United States v. David Bernard Barash

MOORE, Before FRIENDLY FEINBERG, Judges. Circuit

MOORE, Judge: Circuit appeal by This is an Bernard David judgment

Barash from a of conviction court, entered him in the district ten-day after a trial. The case was upon before the district remand previous after this court reversed a con- viction of Barash at a first trial. Unit- Barash, ed States v. 365 F.2d 395 The indictment named a cer- public tified attorney, accountant relating 32 counts 16 transactions alleged which made im- intent, (2) payment alone Internal element to several proper intent. agents to establish return sufficient Revenue Service adjustments in connection trial, favorable thirteen were At the second returns personal income tax audits representing, num- pairs of counts through 12 Counts clients. Barash’s identically as, which those bered offering, promising charged him with at convicted the first had been Barash trial, agents giving intent to with bribes 3 and charging payments unlawful in audit examinations office to influence Coady. Clyne, On October and DeSibio 201, prior of 18 U.S.C. § violation 1967, of 21, a verdict returned through charged him and counts 10, guilty 8, 18, 28- 20-26 and on counts of the in same violation crime with either other counts the 32. On the 201(b).1 statute, present 18 U.S.C. guilty, § re- of not a verdict returned through charged a viola agree. Counts 17 ported was unable 201(f), makes which of 18 U.S.C. tion § was concurrent Barash sentenced pay public a a sum it a crime official imprisonment nine months terms of money “for or because of of $1,000 on of counts a of each and fine by performed” performed or to be act 28-32; imprison- of and to terms 21-26 charged through them. Counts years, suspended, ment of five execution abetting2 the with and Barash $2,500 on of counts a of each fine 7214(a) of violation 26 U.S.C. 10; imprisonment § and to terms 8 and of proscribes revenue officers years, suspended of two execution demanding receiving knowingly sums probation years, of and a of five fine except prescribed law. $2,500 on and 20. The each of counts 18 $21,000. total fine was acquit- trial, Barash first theAt 27, 17, 13, and 15, ted The Facts alleged relating unlawful against agents Montel- case Barash Government’s Revenue Service Internal agents testimony Wolf, convicted consisted but lo and Clyne DeSibio, pleaded had remaining concerned and against Coady. charges He them in Clyne, agents and DeSibio Coady, indictment, a and terms Govern to concurrent sentenced day agent. Clyne, involved year ment undercover and imprisonment of a re- re appeal, in all three of transactions each count. On substantially convictions, gave sulting be- trial new remanded and versed erroneously testimony the same hearsay second cause im- tes at the first.3 He admitted, cross-examination paid tified him a that Barash total properly and restricted name- respects, for false audits followed $225 error in two was in succeeding each of the lesser sums in ly, (1) of economic harm threat Olyne through Barash inform to transac- would clients 16 relate 1. Counts January place received “call-in” who had structing letters took after tions which appear present them to for audit of came into statute when the group agents present 201(b) their returns contains force. Olyne. prior violation change included of of- of substance procedures would obtain the fice States v. See United papers returns from his related f. 1 supervisor’s assign the audits file 2(b) will- “Whoever reads: 2. 18 U.S.C. suggest Barash himself. would rela- fully if done which an act to be causes tively small disallowances unsubstan- directly performed him or another for travel and tiated deductions enter- the United be an offense would expenses, tainment offer principal.” punishable as a Clyne compensation passing for thus appeal opinion returns. 365 F.2d at 398. the first 3. The of the transactions the nature summarized : as follows gave testimony years. defense of economic three DeSibio coercion from the jury’s in 1961 in- similar transactions consideration of two under volving payments about each. U.S.C. $25 agent, provisions 201(f), covering the undercover testified Coady, unlaw- upon gratuities. ful he met an in- In the first appeal former Internal Revenue troduction this case we said: Lupeseo,4 auditor, Miss Jeanne Service government We think that if a officer assigned request of Barash threatens serious economic loss unless himself, contrary to normal an audit paid giving a citizen due, approved procedure, office certain latter is entitled to have the con any inquiry deductions as to without this, complete sider not as a defense accuracy. later, their A few minutes like bearing duress spe but as Coady’s according testimony, required cific intent for the commis gave envelope containing him an $50. bribery. sion