The opinion of the court was delivered by: Marovitz, District Judge.
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
"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,
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
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.
Construing an indictment brought under the predecessor to
Judge Ford, in United States v. Kemler, 44 F. Supp. 649 (D.Mass.
1942), held that the indictment was not defective merely because
it charged the defendant with promising and offering to give
money. The original statute, of course, like section 201,
prohibited the promising, offering or giving of any money to an
official for the purpose of influencing his decision or action.
The court decided that the statute created only one offense but
provided several means of committing it. Where this is true,
United States v. Dembowski, 252 F. 894 (D.C. 1918), established
that "all the means of committing it may be charged in a single
count in the conjunctive, without the count being open to the
charge of duplicity, and proof of the commission of any one of
the means will be sufficient to sustain a conviction."
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 ...