in charge of the Philadelphia division of the Intelligence Unit of the Bureau of Internal Revenue, and special agent Edward A. Hill. After the doctor had told them what had transpired, the agents requested him to follow the defendant's instructions with respect to the payment of money, but he was asked to report all future developments to Mr. Hill or to Mr. Gibbon's associate.
On September 18, the defendant telephoned the doctor and told him that 'the group' would not accept less than $ 20,000. The doctor asked him how 'they' wanted the money. Defendant's reply was that he would let him know at a later date. Ten days later, the defendant called the doctor by telephone and told him that 'the group' wanted the $ 20,000 in denominations of twenties, fifties and hundreds, and made arrangements to pick up the money on October 7, 1949, at the doctor's South Fifteenth Street office.
On October 7, 1949, when the defendant came to the doctor's office, three agents of the Bureau were stationed in the house, two in the cellar and one on the second floor. The doctor invited him into the examination room and closed the door with a bang. This was a prearranged signal for the two agents in the cellar to ascend to the first floor and take positions outside the examination room where they could hear the conversation between the doctor and the defendant. Then the doctor took the package containing the $ 20,000 and said in a loud voice: 'Ernie, here is the money'. The defendant responded, 'I guarantee there will be no indictment, we are going to quash that. If you have a high tax liability, we are going to cut that down for you'. With that, the defendant opened the door leading into the waiting room. As he was entering the hallway outside the waiting room and upon seeing the agents coming toward him from the opposite end of the hallway, he dropped the package containing the money. The agents immediately apprehended him.
In addition to the fact that the doctor's residence and offices were not located in the zone in which the defendant was asigned to work by his superiors, the defendant did not have the legal authority to compromise, adjust or settle alleged tax discrepancies or violations of the tax laws; his duties were to collect delinquent taxes and check book accounts. Prior to the defendant's arrest, the doctor did not know that the defendant was employed by the Bureau of Internal Revenue.
In support of his motion for judgment of acquittal, the defendant contends that before an agent of the Bureau of Internal Revenue can be found guilty under Sec. 4047(e)(10) of the Internal Revenue Code, the government must prove that at the time the agent demanded or accepted the money he must be acting under the authority of the revenue laws. Against the motion, the attorney for the government argues that the agent need not be acting under the authority of law at the critical time in order to convict him. In other words, he maintains that the words: 'and acting under the authority of any revenue law of the United States' in the code means, 'and during his appointment'. We cannot agree. The words of the section are plain. Before an agent can be convicted under it, he must have authority, or at least color of authority, to compromise, adjust or settle the taxpayer's violation or alleged violation of law. It is true that such an interpretation makes this section a duplication of 18 U.S.C. § 202, concerning the acceptance of solicitation of money by employees of the United States for the purpose of having his decision or action in a matter influenced thereby. But we think the greater penalty under Section 4047(e)(10) may have been one of the reasons why this particular section was not repealed by the criminal code of 1948.
Since the defendant in the instant case had no authority or color of authority to compromise, adjust or settle the taxpayer's alleged violation of law, he cannot be indicted under this statute. This conclusion is reached with extreme reluctance, as the defendant's conduct throughout was extremely reprehensible.
The motion for judgment of acquittal must be allowed.
The motion for new trial is denied.
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