of Cf. United States Miller, Appellant’s (4th of his defense consisted Cir. arguable and that own of some addi itWhile is that respect to giving tional witnesses testified as his is also true with to good reputation. gratuities Barash, stand, on the under 201(f), 18 U.S.C. § gave being Clyne accessory or admitted that he to to an receipts prohibited by on several occasions 7214(a), but said those 26 U.S.C. § gifts were Christmas hav offenses which requirement transactions have no of ing specific nothing intent, to do with the audits. The see United States v. given money, explained Irwin, had been [354 F.2d merely pleasant to a more work create 383 U.S. ing atmosphere. response to In the tes (1966)], S.Ct. 16 L.Ed.2d 308 DeSibio, timony carry significantly of and a Barash said punish lower ment, had taken lunch DeSibio the con we incline to the view that as to Clyne of clusion a normal these pressure audit. Both offenses economic is DeSibio, suggested, Barash had im irrelevant. 401-402.6 plicated mitigation gain him to of sen Although criminal intent a is they tences were to receive for crimes necessary element for conviction under arising from these other transac gratuity counts, specific intent is finally, tions. And Barash testified that required. case, accepting In this Ba- payment Coady wholly $50 un facts, payments rash’s version performed, related given the audit but was were received the auditors “otherwise sympathy out of induced Coa provided by proper than as law for dy’s indication in he was debt and discharge duty,” provided of official as go was soon to training to a marine 201(f).7 measuring intent, for in camp. it payments not whether matters Economic Coercion of Defense duress, were made because of economic many working of desire In the first of to create claims reversi- a better at error, mosphere, appreciation speedy it or ble er- for a asserts ror trial to exclude the favorable audit. 4. Christmas thereafter $50 tified that of Miss duction audit Coady’s testimony favorable Clyne Lupeseo. testified gifts in substantially January, $80 Barash’s Miss concerning she $25 in cash had conducted Lupeseo he the same as that client $50 gave gave also tes- and was Barash. another Clyne intro- 6. noted, omitted. scribed, ^[*] (a) Two 7. Substantially ^[*] footnotes, 201(f) sfc infra. ” reads: The identical text of these statutes reciting performance “except language relevant in law portions duty pre is it could to choice where misnomer of a It somewhat is been, reaching their de- factor coer have economic to “the defense refer cion”; (economic coercion) is termination. it rather fact conclusion to the ultimate related Entrapment by Coady not “rule did intent. argues. as Barash out” coercion such that the contends next court told the Specifically, the trial erroneously to instruct failed trial court version consider Barash’s that it could entrapment in issue “pressure” Clyne’s approach as coercive payment of with his $50 connection might the conduct it “consider and that agent Coady. The fact that undercover bearing whether issue promise pay offer or Barash made no making such the defendant audit, coupled Coady respect intent to influence had the Coady’s that he was about hints action, ele an essential is go the armed forces and was debt into old under Section ment the offense establish, averred, inducement suf 201(b).” present 201 and Section entrap support a ficient tes ment. But the most Barash could scarcely be held in trial court can suggested gen tify following opinion in error our days eral several financial need specified in the offenses we said given. was no There evi $50 and 26 201(f) U.S.C. § given jury dence to warrant a sufficient specific (a) requirement “have no Coady finding that or initiated induced accept entitled to tent.” court was satisfy finding crime, necessary to the these eco- our that as to offenses “view entrapment. the first element United pressure is irrelevant.” 365 F.2d nomic 430, 432-433 Dehar, States v. 388 F.2d charge the instructed that (2d fact, In own Cir. Barash’s (by Clyne DeSibio) receipt of com- testimony completely refutes even pensation or reward must have been with attempted entrapment by inference Coady. to “criminal intent” and that Barash Coady’s Furthermore, conversa have abetted have aided and must “asso- tions fall short even con behavior venture, the criminal ciated himself with stituting solicitation, in itself something participated in it that he entrapment. insufficient to constitute about, bring he, by his he to wished Berry, F.2d States v. acts, act to make it suc- or endeavored (2d 1966). Therefore, nowas cessful.” charge the error in court’s failure to Appellate courts how will never know entrapment. to ab- much little a is able to how reading from sorb the indict- stilted Testimony Lupesco statutes, the ments and adverbial