United States v. Charles R. Harary

471 is, course, free to reexamine custody court of her chil umn with loss appropriate deem this if it should issue there Here confessed. she dren unless permissible. confessed, unless he threat no allowed see not would Graham reversed, directions is The order Haynes Washington, 373 children, v. cf. re- unless Graham the writ to issue 1336, 513 10 L.Ed.2d 503, S.Ct. 83 U.S. sixty days the issu- within tried any harm would come or that or such further of our mandate ance Connelly did All that Detective them. court, for as the district time reasonable to Graham make known was to shown, may good allow. cause rea persisted the detective in what denial, he sonably a false considered more with one or be confronted prospect was children. While does surely repugnant, the Constitution all un require police to avoid not investiga suspects in the

pleasantness especially seri so

tion of crime — immaterial It ous as homicide. People called could have whether America, UNITED STATES trial, former N. at a see the children Appellee, Y.Code Crim.Proc. 392. § v. investigative stage, early Gra in an HARARY, Appellant. arrest, Charles R. yet inif not under ham was house, 430, it was been at the fact he had not Docket 71-1933. No. job police’s ascertain who Appeals, States Court agree Appellate with the been.12 We Second Circuit. district court and with the Division 13, Argued Jan. 1972. People the burden here sustained 28, August showing statement Decided Feb. 1972. 26 doing so, involuntary. we was not “preponderance apply evi standard, Federal

dence” all Lego Twomey, requires. v. Constitution 619, 477, L.Ed.2d 30 92 404 S.Ct. that, (1972).13 thus hold We record, our

present there is no basis August precluding 26 state use of trial

ment a new trial. The state neigh voluntarily given.” officers, police Neces 12. to have been Two called during Appellate sarily, Division and the scream both the bor who bad beard Lucille baby crying, night, wom the statement volun had heard a district court found tary by saying preponderance sobbing, of the evidence. a man’s voice “shut Appeals up.” York did The New Court for ad clear whether the standard make by Huntley teaching following missibility judge, established 78, required by Huntley, 72, thought People the Federal Con N.Y.2d to be v. imposed simply as a mat N.E.2d or was stitution 255 N.Y.S.2d (1965), applied be for the It will now be ter of state law. “voluntariness Although yond con to decide whether to New York courts a reasonable doubt” standard. Huntley stringent opinion Appellate more follow the Division’s tinue to t required by ap point, explicit doubt standard on this supra. Lego Twomey, plied light recent decision the same standard they decide, Huntley courts federal district court like Whatever decision. . The concluded, court convic attacks on state basis the record collateral wise may only preponderance apply prior proceedings, the statement tions of all beyond proven doubt standard. a reasonable evidence “was Orleans, Fawer, Michael S. New La. (Paul Bender, City, New York of coun-

sel), defendant-appellant. for Jr., Phillips, Walter M. U. Asst. S. City Atty., (Whitney New York North F.Supp. D.C., also See Jr., Seymour, Atty., Y., S. D. U. S. N. Atty., Davis, Richard J. New U. Asst. S. appellee. City, York counsel), MEDINA, Before KAUFMAN Judges. TIMBERS, Circuit KAUFMAN, Circuit IRVING R. Judge: under certain

We must decide whether motion, upon timely circumstances right a lesser- defendant has although charged offense, as a included separate indictment, with- jury’s held from the when consideration rationally cannot return ver- greater dict of not guilty of lesser offense. judg- Harary appeals Charles giving ment conviction for Agent to an Internal Revenue in viola- 201(f), tion of 18 after a second U.S.C. § Judge trial Metzner. before rary, who was in a three-count conspiracy, 18 indictment with U.S.C. § 201(b) bribery, 18 U.S.C. § gratuity, argues gra- submitting erred tuity jury. Harary was ac- count to the quitted on the shall counts. For the reasons we set forth, we remand to the district court to dismiss the indict- with instructions ment. of facts will aid

