bribing a State official to violate a statutory duty
How later courts described this case
- bribing a State official to violate a statutory duty
- the indictment does not have to be “model of written clarity” to be legally sufficient
Written by the judges who cited it.
The opinion
WIDENER, Circuit Judge
(concurring):
I concur in the result on the mail fraud counts, not for the grounds given in the opinion of the panel, but on account of the line of cases represented by United States v. States, 488 F.2d 761 (8th Cir. 1973).
As Hammerschmidt v. United States, 265 U.S. 182 , 44 S.Ct. 511 , 68 L.Ed. 968 (1924), is not mentioned in our opinion, I think it worthwhile to note it was decided upon the same language in the same statute we now consider. The district court charged the jury partly in the wording of that case, in haec verba. But Hammerschmidt concerned itself with the violation of another law of the United States by use of the mails, not the violation of a State law as here. Its holding with respect to the mail fraud statute, I think is not dictum as States may say. The dictum in Hammerschmidt , rather, is in its construction of Horman v. United States, 116 F. 350 (6th Cir. 1902), which confined the holding of that case, also on the same statute now before us, to “pecuniary or property injury inflicted by a scheme to use the mails for the purpose.” 265 U.S. at 189 , 44 S.Ct. at 512 .
States was a case in which the mails had been used in a fraudulent scheme to violate State election laws in a State election by the use of trickery or cunning in falsifying voter registration affidavits. It was a prosecution under the mail fraud statute, not the Civil Rights Acts. By affirming the conviction States declined to follow the Hammerschmidt dictum that the application of Horman should be confined to pecuniary or property injury. If affirming, I would simply follow the line of cases exemplified by States and say that a violation of State law by trickery or cunning may constitute a scheme to defraud and the use of the mails to carry out the scheme may be found to be a violation of the mail fraud statute.
With respect to the misapplication counts, I concur in the result, not for the reasons given, but because the jury was charged without objection and the evidence supports the verdict.
I must remark that the State of West Virginia did not lose a farthing in any of the machinations charged. Such is neither alleged nor proved. The most that can be said is that her deposits were not distributed throughout the banking system of the State, rather the Huntington bank was favored.
While this may not be good State government, I have serious reservations as to whether it should be a federal crime. This is especially true in this case where the Travel Act, 18 U.S.C. § 1952 (a) (see especially § (b)(2)), would apparently cover all or almost all of the acts charged.
In this connection I doubt the advisability of further expansion of the mail fraud statute (and to a lesser extent what I say applies to misapplication) beyond the confines suggested by the Hammerschmidt dictum and believe the concurring thoughts of Mr. Justice Jackson (although on conspiracy) in Krulewitch v. United States, 336 U.S. 440, 445 , 69 S.Ct. 716 , 93 L.Ed. 790 (1949), must be taken account of at some *698 time in the context now before us. I doubt that my dissent here would prevail, and so do not, but suggest the following passage must sooner or later be reckoned with:
“It also may be trivialized, as here, where the conspiracy consists of the concert of a loathsome panderer and a prostitute to go from New York to Florida to ply their trade . . . and it would appear that a simple Mann Act prosecution would vindicate the majesty of federal law. However, even when appropriately invoked, the looseness and pliability of the doctrine present inherent dangers which should be in the background of judicial thought wherever it is sought to extend the doctrine to meet the exigencies of a particular case.” 336 U.S. 440, 445 , at 449, 69 S.Ct. 716, at 721 .
APPENDIX
The Grand Jury charges:
COUNT ONE
1. At all times material herein JOHN H. KELLY was the Treasurer of the State of West Virginia.
2. At all times material herein JOSEPH F. RYKOSKEY was the Assistant Treasurer of the State of West Virginia.
3. At all times material herein THEODORE J. S. CALDWELL was the Chairman of the Board of Directors of the First Huntington National Bank, Huntington, West Virginia.
4. At times material herein COLEMAN TRAINOR was the President of the First Huntington National Bank, Huntington, West Virginia.
5. At all times material herein, Section 61-5-4 of the Code of the State of West Virginia provided in pertinent part:
Bribery or Attempted Bribery
If any person shall bribe, by directly or indirectly giving to or bestowing upon, or shall attempt to bribe by directly or indirectly giving to or bestowing upon, any executive, legislative, judicial, or ministerial officer of this State, or any member of the legislature, after his election or appointment and either before or after he shall have been qualified or shall have taken his seat, any gift, gratuity money, testimonial or other valuable thing, or shall make promise thereof, in order to influence him in the performance of any of his official, public duties, or with intent to influence his act, vote, opinion, decision or judgment on any matter, question, cause or proceeding, or to induce or procure him to vote or withhold his vote on any question or proceeding which is then or may thereafter be pending, or may by law come or be brought before him in his official capacity, he shall be guilty of a felony .