specification Lupesco, of a ele- Reve series of a former essential Jeanne necessary auditor, to the Barash ments convict and “boil- nue Service testified erplate” by upon judges inquired approached forced time- her in 1963 and anybody in a decisions. Ref- she “knew” cer and cumulative whether honored uge sought trying appraise group must be tain Barash had been as charge by signed responded the aas whole decide for an audit. She Coady. introducing whether the place would have able to In order Barash template the elements meant essential demonstrate what why Coady question, factual mat laid out se this lected, and thus determine a violation of the her about Government asked approach prior dealings law. Such the be- her Barash. leads She that, given lief if the had to ac- answered that in 1958 Barash had wished cept Barash’s version her for a favorable audit. return $80 Clyne’s innocent pres- victim of economic Barash contends that the admission of sure, gave adequately testimony it this constituted reversible er- support ror, Lupesco position primarily trans- because Sibio. certainty from the 1963 cites too remote DeSibio’s lack of action was proba- exact amount of and thus had transactions little made though or of him the exact tive value. Even words used testimony suggesting Lupesco improper payments, instructed that confusing jury prior ap similar was to admitted as a instructions. On transactions, Coady peal solely as to evidence must be most act viewed favorably though not and even he was convicted Government. United bribery Aiken, (2d count States v. argues prejudice Cir.), arose because 389 U.S. (1967). testimony quite similar to De- 19 L.Ed.2d “was DeSibio tes may have influenced tified that Sibio’s” and well Barash had told him in words substance, jury’s count verdict as that “there would some- thing on which But the in it for he was convicted. evi- him” if deductions certain probative fraudulently dence were Barash’s state allowed mind, by helping explain prior prepared that he would not have the same relationship report audit himself and Miss if he not between believed Lupesco meaning forthcoming. and the of his conver- Barash was sation with her. To such Similar be admitted “ strong, later evidence ‘does need transaction. This evidence satis- full, superlative, requisite probative value, bribery does fied the elements of the fortiori, not need to or to involve demonstration statutes here and a the less de- produce manding persuasion its sole and in- standard of 26 U.S.G. force, merely (a) trinsic to be worth Neither do find we merit jury.’ Wigmore, consideration Barash’s assertion that the trial jury by giving specific Evidence ed. 411.” United confused the Kahaner, specific question answer to a about a (2d portion Cir.), denied, charge 836, repeat- cert. 84 of the 375 U.S. rather than ing 74, (1963). 11 L.Ed.2d the S.Ct. 65 Since instructions verbatim. Lupesco testimony properly the ad was The Verdict (16), mitted as to the count Judge Wyatt specifically since limited After more than 13 hours of de jury’s of this evidence consideration two-day period, liberation over a (which eventually to that count dis jury judge sent a statement to the trial missed), possible prejudice to Barash it was unable to reach a verdict on minimal, and insufficient to estab some point of the counts. At that grounds lish for reversal. time, accepted the court the verdict of guilty on those counts as to which the Failure on DeSibio Counts of Proof jury had reached a conclusion8 and ain urges supplemental charge jury asked the jury remaining justify offered was deliberate further to the insufficient as involving Following conviction counts.9 on De- an additional three 21, 22, 23, 24, 25, 26, 28, 29, 30, another and to deliberate with Counts a view 31, reaching agreement you if can your do so without violence to individual charge 9. The text of is as follows: th.e judgment. emphasize pains As I took to the you Each of must decide these counts jurors my yesterday, instructions on yourselves you only should do so you your should never surrender honest after consideration of the evidence in weight conviction as to the or effect of jurors. the case with other solely opinion evidence because of the your you In the course of deliberations jurors purpose of other or for the mere your should not hesitate to reexamine returning your a verdict. it But is duty change your opinion pointed yesterday, own views and if out and I point today, you opinion it out to consult with one find that to be erroneous. 32 deliberation, accepting jury announced after their ther deliberations hours remaining it had counts that verdict of on a number of authority been of- on some counts but counts. But no has reached verdict support proposition. agree others.10 fered could not erred in Barash hold the trial court The cases cited