A detailed statement clarifying are issue we difficult August, early upon resolve. called Wenig, Inspector with Harold Internal Rev- security branch audit,” a “normal he was outfit- Service, received termed enue information Meyer tape awith recorder. The brothers, two and Abraham Sut- ted concealed figure “payoff people.” capitalization ton, so-called continued were arranged Thereupon, Law- focus their Ostrow stated discussion. corporate rence to audit tax satisfied three let- he was years produced 1968 of ters which re- returns for the 1967 and Ltd., liquidation importer of Sutton, Sutton & counted estate ready-made wearing by apparel owned Suttons’ father fled from when he Instead, Syria Ostrow, previously to Israel.3 Ostrow de- the Suttons. who Wenig either had in in- manded a cancelled check or an af- conducted audits attempt fidavit stances where a was substantiate Suttons’ con- Meyer suspected, tention. At this first met with Ha- defendant Sutton was join rary, accountant, Sep- the Suttons’ asked conference. He ex- meeting plained how tember At this initial difficult would be 1970. to ob- requested questioned corpora- tain the corroboration the source pleaded Harary $199,000 capitalization.1 with tion’s Ostrow to reconsider his explained money “put Ostrow came from the demand. said it him liquidation family Syria, agreed out on limb” if estate waive his produce any demand. unable substanti- conference with was Sutton Accordingly, warning ation at that time. sec- ended with from Ostrow that meeting Septem- ond he would have into the scheduled look Suttons’ personal ber 22. returns the substantiation forthcoming large was not because September While at lunch on op- cash transactions the businesses rary casually asked in- Ostrow if he was might erated the Suttons furnish prostitutes they in the terested had en- light on capital. some source way countered on their to lunch. Ostrow disinterest, quickly expressed even 22nd, capitali- After lunch on the Harary pay when stated he would again. item zation was discussed Al- Finally, cost. over termi- drinks at the though repeatedly Ostrow forth set meeting Harary day, nation of the required, Harary substantiation give offered to Ostrow a camera Yashica pressed Ostrow with the Suttons’ desire Although valued at than more Os- $200. capitaliza- conclude that too, Harary trow declined offer un- suggested satisfactory tion was com- successfully persisted, stating he would pensating Ostrow in return. It was ready to sell Ostrow the camera for then that Ostrow indicated his interest which, chuckle, he added with a $15 by asking Harary: in a bribe “What do its cost.2 you want me to two talked do?” The immediately Wenig briefly capitalization Ostrow about informed and the early substantiation, requisite of these overtures. When Ostrow be- September meeting explicit: “Maybe returned for came more we can Wenig you compensate with what with some women or continue question propri 1. 3. letter the writer No was raised over indicated ety capitalization figure, liquidation. accomplish was unable to corporation’s other written could not affect taxes. Tho two letters were Ostrow, Republic however, Nasser, intimated that he would Jack counsel Philippines explained deficiency He tlie Israel. recommend a tax be as large liquidat- against personally un sessed Suttons tlie difficulties and costs Syria ing tlie estate in which had less could substantiate was forced came from a source left when the senior Sutton nontaxable Israel, reported. properly that he to flee to and indicated income from taxable forwarding approxi- the residue of was mately $200,000. Harary brought the camera from the Sut- bag. paper ton in a brown He offices explained A1 Sutton had taken from one their stores. money.” you some “What do virtually want me govern- the same course. The do,” repeated. Ostrow When solely ment’s case consisted of the un- proposed again that Ostrow should testimony avoid contradieted Ostrow questioning capitalization Wenig establishing item in his the facts to which report, responded: “Keep talk- we have alluded. relied essen- ing.” Harary then made an tially initial offer cross-examination Ostrow indicated that he prosecution $250. witnesses to establish just and, not satisfied this nibble entrapment—although his sole defense — by repeatedly responding keep “to talk- three character witnesses testified on ing anything you as to else want me to his behalf. The summation both the do,” induced prosecution to raise his offer and the defense centered on agreed accept before Ostrow entrapment. the issue of At the first that sum. Ostrow trial, cash that denying Harary’s motion to with- afternoon.4 gratuity jury, hold count from the Judge jury Metzner instructed the on Wenig arrested one week later all three counts as well as on the defense brought him before two Assistant entrapment. however, actuality, In Attorneys questioning. States gratuity count considered as a properly rights, He was advised bribery lesser-included offense of initially attorney declined to call his separate Judge not as a count since quickly paid admitted that he had jury Metzner instructed that should Upon reconsidering, “bribe.” gratuity consider the if it count rary decided to consult with his attor- guilty bribery.6 found ney. conferring After counsel returning charge After twice to have the presence, again in his to the admitted entrapment finally taking (and on read Attorneys Assistant United States that charge copy jury room), of the paid indeed had a “bribe” and added the foreman announced at of two the end that he had made the initial overture. days jurors of deliberations Suttons, according He and the to his could not reach a verdict. At the second statement,- had Septem- decided after the strategy trial, Harary continued the meeting ber 1 “ap- that Ostrow was employed at the first trial and re- proachable.” peatedly gratuity moved strike the The followed, count,7 three-count Judge indictment but Metzner denied those payment based As we $1250.5 motions and instructed the on this already indicated, Harary issue he had at the first This as trial. twice, tried having time, trial result- however, returned a ver- ed in a mistrial. guilty Both followed trials dict of not actually 4. bribery, told the Suttons as defined 18 U.S.C. § agree (b) (2). he was unless A lesser-included offense is Harary kept commonly $2000. for him defined as one which is estab self. by proof lished of all or less than all of required greater facts establish the 5. The Suttons also were named as defend- short, offense. is of a kind request ants in the At indictment. greater one cannot commit offense government, Harary’s trial was committing without lesser offense. Meyer severed. Co-defendants and Abra- Moore, See 8 Federal Practice 31.03 § 6, ham Sutton went to trial on October authorities cited therein. [2] and acquittal A 1971. directed verdict granted Meyer as Abraham and made the motion at the outset bribery convicted of and sentenced to im- of the trial and renewed it at the end prisonment year. for one government’s case and the close of judgment the evidence. He moved for a parties agree 6. Both offense acquittal giving gratuity, re- verdict was as defined in 18 U.S.C. 201(f), § is a lesser-included offense of turned. States, counts See also Berra v. United 351 U.S. 131, (1956); 685,100 count.8 76 S.Ct. L.Ed. 1013 Sparf States, 51, v. United main, Harary argues In the that San- 273, (1895). Harary S.Ct. 39 L.Ed. 343 States, 343, sone United 380 U.S. 349- urges gov- principle binds the 13 L.Ed.2d 882 defendant, ernment as well as the requires reversal of the convic- significance of no is Supreme tion. Court instructed lesser-included offense is Scmsone that a defendant not have does separate the indictment. right an absolute to a lesser-included charge “disput- offense unless there is a I.

