Tyner v. United States

•Criminal Law; Conspiracy- to Defraud the United States; Misconduct in Office; Indictment. 1. The gist of the offense defined in U. S. Rev. Stat. § 5440, U. S. Comp. Stat. 1901, p. 3676, being a conspiracy to commit an offense against or to defraud the United States, notwithstanding it remains incomplete until the commission of some act to effect its object, it must be charged in the indictment against the alleged conspirators with that degree of certainty requisite in all indictments under the laws of the United States; and such charge cannot be aided in respect of its certainty by the necessary additional averments of the overt act or acts. 2. All the material facts and circumstances embraced in the definition of the offense charged in an indictment, must be stated, and 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. 3. Indictments against two government officials for conspiracy to defraud the United States, which in their introductory part charge the defendants with certain duties under certain departmental regulations, and also with certain additional duties not prescribed by such regulations but not inconsistent with any provisions of law, and which are reasonable and natural extension of the duties so prescribed, sufficiently charge a violation of duty; but under such circumstances such duties as are prescribed by the regulations require no proof, while such additional duties must be proved like other facts. 4. In indictments against the Assistant Attorney General and Assistant Attorney for the Postoffice Department for conspiracy to defraud the United States in violation of U. S. Rev. Stat. § 5440, U. S. Comp. Stat. 1901, p. 3676, by failing to report the conclusions arrived at by them upon consideration of schemes for the misuse of the mails and defrauding the public, referred to them for investigation and report, it is not necessary to allege and prove that any such scheme was within the prohibition of the law, the duty to so report existing whether the scheme was lawful or unlawful. 5. Such indictments are not demurrable which, after sufficient averment of the official duty imposed upon the defendants, charge, with no lack of certainty in respect to time, place, and circumstances, that the defendants conspired not to discharge such duty, but instead to substitute a general opinion as to such alleged fraudulent schemes, artfully planned to secure each of the parties engaged in such schemes in the unobstructed use of the mails, until at least the expiration of the official connection of one of the defendants with the Postoffice Department, and to secure for him thereafter employment by such interested parties as attorney for them, and the collection of large-sums of money as fees. , 6. While it is the general rule that there are no common-law offenses against the United States, such rule does not apply to the District of Columbia (following De Forest v. United States, 11 App. D. C. 458) ; and the common law being in force in the District of Columbia when U. S. Rev. Stat. § 5440, U. S. Comp. Stat. 1901, p. 3676, was enacted, which makes it an indictable offense to conspire to commit any offense against or to defraud the United States in any manner and for any purpose, any common-law offense not repealed, superseded, or plainly inconsistent with existing legislation or necessarily obsolete is an offense against the United States within the meaning of that section. 7. Official misconduct in office, being an offense under the common law, is an offense in the District of Columbia, and is an offense against the United States, whether it is an offense against the United States when committed by Federal officers in any of the States or territories; and it is immaterial that such offense was a misdemeanor at common law while the conspiracy to commit it by reason of the character of the penalty prescribed by U. S. Rev. Stat. § 5440, U. S. Comp. Stat. 1901, p. 3676, becomes an infamous offense. Criminal laws in the various Federal courts are not required to be uniform throughout the territories and districts, whether within or without the restrictions of the Constitution. 8. To defraud means, not only to deprive or withhold from one that which belongs to or is due him, but also to deprive him of any right by artifice or wrong practised upon him. A. To defraud the United States within the meaning of U. S. Rev. Stat. § 5440, U. S. Comp. Stat. 1901, p. 3676, does not necessarily mean to do the United States a pecuniary injury (following Palmer v. Colladay, 18 App. D. C. 426) ; and any wilful or corrupt misconduct on the part of an official of the Postoffiee Department that operates to impair the administration of the affairs of that department, works a wrong to the United States and does them some substantial injury within the meaning of that section. Such injury may be pecuniary in its nature or one of general damage, not of a specific character susceptible of certain ascertainment and pecuniary compensation. 10. A statute which is made for the good of the public ought, although it is penal, to receive equitable construction.

