UNITED STATES V. SIMONS.
lUg and certifying the result of the search, is properly to be regarded as the compensation for making the search, and for the official act of the clerk under his official responsibility in signing the certificate, and thus fixing his responsibility for certifying the result. The charge of 15 cents per folio for making the cel"tificate is proper, and the serviceis performed and is neoessary. A certificate may, by reason of a large number of names searched against, cover many folios, and there is nothing in the statute which indicates an intention 'that the charge of 15 cents for each name shall embrace the time and labor and care required in drawing the certificate, as well as the time and labor and care required in making the search, and the responsibility incurred in certifying the result. Of course, no charge for affixing the seal is lawful, unless it is required in the particular case that the clerk shall affix the seal. . These views have been submitted to the district judge, and I ani authorized to say that he concurs in them. The application of the petitioner is denied.
UNITED STATES 'V. SIMONS
(District Court, E. D. Micltigan. June 20,1881.)
An informer is one who gives the first information to thegovern-' ment of a violation of law, which induces the prosecution, and con· tributes to the conviction of the offender, or the recovery of a fine, penalty, or forfeiture.
The fact that a person has procured testimony, be it never so valuable, does not entitle snch person to an informer's share, where the fraud has been disclosed by others, and proceedings have been com,menced in consequence of such information.
Where an informer procures the arrest and conviction of certain members of a conspiracy, who, upon their examination, confess and implicate other conspirators engaged in the same fraudulent trans-
and these in turn are also arrested, convicted, and fined solely upbn such information, held; the original informer is entitled to share in such fine. 4. SAME-SAME. Hence, where A. informed against B" C., and D. for smuggling, and these or one of them confessed and implicated E. for receiving the property smuggled, and E. was arrested, and, acting upon the advice of a third party, also confessed and implicated F. and G. as his principals in the transaction, who were convicted and fined, helA, that A. was entitled to the informer's share of the fine imposed. 5.
SAME-OFFICER OF THE UNITED S'fATES,
It seems that any person receiving pay from the government, whose duty it is to disclose any information he may receive, is " an officer of the United States " within tlle meaning of the act of 1874, and therefore cannot be an informer.
Upon petition of ,John Brakeman and John B. Stadler for the informer's share of a fine of $2,000 imposed upon Si· mons and Burnstine. So far as Brakeman is concerned, the . facts were that during the fall of 1880 he was employed by General Spaulding, special agent of the treasury department, to ferret out certain supposed rag-smuggling operations along St. Clair river. In the progress of his rosearches he discovered, from an examination of the books of the railway at St. Clair, and from statements made by the agerits of the road, that Morris Brown, Samuel Lewis, and one Fink were smuggling rags at St. Clair and shipping them to one Applebaum, at Detroit. This information being communicated to the col· lector at Port Huron, Lewis, Brown, and Fink were arrested. Upon their examination, they, or one of them, disclosed the 'fact that they had been hired by Applebaum to buy the rags and smuggle them over for his benefit. Upon these statements Applebaum was arrested for aiding and assisting in the illegal importation, and gave bail for his appearance. Before the day set for the hearing of his case before the commissioner, Applebaum went before the district attorney and made a full confession of his connection with the smuggling transactions, and disclosed. the fact that Simons and Burn. stine, the defendants, were his principals; that they had employed him to get the rags smuggled acrOS8 the river, and
UNITED STATES V. SIMONS.
