United States v. Willis Birdsall No 727 United States v. Thomas Brents No 728 United States v. Everett Van Wert No 729 729 1914

• Decision Date: 06 April 1914
• Docket Number: 728,Nos. 727,s. 727
• Citation: United States v. Willis Birdsall No 727 United States v. Thomas Brents No 728 United States v. Everett Van Wert No 729 729 1914, 233 U.S. 223, 34 S.Ct. 512, 58 L.Ed. 930 (1914)
• Parties: UNITED STATES, Plff. in Err., v. WILLIS N. BIRDSALL. NO 727. UNITED STATES, Plff. in Err., v. THOMAS E. BRENTS. NO 728. UNITED STATES, Plff. in Err., v. EVERETT E. VAN WERT. NO 729. , and 729. Argued and submitted January 8 and 9, 1914. Re
• Court: U.S. Supreme Court

233 U.S. 223

34 S.Ct. 512

58 L.Ed. 930

UNITED STATES, Plff. in Err.,

v WILLIS N. BIRDSALL.

NO 727.

UNITED STATES, Plff. in Err.,

v. THOMAS E. BRENTS.

NO 728.

UNITED STATES, Plff. in Err.,

v. EVERETT E. VAN WERT.

NO 729.

Nos. 727, 728, and 729.

Argued and submitted January 8 and 9, 1914.

Reargued February 25, 1914.

Decided April 6, 1914.

Assistant Attorney Generals Wallace and Denison for plaintiff in error.

Messrs. Charles W. Mullan and H. B. Boies for defendant in error in No. 727.

No counsel appeared for the other defendants in error.

[Argument of Counsel from pages 224-227 intentionally omitted]Mr. Justice Hughes delivered the opinion of the court:

Separate indictments were found against the several defendants.There were two indictments against the defendant Birdsall (which were consolidated), charging him with having given to Brents and Van Wert, respectively, a bribe in violation of § 39 of the Criminal Code[35 Stat. at L. 1096, chap. 321, U. S. Comp. Stat.Supp. 1911, p. 1600].The indictments against Brents and Van Wert were for accepting the bribes in violation of § 117.Demurrer to each indictment, upon the ground that it charged no offense, was sustained by the district court.206 Fed. 818.The cases are brought here under the criminal appeals act.34 Stat. at L. 1246, chap. 2564.

In view of the nature of the question presented, it is not necessary to consider the indictments separately.According to the allegations, Birdsall was attorney for certain persons who, on indictment for unlawfully selling liquor to Indians, had pleaded guilty and had been sentenced at the April term, 1910.Application had then been made to the judge of the court for a reduction or suspension of the sentences, and it was also stated that an effort would be made to obtain a commutation by Executive action.Brents and Van Wert were special officers, duly appointed by the Commissioner of Indian Affairs, under the authority of the Secretary of the Interior, for the suppression of the liquor traffic among the Indians.It was averred that by the regulations and established requirements of the Department of the Interiorthey were charged with the duty of informing and advising the Commissioner of Indian Affairs, either directly or through other subordinates, concerning all matters connected with the conviction and punishment of persons violating the laws of the United States in reference to the liquor traffic affecting the Indians, and particularly 'to inform the said Commissioner whether or not the effective suppression of the liquor traffic with and among Indians would be furthered or prejudiced by Executive or judicial clemency in any particular case.'

After referring to the conviction and sentence of the persons named, and to the application then made to the judge for a reduction or suspension of sentence, each indictment continued as follows:

'That then and there the judge of the said court announced that he would not change or reduce or suspend the said sentences or any part thereof, unless a recommendation to that effect was made to him by the said Commissioner of Indian Affairs; and the United States attorney in the aforesaid district announced that he would not recommend a commutation or other Executive clemency unless a recommendation to that effect was made to him by the said Commissioner of Indian Affairs.

'That then and there, and during all the dates and times herein mentioned, it was and long had been the settled usage and practice for the United States judges in determining upon sentences and upon the applications for changes, reductions, or suspensions thereof, to consult the United States attorney, and either directly or through him the administrative officer charged with the enforcement of the laws in question, including laws for the suppression of the liquor traffic with and among the Indians,—the said Commissioner of Indian Affairs; and likewise it had been and was the settled usage and practice of the President, in the exercise of his power of extending Executive clemency, to consult the Attorney General; and likewise it had been and was the settled usage and practice of the Attorney General, for the purpose of advising the President on the said subject, to consult with the United States attorney or other officer by whom the prosecution had been conducted. . . .

