Wilson v. United States

• Decision Date: 29 February 1956
• Docket Number: No. 7115.,7115.
• Citation: 230 F.2d 521
• Parties: Ernest P. WILSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

230 F.2d 521 (1956)

Ernest P. WILSON, Appellant, v. UNITED STATES of America, Appellee.

No. 7115.

United States Court of Appeals Fourth Circuit.

Argued January 5, 1956.

Decided February 29, 1956.

Writ of Certiorari Denied May 14, 1956.

Frank E. Jordan, Jr., Columbia, S. C., for appellant.

Irvine F. Belser, Jr., Asst. U. S. Atty., Columbia, S. C. (N. Welch Morrisette, Jr., U. S. Atty., Columbia, S. C., on brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

Writ of Certiorari Denied May 14, 1956. See 76 S.Ct. 789.

DOBIE, Circuit Judge.

Ernest P. Wilson, with Everett L. Dean, was indicted under Sections 202 and 371 of Title 18 U.S.C.A. The indictment contained eleven counts, ten pertaining to the substantive offenses of soliciting and accepting bribes and the eleventh count being one of conspiracy. The co-defendant, Dean, entered a plea of guilty to all counts of the indictment. Wilson plead not guilty. Counts One, Two, Three, and Four of the indictment were not applicable to Wilson and were not at issue in the trial.

Although Dean and Wilson were charged in the same indictment, they were tried separately. The case was first called for arraignment in February, 1955. Wilson obtained a continuance of the trial as to him at that time, however, because of a recent change of counsel. Dean entered a plea of not guilty, and the case as to him proceeded to trial. After two and a half days of trial, and just as the Government was about to commence its reply evidence, Dean withdrew his plea of not guilty and entered a plea of guilty to all eleven counts of the indictment. Wilson was tried at the next term of court, in June, 1955. Count 10 (concerning the acceptance of certain money on June 18, 1953) was voluntarily withdrawn by the Government.

After the jury returned a verdict of guilty as to all counts submitted to it, Judge Timmerman sentenced Wilson to imprisonment for a period of one year and a fine of $200.00 on each of counts 5, 6, 7, 8, and 9, and to imprisonment for three years and a fine of $200.00 on count 11, the sentences on all counts except number 5 to run concurrently, and to be suspended on five years probation. Wilson, who has remained at liberty under bond since the time of the trial, has duly appealed to us.

These questions are involved in this appeal:

(1) Whether Wilson's alleged temporary lack of any specific duties or authority in connection with the subject matter of the bribe made it legally impossible for him to have committed the crime of bribery?

(2) Could Wilson stand properly convicted under the indictment in this case and 18 U.S.C.A. § 2 as having aided and abetted the co-defendant Dean in committing the crime of bribery?

(3) Regardless of his own ability to commit the crime of bribery, was Wilson properly convicted of conspiring with co-defendant Dean and others for Dean to commit the crime of bribery?

(4) Was there reversible error in the instructions of the District Judge?

We think all these questions must be answered adversely to Wilson. The judgment of the District Court will, accordingly, be affirmed.

After enlisting in the Army in 1933 and being commissioned as an officer in the Adjutant General's Corps in 1942, Wilson was assigned in June, 1951, as Assistant Adjutant General of Fort Jackson, South Carolina, and in August, 1951, as Adjutant General of that post. He held that assignment until January 14, 1953. At that time, he was relieved as Adjutant General to await trial by general court martial on charges of dishonorably passing bad checks and failing to pay his debts to various civilians and military subordinates. From that date until his trial in May, 1953, he had no specific duties except to prepare his defense to the charges against him. He was convicted on one bad check charge and sentenced to forfeiture of pay in the total amount of $1,200.00. He was acquitted on the rest of the charges. Sometime after his trial, he was assigned to assist with the Reserve training program conducted at Fort Jackson during the summer period. In September, 1953, he was assigned as Assistant G-3 (Operations and Training) of Fort Jackson. During all of this time he remained assigned to the same headquarters unit, as an officer on the staff of the Commanding General. In November, 1953, he became eligible for retirement and retired from active duty.

