Tyner v. United States

23 App. D.C. 324, 1904 U.S. App. LEXIS 5258

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 5, 1904
• Docket: Nos. 1396 and 1397
• Status: Published

Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

The indictments in these cases were found under Rev. Stat. § 5440 (U. S. Comp. Stat. 1901, p. 3676), which reads as follows :

“If two or more persons conspire, either to commit any offense .against the United States or to defraud the United States in any manner, or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years, or to both fine and imprisonment in the discretion of the court.”

The conspiracy to commit an offense against or to defraud the United States is the gist of the crime, notwithstanding it remains incomplete until the commission of some act to effect its object, and must, therefore, be charged -with that degree of certainty requisite in all indictments under the laws of the United States.

And this charge cannot be aided in respect of its certainty by the necessary additional averments of the overt act or acts. Pettibone v. United States, 148 U. S. 197, 202, 37 L. ed. 419, 422, 13 Sup. Ct. Rep. 542.

“The general rule in reference to an indictment,” as stated in that case, “is that all the material facts and circumstances embraced in the definition of the offense must be stated, and that if any essential element of the crime is omitted such omission cannot be supplied by intendment or implication. The charge must be made directly, and not inferentially or by way of recital.” In a later case it was further said: “The indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court of the exact offense intended to be charged, not only that the former may know what he is called upon to meet, but that upon a plea of former acquittal or conviction the record may show with accuracy the exact offense to-which-the plea relates.” Evans v. United States, 153 U. S. 584, 587, 38 L. ed. 830, 831, 14 Sup. Ct. Rep. 934.

Having stated the general rules governing the sufficiency of indictments of this character, we pass to the consideration of the points of objection urged by the appellants on their demurrers,, dealing first with those that apply to both indictments alike.

1. The first and most important of these relates to the paragraph of the introductory averments which sets out the official-duties of the defendants, respectively, as Assistant Attorney General and Assistant Attorney. In the language of appellant’s brief, “the king-pin of this structure is the pleader’s conception of the duty cast upon” these defendants, respectively.

The duties of the Assistant Attorney General for the Post-office Department are not prescribed by the statute creating the-office (§ 390, Rev. Stat.) but arise under the authority of the head of the Department to make regulations for the conduct of officers and clerks. In the regulations published in 1893, the-Assistant Attorney General is charged with the duty of giving opinions to the Postmaster General upon questions of law arising-in the service, “with the hearing and preparation of cases relating to lotteries and the misuse of the mails in the furtherance of schemes to defraud the public,” etc.

Having recited the aforesaid regulations the indictment further charges that it was the duty of the said Tyner, if upon investigation of a scheme or plan of business referred to him for investigation it should appear to him that the same was obnoxious to the law, “to report his conclusion and opinion in the .premises to the said Postmaster General, with a statement of the facts upon which such conclusion and opinion were based, together with a recommendation that such fraud order should be issued,” etc. And it is the failure to perform this particular part of his duty which constitutes the gravamen of the charge. The contention of the appellants is that this duty to report with, a statement of facts and recommendations, not having been prescribed by the regulations, is nothing but a conclusion of the-pleader drawn therefrom, a mere assumption without foundation, in any averment of the indictment.

We do not understand the indictment to charge this duty as arising by implication from the terms of the regulation, but as one additional thereto. The regulation as published charges the officer “with such other like duties as may, from time to time, be required by the Postmaster General.” It was not necessary that there should be an express provision of the law or the regulation promulgated by the department creating such additional duty. United States v. Macdaniel, 7 Pet. 1, 14, 8 L. ed. 587, 592. As was said in that case: “A practical knowledge of the action of any one of the great departments of the government must convince every person that the head of a department in the distribution of its duties and responsibilities is often compelled to exercise his discretion. He is limited in the exercise of his powers by the law, but it does not follow that he must show a statutory provision for everything he does. No government could be administered upon such principles. To attempt to regulate by law the minute movements of every part of the complicated machinery of government would evince a most unpardonable ignorance on the subject. Whilst the great outlines of its movements may be marked out and limitations imposed on the exercise of its powers, there are numberless things which must be done that can neither be anticipated nor defined and which are essential to the proper action of the government Hence of necessity usages have been established in every department of the government which have become a kind of common law and regulate the rights and duties of those who act within their respective limits.”