Hearing on appeals (specially allowed) from orders of the Supreme Court of the District of Columbia sitting as a criminal court overruling demurrers to two indictments for the crime of conspiracy under U. S. Rev. Stat. § 5440 (U. S. Comp. Stat. 1901, p. 3676). The Court in the opinion stated the case as follows: In each of these cases a special appeal has been allowed from an interlocutory order of the supreme court of the District of Columbia overruling defendant’s demurrer to the indictment which charges them with the crime of conspiracy under Rev. Stat. § 5440 (U. S. Comp. Stat. 1901, p. 3676). The recitals of the indictments are identical, save in respect of the particular offense which is made their predicate. In 1396 the conclusion is that the defendants “unlawfully did conspire, combine, confederate, and agree together to defraud the United States;” whilst in 1397 it is “to commit an offense against the United States, that is to say, the offense of misconduct on the part of him, the said James N. Tyner, in his said office of Assistant. Attorney General for the said Postoffice Department, to be done and committed by him the said James N. Tyner as aforesaid.” The introductory averments of the indictment, after reciting the statutes prohibiting the carriage in the mails of matter in aid of lotteries and other schemes to defraud the public, and prescribing the powers and duties of the Postmaster General, together with the practice of his department in relation thereto, are: (1) That James N. Tyner was the Assistant Attorney General for the Postoffice Department from June 1, 1897, to April 22, 1903; that Harrison J. Barrett, from June 1, 1897, to July 1, 1899, was law clerk in the office of the said Assistant Attorney General, and from July 1, 1899, until January 1, 1901, was Assistant Attorney therein; (2) that it was the duty of the said Tyner, as Assistant Attorney General, to investigate all eases of use of the mails by persons suspected of being engaged in the prosecution of lotteries and fraudulent schemes that might be brought to his attention by reference from the Postmaster General or otherwise; and if, upon such investigation, it appeared to him that any such use of the mails was within the prohibition of the law, it was his duty to report his conclusion and opinion in the case to the Postmaster General with a statement of the facts upon which such conclusion and opinion wore based, together with a recommendation that a “fraud order” should bo issued in such case whereby the misuse of the mails by such persons would be immediately stopped, it being the usual practice of the Postmaster General to issue the order upon such report and recommendation; (3) that said Barrett, whose duty it was to assist said Tyner in the matters aforesaid, had, on July 3, 1900, determined to resign and retire from his said office on December 31, 1900, and had agreed with one J. Henning Nelms to enter into a partnership with him on January 1, 1901, with a view to representing before the Postoffi.ee Department and the said Assistant Attorney General persons using the mails in the prosecution of schemes and plans of business which might then and thereafter be under investigation by said Tyner in tbe course of bis duty aforesaid; (4) that between July 3 and November 1, 1899, there were pending before said Tyner the cases of eighty persons or companies — fifty of these being named and thirty charged as of names unknown — for investigation and report to the Postmaster, General whether their schemes and plans of business were obnoxious to the laws aforesaid, and such, therefore, as to debar them from the use of the mails in the prosecution of the same; (5) that the investigation aforesaid was completed by said Tyner and Barrett, between October 18 and November 1, 1900, and the conclusion arrived at that the schemes of each of said persons were obnoxious to the laws aforesaid, and that matter relating thereto was prohibited from transmission through the mails; (6) that having formed an opinion as aforesaid, it became the duty of said Tyner to report the same to the Postmaster General, together with a statement of the evidence upon which the same was based, and a recommendation that the order issue to prevent the further use of the mails by the said persons; but that, disregarding his duty aforesaid, by reason of the conspiracy, etc., hereinafter charged, the said Tyner did not submit a report of the conclusion and opinion aforesaid, together with a statement of the evidence upon which said opinion was based, and did not recommend the issue of the prohibitory order aforesaid. Following these introductory averments, the charge of conspiracy appears in the following words: “That on the said first day of November, in the year of our Lord one thousand nine hundred, and at the District aforesaid, the said James N. Tyner and the said Harrison J. Barrett did unlawfully conspire, combine, confederate, and agree together in contravention of their duty in the premises, not to report the conclusion and opinion aforesaid to the said Postmaster General, together with a statement of the evidence upon which the same were based, and with a recommendation that such fraud orders be issued by the said Postmaster General against the companies last aforesaid so engaged in the conduct, promotion, and furtherance of each of the schemes and plans of business last aforesaid; and to siibmit to the said Postmaster General an opinion as hereinafter stated, in lieu of such report, statement, and recommendation last aforesaid, and to prevent so far as in them, the said James N. Tyner as such Assistant Attorney General, and the said Harrison J. Barrett as such assistant attorney, the power lay, the enforcement of the laws aforesaid, by the said Postmaster General against the companies last aforesaid, and to keep the