ed factual element” which would allow jury rationally to conclude therefore, question, is threshold offense, defendant of the lesser whether adduced the evidence greater but not the offense: presented disputed factual element charge require But a not which Sansone decided would lesser-offense where, proper present- Bribery lesser-offense the evidence instruction. ed, 201(b) (2) defined to in- factual issues be resolved § U.S..C. public anything clude official are the same as both greater lesser and of value with the intent offenses. . influence words, In other the lesser to commit fraud on United States.9 giving not, offense, gratuity, The lesser a must be included within but on case, 201(f) giving completely to a the facts be defined include § public encompassed by greater. anything official “for A less- value only any performed or er-included instruction because of official act charged greater performed” by proper or to where the of- be him.10 The distinguishes requires fense to a element which dis- find giving specific puted iris- re- from a factual element which is not quired required tent to for conviction of the lesser- which is influence (Citations bribery. included offense. omit- conviction See United States (2d ted.) Umans, F.2d 728-730 $20,000 Shall be fined not more than At the second trial returned monetary rereading entrapment equivalent or three times once for a value, great- thing charge, although whichever is it returned a second time er, request Judge imprisoned repeat than fif- or for not more Metzner both, may years, charge dis- teen or on each the indictment " qualified holding any office of third time to hear once more trust, profit honor, charge gratuity. under the on or States. 201(b) (2) provides: 9. 18 U.S.C. § 201(f) (b) provides: "Whoever, directly indirectly, 10. 18 U.S.C. § or Whoever, pro- corruptly any- gives, promises (f) otherwise than as or offers discharge by proper thing any public vided law for value official or indirectly directly person duty, or who official has been selected to be a offers, anything gives, promises public official, promises or or offers or pub- any public official, any public any person former value official or who official, person public be a or selected to has lic been selected to be a official any give any public official, anything of- for or because of other of value performed persons entity, performed or to be witli ficial act or intent— public public official, of- former such 'l* public (2) ficial, person public to be a to influence official or or selected such person who to be a official . has selected $10,000 public than be fined not more commit aid in com- Shall official or imprisoned mitting, allow, than two in, or not more or collude years, opportunity or both. fraud or make for the com- any fraud, mission the United States; said, Harary people don’t improvi since 1966), Mr. cert. dismissed as Cir. agent and if the looks dently like trouble long enough granted, 389 U.S. going upon (1967). he is to find Based 19 L.Ed.2d 255 wrong, they record, something had it is decided examination of the careful pay disputed in him. issiie clear this case. Harary And Mr. then stated felt Putting he and Suttons the de- for the moment aside meeting the initial Agent with Revenue entrapment, fense we observe that September specific not con- element of intent was agent approachable estab- appellant and was tested by Harary’s extrajudicial had perforce that was the reason that lished Wenig attempt. tried this to which testified. admissions Harary Although it is true that when Then Mr. was asked who “bribe,” he did admitted one that was the made the initial language in his statute bribe; overture of the who was the hand, Harary’s present. counsel was bribe, offered one that first following testimony Moreover, the Mr. that he stated Wenig Harary’s corrupt Inspector in- one that first and the bribe offered expressed by in his tentions as agent. agent not the didn’t beyond presence indicates counsel’s bribe; any pitch make for a had intended shadow of a doubt he was the one. Then he asked to influence Ostrow believed money how much did he ask the way money payment was the pay Suttons for to the Revenue off it: achieve that when stated Suttons, spoken he had “A. He Assistant United States [the Attorney] Revenue had told them that Agent first asked Mr. agreed $2,000 accept pay did he to Rev- bribe Sutton, Sutton, Agent and and when Mr. Abe enue Lawrence Ostrow place Harary had from the ‘Yes’ and then Mr. come back Mr. said Harary $2,000, obtained this was instru- where had was asked who he given money to Mr. Ha- pushing and he had rary this this bribe mental if and Mr. was asked that the Sutton Mr. stated money kept any him- that for it Brothers were behind and is, ‘Yes,’ Harary, that he took had Mr. that the self and he said asked kept it that and had asked Mr. Ha- out of Sutton Brothers $750 telling himself, rary the then he for without Sut- to close the 'deal and doing with- why and tons what was was the bribe was asked Agent.” telling the Revenue that he was out and Mr. giving stated a blow- Sutton Brothers the circumstances, would tax it Under these by-blow description the of what payment credulity the to conclude that during doing Agent Revenue was (after offers and lower earlier $1250 when the Rev- examination rejected), Ost had in return for been that enue told Mr. anything malfeasance, but was row’s possible tax assess- there could be 11 outright Moreover, auc bribery. communi- $60,000, ment of bargaining Ostrow tion between cated this fact the Suttons payment hypo made until 1 where 1. We find it to illustrate difficult element money given is taken and action dur official thetical situations where unprovable. bargain corrupt govern or ing is absent the course of or other an audit Pro 1362 given to § See the Comment without ment examination will be the Na posed bribery Code of required Federal Criminal convic the intent for a Federal on Reform tional Commission was tion. The offense designed primarily apply Laws. to situations Criminal incongruous hypoth- rary totally wholly genious, con- unrealistic with the but rely esis, cept gratuity. on the evidence in we record, complete absence of noted, contrary to im- It should be slightest suggestion the defense plications opinion dissent- our fig- relying trial that it this was ing brother, that it not have Indeed, acquittal. it ment to secure an necessary for the to determine gov- significance is not of little something “wrong” was with the tax re- sug- never seen fit even to ernment has auditing it turns Ostrow before gest argument itself to extricate could return a verdict misguided proved be from what Certainly, count. dissenting opinion, which tactics. money agent paid to an induce trial, no mention of makes money paid to terminate audit drama of seems to have rewritten per- intent to influence spellbind- to fit the second trial its own duties, formance of his official even ing Thus, appears to be dis- scenario. persons responsible payment for the cussing little a case which bears resem- ultimately they of the view that will are reviewing. blance we are liability. avoid additional tax issue, Intent, as course was Furthermore, light Harary’s ad- always bribery case, in is in a the sense relating missions his earlier offers could not have directed a prostitute camera and government for and the verdict bargaining money over amount of testimony free disbelieve paid Ostrow, there is no basis Judge Wenig. But, Chief hypothesis our fanciful brother’s Friendly principle in stated the jury reasonably concluded Markis, (2d 352 F.2d States v. pure was as as fresh driven grounds, 1965), vacated other Cir. snow bribe and that he had L.Ed.2d desire or intention whatsoever to cor- (1967): “The mere fact ruptly influence Ostrow. We are asked por free to still disbelieve this intriguing accept thought agent’s testimony tion of the to ex [as participating scheme which ended trajudicial attacked admissions neither being Harary’s paid $1250, in Ostrow nor not elevate the does contradicted] purpose sole secure a “fee” truly one; ‘disputed’ in the issue to able does not himself. Our brother language 1.- Model Penal Code § any support in the record for provide 07(5) ‘a ra it does not The record we this resourceful thesis. acquitting tional for a verdict the basis any is of have examined barren indeed and defendant the offense theory. Instead, basis for such a ” convicting him of included offense.’ the clearly from the outset indicates that Harary’s compelling primary and motive Thus, if can conclude the court was to influence his official presented of the evidence basis good position and secure Ostrow’s thus man, solely weighing that no reasonable Although will on behalf of clients. light applicable the evidence the decided to share at some guilty law, find defendant could the negated hardly Harary’s spoils, the this time the lesser and at the same offense overriding and intent to bribe clear offense, greater guilty no dis not of the Rather, his desire it reinforced Ostrow. present puted could be element factual Surely, paid. dis- the bribe be the give compel which the court suggesting an ac- sent cannot be offense instruction. the lesser-included put ruefully ability “to one countant’s argues But, government the gov- the a who to bribe on clients seek over” might jury did in- have decided protect account- ernment official will the in his conduct Finally, tend to influence Ostrow bribery prosecution. from a ant entrapped. audit, he was dissenting the in- rejecting brother’s our

