UNITED STATES of America, Appellee, v. Bonn BROWN, Appellant, 505 F.2d 261

WIDENER, Circuit Judge: The defendant Brown was indicted in a one count indictment and subsequently convicted of conspiring to violate 18 U.S.C. § 1952. He was charged, along with Barron, Sawyers, Johnkoski, Gore and Schroath of conspiring to travel in interstate commerce and to use interstate facilities with the intent to carry on an unlawful activity, the activity being the giving and receiving of bribes under West Virginia law (W.Va. Code §§ 61-5-4 and 61-5-5). We vacate and remand for a new trial for reasons which follow. The conviction was appealed to this court and affirmed in United States v.

Sawyers, et al, 423 F.2d 1335 (4th Cir. 1970). Following the affirmance here, a petition for rehearing was filed which raised the following points; (1) the books of Southern Calvert Corporation were erroneously not required to bé produced and were excluded from evidence by the district court; (2) the Allen charge was erroneously given; and (3) the West Virginia bribery statutes involved in the case were unconstitutional.

We denied the petition on grounds (1) and (2), but remanded on ground (3), although not previously raised in the appeal “ . . .to stay the order of conviction until the West Virginia Supreme Court has resolved the issue now pending before it of the constitutionality of Sections 4 and 5,

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Chapter 61, of the West Virginia Code.” Following remand, the West Virginia Supreme Court held the statutes involved to be constitutional, and also held that a person in Johnkoski’s position could not have been bribed under the West Virginia statutes mentioned in the indictment because not a ministerial officer within the meaning of the statutes. The district court had treated Johnkoski, the Deputy State Highway Commissioner, as a ministerial officer of the State during the trial. And we hasten to add that, absent authoritative guidance from a State court, its ruling on this question seems quite correct.

But the West Virginia Supreme Court has since found otherwise, and we are bound by its ruling on this matter of State law. On appeal, the defendant now claims that, since Johnkoski was not a ministerial officer of the State, and since some of the acts for which he may have been convicted might have involved only himself and Johnkoski, who may not be guilty of accepting a bribe under West Virginia law, his conviction must be set aside. The United States argues that we should not take a narrow view of the State statute involved.

It points out that the evidence against Brown is ample to convict, and that, in all events, Brown did not raise the point here pressed on his direct appeal and the ruling of the West Virginia Supreme Court was beyond the scope of the remand. The indictment itself charges a violation of 18 U.S.C. § 1952 “in violation of Sections 4 and 5,

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Chapter 61, of the Code of West Virginia.” Since the indictment charged the violation of specific code sections (we imply no criticism on this account), and the West Virginia Supreme Court has construed those sections, whether we read them broadly or narrowly is of no moment, for we are bound by the State construction. Our view of the statutes is thus circumscribed, and Johnkoski may not be considered a ministerial officer subject to accepting a bribe. We agree with the government that the evidence is ample to sustain a conviction under many theories of the ease.

But the case was submitted to the jury on the basis that if “one or more of such persons do any act to effect the object of the conspiracy,” he might be found guilty. While this is a correct charge, the difficulty is that the jury might well have believed that Brown and Johnkoski alone were involved in one of the many instances of bribery which the evidence tended to show and based its verdict against Brown on such belief. Since Johnkoski was not subject to accepting a bribe under §§ 4 and 5, of

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Chapter 61, of the West Virginia Code, a conviction which might be based on the belief by the jury that he was a ministerial officer as defined by the Code sections may not stand. We repeat, the district judge had no way of anticipating the rulings of the West Virginia court in Carson and Gillespie. It is true that the defendant did not raise the claim now made in his direct appeal. But we think in the rare instance when a court of last resort has decided a matter of law binding on us, which results in an entirely different outcome of the ease under consideration, that we should heed the decision. See Yeaton v.

United States, 5 Cranch 281, 3 L.Ed. 101 (1809); United States v. Chambers, 291 U.S. 217, 223, 54 S.Ct. 434, 78 L.Ed. 763 (1934); Hamm v. Rock Hill, 379 U.S. 306, 313, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964); Bell v. Maryland, 378 U.S. 226, 237, 84 S.Ct. 1814, 12 L.Ed.2d 822; United States v. The Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49 (1801). Vacated and remanded for a new trial. . State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970); State ex rel. Gillespie v. Wood, 154 W.Va. 422, 175 S.E.2d 497 (1970).