This additional duty is not inconsistent with any provision of the law, or the regulations made in accordance therewith, bnt is n reasonable and natural extension of that prescribed in the latter. If, then, such additional duty was imposed in connection with the special reference of the schemes set out in the indictment or by the established usage and practice following such orders made in cases prior thereto, the defendant was under obligation to respect and to obey it with fidelity. Being “required of him,” as was said in the case last cited, “by the head of the department, and being a subordinate, he had no discretion to decline the labor and responsibility thus imposed.”

Duties imposed by law or regulation promulgated thereunder, and not inconsistent therewith, require no proof. Additional duties that may have been imposed from time to time, by order or direction in the ordinary course of administration of the business of the department, must be proved like other facts. But the direct allegation of the fact in the indictment is all that is required; it is not necessary to set forth the evidence or to negative any theory of the defense. Stokes v. United States, 157 U. S. 187, 191, 39 L. ed. 667, 668, 15 Sup. Ct. Rep. 617; Evans v. United States, 153 U. S. 584, 594, 38 L. ed. 830, 834, 14 Sup. Ct Rep. 934.

What has been said is sufficient also to dispose of the contention on behalf of the defendant, Barrett, the Assistant Attorney, whose duty, as alleged, was to assist his codefendant and superior officer in the premises.

2. To constitute a breach of duty on the part of the defendants in failing to report a conclusion arrived at by them upon the consideration of any scheme referred for investigation and report it is not necessary to allege and prove that the said scheme was within the prohibition of the law. The defendant 'Tyner was not charged with the issue of the “fraud order;” that was the duty of the Postmaster General, although it is alleged that it was his general practice to issue the same in accordance with the recommendation made in the report, and it is alleged as one of the acts done in furtherance of the conspiracy (lbat. formal approval of the special report actually made of the investigation of the eighty companies was in that way actually had and obtained.

Whenever the matter of the right of the promotor of any scheme to the use of the mails was specially referred to the Assistant Attorney General, or came into his hands through any official channel, it became his duty to investigate it and report his conclusion thereon, with his opinion and the evidence on which it was based, to the head of the department. If his conclusion was that the scheme was unlawful, within the provisions of the postal law, it was his duty to make the report as aforesaid and recommend that a “fraud order” he issued.

The duty was to report the conclusion, with the evidence on which it was founded, for the consideration of the Postmaster General and final action by him. • That duty existed without regard to the fact whether the scheme reported on was in fact lawful or unlawful. In either case the duty existed and its faithful performance was required. The discretion reposed in him in respect of the conclusion that he might reach upon an examination ended when that conclusion, whether a sound or unsound one, had been attained. Having in the exercise of his discretion attained a conclusion, the simple, imperative duty arose of reporting it to the Postmaster General in obedience to his orders or to the settled practice of the office.

3. The next contention is that the averments which contain the charge of the conspiracy are so vague and indefinite as to violate the rule in respect of certainty heretofore stated.

Having affirmed the sufficiency of the averments of the official duty imposed upon the defendant Tyner, we discover no lack of certainty in respect of time, place, and circumstance in the charge of the corrupt conspiracy to prevent the performance of that duty. Having, as averred, reached a conclusion in each of the cases under investigation which rendered that duty imperative, the charge is that the defendants conspired not to discharge the same, hut, instead, to substitute a general opinion artfully planned to secure each of the said companies in the unobstructed use of the mails, until, at least, the expiration of defendant Barrett’s official connection with the department, and to secure for him thereafter employment by the interested parties, and the collection of large sums of money as fees.

4. The next question for consideration is whether the indictment in one of the cases (No. 1397) is fatally defective in that the purpose of the conspiracy as averred was to cause the defendant Tyner to commit the offense of misconduct in office.

The failure of the defendant to perform his official duty under the circumstances and for the reasons charged is sufficient to support an indictment for official misconduct as an offense by the common law. Whether an indictment for the common-law offense should charge that the misconduct was wilful, malicious, or corrupt, we need not stop to inquire, for the indictment is not for that offense but for conspiracy under the statute.

There is, however, no statute of the United States creating the offense of official misconduct, wherefore it is contended that the indictment is fatally defective because there are no common-law offenses against the United States. United States v. Eaton, 144 U. S. 677, 36 L. ed. 591, 12 Sup. Ct. Rep. 764, and cases cited. Undoubtedly this is the general rule, but it does not apply in the District of Columbia. De Forest v. United States, 11 App. D. C. 458, 465.