478 guilty States, jury not rule. v. find him Stevenson 162 could thus United The 313, difficulty 839, bribery. 16 with this ex- U.S. S.Ct. 40 L.Ed. 980 The jury’s (1896); planation Markis, v. verdict United States 352 of the F.2d is it does not afford at 866. con- basis rational proper “the The case is one where fact, justifi- can no see viction. we consistently jury may find defendant concluding whatsoever cation greater guilty innocent of the presented, us that facts jury is lesser offense. The included bribe, giving entrapped into a have been given carte blanche the de find gratuity. If into only fendant offense lesser willing ready to commit guilt necessarily when such establishes logical offense, only in the is circum- guilt greater Fuller offense.” that he would stances before us 264, States, U.S.App.D.C. v. 132 United willing ready to commit (en banc), (1968) 1199, 407 1229 F.2d other. 1120, 999, denied, 89 cert. 393 U.S. S.Ct. (1969). If 22 125 there L.Ed.2d II. concerning dispute an element factual offenses, distinguishes to in remaining question, which specifi only in “would on both open struct offenses cally left Court United [great pick 1007, vite the between Magnus, F.2d 1010- v. 365 States determine er and so as to (2d 1966), lesser] 386 denied, 1011 Cir. cert. duty imposed, punishment Con 856, to be 909, L.Ed.2d 783 17 87 S.Ct. gress traditionally judge.” holding left has (1967), the Sansone is whether States, at United prosecution Sansone v. 380 U.S. applies as the to the as well 1009; see Berra v. 6, at policies n. underlie 350 which defense. 135, Sansone, 76 States, 351 U.S. S.Ct. of de United the culmination of a line States, 685; Sparf U.S. at dating v. 156 United 1895, can lead cisions back Although 63-64, prosecution 15 only S.Ct. one conclusion: “in go power jury, objection has the to render verdict cannot over the facts,” Horning defendant, v. of both on both lesser teeth law Columbia, 135, 41 greater 254 U.S. District offense unless an element 53, distinguishes disputed. S.Ct. 65 L.Ed. 185 the two jury on Moore, a lesser of not instruct See 31.03 Federal Practice should ¶ objection prosecu 31-20, 35; fense over [3], at n. United Cf. defense, Casscles, serves tion instruction F. ex rel. Hall v. States only encourage to exceed its Supp. (S.D.N.Y.1971). factfinding. As function historical 31(c) of Rules Rule the Federal “The Harlan stated: late Justice provides of Criminal Procedure jury in a federal criminal role of the may “defendant found fact, issues to decide necessarily of included given by taking court. law charged.” rule, This which carries fense 102, 51, States, Sparf 156 U.S. Act of forward June § Certainly 273, 39 L.Ed. [15 343.] S.Ct. designed initially to 17 Stat. change 31(c) Rule never intended prosecution its aid. the when evidence jury.” this traditional of the function charged proving fell short the offense 134, States, United 351 at Berra v. U.S. v. See United States the in indictment. at 688. Markis, 866; Kelly 352 F.2d v. at United Sansone, States, 205, U.S.App.D.C. 125 F.2d The 370 rationale reference, recog 227, denied, 229 which made cert. 388 U.S. we have although 913, jury, the the defend 2127, 87 18 L.Ed.2d 1355 S.Ct. nizes greater (1967); Moore, guilty the of 8 Federal ant is in fact Practice ¶ by fense, may cases, ex appropriate easier course how the 31.03 take [1]. may ercising power and ever, mercy-dispensing the defense of the avail itself its