maintains jury as an Allen its verdict giving silence he characterizes what charge particular in and in a multi-count it coercive because acquittal itself, operates it context in which if the in the dictment as an disagree. accepted given. The lower verdict is the trial We jury discharged.12 charge sufficiently is it clear This is rule “made court’s per designed ought protect juror defendant not abandon that a jeopardy v. of retrial on the United States double cases conviction.” sonal (2d jury 649, Cir.), cert. 654 counts as which the had been Bilotti, 380 F.2d 308, 944, silent, inapplicable present 19 denied, S.Ct. and is 88 389 U.S. sending Furthermore, practice situation. The L.Ed.2d 300 jury than three further that more back deliberations fact view elapsed the time unresolved counts has been hours followed between verdict, Cotter, charge jury’s final since and the Circuit United States v. thoughtful 689, (2d Cir.), ample con de time for F.2d 690-691 60 cert. negate nied, 291, 666, coercion. 77 287 U.S. S.Ct. sideration 1, Furlong, (1932), L.Ed. also United v. see United States denied, Frankel, (7th (2d Cir.), F.2d 288-289 U.S. cert. (1952); Cir.), U.S. 96 L.Ed. S.Ct. Rao, 78 L.Ed. and we adhere States v. Similarly, practice the claim here. given pre supplemental Proceedings maturely Jury here Grand has merit. m. and at 11:25 a. retired deliberate It is claimed that reversal emerged p. m. to announce 11:30 required conviction Barash’s because de a unanimous was unable reach competent lack of before the evidence cision The court on a counts. number of grand juries him. The indicted sleep. permitted go home to investigations leading to the indictments day next deliberated grand juries more four involved gave its two more hours before Clyne, DeSibio, than 40 witnesses. supplemental charge. the trial think We person Lupesco in testified proper dis court acted within well its giving grand juries, before these one charge.11 timing in cretion so incriminated Barash. ver In that an Internal Revenue The fact Barash further attacks judge economy spector, in grounds the trial the interests dict on the that time, jury improperly for fur- summarized this back evidence before sent 8, margin provided by margin,” guilty the trial on counts that 10. was found 1, judge’s 10, 20, 3 of intention to “coerce” counts disclaimer on 18 agreed up- expression willingness ac- 9, was no conclusion and while decision,” cept 4, 5, 6, 11, 2, ultimate whatever 12 14. “the might Id., at 784. be. 354 F.2d prematurity as to limits 11. The minimum 539, States, Dealy appear v. United 152 U.S. to have been estab in court ; (1894) 542, 680, Kenner, L.Ed. 38 545 v. 354 14 S.Ct. in States 1965), lished United Jolly 402, 408, States, (2d 383 170 U.S. Cir. cert. v. United 780 F.2d (1898) ; 1223, 624, 958, L.Ed. 16 L.Ed.2d 301 18 S.Ct. 86 S.Ct. U.S. 184, States, charge U.S. in which an Allen v. United Green jury 221, 190-191, had 2 L.Ed.2d after deliberated 78 S.Ct. Hetenyi (1957) ; and 45 States ex rel. hours minutes on seven three payments. 844, (2d Wilkins, Cir. of unlawful That case v. saved from reversal the “barest grand ultimately jury jury indicted Nor do we find that should Though Barash, improper. have been that the audit was not instructed against “completed” as the exces as soon auditor had have been issued caveats agreed hearsay grand juries, disallowed, the amount use of sive accepted where, change” always alternatively, report that a “no use has its “demonstrably here, would it is inconvenient be filed. instruction Such testify theoretically jury to summon witnesses able would enable the knowledge.” personal payment “completion” from infer from a after facts Unit Umans, ed that audit was not agent’s dismissed, made influence the 389 U.S. act. But (1967); in 88 S.Ct. 19 L.Ed.2d 255 view of the considerable evidence showing many continuing responsibili- v. United Costello U.S. (1955). L.Ed. 397 ties of the auditor in connection with the grand array juries “completion,” judge in audit after view the the trial here, charging inconvenience in re was correct volved and the in otherwise.15 calling already witnesses who had testi alleged charge The third in the error is personal knowledge, fied from the in trial omitted the element rule, stant case is Umans well within of intent in its instructions to the supra. Furthermore, Barash’s related on the counts under § contention, that there was reversible er There basis this contention. allegedly given ror because he clearly indicating After that a neces- grand jury Clyne only minutes after left sary Clyne element for conviction stand, prevail par witness cannot — receipt and DeSibio ticularly per since the court offered to intent, is, “with criminal with bad Clyne’s mit recall. purpose motive,” the court instructed on Barash’s intent as follows: Charge Trial Court’s In order to find the defendant alleged Barash has four errors another, aided or abetted in this case jury. court’s It is Clyne both, or DeSibio' or to commit first the court asserted that erred in charged offenses these failing to instruct the that no infer you must find defendant, ence could be drawn way, some associated himself with the the testimony and DeSibio venture, participated criminal they charges pleaded guilty something bring it as he wished to accepting payments. unlawful about, he, by acts, his act or en- had indicated that deavored to make it successful. give compromise form of this language specifically This has been found instruction13 thereafter failed to do proper, Umans, supra, United States v. neglected however, bring so. F.2d at omission to the court’s attention is, precluded raising therefore, Finally, contends point appeal. judge the Federal properly Rules of the trial present failed to Procedure, theory jury. Criminal 30.14 Rule his the defense to He