'That then and there and that at all the times herein mentioned the Commissioner of Indian Affairs, in the performance of his official duty, as provided by the rules and regulations and established usages and practices and requirements of the said Department of the Interior, and as provided by law, was charged with the duties of assisting in the enforcement of the laws of the United States in reference to the liquor traffic affecting Indians, and particularly with the duty, when requested so to do, of advising and making recommendations to any judge before whom any prosecutions on the said subject may have been tried, and the United States attorney or other officer by whom the said prosecution had been conducted, concerning the effect upon the enforcement of the said law of any proposed leniency or clemency in connection with the punishment of persons found guilty of offenses thereunder.'

The indictments against Birdsall charged him with having given money to Brents and Van Wert with intent to influence their official action so that they would advise the Commissioner of Indian Affairs, contrary to the truth that upon facts officially known to them leniency should be granted to the persons who had been convicted and sentenced, as stated, and that in the interest of the enforcement of the laws the Commissioner should so recommend to the judge, the United States attorney, the Secretary of the Interior, the Attorney General, or the President.The indictments against Brents and Van Wert charged that they had received the money from Birdsall with the intent that their official action should be thus influenced.

As the district court held that the acts charged did not fall within the condemnation of the statute, the court necessarily construed the statute, and the cases are properly here.United States v. Patten, 226 U. S. 525, 535, 57 L. ed. 333, 339, 44 L.R.A.(N.S.) 325, 33 Sup. Ct. Rep. 141.

Section 117 of the Criminal Code(35 Stat. at L. p. 1109, chap. 321, U. S. Comp. Stat.Supp. 1911, p. 1623), with respect to the acceptance of bribes, provides that '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,' accepts money, etc., '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 punished as stated.Section 39(id. p. 1096), as to bribe giving, uses similar language in defining the official relation of the recipient and the character of the action intended to be influenced; adding the words—'with intent to influence him to commit . . . any fraud . . . on the United States, or to induce him to do or omit to do any act in violation of his lawful duty.'

Every action that is within the range of official duty comes within the purview of these sections.There was thus a legislative basis (United States v. George, 228 U. S. 14, 22, 57 L. ed. 712, 715, 33 Sup. Ct. Rep. 412) for the charge in the present cases, if the action sought to be influenced was official action.To constitute it official action, it was not necessary that it should be prescribed by statute; it was sufficient that it was governed by a lawful requirement of the Department under whose authority the officer was acting (Rev. Stat. § 161,U. S. Comp. Stat. 1901, p. 80;Benson v. Henkel, 198 U. S. 1, 12, 49 L. ed. 919, 922, 25 Sup. Ct. Rep. 569;Haas v. Henkel, 216 U. S. 462, 480, 54 L. ed. 569, 577, 30 Sup. Ct. Rep. 249, 17 Ann. Cas. 1112).Nor was it necessary that the requirement should be prescribed by a written rule or regulation.It might also be found in an established usage which constituted the common law of the Department and fixed the duties of those engaged in its activities.United States v. Macdaniel, 7 Pet. 1, 14, 8 L. ed. 587, 592.In numerous instances, duties not completely defined by written rules are clearly established by settled practice, and action taken in the course of their performance must be regarded as within the provisions of the above-mentioned statutes against bribery.Haas v. Henkel, supra.

We must assume, in view of the decision below, that the indictment sufficiently charged that the action of Brents and Van Wert, which it was sought to influence, was action in the course of duty so far as the regulations and usages of the Department could establish that duty.

The question is whether the Department had authority to establish it.The district court held that it had no such power, and hence that the indictments charged no offense.The ruling was that there was 'no act of Congress conferring upon the Interior Department, or the Bureau of Indian Affairs, any duty whatever in regard to recommending to the executive or judicial departments of the government whether or not Executive or judicial clemency shall be extended to, or withheld from, any person who may be charged with, or...