479 illustrated), guilty reached return a verdict on the lesser of- com- ground fense, thereby duty. through shirking compromise. a mon its sworn however, ap- comprehend how, underlying principle, Otherwise, The we cannot plies equally prosecution basis of seeks the evidence when we have the already recited, on an instruction offense. it find that the lesser the jury, agree if cannot it on the basic facts established the offense of a may outright gratuity bribery. issue of guilt, seek the of mere course not jury least resistance in the room un- government,' told, are we justly on in- convict the lesser offense right jury had an absolute to have the forthrightly acquitting. stead of Those gratuity offense because vineyard who have in the of liti- labored gra separate a indictment contained the gation aware that a are where the is tuity government, however, count. The was, government, hard the of the San avoid the cannot strictures will it its can consider task done if se- by simple expedient sone doctrine advantage jury offering cure “the asking grand jury include the less apt a in- choice —a situation which separate er offense as a count in the jury duce a doubtful defend- find the States, See Fuller v. indictment. United ant less serious offense separate F.2d at 1230.13 A count 407 rather than continue debate light purpose little serves of Rule 31 .” Indiana, 385 Cichos v. permits (c), charge the court 271, 76, 81, 17 L.Ed.2d 175 S.Ct. jury appropri a lesser offense (1966) (Fortas, J., dissenting). despite separate ate cases the absence a rary’s repeated motions to dismiss count in indictment. avoid the inconsistent holding So that of our boundaries compromise verdict which resulted clear, emphasize are we that we do not willingness foregoing a exhibited to risk consider to be reversible error to sub- sympathy bring a a verdict which could charge jury mit a lesser unless years maximum sentence of two instead “disputed factual element” which dis- years. judgment of fifteen His counsel’s tinguishes present and, offenses fear, fully justified was based on the addition, defendant makes time- trial, the first ly objection motion trial. Cf. agree entrap- be able to on the issue of States, Fuller v. United 407 F.2d at ment of re- count and thus 1230-1231. Indeed, easy way sort out.12 Since cannot retried on the be difficulty in must greater have encountered acquittal offense of his because agreeing (as, count, fact, only on a re- verdict our course mutuality, charge proper, 12. a rare We are view that it will may prosecu- will not case indeed when defendant be demanded either the advantage why want lesser-offense tion or defense. AVe see no reason charge. reasons, prosecution option all-or- For obvious should have an defendant, being nothing risk which the defendant here unavailable to able willing strategy. is an to take unusual insist render a verdict fully recognize, also, compro notwithstanding We on the lesser per greater offense, mise or inconsistent verdicts are verdict of grounds se realize on that for reversal. Dunn v. and should be able to simple technique filing States, option 284 U.S. S.Ct. ; (1932) rather an indictment in two counts than L.Ed. United States hardly omitted.) (Footnotes Magnus, F.2d at This one. Judge Burger, conclusion, however, now Chief Justice leads to the vigorous objection States, in both . the United concurred the face panel opinions. give charge en bane serve should that can inducing purpose such verdicts. : The Fuller court stated general chargeability lesser In of principle offenses rests on a included 480 year large pending court 1