question of issuing such fraud orders against the companies last aforesaid, open and undetermined by him, the said Postmaster General, until the thirty-first day of December, in the year of our Lord one thousand nine hundred, and for such period of time thereafter as the said Harrison J. Barrett might desire, and in the meantime to permit the unobstructed use of the mails to the companies last aforesaid in the conduct, promotion, and furtherance of their schemes and plans of business aforesaid, to the prejudice of the said United States and the obstruction and prevention of the orderly and due administration of the said laws, and for the advancement of the pecuniary interest of the said Harrison J. Barrett, upon his retirement from the said department, as aforesaid, and the entering upon such practice of the law by him, the said Harrison J. Barrett, as aforesaid; which advancement of such pecuniary interest of him, the said Harrison J. Barrett, should be accomplished in the manner following, as well as by the acts and omissions agreed, upon, as aforesaid, that is to say: That he, the said Harrison J. Barrett, should, at some time prior to such retirement from office by him, the said Harrison J. Barrett, prepare and submit an opinion in writing to the said Postmaster General relating to the schemes and plans of business of the companies last aforesaid, to he signed by him, the said Harrison J. Barrett, as Assistant Attorney and acting Assistant Attorney General for the Postoffice Department, which opinion should be approved in writing by the said J ames N. Tyner, as such Assistant Attorney General, and for which opinion the approval of the said Postmaster General in writing should also be obtained as a matter of official routine by him, the said J ames N. Tyner, as such Assistant Attorney General, and the said Harrison J. Barrett, as such Assistant Attorney; and that in such opinion it should he set forth and stated, in substance, that the schemes and plans of business of a number of companies to he described in said opinion as “so-called bond investment companies,” the names of which should not he mentioned therein (but to meau aud intend by such description the companies in respect to whose schemes and plans of business the said James N. Tyner, as such Assistant Attorney General, and the said Harrison J. Barrett, as such Assistant Attorney, had, upon such investigation as aforesaid, reached the conclusion and opinion aforesaid), had been presented to the said James N. Tyner, as such Assistant Attorney General, by reference from the said Postmaster General, or otherwise, for an expression of opinion as to whether or not the transmission in the mails of matter relating to such schemes and plans of business last aforesaid and the delivery of mail matter and the payment of postal-money orders to such companies last aforesaid, should be forbidden under the laws aforesaid; and that in the opinion aforesaid tire schemes and plans last aforesaid should be divided into ten classes, and each of such classes be held and declared to be obnoxious to the laws aforesaid, and each such scheme and plan of business last aforesaid- be held and declared to fall within one or the other of the said ten classes, as being in each instance a lottery or a scheme to defraud, or both; and that in such opinion it should also be held and declared that the basic principle underlying the schemes and plans of business last aforesaid was sound, and that each of them was susceptible of amendment so and in such manner as to relieve them of their objectionable features under said laws, and to entitle the companies engaged in the conduct, promotion, and furtherance of the same, to the unobstructed use of the mails in such conduct, promotion, and furtherance of the same, refraining, however, from setting forth or stating in such opinion in what particular or in what manner such amendments might be made in any particular case, and leaving that matter open to speculation and conjecture on the part of the companies last aforesaid, and recommending that a reasonable time be given such companies last aforesaid for the abandonment of their said schemes and plans of business or for the making of such amendments before such use of the mails by them, the companies last aforesaid, should be interfered with by the said Postmaster General through the issue by him of such fraud orders against them, such companies last aforesaid; they, the said James N. Tyner and the said Harrison J. Barrett, then well knowing the fact to be that in the usual course of business in the said department the determination of what would be such reasonable time would be a matter resting with, and under the control of him, the said James N. Tyner, as such Assistant Attorney General; and that he, the said J ames N. Tyner, as such Assistant Attorney Genera] would take no action against any of the companies last aforesaid, contrary to the wish and desire of him, the said Harrison J. Barrett, in that behalf; and that when the approval of such opinion by the said Postmaster General had been thus obtained, thereupon said opinion, together with such approvals thereof by the said James N. Tyner, as such Assistant Attorney General, and by the said Postmaster General, should be printed in pamphlet form at the expense of the said United States and sent to ■each of the companies last aforesaid, with a circular letter of the said James N. Tyner, as such Assistant Attorney General, •calling their attention to said opinion and stating that the particular scheme and plan of business of such company last aforesaid fell within one of the said classes; and that upon such sending of such pamphlet opinion and such circular letter to each of said companies, as aforesaid, that the said Harrison J. Barrett should send to each of them, the companies last aforesaid, a printed