In that case the appellant was charged with keeping a bawdy house in the District of Columbia, and his conviction was affirmed, although there was no statute creating such an offense. The reasons for the conclusion that the conditions existing in the District raised an exception to the general rule were stated as follows by Mr. Justice Morris, who delivered the opinion of the court: “As against the United States regarded as coextensive with the Federal Union of States and operating within the territorial limits of the States, it is undoubtedly true that there are no common-law offenses, for the jurisdiction there given to the United States by the Federal Constitution is distinctly and expressly restricted to the powers enumerated in the Constitution. But the statement was not intended to have application to the District of Columbia. ... At the time of the cession of the territory of Columbia by the State of Maryland to the Federal Union its law, as well as that of the rest of the States, was the common law of England, both civil and criminal, so far as that common law’ w'as suited to our condition and was unaffected by statute. And with the common law the State of Maryland had adopted a considerable part of the statute law of England. When by the act of February 27, 1801 (2 Stat. at L. 103, chap. 115), the Congress of the United States finally accepted the cession and assumed jurisdiction over the ceded district, it was specifically provided That the laws of the State of Maryland, as they now (then) exist, shall be and continue in force in that part of the said district which was ceded by that State to the United States and by them accepted.’ This express enactment, if any such enactment was needed at all, was amply sufficient to continue in force and to perpetuate to the present day in the District of Columbia the common law of England as it existed in Maryland at that time, with all the existing statute legislation of the State and all the statute legislation of England that had been adopted by Maryland. And upon that theory of the law we have been conducting our affairs for nearly a hundred years. It is very true that much of the criminal branch of our common law has either become obsolete or has been obliterated by statutory enactment upon the same subject. Nevertheless, it is true that where it has not been repealed by express statutory provisions, or modified by inconsistent legislation, or where it has not become obsolete or unsuited to our Republican form of government, the common law of England in all its branches, both civil and criminal, remains to-day the law of the District of Columbia, and it has been repeatedly so held. See United States v. Watkins, 3 Cranch C. C. 441, Fed. Cas. No. 16, 649; United States v. Marshall, 6 Mackey, 34; United States v. Hale, 4 Cranch C. C. 83, Fed. Cas. No. 15, 279. The case of United States v. Eaton, therefore, is not applicable to the District of Columbia, and was not intended to be applicable to it. And we are of opinion that it was not within the purview of that case to hold that there can be no common-law offenses against the United States in the District of Columbia.”

The common law being in force in the District of Columbia when Rev. Stat. § 5440 (U. S. Comp. Stat 1901, p. 3676), was enacted, any common-law offense not repealed, superseded, or plainly inconsistent with existing legislation or necessarily obsolete must be held to be an offense against the United States within the meaning of that section. Congress must be presumed to have known then that official misconduct was punishable in this District as an offense against the United States, and yet it evinced no intention to exclude it from the operation of the conspiracy statute, nor is such intention to be found in any subsequent legislation. It is not to be inferred from the fact, upon which the appellants rely, that it is not an offense against the United States'when committed by a Federal officer in any of the States of the Union, and possibly not also when committed in any territory, or in any other ceded district under the exclusive jurisdiction of the United States. Criminal laws enforceable in the various courts established by the authority of the United States are not required to be uniform throughout the territories and districts under their control, whether within or without the restrictions of the Constitution.

Good reasons might be given why an act unpunishable in one territory or district should be made criminal in another, or if criminal in all, should be made punishable in a different way in each.

As a matter of fact, we know that it has not been the policy of the United States to subject their different territories and districts to one uniform system, civil or criminal. At one time before the act of retrocession to Virginia the common law and statutes of that State prevailed in one part of this District, whilst those of Maryland governed in the other. The District now has its criminal code supplementing the common law and the general legislation of Congress applicable therein. Alaska has its separate criminal code; the Indian Territory, Oklahoma, and, perhaps, others, have systems of their own.

If it be true that misconduct in Federal office is nowhere a crime, save when committed in the District of Columbia., the condition is rather to be attributed to oversight on the part of the Congress than accepted as evidence of its intention that it shall no longer be held criminal therein.

It may be added that this view is not affected by the fact that misconduct in office is but a misdemeanor at common law, whilst the conspiracy to commit it, by reason of the character of the penalty prescribed, becomes an infamous offense. Clune v. United States, 159 U. S. 590, 595, 40 L. ed. 269, 211, 16 Sup. St. Rep. 125.