claims charge verdict, stating 13. The modified read: retires to consider its dis- Clyne testimony by tinctly objects was Jeremiah There the matter to which he they plead- grounds objection. and Erasmo DeSibio the that of his of ed to certain counts this indict- jury charged 15. The as follows: ment. You must mony that testi- not consider making pay- The relevance of the of the any indicating pleas or as the such ment before or after the audit or audit guilt of the defendant. agreed simply ques- settlement is to is the portion defendant, tion payment Rule 30 reads: whether 14. The relevant of the when the any party may portion assign made, No as error believed that by therefrom un- was public the or omission no of official action to be taken the * * objects jury before the less he thereto official *. you accept mere that testi- characterized as should his whether mony that case * * * solely testimony or- of the Govern- or in the not but of denial witnesses, tending government’s “to elimi- to the thus der relate evidence ment’s jury of to the different purpose.” Furthermore, and for no other the nate from consideration summary of of circum- the the factual [his] Coady’s testimony by the have exam- followed audit.” We stances each of “[y]ou record, however, and find statement [the ined the jury] testify ac- summary fair heard Mr. Barash the factual containing beginning give envelope in- of his did to the curate. Toward structions, judge $50, said: trial circumstances different the but under Coady testified, and from to those which separate considering Before al- an intent different from that with jury’s at- I call in indictment leged in no un- the indictment.” findWe in these to the fact tention fairness these instructions or propose to review I not do structions jury. because the evidence summarize long make toas not been so trial has Duplication Counts necessary You or desirable. presented concluding point our for evidence heard the yesterday you had the benefit is Barash's contention consideration I If closing arguments of counsel. it was error submit any in the course former as evidence counts under 18 mention U.S.C. only for it will be well counts under 26 U.S.C. these instructions be (a) (2),16 permitting particular purpose will which thus sig- are to attribute convict on counts. recent indicated. You both any my Cohen, mention failure decision of United nificance States we made clear evidence. requirements for the differences tes- Following of the summaries brief conviction under sections: these DeSibio, timony abetting counts, referred un- told the * * * you testimony, bribery counts, require proof like the “this Agent deny the witness from re- the Internal Revenue heard Mr. opinion stand, any fee, prescribed by law, not for to indicate ceived a (2) curity fol- reads as for for the or conveyance delivery anything or : lows any value, employee and em- officers or or officer 7214. Offenses person acting ployees or behalf of the United States. department States, any (a) officers of revenue or or acts United Unlawful employee agency thereof, any function, agents.- Any officer of or — * * * acting in connection intent his influence States United any question, any of the United action on mat- revenue law * * decision or * knowingly may ter, cause, proceeding de- or any may greater pending, are or sums than be time or which mands other any fee, brought by law, receives law him or in his of- authorized compensation, except reward, capacity, place or trust or ficial performance profit, prescribed, or or with intent to influence law ** * committing, any duty him or shall dismissed to commit aid or employ- in, any discharged allow, fraud, or or or collude office thereof, opportunity and, shall make commission of conviction ment any $10,000, fraud, im- not more than be fined years, prisoned both. more or induce him to do or omit not than to do duty, : act in of as follows violation his lawful shall 201 reads U.S.C. § person. be not to officer or other fined more than three times 201. § Offer any offers, money promises, gives or amount of such thing or value of such Whoever imprisoned thing value, money or or makes or not more than three of or contract, any order, years, check, un- both. or tenders obligation, gratuity, dertaking, se- or duty. bribing The of his diet of performance DeSibio under 18 U.S.C. aiding bribery counts, and squarely unlike former 201. Thus this case § abetting counts, require proof presents of a the issue absent in Cohen: can specific corrupt jury properly intent to influence of- a convict a defendant on standpoint time ficial action. From a both of these counts? alone, bribery required be question The recently raised in promised or with the intent Umans, supra, United States v. but no decision influence an official’s directly supplied. answer was Id. 805- that decision is reached. Umans, the defendant had been indicted 806. “paired” and convicted under the might jury, court, 201(b) well 201(f),17 concluded the of and under § § pos- paired that Cohen did have considered not the old of former 201 and § bribery requisite 7214(a) (2). intent rejecting sess the a After § the de payments conviction, pairs were fendant’s claim that of statutes contradictory within the reach of the milder standard contained elements 7214(a) proof,18 And in fact the court found § that “the cor only relationship did on the lesser 201(b) convict Cohen rect between § counts, handing acquittals 201(f) all 201(f) down is that is a § lesser in § charges bribery. there- 201(b). That case is cluded offense of There is no applicable Congress fore here most reason believe intended to simi- came there should concurrent be convic lar But Barash con- sections, conclusions. tions and sentences under both jury’s partial on the multiple victed first verdict should not we