The opinion of the court was delivered by: GRIM
Defendant was indicted under Section 281 of Title 18 of the United States Code, which provides in pertinent part:
'Whoever, being * * * (an) officer or employee of the United States or any department or agency thereof, directly or indirectly receives or agrees to receive, any compensation for any services rendered or to be rendered, either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter in which the United States is a party or directly or indirectly interested, before any department, agency, court martial, officer, or any civil, military, or naval commission, shall be fined * * *.'
Count 1 of the indictment reads as follows:
'That on or about the seventh day of October, 1949, at Philadelphia in the Eastern District of Pennsylvania, the defendant, Ernest T. Waldin, then and there being a Zone Deputy Collector of the Office of the Collector of Internal Revenue for the First Collection District of Pennsylvania, Treasury Department of the United States, duly appointed and acting under the authority of the Revenue Laws of the United States, received the sum of $ 20,000.00 from one Francesco Mogavero as compensation for services to be rendered by the said Ernest T. Waldin in relation to an investigation then being conducted by the Treasury Department of the United States as to alleged delinquencies in the payment of income taxes by the said Francesco Mogavero to the United States for the Calendar Years 1942 to 1947, inclusive; in violation of Title 18 U.S.C. Section 281.' (Italics added.)
The remaining two counts differ from Court 1 only as to the words which I have italicized therein. In Count 2 the word 'others' and in Count 3 the words 'the said Ernest T. Waldin and others' are used in lieu of 'the said Ernest T. Waldin', which are the words I have italicized in Count 1.
A motion to dismiss the indictment on the ground that the statute of limitations barred the prosecution was denied and the defendant entered a plea of not guilty.
Defendant has filed a second motion to dismiss, this time on the ground that the indictment does not state facts sufficient to constitute an offense against the United States. Defendant contends that the three counts of the indictment are defective under 18 U.S.C. § 281 because they fail to allege that the services involved were to be rendered 'before any department, agency, court martial, officer, or any civil, military, or naval commission'. On the other hand, the Government contends that an indictment under 18 U.S.C. § 281 need not allege specifically before what department or agency the services in question were to be rendered.
The legislative history of the statute clearly indicates that the purpose or intention of Congress in including the 'before any department' phrase was to protect the right of members of Congress and Governmental officers and employees, if otherwise qualified, to appear as counsel before judicial bribunals as distinguished from executive departments, administrative agencies, and courts-martial. In the course of the debate on the bill which later became the Act in question, Senator Trumbull stated before the Senate:
'By the subsequent provisions of the bill it will be seen that, as the committee report it, they propose to restrain members of Congress and Clerks in the departments and heads of bureaus from receiving a compensation from any person for doing any business before any department or any commission or anywhere else except in the judicial tribunals of the country. The bill, as reported by the committee does not prohibit members of Congress from practicing in the courts of the country, but it does prohibit them from appearing before courts-martial, commissions, departments, bureaus, or anywhere else for a fee or consideration received from any one.'
Senator Trumbull later explained:
'This is not a bill to prevent attorneys from practicing in courts of law, but it is a bill to prevent Representatives and Senators in Congress and officers of the Government who are paid for their services from receiving a compensation for advocating claims in the Departments and before the bureaus of the Government, and before courts-martial.'
My conclusion as to the correct manner of reading and construing the statute is supported by Burton v. United States, 202 U.S. 344, 365, 26 S. Ct. 688, 692, 50 L. Ed. 1057, where the United States Supreme Court in discussing the statute
in effect construed it as though the phrases had been rearranged, saying:
'But we cannot doubt the authority of Congress by legislation to make it an offense against the United States for a senator, after his election and during his continuance in office, to agree to receive or to receive compensation for services to be rendered or rendered to any person, before a department of the government, in relation to a proceeding, matter, or thing ...