Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

UNITED STATES v. KEMMEL

October 19, 1960

UNITED STATES of America
v.
John B. KEMMEL



The opinion of the court was delivered by: MURPHY

The indictment, pro tanto substantially in the words of the statute, *fn2" and therefore ordinarily sufficient, *fn3" charged that defendant offered an assistant chief inspector working for the Corps of United States Engineers, an agency of the United States, in an official function, $ 250 for himself and the Chief Inspector, with intent to induce them to do acts in violation of their lawful duty.

 Citing Boykin v. United States, 5 Cir., 1926, 11 F.2d 484, and United States v. Smith, 3 Cir., 1956, 232 F.2d 570, defendant asserts *fn4" failure to set forth the duties of the inspectors, what acts defendant intended to induce them to do in violation of their lawful duty, and to allege that defendant knew they were employees acting for an agency of the United States in an official function at the time of the alleged offer.

 Rule 7(c), F.R.Crim.P., 18 U.S.C.A., provides: 'The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged * * *. It need not contain * * * any other matter not necessary to such statement * * *.' See United States v. Debrow, 1953, 346 U.S. 374, 376, 74 S. Ct. 113, 98 L. Ed. 92; United States v. Amorosa, 3 Cir., 1948, 167 F.2d 596, 598 -- only the basic facts, without particularity as to details. Butzman v. United States, 6 Cir., 1953, 205 F.2d 343, 348. Essential facts must of course be stated. United States v. Manuszak, supra, 234 F.2d at page 423; United States v. Smith, supra, 232 F.2d at page 572.

 The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises defendant of what he must be prepared to meet and, in case other proceedings are taken against him for the same offense, whether the record shows to what extent he may plead former acquittal or conviction. United States v. Debrow, supra, Id.; United States v. Angelo, 3 Cir., 1946, 153 F.2d 247, 250; United States v. Howell, 3 Cir., 1956, 240 F.2d 149, 153.

 As to inspectors exercising official functions, see Sears v. United States, 1 Cir., 1920, 264 F. 257, 261-262; Whitney v. United States, 10 Cir., 1938, 99 F.2d 327, 329-330; United States v. Ingham, D.C.E.D.Pa.1899, 97 F. 935, 936. Every action within the range of official duty comes within the purview of 201. See United States v. Birdsall, 1914, 233 U.S. 223, 230, 34 S. Ct. 512, 58 L. Ed. 930; United States v. Troop, 7 Cir., 1956, 235 F.2d 123, 124. As to the requisite intent, see 11 C.J.S. Bribery § 2c(2); Buckley v. United States, 6 Cir., 1929, 33 F.2d 713, 718; Henderson v. United States, supra, 24 F.2d at page 812; United States v. Labovitz, 3 Cir., 1958, 251 F.2d 393, 394; Krogmann v. United States, 6 Cir., 1955, 225 F.2d 220, 225; United States v. Marcus, supra, 166 F.2d at page 501. As to knowledge, see United States v. Combs, D.C.E.D.Ky.1947, 73 F.Supp. 813, discussing United States v. Balint, 1922, 258 U.S. 250, 251, 42 S. Ct. 301, 66 L. Ed. 604, and United States v. Behrman, 1922, 258 U.S. 280, 288, 42 S. Ct. 303, 66 L. Ed. 619; then see 11 CJ.S. Bribery, supra, Id., and 9f; 8 Am.Jur. Bribery, 26; Hone Wu v. United States, 7 Cir., 1932, 60 F.2d 189, 190, but see Chiaravalloti v. United States, supra, 60 F.2d at page 193; Bogileno v. United States, 10 Cir., 1930, 38 F.2d 584, 586; Cohen v. United States, 6 Cir., 1923, 294 F. 488, 490; Bradshaw v. United States, 9 Cir., 1926, 15 F.2d 970, 972; Henderson v. United States, supra, Id.; Anderson v. United States, 6 Cir., 1954, 215 F.2d 84, 88-89; United States v. Amorosa, supra, 167 F.2d at page 598.