6. At all times material herein, Section 61-5-5 of the Code of the State of West Virginia provided in pertinent part:
Demanding or Receiving Bribes
Any executive, legislative, judicial or ministerial officer, or member of the legislature, who shall demand, receive or accept any gift, gratuity, money, testimonial or other valuable thing, or shall exact any promise to make such gift or to pay to him, money, testimonial or other valuable thing, or to do any act beneficial to such officer or member of the legislature, from any person, company or corporation, under an agreement or understanding that his vote, opinion, judgment or decision shall be given or withheld in any particular manner upon a particular side of any question, cause or proceeding, which is, or may be by law brought before him in his official capacity, or that in such capacity he shall make any particular nomination or appointment, or for any vote or influence he may give or withhold as such officer or member of the legislature, or that such officer will fail to perform or improperly perform any of his official, public duties, shall be guilty of a felony .
7. From August 14, 1970, and all times since that date, Section 61-5A-3 of the Code of the State of West Virginia provided in pertinent part:
*699
Bribery in Official and Political Matters
A person is guilty of bribery under the provisions of this section if he offers, confers or agrees to confer to or upon another, or solicits, accepts or agrees to accept from another, directly or indirectly:
(1) Any pecuniary benefit as consideration for the recipient’s official action as a public servant or party official; or . .
(3) Any benefit as consideration for a violation of a legal duty as a public servant or party official.
A person is also guilty of bribery under the provisions of this section if he agrees to render or not to render official action as a public servant or party official as consideration for a pecuniary benefit being offered or conferred to or upon, or as consideration for a promise that a pecuniary benefit shall be offered or conferred to or upon, another person or a party official or a political party. (1970, 2nd Ex. Sess., c. 3.)
8. Prom August 14, 1970, and all times since that date, Section 61-5A-6 of the Code of the State of West Virginia provided in pertinent part:
Gifts or Gratuities to Public Servants Prohibited
It shall be unlawful .
(2) For any public servant . having any official action to perform in connection with bids, contracts, purchases, claims or other pecuniary transactions of the government to solicit, accept or agree to accept, directly or indirectly, any gift or gratuity from any person known by such public servant to be interested in any such bid, contract, purchase, claim or transaction; or .
(5) For any person to offer, give, or agree to give any gift or gratuity prohibited by the provisions of subdivision[s] 2, . of this subsection (a). .
9. At all times material herein, Section 12-1-5 of the Code of the State of West Virginia provided in pertinent part:
Demand Deposits; Time Deposits; Payment of Interest on Time Deposits; Time for Payment of Interest; Contracts Concerning Time Deposits, Open Account; Withdrawal of Funds Placed on Time Deposit, Open Account.
As much money as may be needed for current operational purposes of the state government, as determined by the state treasurer, shall be maintained at all times in the state treasury in cash or in demand deposits with banks designed as depositories in accordance with the provisions of section one [§ 12-1-1] of this article. The state treasurer shall apportion such demand deposits among such depositories, giving due consideration to: (1) The activity of the various accounts maintained therein, (2) the reasonable value of the banking services rendered or to be rendered the State by such depositories, and (3) the value and importance of such deposits to the economy of the communities and the various areas of the State affected thereby.
The state treasurer shall place in time deposits such state funds as are not needed for current operational purposes within a ninety-day period .
10. At all times material herein, the State of West Virginia maintained at the First Huntington National Bank a demand deposit account, which said account was managed and controlled by the Office of the State Treasurer of the State of West Virginia.