mand the district with instruc is at to on bail appeal. the indictment. Green tions to dismiss determination of this States, v. United Although (1957). L.Ed.2d 199 I guilt bribery of of evidence makes us judgment to of reluctant reverse The sole raised is giving gratuity denying

conviction on mere in erred defendant’s mo- too, attempted we, find of this saga gratuity cor tion to withdraw the count from “revolting,” ruption aof federal official jury. the consideration this of As justified appellate and, court can never be a lesser-included as short-sighted preoccupation jury in instructed, a was there could have shepherding guilty the conviction defend no verdict of both the charge bribery ant no valid gratuity counts, on a which has basis and the on the evidence. We find it difficult to support the evidence was sufficient a why pro has understand our brother guilty bribery-, verdict of of totally premise argues gratu- ceeded irrelevant that the submission of the “jurors peo smarter some are than ity “the count error because: was evi- they are,” except ple think it indi only support dence could a verdict of view in cates his that the guilty bribery acquittal wise or an rea- finding guilty something, entrapment”; son of submission wrong thing. If even if was the this gratuity was an invitation principle valid then no we useful bring verdict, see compromise in a and “to purpose judges. Our able brother’s province traditionally invade left resourceful characterization of the rec punish- imposition court —the mesmerizing, only ord, while argument distracts prevails If ment.” this question of law to from the difficult rary, open- in his whose counsel admitted pays ing so little attention. Agent, to the Revenue will a and remanded to Reversed the district man, protected free verdict ac- dismiss the court with instructions bribery quittal conspiracy and indictment. prosecution. counts from further It no is clear me there is merit Judge (dissenting): MEDINA, Circuit arguments prof- in whatever Harary’s simple fered on behalf. In Harary, a Certified Public R. Charles allege in Government chose judgment Accountant, appeals three the indictment each counts jury, upon verdict of a entered to, pleaded the defendant above referred Judge Metzner, convicting a trial before put in count. This each giving gratuity Internal him to an every allegation material U.S.C., each issue Agent violation of 18 Revenue was no set in each count. forth There 201(f). The indictment Section proofs to sift occasion discover conspiracy Harary: 1 with Count any dispute. pursued inquiry This giving give bribe; 2 with in Count States, v. 380 U.S. Sansone corrupt intent specific bribe with 1004, 13 L.Ed.2d 882 Agent's S.Ct. audit of the Revenue influence Markis, and United States & Sut- tax returns Sutton income heavily (2d so 1965) 352 F.2d 860 Cir. U.S.C., ton, Sec- Ltd., in violation by Harary, the in- upon relied because giving 201(b); 3 with and in Count tion did these dictment cases each of Revenue Internal charge allege commission of U.S.C., 201(f). Section violation of it' each of these lesser offense. cases acquitted record showed found found to bribe and dispute, The re- no issue. and hence gratuity. He charge of- quested the lesser-included imprisonment to a term sentenced corruption part of accordingly tions denied. The less- Rev- fense was Agents taxpayers, literally and was not in the case. enue received er tip guilty put pleas in an informant that Sutton & not our case the Ltd., gratuity allegations Sutton, operated a series issue stores, making Harary did retail discount was cash count as well as the others. pay-offs municipal employees. testify to Conse- His in own defense. his corporate quently, ordered proofs he tax re- wit- consisted a few character ai; and caused turns sent to once nesses. between The vital difference Agent Ostrow, Revenue Lawrence with bribery count and the before, Inspector bribery had worked whom the was that a verdict of audit,” assigned “routine finding to make a specific to be had to on a of a be based although had been no such audit contem- intent to act of influence official gave plated. Inspector Ostrow Agent, The such Revenue whereas no explicit was free to necessary most directions. He finding to was establish taxpayer’s expense. eat drink at payment and gratuity. It sole of a was was, however, no circumstanc- He under to not to function of or find any mak- discussion about requi- initiate es find that entertained ing gifts money. any paying bribery But if alleged or specific site in intent made, report was to ample “overtures” were he proof to And there count. play for time un- gra- at and then them once support the verdict get arrangements made til be tuity count. Attorney approval General claim that and The conceded to record for sound order wire Ostrow “again then conceded factual ele- following might any made offer that be charge” supporting ments it came down When the “overtures.” money, pure This would nonsense. offered, any he could the mon- meant that conceded bargain taxpayer to in- induce the ey specific intent to influence with long offer so crease the performance of in the Revenue subject. bring up the the first one duty. made Counsel for amazing quickly concession, oth- how the business such nor concession It is paid the first conference er that he Ostrow’s than was done. Agent. Harary, both refers to and one Revenue counsel or What 1, September testimony prosecu- Brothers, adduced