had received them in Detroit,-the rags first going to Applebaum's barn, where they were repacked and then taken to Simons & Co's. warehouse.. This statement was reduced to writing by Applebaum a day or two afterwards. He also stated that he made these disclosures relative to Simons & Co. for the sole reason that they had failed to keep their promise to him to protect him if caught, and to employ counsel for his defense, and that he was not going to suffer alone. A complaint was then made against Simons and Burnstine for aiding and assisting in smuggling the rags above mentioned, to which they signed a nolo contendere and paid a fine of $2,000. The petition and affidavits on behalf of Stadler show that one Jacobs came to him and told him that his son-in-law, Applebaum, was in trouble; that he had been arrested for smuggling, After some conversation with the deputy marshal, Stadler advised Jacobs to induce Applebaum to make a full· confession of his connection with the transaction, and that he might in that way save himself from prosecution. In pursuance of this suggestion, Applebaum confessed, and implicated defendants. BROWN, D. J. Section 4 of the act of June 22, 1874, (18 St. at Large, 186,) provides:
.. That whenever person. not an officer of the United States shall furnish to district attorney, or to any chief officer of the customs, original information concerning any fraud upon tho customs revenue, perpetrated or contemplated, which shall lead to the recovery of any withheld, or of any fine, penalty, or forfeiture incurred, whether by importers or their agents, or by any officer or person employed in the customs service, such compensation: may, upon sucb recovery, be paid to such person so furnishing information, as shall be just and reasonable," etc. Section 6: "That no payment shall be made to any person furnishing information in any case wherein judicial proceedings shall have been instituted, unless his claim to compensation shall have been established to the satisfaction of the court, or judge having cognizance of such proceedings, and the value of his services, duly certified by the said court or judge for the information of the secretary of the treasury."
It is well settled that in a contest between informers he is the informer who, with the interition .of having his information acted upon, first gives information of a violation of
law, which induces the prosecution, and contributes to the recovery of the fine, penalty, or forfeiture which is eventually recovered. U. S. v. George, 6 Blatchf. 406; Sawyer v. Steele, 8 Wash. 464; City Bank v. Bangs, 2 Edw. Ch. 95; Lancaster v. Walch, 4 M. & W. 16; U. S. v. Isla de Cuba, 2 Clift 458; 100 Barrels of Whiskey, 2 Ben. 14.; 50,000 Oigars, 1 Low. 22. The fact that a person has procured valuable testimony, making a strong case against the offenders, but for which it is indeed doubtful whether any conviction could have been had, or any money recovered from them, does not entitle the person procuring such testimony to any portion of the fine, where the fraud has been discovered and disclosed by others, and proceedings have been commenced in. pursuance of that information. The statute gives the informer's share to the one who furnishes the 9riginal information which shall lead to the recovery of the fine, but, whether justly or unjustly., awards nothing to those who furnish evidence to confirm the. truth of the statements of the original informers, and this, although the applicant may have spent much time and expended money in ferreting out the details of the fraud, since their action cannot be said to have induced the prosecutions. U. S. v. George, 6 Blatcht. 406, 418. Applying these principles to the case under consideration, it seems quite clear that Stadler cannot be considered the informer; in fact, he gave no information at all. All that he did was to advise Jacobs, the father-in-law of Applebaum, to induce Applebaum to make a full confession of his connection with the smuggling transactions, and thereby implicate the defendants. This is in no sense of the word the furnishing of original information. As between Stadler, Jacobs, and Applebaum, the last stands in much the best. position of the three to be considered the informer. It seems to me, however, that Brakeman may fairly be said to have furnished the original information which led to the recovery of the fine. It is true that he made no disclosures himself which implicated Simons and Burnstine;
but he did unearth the fraud with which they were connected, by furnishing information against Lewis, Brown, and Fink, who confessed their guilt and implicated Applebaum, who in his turn confessed and caused the arrest of Simons and Burnstine. Those parties were all conspirators in the same fraudulent transactions, and it seems to me that the party who furnished the original information upon which a part of the conspirators were should be considered the informer as to all the conspirators in the same fraud, it appearing that the other conspirators were arrested, not upon information given by any third party, but upon the confessions of the parties wl.:o had already been arrested. Applebaum earned immunity from punishment by his voluntary confession, and by the district attorney consenting to make use of his testimony agaimlt his co-conspirators, but equitably he is entitled to nothing more. Whisky Cases, 99 U. S. 594. Upon the other hand, Brakeman ought not to lose his share of the fine which would have been imposed upon the parties he informed against directly, by their confessing and inculpating others, and thus securing immunity. The interest of the informer ought tu be identical with that of 'he government. The interests of the government require the leading members of the conspiracy to be punished. The original informer ought not to lose by this being done. I think this view is borne out by the case of Wescott v. Bradford, 4 Wash. 492, in which the court discusses the question how far information given to the collector as to one thing mayor may not be considered as extending to others, so as to warrant the conclusion that the forfeiture was recovered in pursuance of such information. The distinction that is taken there is between cases where several parties are implicated in a single fraud, and those wherein the discovery of one fraud results in the ferreting out of another fraud of the same description, but not connected with it. It only remains to consider whether Brakeman i8 such an. officer of the United States as is excepted from the operation of the acfof 1874, and is disentitled by reason of his official
position to claim a share of the fine.. I had supposed that in order to preclude a person from receiving the informor's share he must have been a permanent officer of the government, holding his authorIty by virtue of a commission or appointment by a chief officer of the customs. Such, I am informed, has been the I'uling of the treasury department in this particular, but the coutts seem to have uniformly taken a different view, and I am not disposed to dissent from their conclusions. Even before this act was passed, and when officers might be considered as informers, it was held by Judge Lowell, in the U. S. v. 100 Barrels of Distilled Spirits, 1 Low. 244, that they could only be considered informers where they incidentally and not in the 'direct prosecution or course of their duty, or of any special retainer for that pur. pose, made a discovery. .