allow convic abetting in the DeSibio tions on the based same transactions even receipt under where the sentences are concurrent.” Id. (2) (counts 30) 28 and few hours a 368 F.2d at sentences partial 201(f) later vacated, convicted second ver- counts were therefore 201(b) 201(f). Whoever, reads as follows: 18 U.S.C. § § provided by otherwise than as directly 201(b). Whoever, proper discharge or law for the corruptly directly, gives, prom- duty, directly indirectly or offers of official or any public anything gives, offers, promises anything ises of value to or person any official, public pub- official or who has selected value to former public official, prom- official, person to be a or offers or or lic selected to be a any any public person public official, any or ises official for or because of public performed performed a who has been selected to be of- official act or any give anything public official, public ficial to of value to such former person entity, official, person pub- other or intent— or selected to be a * * * any act; (1) to official or influence lic official shall be fined not (2) public $10,000 imprisoned influence such official more than or person years, has been or selected to be not more than two or both. public aid in official to commit or rejected 18. The court defendant’s claim committing, in, any allow, or collude or having it was error to him convict fraud, opportunity or make com- “mutually crimes,” committed inconsistent any fraud, mission of on the United saying: States; or appears It both claimed incon- public to induce such official or sistent instances one of the two statutes person such who has been selected to be requires proof of an extra element public any official to do or omit to do convict, specific intent to influence * * duty act in violation lawful action, while the other statute $20,000 shall be fined not than more or only requires proof payment monetary equivalent three times agent made to an in a situation where thing value, greater, whichever is necessary. There are imprisoned or for not more than fifteen contradictory required elements of years, both, may disqualified proof statutes; only between the two holding honor, trust, office of proof. additional elements of profit under the United States. Umans, supra, States v. 368 F.2d at 201(f) reads as follows: 728-729. addition, however, Congress noting would In that there the the court with discourage prison tempter the wished the defendant’s effect no (aiding abetting) his acts and would seek the sentences were vacated since term in to the break moral of some remained down fibre those which with concurrent however, government nothing, not-too-resisting employees. court said force. The apart tempter, quite Thus as the such reason question of whether on the bribe, equal direct apply have been ing force would should sentences, (2) of the of an 7214(a) and cause commission en- convictions § tirely employee, coun different crime a former had § each which terpart, money “pairs” though albeit the cases. same both both even equally previ treated counts had been highly The Af- selective. opinion. portions ous bribery was to De- firmative found as jail sen- of the concurrent Because (counts 10). Sibio and There ac- were con- of which was on all counts tences quittals transac- prac- victed, point without (counts 1, 9). tions aiding 3 and For Barash’s ag- except for the effect on Barash tical abetting Clyne and and DeSibio argu- gregate fines and his amount of the receiving, to commit the crime of Supreme decision that the Court’s ment guilty returned as to all verdicts U.S. v. United in Milanovich 7214(a) (2) (counts 21- counts (1961) 5 L.Ed.2d 773 the conviction on all requires reversal have must satisfied vacating merely than rather counts aiding abetting guilt earlier in and much du- on counts claimed to be sentences bribery their deliberations than on Quite understandably, plicitous. pursuant because, counts court’s any jail term to serve does not desire respect agreement any advice however, jury, under having count. they during reported count or Barash and seen and heard morning day they of their second reject- agents guilty-pleading apparently agreed guilty on a as to the verdict being pressured, ed Barash’s version of abetting (counts counts 21- gifts making tan- of gibly Christmas 26, 28-32). deliberation, After further showing monetary sympathy guilty bribery, verdicts 18 U.S.C.A. Therefore, Coady’s plight. con- financial (counts 10) 8 and peers, Barash searches demned performance act, for the an that most fertile for technicalities in (counts 201(f) 18 U.S.C. field, themselves. the statutes 20) were returned. that each is fair to statute It assume result, argues From this purpose. In Con- intended have charged the court should every situation, gressional zeal to cover it could not return a verdict duplicitousness appearance often bribery on the counts and the may Specifically be created. gratuity very counts and “at least” bribery. The indicted substance compelling he “was entitled to an order (transactions up to first twelve proceed to elect to Government being January under U.S.C. 1963) 7214(a) (2) either the 201 counts or the (subsequent to 201 and 13-16 counts.” 201(b). January 21, 1963) Sim- under § relating ply deal with Decisions lesser included of- stated these sections government applicable corrupt giving to a are not fenses because such a presented employee is not to influence him situation here. The with intent proscribed elements two offenses commit a fraud United States. bribery gratuity in the statutes were statute, Another 26 U.S.C. Furthermore, receiving prohibits employees re- means identical. “claim, performance of their duties. court has held that a that a ward payor giver enjoined. to an internal are revenue officer can- Thus and receiver

