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UNITED STATES v. LUBOMSKI

April 28, 1967

UNITED STATES OF AMERICA, PLAINTIFF,
v.
WITOLD LUBOMSKI, DEFENDANT.



The opinion of the court was delivered by: Marovitz, District Judge.

  MEMORANDUM OPINION

Defendant's Pretrial Motions

Defendant is charged in a one-count indictment with directly and indirectly offering, promising, and giving $160 to Patricia J. Haag, an employee of the Internal Revenue Service, on or about February 1, 1967, with intent to influence her to unlawfully reduce defendant's income tax liability, in violation of 18 U.S.C. § 201.*fn1

Several pre-trial motions have been filed, each of which we will consider separately.

I. Motion to Quash Indictment

In support of his motion to quash, defendant argues that Patricia J. Haag was not an employee of the United States Government on February 1, 1967, having terminated her employment on January 31, 1967. It is axiomatic that in order to allege an offense under section 201, the person receiving the alleged bribe must have been an officer of the government and have been acting for the government in his official capacity. United States v. Raff, 161 F. Supp. 276 (M.D.Pa. 1958); Hurley v. United States, 192 F.2d 297 (4th Cir. 1951).

Nothing is offered to substantiate defendant's bald claim that Mrs. Haag was not a government employee on or about February 1, 1967. Indeed the government asserts that it will prove all of the allegations of the indictment, including the allegation that Patricia J. Haag was employed by the Revenue Service on or about February 1, 1967. If, of course, it is finally determined that Mrs. Haag was not a government agent at the time the alleged bribe was made, defendant must be found not guilty. But it is not incumbent on the government to prove its case in the indictment. Defendant's argument is of no merit at this juncture.

In addition, defendant claims the indictment is fatal because Patricia Haag was only a tax technician as set forth in the indictment and allegedly had no authority or power to reduce defendant's tax liability. There being nothing offered to substantiate this claim, it cannot form the basis for dismissal of the indictment. Again, we stress that the government is under no obligation to do more than set forth its allegations in the indictment. Furthermore, even if some substantiation were offered for defendant's assertion, for a conviction under section 201 it is immaterial that the bribee does not have the authority to bring about the result which the offerer of the bribe desires. Hurley v. United States, 192 F.2d 297, 300 (4th Cir. 1951).

Finally, defendant claims the indictment is duplicitous*fn2 in that it charges defendant with offering, promising and giving money to Patricia Haag, and in addition charges facts allegedly giving rise to a conspiracy between defendant and Mrs. Haag. Under Rule 8(a) of the Federal Rules of Criminal Procedure, two or more offenses may be prosecuted in a single indictment only if of similar character, or if based upon the same act or transaction, or if when connected together constitute parts of a common scheme or plan. When such offenses are joined, each must be set forth in a separate count.

Three separate and distinct activities may form the basis of a violation of section 201, since the giving, offering or promising of something of value are stated disjunctively in the statute. Each constitutes a different means of violating the statute, and consequently it has been held that each of the three modes may give rise to a separate and distinct offense even when parts of a single transaction, since each involves an element which the others do not. United States v. Michelson, 165 F.2d 732 (2d Cir. 1948), affirmed 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168. Each activity may be prosecuted as a separate offense if "separate acts have been committed with the requisite criminal intent * * *" Morgan v. Devine, 237 U.S. 632, 640, 35 S.Ct. 712, 714, 59 L.Ed. 1153 (1914), as cited in United States v. Michelson, supra at 733. But under Rule 8(a), if that is done separate counts must be utilized.

Defendant contends that the instant indictment is duplicitous since each of the three activities charged therein may give rise to a separate violation of section 201. Since the indictment consists of but a single count, it is fatally deficient, in his opinion, because it puts him in danger of multiple convictions.

The prohibition against duplicity is explained as follows by Professor Moore:

  "It protects a defendant's right under the Sixth
  Amendment and Rule 7(c) to notice of the `nature and
  cause of the accusation' against him so that he may
  prepare his defense. It also insures that if
  defendant is convicted, the offense upon which he is
  convicted will clearly appear from the verdict, so
  that appropriate punishment may be imposed. Finally,
  duplicity is prohibited because confusion as to the
  basis of the verdict may subject defendant to double
  jeopardy in the event of a subsequent prosecution." 8
  Moore, Federal Practice, Par. 8.03(2), pages 8-6,
  8-7.

The proper objection to a duplicitous indictment is usually asserted to be a motion to compel the government to elect the charges on which it desires to proceed.*fn3 8 Moore, Federal Practice, Par. 8.04, p. 8-12; United States v. Goodman, 285 F.2d 378 (5th Cir. 1960); Rule 14, Federal Rules of Criminal Procedure. Normally a motion to dismiss an indictment defective for duplicity is treated by the courts as a motion to compel election.

The instant indictment does not require such an election, because we are satisfied that it is not duplicitous. Indeed, the law appears settled on the question.

The Kemler holding, of course, does not preclude the government from charging separate violations of section 201, by different means, even if part of a single transaction, so long as they are stated in separate counts. United States v. Michelson, 165 F.2d 732, 733 (2d Cir. 1948), cited above, reads only that where ...


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