"As if an inspector, put on board a vessel merely to keep the cargo safely, discovers smuggled goods concealed, or where an officer sent to inquire into a particular charge discovers something entirely different and before unsuspected, or where he is told by some one as a friend and not as an officer, or the facts which his informant, no," wishing to be k Gown, refll ses to bring forward himself, but tells him for the very purpose of enabling him to give information in his own name. In these cases an ofIl'1el' may be an informer." "St'Il," he observes, "it is clear that an officer cannot always be considered an inform'or merely because he, officer, acquires nseful to t11e gov...rnment. If this knowledge is acquired in the ordinary discharge of his duty, touching the very subject-matter, or under a special retainer to investigate that matter, I cannot hold him entitled to a gratuity." See, also, U. 8. v. 34 BarrreZs of Whisky, 9 Int. Rev. Rec. 169; U. S. v. Funkhouser, 4 Biss. 176, 183.
The question was directly passed upon in the case of four cutting machines, 3 Ben. 220, in which Judge Blatchford held that a person whose duty it is to disclose information, and who violates such duty if he does not disclose it, cannot be an informer, and that the person who imparted the information so as to be an informer, must be one who has imposed upon him no official duty to impart the information. Now it would appear that if Brakeman was under pay of the government aud received a salary or wages of any kind for his services inendeavoriilg to ferret out these frauds, any
information that he received it would bebis duty to disclose to the collector or other officer of the treasury departnient, and'that in the light of these authorities he could not be consideredan informer; but that, on the other hand, if he were simply employed by the special agent of the department to unearth these smuggling transactions, with the understanding that he should depend for his compensation solely upon his right to the informer's share, that he ought to l"eceive it. As the affidavits are silent upon this point I shall transmit this opinion to the secretary of the treasury, certifying the value of Brakeman's services to be $500, and that he is entitled to receive the same as the informer, in case he is not an officer of the United States within the meaning of the law.
UNITED STATES v. SANCHE and others.
(Circuit Court, W. D. Tennessee. June 22, 1881.)
UNITED STATES-REV. ST. t 5440-WRJilCKS, PLUNDERING OR'STEAL4 INI1 FROH-REv. ST. t 5358. The Revised Statutes, f 5440, make any conspiracy to commit an
LAW-CONSPffiACY TO CoMMIT AN OFFENCE
act declared by any law of the United States to be a crime, an offenc6 against the United States, and do not restrict it to such acts as injure the United States. It applies as well to all conspiracies that affect private rights or interests, where they are under the protection of the criminal laws of the United States, as to the rights and interests of the government itself. Held, theref<rre, that a conspiracy to plunder a wrecked vessel within the admiralty and maritiJ:\le jurisdiction of the United States is an offence against the United States within the meaning of that section, that act being a crime within Revised Statutes, f 5358.
2. SAME SUBJECT-DOING AN ACT TO EFFECT TIlE OBJECT OF THE CoNSPIRA.CY-SUFFICIENCY OF INDICTMENT.
An indictment that avers in any form of language that some act has been done to carry out the agreement is sufficient, .whether it appears from the face of the pleading that the act averred would tend to effect the object or not, that being a matter.of proof and a question for the jury. Held, therefore, that an averment that one of the alleged conspirators" furnished and loaned" a skiff to be used by the others in plundering a wrecked vesilBI, was within the statute and sufficient as a pleading.