Whitney v. United States, 1684.

• Decision Date: 17 October 1938
• Docket Number: No. 1684.,1684.
• Citation: 99 F.2d 327
• Parties: WHITNEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

99 F.2d 327 (1938)

WHITNEY v. UNITED STATES.

No. 1684.

Circuit Court of Appeals, Tenth Circuit.

October 17, 1938.

John W. Tillman and Fred A. Tillman, both of Pawhuska, Okl., for appellant.

Whit Y. Mauzy, U. S. Atty., of Tulsa, Okl. (Paul O. Simms, Asst. U. S. Atty., of Tulsa, Okl., on the brief), for the United States.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Appellant was charged by indictment containing four counts with violation of Section 207, Title 18 U.S.C.A., in accepting a bribe. Motion to quash same and demurrer thereto were overruled, exceptions saved, when he was tried and convicted on count one and sentenced, and this appeal prosecuted.

In said count he was charged with being an officer, agent and employee of the United States of America, to-wit, an agent and employee of the Osage Indian Agency at Pawhuska, Oklahoma, and while acting in such official capacity, did on or about the 7th day of November, 1935, in Pawhuska, Oklahoma, within the Northern District, ask for, accept and receive One Hundred Eighty-Eight and 50/100 ($188.50) Dollars from Hahn Brothers Memorial Company of Blackwell, Oklahoma, with the unlawful intent to have his decision and action influenced on a question, matter, cause and proceeding then and there pending befor him in such official capacity and place of trust as such officer, agent and employee, acting for and on behalf of the United States, to-wit, the matter of submitting or recommending for approval to the Superintendent of the Osage Indian Agency at Pawhuska, of certain contracts calling for the expenditure of restricted funds in the custody of the United States in the purchase of tombstones from Hahn Brothers Memorial Company.

This said count is based on Title 18 U. S.C.A. § 207, which reads as follows:

"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; or whoever * * * 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 the value of thing so asked * * *."

To sustain the issues joined, the government introduced evidence by D. Gentry that said Whitney was a senior clerk in the Osage Agency and a part of his duties was to collect information and receive bids concerning proposals and applications for the sale of tombstones for Osage Indians; that he collected such data for the Superintendent or acting Superintendent to pass on; that said Whitney received such proposals in some instances from field men, assembling all such data concerning price, kind, and description of the tombstones, and submitting same to such Superintendent, who then instructed said Whitney to ask the Department in Washington, D. C. by letter for authority to make such purchase; that restricted funds may be expended with the approval of the Secretary of the Interior, and if such an Indian desires to purchase something he usually contacts an outside party who is a leader with reference to the purchase, and then makes application to the Superintendent of the Osage Agency for such purchase, all papers being referred to a clerk of said agency for the purpose of assembling the data, compilation, etc., for presentation to such Superintendent, after which said Whitney is instructed to ask in writing, in name of such Superintendent, for authority from the Department in Washington, D. C. to make the purchase; that after such authority is granted the monument dealer is required to post a bond and said Whitney prepares a letter to the dealer authorizing the purchase.

Gentry further testified that when the Superintendent was away he acted as Superintendent and relied upon the data furnished by Whitney in recommending approval of purchases. On cross-examination he testified that there was not a clerk in the office but what had some responsibility, and that the Superintendent and chief clerk depended upon their write-ups and the data gathered by them to pass judgment on what should be done.

George Tselos testified that he was in the confectionary business in Pawhuska and had cashed such checks for Whitney endorsed by him, and had gotten money on the check which Fred Hahn had given Whitney, turning same over to Whitney in accordance with his request.

Phillip Hahn, monument dealer in Blackwell, Oklahoma, testified that in the spring of 1935 he had a conversation with Whitney at Pawhuska, during which he told Whitney that he had negotiated a sale for a monument but could not get any action on it; that in April, 1935, he had a conversation with Whitney in a restaurant in Pawhuska, in which he told Whitney that his agent had said the reason the work did not go through was because it was customary that Whitney received two and a half per cent from all dealers with whom he had been doing business, and then he asked Whitney if that was a fact and Whitney replied that he would not do it for less than five per cent; and that he had paid Whitney several commissions so that Whitney would see that the money was gotten out of the Department in payment for monument sales to the Indians.

G. Fred Hahn, of Blackwell, Oklahoma, testified that he was in the monument business and in November, 1935, Whitney called his office and asked him to come to the Larkin Hotel, and Whitney upon his arrival said, "You know why I am here," and that he wrote a check to Whitney in accordance with an understanding that Whitney had with his brother, Phillip Hahn, relative to a commission on business sold for Mr. and Mrs. Hunter.

Whitney testified in his own behalf that he had been employed in the United States government service about twelve and one-half years, ten and one-half of which were with the Osage Indian Agency at Pawhuska as a clerk; that he did not...