37 3, F.2d at see the lat 399 n. also States an aider abettor not be Cohen, 1967). 7214(a), (2 F.2d is v. 387 Cir. 803 26 U.S.C. § violation ter’s Kenner, I understand that now by the Government v. United States foreclosed 1965), (2d “pairs” 201(b) only the cert. lesser 780, Cir. § F.2d 785 354 1223, 201(f), 958, denied, 16 included offense of 86 S.Ct. § U.S. 383 (1966).” on F.2d 399 was convicted under old two counts L.Ed.2d amply supported thus of Kenner 201 which would have effect F. 3. The ap previous imprisonment nine months considered right entirely per I peal must serve. am not as the Government’s also insofar is con proceed permis suaded statutes that even if Barash could under both Although sibly had been ac Kenner be held cerned. as an aider or abet agent’s bribery and con quitted tor violations 26 U.S. abetting gra aiding 7214(a) (2), C. he victed could be convicted tuity 201, inconsis is no such both of that and of a violation of § require tency here as to see Milanovich v. United U. 551, United States 728, See also different result. S. 5 L.Ed.2d 773 Cohen, 28, Cir. v. counts 8 and and 10 and but that also seems Affirmed. by previous be assumed our decisions. Under the circumstances I do not feel Judge, FRIENDLY, Circuit concur- seeking warranted reconsideration (with FEINBERG, ring Circuit whom these issues full court. concurs): Judge, also respects agree Judge all other I nova, I would If the were res issue opinion. careful Moore’s believing difficulty in have considerable pay an who makes accountant agent can ment to an internal revenue aiding properly convicted abetting agent in of 26 U. violations ALI Model

S.C. § Code, the term “ac Penal which uses encompass complice” and abet ting, says 2.06(6): 2.06(3), ILLINOIS STATE JOURNAL-REGIS- provided “Unless otherwise TER, Petitioner, INC., defining the of- Code or the law v. fense, person accomplice is not NATIONAL LABOR RELATIONS in an another offense committed BOARD, Respondent. person if: No. 16979. (b) offense so defined that is Appeals United States Court of inevitably incident conduct ” * * * Seventh Circuit. commission; its June ap- peculiarly principle This would seem legislature plicable has enacted when provisions, other here payor, specifically directed though Congress decided

even enough. these were broad bridge However, crossed Kenner, 354 F.2d in United (2 16 L.Ed.2d S.Ct. U.S. applicability of which we (1966), the appeal, 365 assumed Barash’s earlier

Case Details

Case Name: United States v. David Bernard Barash

Court Name: Court of Appeals for the Second Circuit

Date Published: Oct 13, 1969

Citation: 412 F.2d 26

Docket Number: 45, Docket 32225

Court Abbreviation: 2d Cir.