United States v. Van Wert

• Decision Date: 28 March 1912
• Docket Number: 4,149.
• Citation: 195 F. 974
• Parties: UNITED STATES v. VAN WERT.
• Court: U.S. District Court — Northern District of Iowa

195 F. 974

UNITED STATES v. VAN WERT.

No. 4,149.

United States District Court, N.D. Iowa, Eastern Division.

March 28, 1912

H. J Bone, Sp. Asst. U.S. Atty.

S. C Huber, for defendant.

REED District Judge.

The defendant, Everett E. Van Wert, is charged by this indictment with having accepted a bribe in violation of section 117 of the Penal Code.

Omitting its formal parts, the indictment charges, in substance, that on and prior to May 30, 1910, the defendant was acting for and on behalf of the United States in an official function under the authority of the Department of the Interior, having been theretofore duly appointed by the Commissioner of Indian Affairs, as a special officer for the suppression of the liquor traffic among Indians, and in the performance of his lawful duties as provided by the rules and regulations of said department, was called upon and required to assist in procuring testimony for the trial and conviction of persons who should unlawfully sell liquor to Indians, and assist in securing their punishment without partiality or favor and without violating or betraying the confidence reposed in him concerning the administration of public justice; that in April, 1909, certain persons, naming them, were indicted in this court for selling liquor to Indians in violation of law and that each of said persons upon being arraigned pleaded guilty to such offense, and was adjudged to pay a fine of $100 and costs, and be imprisoned for 60 days, and until the fine and costs were paid. It is then alleged:

'That before any of the aforesaid sentences were enforced or executed, and while the said court was holding in abeyance the execution of said sentences in order to give said convicted persons an opportunity to obtain from the office or officers of the Bureau of Indian Affairs a recommendation for leniency, and after the judge of said court and the United States attorney in and for said district had both stated and announced that the aforesaid sentences of imprisonment of said persons would not be commuted or changed unless a recommendation to that effect was made by the office or officers of the Bureau of Indian Affairs, one W. N. Birdsall, who was then and there and theretofore had been attorney for said indicted persons, did, on or about the 30th day of May, in the year 1910, within the jurisdiction of said court, unlawfully, willfully, corruptly, and feloniously offer and give and cause to be given the sum of $75 lawful money of the United States, to the defendant, Everett E. Van Wert, who was then and there, as he the said W. N. Birdsall then well knew, a person acting for and on behalf of the United States in an official function under and by authority of the Department of the Interior of the United States as aforesaid, with the intent then and there of him, the said W. N. Birdsall, to unlawfully, willfully, feloniously, and corruptly influence the action of the said Everett E. Van Wert on a matter then and there pending before him in his official function and capacity as aforesaid; that is to say, in reporting and recommending and causing to be recommended to his superior officer, to wit, the Commissioner of Indian Affairs, that said persons who had pleaded guilty to the offenses of unlawfully selling liquor as aforesaid be not placed in prison, and that said sentences of imprisonment of said persons who had pleaded guilty as aforesaid be commuted to a fine without imprisonment. The said Everett E. Van Wert then and there well knowing the purpose of said gift as aforesaid then and there offered and given to him by the said W. N. Birdsall, then and there in said district unlawfully, willfully, feloniously, and corruptly did take, accept, and receive said sum of $75 from the said W. N. Birdsall with the intent and for the purpose aforesaid, contrary to the statutes in such case made and provided, etc.'

To this indictment the defendant demurred upon the ground that it charges no offense.

The indictment is based upon section 117 of the Penal Code, which reads in this way:

'Sec. 117. Whoever, being 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 thereof; * * * shall ask, accept, or receive any money, or any contract, promise, undertaking, obligation, gratuity, or security for the payment of money, or for the delivery or conveyance of anything of value, 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 fined not more than three times the amount of money or value of the thing so asked, accepted, or received, and imprisoned not more than three years; and shall, moreover, forfeit his office or place and thereafter be forever disqualified from holding any office of honor, trust, or profit under the government of the United States.'

It is not alleged that defendant is or was an 'officer of the United States' within the meaning of this section, nor could it well be, for such an officer is one who is either appointed by the President by and with the advice and consent of the Senate, or by the President alone, the courts of law, or the head of some executive department of the government. U.S. Constitution, art. 2, Sec. 2; United States v. Germaine, 99 U.S. 508, 25 L.Ed. 482; Martin v. United States, 168 F. 198-203, 93 C.C.A. 484; United States v. Schlierholz (D.C.) 133 F. 333.

Was the defendant 'acting for or on behalf of the United States in any official capacity under or by virtue of the authority of any department of the government' in recommending to the Commissioner of Indian Affairs that the sentence of imprisonment of the convicted persons be commuted, and that they be not imprisoned?

The offense denounced by the section above quoted is highly penal and must be construed with reasonable strictness at least and unless the act charged to have been done by the defendant is a violation of some act of Congress, which declares such act to be an offense, or of some departmental rule or regulation...