objection was made to the evidence, and no assignment of error was drawn to raise the question. Nor does he stand in danger of being tried again on the Clinton street indictment, for on a plea of double jeopardy extrinsic evidence is admissible to identify the crime of which a defendant has been convicted. Dunbar v. United States, 156 U. S. 185, 191, 15 S. Ct. 325, 39 L. Ed. 390. This court gives no countenance to a claim of variance not shown to have been prejudicial. United States v. Sprinkle (C. C. A.) 57 F.(2d) 968, 969; United States v. Busch (C. C. A.) 64 F.(2d) 27, opinion of April 3, 1933.

It is also urged that the appellant was not proved to be "an officer of the United States, or a 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 office of the Government," as the statute requires (Criminal Code, § 117 18 USCA § 207). Heaton v. United States, 280 F. 697 (C. C. A. 2) is relied upon. The government frankly asks us to modify that decision. Other circuits have refused to follow it. Crinnian v. United States, 1 F.(2d) 643, 644 (C. C. A. 6); Biddle v. Wilmot, 14 F.(2d) 505 (C. C. A. 8); Dropps v. United States, 34 F.(2d) 15 (C. C. A. 8). The Attorney General now has statutory authority to appoint employees of the Bureau of Prohibition (46 Stat. 427 27...