Sutton place of business. questions tion answers of the Suttons’ corporate tax re- an Assistant United of the two his statement to July period Attorney shortly arrest. an initial after his States turns was purpose August for the 21 to accounting period. establishing an II corporate return was tax The second already I think what has said August September period judg- sufficient demonstrate that in- perfunctory After few ment I review should affirmed. items, shall expens- concerning quiries income evidence, however, and discuss the be- on an inventory, zeroed in Ostrow es and jurors cause I am convinced representing capitaliza- item of proper thoroughly reached a sensible money come from ? tion. Where did By respect rational conclusion with Harary were lunch time Ostrow every of the three counts submitted together. They chummy. very lunch them. instructions the services offered respect every were accurate charge, but Ostrow prostitute, free ambiguity repeti- confusion, free from says Nevertheless the offer. he declined tion. frequented place around went over, them prostitutes to look Inspector these August Sometime Harary also of- investiga- Wenig, charge was there. Harold none large camera, at or a dis- Suttons’. It turned out later that the fered a free recording Nothing of this. was so full of inaudibles that count. came not received in at evidence the spent of dis- Most the afternoon was, however, extensively It trial. used cussing $199,000. The Sut- item of the Ostrow, on the cross-examination of very large had father tons said their greater part consumed the holdings Syria Lebanon, and trial. they $199,000 represented what item morning September On of sacrifice, salvage, great at able to were pulled stops. Ostrow out all the He through cooperation Ar- of certain doubted whether even the cancelled letters, They produced the most abs. checks or affidavits would Arabs of “we have succeed- recent which stated satisfy Harary him. He told and one you liquidating and ed in estate of the Suttons that had to be able to getting of a small the overall sum are trace the of funds flow the from their anyone might estate.” Ostrow said But corporation. into source And he these letters. have written What they said twice that could not sub- affidavits, Syr- notarized needed were stantiate the item sat- of his to do this For an Arab ia Lebanon. isfaction, he have to would assess tax get money country help Jew to $60,000 against the two indi- Suttons committing suicide, be like Os- would vidually. predictable result was Nothing him. satisfied trow was told. that, expense at another lunch moneys slips deposit showed began Suttons, Harary to talk had Ostrow from abroad. But came brought money. It the sub- was he who checks, which were not the cancelled see instructions, ject up. Os- True his obtainable. talking.” Harary “keep told trow So, after 4 hours of about so-called Starting Harary up $250, at was soon 1, 1970, September audit on Ostrow re- At this he told Ostrow $1000. Wenig good Inspector turned to with $1000, confidentially that of the $750 Harary news had made antici- go Harary would would Ostrow and “overtures,” meaning pated the offer of Finally, himself. keep the other $250 prostitute services and the Harary get told Ostrow was to $1250. arranged camera. had Ostrow that Ostrow wanted Suttons $2000. him, Harary bring September brought one of the Suttons And when individual tax returns two Sut- bag, paper in a brown $2000 had called off so that tons. This be kept gave other and to Ostrow $1250 arrangements wiring for for story. revolting It himself. completed could before the sound meeting days A few arrested. expected later which was being finger- photographed money. After A make an offer of new printed, he was taken to office the “au- conference for continuance of given 22, 1970, Attorney, the Mi- September United dit” States was set warnings randa and interviewed. His place also at the Sut- business Wenig Inspector attorney approval came, came over. tons. When the time Attorney having and at least Attorneys two Assistant States been ob- General by plac- One of them tained, up” were there. “wired Ostrow was advantage ing explained to a KEL about the size transmitter Wenig cooperation. Inspector king-sized cigarette also told person, case his they good Wenig Inspector so occurred, listen to what solid against somebody by placing him and that “when a Miniform re- certainly they cooperates perma- in and comes corder briefcase make a his played given are sort consideration nent record that could be back. some private Accordingly, after found the court.” Ostrow was searched to have Ostrow, attorney, Inspector discussion with Then the $19. others, gave question an- perhaps drove the statement over are strongly count. Jurors relied on is so swer form people think are. than some smarter “concession” here as a counsel alleged on each I believe the verdicts only sup- consistent three counts were indictment. 