In February, 1953, just after Wilson had been relieved as Adjutant General and while Dean was still Insurance Officer, an insurance salesman named Kenneth Mason, who had sold insurance at Fort Jackson and other military bases in the past, came to Columbia, South Carolina, to check on the situation at Fort Jackson. Not long after his arrival he received a phone call from an unidentified person who suggested that if he wanted to sell insurance at Fort Jackson, he should get in touch with Captain Dean and that Captain Dean might want some money for "little extra favors, so to speak." There was testimony from Captain Dean which might have warranted the jury in concluding that the unidentified caller was Wilson. Mason made connections with Dean and during the next three days paid him $2,800.00. In return for this money, Mason and a crew of salesmen whom he was to assemble, were to be allowed to solicit and sell life insurance to military personnel, including trainees, at Fort Jackson, and the applicable regulations were to be sufficiently relaxed or liberally administered so as to make this possible.

Mason immediately set about collecting his crew and within the next few days had assembled some 6 or 7 salesmen at Fort Jackson. Dean in due course issued permits to Mason and his crew. No changes were made in the regulations, however, and after waiting around several weeks the assembled salesmen gradually drifted back to their former places of business. Dean continued to give Mason a series of excuses, however, such as difficulties with his military superiors, new regulations from higher headquarters, etc., for his failure to perform his part of the bargain. Late in May, Dean, at the request of Wilson, made arrangements for Mason to meet Wilson. During the meeting, Wilson represented himself to be Colonel Raymond H. Russell, the new Adjutant General, and informed Mason that unless Mason paid him $4,000.00, the deal was off and Mason would not be permitted to sell insurance at Fort Jackson. Mason accordingly raised the money by borrowing on his automobile and furniture. According to Mason's testimony, he made payments of $2,500.00 and $1,100.00 directly to Wilson. The other $400.00 was left with Dean by Mason to be delivered to Wilson. During all his dealings with Wilson, Mason believed Wilson to be the Adjutant General at Fort Jackson. Mason ultimately became dissatisfied with the way things were going, and brought suit to recover the $6,800.00 he had paid. This resulted in disclosure of the bribery scheme and ultimately in the instant criminal proceedings.

The answer to the first question with which we are concerned, Wilson's guilt under the bribery counts of the indictment (counts 5, 6, 7, 8, and 9), depends upon the proper interpretation and application of the statute upon which these counts were based. We set out this statute in full:

Title 18 U.S.C.A.

"§ 202. Acceptance or solicitation by officer or other person

"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, or an officer or person acting for or on behalf of either House of Congress, or of any committee of either House, or of both Houses thereof, asks, accepts, or receives any money, or any check, order, 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 such money or value of such thing or imprisoned not more than three years, or both; and shall forfeit his office or place and be disqualified from holding any office of honor, trust, or profit under the United States.

"This section shall not apply to violations of section 213 of this title."

If this statute be viewed solely from the standpoint of grammar and phraseology, it is quite striking how many broadening words are used in the statute: "in any official capacity," "any department or agency", "on any question, matter, cause, or proceeding", which may at any time be pending, "which may by law be brought before him." Consider the number of disjunctive or alternative persons, actions, or situations referred to: "an officer or employee of, or person acting for or on behalf of the United States," "any department or agency", "decision or action", "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." There is no verbal requirement that the matter be pending before the official at the time of the bribe. It is sufficient if it "may at any time be pending," or if it "may by law be brought before him" at some time in the future.

Certainly, in the face of such sweeping language 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 this statute, (and its companion, 18 U.S.C.A. § 201), the federal courts have properly given an extremely liberal interpretation.

Thus in United States v. Birdsall, 233 U.S. 223, 34 S.Ct. 512, 58 L.Ed. 930, the recommendations for...