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5. The indictment in the next case (No. 1396) is specially objected to on the ground that it does not show a conspiracy to defraud the United States. The contention is that to defraud the United States means to deprive them of something of value to do them a pecuniary injury. We have heretofore denied this restricted meaning to those words. Palmer v. Colladay, 18 App. 1). C. 426, 433. That was an appeal in a habeas corpus proceeding to obtain release from custody had by tbe order of a commissioner holding the petitioner to hail on a charge of forgery under Rev. Stat. § 5418 (U. S. Comp. Stat. 1901, p. 3666). The affidavit before tbe commissioner charged the petitioner with forgery in an attempt to defraud the United States through a false paper writing presented to the Civil Service Commission. After discussing the forgery sections briefly it was said tbat the acts of the parties would probably amount to a conspiracy to defraud the United States. The opinion of the court was delivered by Mr. Justice Barnard, of tbe supreme court of tbe District, who took the place of the absent Chief Justice. On this point lie said: “It is claimed by appellee tbat to defraud the United States must mean to deprive it of money wrongfully, or of something of money value; and that a falsehood or trick by which its officers are deceived in the matter of selecting those who are to perform work for it, could not be a fraud against the United States. We do not agree to this proposition. . . If falsehoods are imposed upon the persons charged with the duty of ascertaining these qualifications, and made to take the place of facts, then the United States is defrauded, is deprived by deceit of the knowledge justly due to its officers in the proper discharge of its business, and it is thereby liable to obtain a less efficient employee.” See also United States v. Bunting, 82 Fed. 883 ; United States v. Curley, 122 Fed. 738.

The statute, it will be remembered, denounces a conspiracy to defraud the United States in any manner or for any purpose, thereby expressly indicating an intention to give the word its broadest and most comprehensive signification. “Although a penal statute is to be construed strictly, the courts are not to disregard the plain intent of the legislature. Among other things it is well settled that a statute which is made for the good of the public, ought, although it be penal, to receive an equitable construction.” People v. Bartow, 6 Cow. 290. See also Northern Securities Co. v. United States, 193 U. S. 197, 48 L. ed. 679, 24 Sup. Ct. Rep. 119, and cases there cited.

To defraud means, not only to deprive or to withhold from one that which justly belongs to or is due him, but also to deprive him of any right by artifice or wrong practised upon him.

In its equitable sense, fraud, says Mr. Justice Story, “properly includes all acts, omissions, and concealments which involve a breach of. legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another.” 1 Story, Eq. Jur. § 187.

The Postoffiee Department is charged with the performance of a great public service in which the people of every State, territory, and district are vitally interested.

The complete enjoyment of the benefits and advantages of this public service, as well as the prevention of evils that utilize the mails for their dissemination, depends upon the integrity and efficiency of the administration of the affairs of the Postoffice Department, particularly at its head in the city of Washington.

Any wilful or corrupt misconduct on the part of an official of the department that operates to impair this administration works a wrong to the United States and does them some substantial injury. The injury may be pecuniary, that is to say, one whereby public money or property may have been taken, destroyed, or expended, but it may also be one the general damage resulting from which may be most serious and far reaching, and yet not of a specific character susceptible of certain ascertainment nnd pecuniary compensation.

Of this latter kind is the injury embraced in the charges of this indictment, and we are of the opinion that it is within the comprehension of the statute which makes punishable a conspiracy, not only to defraud the United States but to defraud them in any manner or for any purpose.

For the reasons given the order in each case must be affirmed. And it is so ordered. Affirmed.

[The appellants were subsequently tried in the lower court upon the indictments here sustained, and were acquitted by the verdict of the jury. — Reporter.]

Note by tlie Court, filed April 20, 1904:

We failed to observe before this opinion was filed that Congress liad specially recognized the continued existence of common-law offenses in the District of Columbia, by providing a uniform punishment therefor in § 910 of the new Code, which reads as follows:

“See. 910. Punishment for offenses not covered by provisions of Code.— Whoever shall be convicted of any criminal offense not covered by the provisions of any section ©f this Code, or of any general law of the United States not locally inapplicable in the District of Columbia, shall be punished by a fine not exceeding one thousand dollars or by imprisonment for not more than five years or both.”