2 of the This Count they represent entrap- proofs, posed the issue to leave disposition very jury and rational the sensible consideration ment for the count, bribery the case. of all the issues in with the in connection and the despite the that statute the fact jury Harary if Even the believed that finding required a judge’s instructions made the statement attributed to him specific paid with a money was that the by Inspector Wenig, the was statement of the audit Ostrow’s to influence intent attempt in an the made obvious to aid Sutton, & tax returns Sutton income prosecution in Government the Ltd. jury obliged The was not to Suttons. be- by Harary lieve that the statement, Suttons told or Ha- Harary’s testified as Agent rary told that the Suttons the if Wenig, was: enough long looked he would find some- Harary [Maloney] asked Mr. thing. word “bribe” in the first The pay did he to Revenue bribe may thought question by have been Ha- Agent Lawrence Ostrow Mr. rary merely payment to refer Harary rary then “Yes” and Mr. said money, to include the and not such in was instrumental asked who was specific technical matter as a intent to Harary pushing this bribe and Mr. Agent to do an official act. cause Brothers were that the Sutton stated Mr. it and had asked behind Despite the that fact burden of * * * Harary to close the deal prosecutor’s per- summation was to why was asked was and then he jury guilty Harary to suade find paid stated that and Mr. bribe bribery, and the burden defense coun- Brothers the Sutton he was persuade sel’s summation to was blow-by-blow description of what jury acquit to because of en- Agent doing during Revenue trapment, there were overtones that Revenue examination and when the scarcely escaped attention could that there told Mr. jury. argument Sometimes possible tax could be a assessment way of indirection is the most effective. $60,000, he had communicated this Here, every spoken word defense fact to and Mr. Suttons support the defense of en- counsel said, people since don’t like trouble trapment also to convince the served long enough agent looks $199,000 affair of the the whole wrong, something going find stage pure play, and that Ha- item was pay they had him. decided get rary stage play pure it knew was money. way acted from The Ostrow proofs There is no doubt gave Harary impression the first supported guilty would have a verdict of looking for a hand-out. charged he was to bribe as deposit rejection of letters and the Count verdict of of brib- slips, perfectly ridiculous state- and the They ery as Count 2. could he would have Ostrow that rejecting ment have done this against the Sut- a tax assess entrapment, a re- such defense individually unless he could tons jection justified by testi- Ostrow’s tracing proof the funds shown mony offer in the case of the Syria origin into or Lebanon their prostitute and the the free services pure una- corporate account, bank camera, case of the as well as in the Harary must have hokum. dulterated money, initi- it was who took the authority to no known that Ostrow there was But counsel tells us ative. impose im- such or to a tax assess acquittal such for an rational basis might this At least possible finding guilt conditions. bribery count, racy well the reaction of have been what intentions were in do- ing procedure doing things fantastic Ostrow’s or not certain lay trap Harary. knowledge. tried hard so the state of his And, fashion, jury reasoned in if the this nothing I find in the record to indi- suppose not too it also much seems any time, jury, cate that con- nothing wrong concluded that there was any compromise cerned itself with or Sutton, in the tax returns of Sutton & subject punishment with the Ltd., bribing and no Harary. be meted out to theory, anything. do there was On was instructed decide the finding ample prose- for a basis first, and told established, jury’s cution had not charge of not turn to the lesser-included money satisfaction, decided until it had specific intent with the influence an so, bribery count. on the And official act Ostrow. On this same verdict, just bringing before in its theory, of not a verdict the con- instructions asked that rationally justi- spiracy also count was gratuity subject count be read fied. It must be recalled while the it, the state and this was done. On “gratuity” appears conspir- word guilty on the record verdict of acy count, allegation solely inevitable. count was conspiracy specific in- with the bribe in this justice done been think I has to; and tent referred this is the above from the respectfully dissent case interpretation count of conviction. judgment reversal adopted instruc- trial his jury. tions to the equally

Another rational basis for acquittal

verdict of that, jury may have concluded may intent of

whatever been Suttons, whose case had sev- trial, prior specific pur- ered

pose and intent of was not induce the Revenue do of- RELATIONS LABOR NATIONAL get ficial but rather the $750 act Petitioner, BOARD, put pocket. own his jury’s function to decide It was ASSOCIATES, K.G. TURNER proved, whether the Government Respondent. beyond its satisfaction reasonable No. 71-1070. doubt, Harary, at the time he specific in- $1250, entertained Appeals, United States Court corruptly do tent influence Ostrow to Ninth Circuit. judge in- As an official act. March jury: structed impossible obviously It to ascer- directly prove what a tain man look

knew You cannot or intended. person’s and see what

into a mind knew. were or what

intentions intelligent But a careful and consider-

ation of and circumstances the facts any given

shown evidence person’s actions and state- as to infer with a rea-

ments enables us to degree certainty accu-

sonable

Case Details

Case Name: United States v. Charles R. Harary

Court Name: Court of Appeals for the Second Circuit

Date Published: Feb 28, 1972

Citation: 457 F.2d 471

Docket Number: 430, Docket 71-1933

Court Abbreviation: 2d Cir.