announcement in which it should be stated in substance that the said Harrison J. Barrett, Assistant Attorney for the Postoffice Department, begged to announce that he would retire from the said department on the first day of January in the year one thousand nine hundred and one, and that he would thereafter be associated with J. Henning Nelms, a member of the Baltimore bar, in the practice of law in Baltimore and Washington; in order that by said opinion in pamphlet form said circular letter and said announcement, and from the previous connection of the said Harrison J. Barrett with the said office of the said Assistant Attorney General, the impression should be made on the companies receiving such opinion, circular letter, and announcement that with the exception of the said James N. Tyner, he, the said Harrison J. Barrett, alone knew in what particulars the schemes and plans of business of the companies last aforesaid required amendment, and the nature of the amendments so required in the said schemes and plans of business of the companies last aforesaid, to relieve such schemes and plans last aforesaid from objection under said laws and to secure for them the approval of the said James N. Tyner, as such Assistant Attorney General, and to secure the companies last aforesaid, in the operation of such schemes and plans as thus amended, the unobstructed use of the mails of the said United States; and by the means and in the manner last aforesaid, and by a refusal of them, the said James N. Tyner, as such Assistant Attorney General, and the said Harrison J. Barrett, as such Assistant Attorney, after such rendering and printing of such opinion, to act upon and consider during the remainder of the said year one thousand nine hundred, any application of the companies last aforesaid, for the approval by him, the said James N. Tyner, as such Assistant Attorney General, of any amended schemes and plans of business which might be submitted by them, the companies last aforesaid, to him the said James N. Tyner, as such Assistant Attorney General, to create the further impression on the companies last aforesaid that it would be greatly to the interest and advantage of them, the companies last aforesaid, to employ them, the said Harrison J. Barrett and the said J. Henning Nelms, rather than other attorneys and agents, for the purpose of making such amendments and of obtaining such approval thereof by the said James N. Tyner, as such Assistant Attorney General, to the end that the companies last aforesaid should be induced to employ the said Harrison J. Barrett to represent them before the said James N. Tyner, as such Assistant Attorney General, and before the said Postóffice Department, in the matter of making such amendments, securing such approval, and obtaining such unobstructed use of the mails for matter relating to the business of the companies last aforesaid and to pay to him, the said Harrison J. Barrett, large sums of money for services to be rendered by him in that behalf; and that upon such employment of him, the said Harrison J. Barrett, he, the said James N. Tyner, as such Assistant Attorney General, should approve any amended schemes or plans of business of the companies last aforesaid, prepared and submitted to him by the said Harrison J. Barrett.” The acts charged as done to effect the object of the conspiracy in each case may be summarized as follows: (1) On December 5, 1900, the said Barrett, under the title of “Assistant Attorney and Acting Assistant Attorney General for the Postoifi.ee Department,” submitted an opinion in writing to the Postmaster General in relation to the cases referred for investigation, wherein he stated substantially “that, in the consideration of the said question, the various plans and schemes of business used by the companies last aforesaid were grouped as nearly as possible into classes, and that he had omitted all reference to any company by name, and had found that the schemes and plans last aforesaid of the companies last aforesaid were either lotteries or similar enterprises for the distribution of prizes by lot or chance, or were fraudulent within the meaning of the statutes forbidding the use of the mails in the promotion of such enterprises; nevertheless, that if changed and modified in some of their features they would not he objectionable to the laws aforesaid, in their operation and conduct, and that he recommended that a reasonable time should be allowed to the companies last aforesaid for the abandonment of their said schemes and plans of business after their attention had been called to the necessity of modifying the same or for making such changes as would eliminate therefrom all objectionable features before action should be taken by the said Postmaster General to deprive them of the use of the mails.” (2) That the said Tyner indorsed his approval of said opinion in writing thereon, and lie and Barrett then, on December 8, 1900, prepared a letter for the signature of the then Postmaster General, approving the said opinion, which said letter they procured him to sign. (3) Defendants next procured the printing, at the Government Printing Office, of 500 copies of said opinion in pamphlet form, one of which was sent to the Southern Mutual Investment Company, of Lexington, Kentucky, together with a printed circular signed by said Tyner officially, advising it that its scheme and plan of business fell within one of the classes mentioned in the said opinion. And it is further alleged that the same course was pursued with each of the persons heretofore named in the indictment. (4) That, on tíre same day the said Barrett mailed to each of said persons and companies a card announcing that he would retire from his. position on January 1, 1901, and then become associated with J. Henning Nelms, a member of the Baltimore bar, in the