decided: January 27, 1948; As Amended February 19, 1948.
Before BIGGS, ALBERT LEE STEPHENS and MARIS, Circuit Judges.
ALBERT LEE STEPHENS, Circuit Judge.
Percy S. Marcus was indicted for the violation of Title 18 U.S.C.A. § 207, and was charged with the acceptance of a bribe of $600 while acting as an officer of the United States for the Office of Price Administration. The case was tried in the United States District Court for New Jersey to a judge and jury.*fn1 The accused was found guilty, was sentenced, and he appeals.
Appellant was employed as an Acting Supervising Investigator in the Office of Price Administration, and under the direction of a superior accompanied two others to ascertain whether automobile dealers were complying with regulations requiring the posting of ceiling prices upon automobiles offered for sale.
There is evidence to the effect that on February 27, 1946, appellant noticed several cars on the front of the Mann Motor Sales lot in Camden, marked "sold." Marcus asked Harry Mann, the proprietor, if he could buy one of them, and was informed that they belonged to a southern dealer, but that if he would pay two or three hunderd dollars over ceiling registration, Mann could contact the dealer and let him know about it. Marcus testified, that thereupon he requested that the cars marked "sold" be moved to the back of the lot. Mann denied this, and testified that Marcus displayed his badge and charged that some of the cars were not posted and ordered Mann to appear in Newark on the following Tuesday.
Mr. Mayhew, sales manager for Mann Motor Sales, secured hotel accommodations at White Way Inn for appellant, and the two drove to the Inn, where they were joined by another couple at dinner. Appellant payed for the dinner and went to his room. A little later Mayhew went to appellant's room to pay his share of the check and to ascertain something as to appellant's status. Although it is denied by appellant, Mayhew testified that appellant talked about an injunction that had been previously obtained against Mann Motor Sales for a prior violation. Whereupon Mayhew asked if he had to go to Newark, and the answer was, "I guess you do." Mayhew then asked, "What do you want, $50.00?" to which appellant answered, "It's only peanuts." Mayhew then asked, "What do you want?" The answer was, "$500.00." Mayhew inquired as to where he, Mayhew, came in, and appellant said to make it $600, and he could have $100 of it. Appellant suggested that Mayhew should call Mann down right away, and Mayhew replied that he couldn't reach him. Mayhew then left for Camden and related the happenings to Mann.
The testimony reveals two versions of what took place the next day. The government's version, as told by Mann and Mayhew, is as follows: Mayhew went to Mann's place of business and verified appellant's position with the OPA. Upon receiving a telephone call from appellant as to how Mayhew had made out (listened to by Mann on a telephone extension), Mayhew, at appellant's request, made arrangements for Mann to meet appellant in an automobile at a given place on the road alone. When Mann met him, appellant said, "I want $600.00, or I can close you up because you got an injunction." Mann says he was "scared" and gave it to him. A few minutes later Mayhew saw appellant, and asked, "What happened, Mr. Mann said you didn't want anything * * * He didn't have to pay nothing." Appellant answer, "I got fixed up all right," and he thereupon put $100 in Mayhew's pocket. Later, appellant telephoned Mann, and speaking in Jewish, said: "You talk too much," and Mann answered, "I don't talk nothing." Later, appellant and Mann, at the former's suggestion, met, and Marcus returned the $600.
Appellant, in testifying to his activities of that day, claims that he did not call Mann Motors, nor did he see anyone connected with it. Rather, he says, he drove to Camden and stopped at Merlin Motors, visited for awhile and breakfasted with the manager, Mr. Maxwell, all of which occurred at the time when he was allegedly with Mann. Appellant says he then returned to Newark with two other investigators, and denied that he had any transaction or conversation with Mann concerning payment of money. Mr. Maxwell, of Merlin Motors, corroborated appellant's testimony as to their meeting, as also did Chester Earle, Merlin sales manager. Both of these men had known appellant for several years.
The first question on appeal is whether the trial court erred in ruling that the indictment sufficiently charged a violation of Title 18, U.S.C.A. § 207.
Before proof was taken, a motion to dismiss the indictment was made, and the motion was received at the close of the government's case, and at the close of the entire case, and each time it was denied. A motion in arrest of judgment was made and denied upon the same grounds.
We quote the material part of the indictment in the margin.*fn2
It is argued that the indictment imports that Mann parted with the money unwillingly and involuntarily, which, in effect, charges the offense of extortion under 18 U.S.C.A. § 171 rather than bribery under 18 U.S.C.A. § 207. The section relating to "extortion" does not define the crime, but merely indicates the class of persons to which it applies and provides the penalty for its commission. It is profitless to analyze the elements of the crime of extortion, since the indictment specifically sets out that the charge is that of bribery as defined by the United States code and uses the words of the specified code section in its charging part. The code section provides that any person within the section who asks, accepts and receives money is guilty of bribery under the section, and the indictment uses the same terms in its charge. We hold that the indictment properly charges the crime of bribery so far as the point under treatment is considered. We quote the material part of the section in the margin.*fn3 See United States v. Sutter, 7 Cir., 160 F.2d 754.
Appellant also made a motion in the district court to dismiss the indictment for the reason that it fails to sufficiently allege that he was a "person acting for or on behalf of the United States, in any official capacity" as required by the statute, citing Kellerman v. United States, 3 Cir., 295 F. 796. The cited case holds that under the statute on bribery, the offender must be alleged to be an officer of the United States or that he is a person acting for or on behalf of the United States in an official function. The court therein stated that since it was not alleged that the accused was an official of the United States, the facts must be alleged from which it may be deduced that the accused was acting for or on behalf of the United States in an official function to be a good indictment. The court, page 799, of 295 F., says: "Sterner, a 'United States Customs Storekeeper,' was acting 'under (and) by authority of the (Treasury) Department of the' United States;" and concluded that since the indictment did not allege that Sterner was either an officer of the United States or a person acting in its behalf in an official function, this averment did not disclose whether he came within or stands outside the particular class of ...