 As to alleging duties and acts, see Applebaum v. United States, 5 Cir., 1948, 164 F.2d 974, 975; Schneider v. United States, supra, 192 F.2d at pages 500-501, Biggs J.; Butzman v. United States, supra, Id.; Henderson v. United States, supra, 24 F.2d at page 812; cf. United States v. Palmiotti, 2 Cir., 1958, 254 F.2d 491, 495.

 The gravamen of the offense is the offering of a bribe to a person acting for an agency of the United States for the purpose of influencing official conduct. Obviously no one would offer a bribe unless he intended to gain some advantage thereby. The statute is violated when an offer to bribe is made regardless of the occasion therefor provided it is done with the requisite intent and the offeree is a person of the sort described in the statute. Kemler v. United States, 1 Cir., 1943, 133 F.2d 235, 238; United States v. Troop, supra, 235 F.2d at page 125; United States v. Labovitz, and Krogmann v. United States, all supra, Id.

 The situation in United States v. Smith, supra, 232 F.2d 570, where two different statutes and extraneous elements were involved is not apposite. Boykin v. United States, supra, 11 F.2d 484, was decided prior to Rule 7(c). See Pallett v. United States, 5 Cir., 1956, 228 F.2d 671, 672, and cf. Shields v. United States, 1928, 58 App.D.C. 215, 26 F.2d 993, 996; Capone v. United States, 7 Cir., 1932, 56 F.2d 927, 930, 932, 933; Schneider v. United States, supra, Id.

 Applying the foregoing principles, we hold that the indictment was sufficient. Defendant's motion in arrest of judgment and for judgment of acquittal on that score will be denied.

 Viewing the evidence including all inferences reasonably deducible therefrom in favor of the government, United States v. Laurelli, D.C.M.D.Pa. 1960, 187 F.Supp. 30, there was substantial competent evidence that in the construction of certain buildings for the United States Army Corps of Engineers at the Toby-hanna Signal Depot in this district, John B. Kemmel Inc., a Pennsylvania corporation of which defendant was president and principal stockholder, was the painting subcontractor. Plans and specifications required that all paint delivered for use on the job was to be inspected by taking samples from previously unopened cans and submitting such samples to the Corps of Engineers for testing and approval. Upon the completion of three tests defendant was notified that the paint being used did not meet the required test and that all painting should cease.

 When pursuant to defendant's request additional samples were about to be taken defendant offered Walter P. Golden, Assistant Chief Inspector, $ 250 for himself and John J. O'Donnell, the Chief Inspector, if instead of taking samples according to the prescribed procedure they would permit defendant to substitute three samples he had with him in his car and in turn substitute them for samples previously taken. When defendant was informed that his conduct constituted an attempt to bribe a government agent he replied, 'Well, you fellows didn't see any money'.

 Without pursuing the evidence further, the foregoing is sufficient to establish a violation of § 201. Defendant's motion for judgment of acquittal on that ground will be denied.

 The statute reads: 'Whoever promises, offers, or gives * * *.' In our charge we carefully explained the essentials required to be proved. At common law, United States v. Worrall, Cir.Ct.D.Pa., 1798, 28 Fed.Cas. pp. 774, 776, No. 16,766; Annotation, 52 A.L.R. 816, 820, and under § 201; United States v. Michelson, 2 Cir., 1948, 165 F.2d 732, 733, affirmed 1948, 335 U.S. 469, 470-471, 69 S. Ct. 213, 93 L. Ed. 168; Lunsford v. United States, 10 Cir., 1952, 200 F.2d 237, 238, an offer to bribe is a separate offense. According to the weight of authority, an actual tender of the bribe is not necessary to perfect the offense, 'any expression of ability to produce a bribe being sufficient'. 8 Am.Jur. Bribery, § 10. 'The offense * * * is complete without the tender or production of the money offered * * *.' 11 C.J.S. Bribery § 2c(1), p. 844; and see 3 Wharton's Criminal Law and Procedure (Anderson's 1957 Ed.), § 1383, p. 776. The offer itself constitutes the overt act. 52 A.L.R. supra at page 821; 11 C.J.S. Bribery § 6, p. 858, note 62. The language of United States v. Troop, supra, 235 F.2d at page 124, 'We hold the offense of attempted bribery of a Federal Officer is complete upon the tender of the bribe to such Officer with intent to influence his ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.