practice of law in Baltimore and Washington. (5) That on December 20, 1900, the said Barrett wrote and mailed the following letter to J. P. Williams, at Louisville, who was then the-president of the New Orleans Debenture Company, one of tkeeighty persons before mentioned: My Dear Sir: I have received your favor of the 17 th instant. This is written at home, and as I have not your contracts, at hand I cannot answer you specifically in regard to your 25-per cent and 15 per cent debentures, though from my recollection the principles involved are the same as in other contracts set-out in the opinion. I will, however, ask Gen’l Tyner, the Assistant Attorney General, to write you specifically on these-points. While my work at the department has practically ceased, yet-my official connection will not be severed until Dec. 31, so that I would not feel at liberty to discuss ways and means with you. My associate and 1 will be pleased to act as your attorneys after-Dec. 31, and you could, of course, correspond with Mr. Nelms, now. I believe we can eliminate all the objectionable features in the contracts, and put them in such form that they will meet with the approval of the Department. Our fee would be one-thousand dollars retainer, and one hundred dollars a month for-twelve months. I suggest this latter provision, inasmuch as during the coming year details may have to be adjusted, and new features and improvements in contracts will suggest themselves-, for consideration and submission to the Department. We would render you any service that might be necessary in this conneclion, and communicate to you whatever we might learn of advantage to your company. I may add for your information that the Department does not intend to interfere with the operations of any company until they have had reasonable opportunity to perfect and present new forms of contract which will be approved. I am, very truly yours, Harrison J. Barrutt. P. S. — Our offices will be in the Oalvert Building, Baltimore, though within a short time we may have a branch here. Baltimore, as you know, is only 45 minutes by train from Washington, and telephone connections make them practically one city. (6) That the said agreement between said Barrett and said Nelms was entered into; the said Nelms, who was then the attorney for the Mutual Fidelity Company of Baltimore, agreeing to divide the sum of $2,000 per annum which he was to receive from said company. (7) That said Barrett purposely retained in the office of the Assistant Attorney General aforesaid, without action thereon, a report of an official inspector charging that the said Mutual Fidelity Company of Baltimore was operating a fraudulent scheme within the prohibition of the law, and advising that it be called upon to show cause why a “fraud order” should not be issued against it; which said report had been referred to the said Tyner by the Postoffice Department on November 23, 1900. (8) That on December 18, 1900, certain officers of the Southern Mutual Investment Company called upon said Barrett at his office to ascertain what might be necessary for the amendment of their scheme so as to retain the use of the mails, and were informed by him that his connection with the government would cease on December 31, 1900, and that, in the meantime, he could not give official attention to the matter; and they *were further informed by the said Tyner that he would not take up such matters for consideration until after January 1, 1901. (9) That thereafter, on the same day, said parties called upon said Nelms in Baltimore, and agreed to pay him-the sum of $1,000 in case he would procure the immediate approval, by said Tyner and Barrett, of such amendments to their existing scheme of business as would enable them to continue to enjoy the unobstructed use of the mails. (10) That on December 19, 1900, said parties, with Nelms, had another interview with said Tyner, to whom said Nelms stated a proposed amendment which said Tyner approved. (11) That on December 20, 1900, the said Barrett prepared a written memorandum of the amended scheme for the use of said Tyner in the preparation of a letter approving the same, which letter, embodying the said amendment, was written on January 8, 1901. (12) That on December 21, 1900, one George W. Morgan, president of the Continental Security Redemption Company, of Birmingham, Alabama, called upon said Barrett at the office of said Tyner for the purpose of ascertaining if its scheme could be amended so as to meet with approval, and that said Morgan agreed with said Barrett to pay him the sum of $800 after January 1, 1901, if he would procure the approval of said Tyner of a scheme of business satisfactory to the said company and in the meantime protect it from interference by the Postmaster General in the use of the mails. (13) That on J anuary 3, 1901, one Charles A. Spenny, president of the Equitable Debenture Company, of Columbus, Ohio, called upon said Tyner to ascertain in what particulars it would be necessary to amend said company’s scheme so as to relieve it from objection and secure it the free and unobstructed use of the mails, and was told by said Tyner that it would facilitate his business if lie would, employ an attorney familiar with that kind of business, — the said Tyner then and there recommending said Barrett as such an attorney. (14) That the said Spenny immediately thereafter employed said Barrett, and agreed to pay him a fee of $500 to obtain the approval of said Tyner to a scheme of business satisfactory to said company; and thereupon, on the next day, said Barrett called upon said Tyner in company with Spenny, and submitted to him a scheme amending the existing one of said company, which the said Tyner approved in a letter, without examination and upon the verbal assurance of said Barrett that the same was free from objection.