11. From on or about January 1,1966, to on or about January 1, 1975, JOHN H. KELLY, JOSEPH F. RYKOSKEY, THEODORE J. S. CALDWELL and COLEMAN TRAINOR, and others whose identity to the Grand Jury is both known and unknown, in the Southern District of West Virginia, and elsewhere, devised and intended to devise a scheme and artifice to defraud:
(a) The State of West Virginia and its citizens of their right to the conscientious, loyal, faithful, disinterested and unbiased services, decisions, actions and performance of the official duties by the defendants JOHN H. KELLY and JOSEPH F. RYKOSKEY, in their official capacity as Treasurer and Assistant Treasurer, respectively, *700 of the State of West Virginia, free from corruption, partiality, willful omission, bias, dishonesty, official misconduct, conflict of interest and fraud;
(b) The State of West Virginia and its citizens of their right to have the business of the State of West Virginia and the office of the State Treasurer conducted honestly, impartially, free from deceit, craft, trickery, corruption, fraud, undue influence, dishonesty, conflict of interest, unlawful obstruction and impairments, and in accordance with the laws of the State of West Virginia.
(c) The stockholders and depositors of the First Huntington National Bank, Huntington, West Virginia, and other persons, firms and corporations associated with the First Huntington National Bank, Huntington, West Virginia, of their right to have the business of said bank conducted honestly, impartially, free from deceit, fraud, dishonesty, conflict of interest and unlawful obstruction and impairments, and in accordance with the laws of the State of West Virginia and the United States of America.
12. The scheme and artifice to defraud is more fully set forth as follows:
(a) It was a part of the scheme and artifice to defraud that JOHN H. KELLY and JOSEPH F. RYKOSKEY, in their official capacity as Treasurer and Assistant Treasurer, respectively, of the State of West Virginia, would deposit and maintain and cause to be deposited and maintained large sums of monies of the State of West Virginia in a non-interest bearing, demand deposit account at the First Huntington National Bank, all to the detriment of the State of West Virginia and its citizens as aforesaid.
(b) It was further a part of the said scheme and artifice to defraud that THEODORE J. S. CALDWELL and COLEMAN TRAINOR would and did pay and cause to be paid with the monies, funds and credits of the First Huntington National Bank, certain sums of money for the personal use and benefit of JOHN H. KELLY and JOSEPH F. RYKOSKEY.
(c) It was further a part of the scheme and artifice to defraud that JOHN H. KELLY and JOSEPH F. RYKOSKEY would and did accept the monies so paid as set forth in the immediately preceding paragraph for their own personal use and benefit.
13. For the purpose of executing the aforesaid scheme and artifice to defraud, and attempting to do so, THEODORE J. S. CALDWELL, COLEMAN TRAINOR and JOHN H. KELLY, on or about August 14, 1970, knowingly and willfully placed and caused to be placed in the United States mails, an envelope containing a check, said envelope being addressed to “The Greenbrier, White Sulphur Springs, West Virginia 24986,” to be sent and delivered according to the directions thereon by the Post Office Department of the United States (now the United States Postal Service); all in violation of Title 18, United States Code, Section 1341 . ******
COUNT FIVE
On or about the 14th day of August, 1970, at Huntington, Cabell County, West Virginia, in the Southern District of West Virginia, and elsewhere, THEODORE J. S. CALDWELL, then being Chairman of the Board of Directors of the First Huntington National Bank, and COLEMAN TRAINOR, then being President of said bank, and JOHN H. KELLY, then being Treasurer of the State of West Virginia, aided and abetted by each other, did, with the intent to injure and defraud said bank, knowingly and willfully embezzle, abstract, purloin, and willfully misapply said monies, funds and credits of the First Huntington National Bank ... in the amount of Two Hundred Eighty-Two Dollars and Forty-One Cents ($282.41), which said monies, funds and credits were in the care and custody of THEODORE J. S. CALDWELL and COLEMAN TRAINOR, by virtue of their positions at said bank; all in violation of Title 18, United States Code, Sections 656 and 2. ******
*701 COUNT TWELVE
On or about the 27th day of August, 1973, at Huntington, Cabell County, West Virginia, in the Southern District of West Virginia, and elsewhere, THEODORE J. S. CALDWELL, then being Chairman of the Board of Directors of the First Huntington National Bank, and COLEMAN TRAINOR, then being President of said bank, and JOSEPH F. RYKOSKEY, then being Assistant Treasurer of the State of West Virginia, aided and abetted by each other, did, with the intent to injure and defraud said bank, knowingly and willfully embezzle abstract, purloin, and willfully misapply said monies, funds and credits of the First Huntington National Bank in the amount of Two Hundred Two Dollars and Eighty-Six Cents ($202.86), which said monies, funds and credits were in the care and custody of THEODORE J. S. CALDWELL and COLEMAN TRAINOR, by virtue of their positions at said bank; all in violation of Title 18, United States Code, Sections 656 and 2.