412 F.2d 26 | 2d Cir. | 1969
Lead Opinion
This is an appeal by David Bernard Barash from a judgment of conviction entered against him in the district court, after a ten-day jury trial. The case was before the district court upon remand after this court reversed a previous conviction of Barash at a first trial. United States v. Barash, 365 F.2d 395 (1966).
The indictment named Barash, a certified public accountant and attorney, in 32 counts relating to 16 transactions in which he was alleged to have made im
At the first trial, Barash was acquitted on counts 7, 13, 15, 17, 19 and 27, relating to alleged unlawful payments to Internal Revenue Service agents Montel-lo and Wolf, but was convicted on the remaining counts, which concerned agents Clyne, DeSibio and Coady. He was sentenced to concurrent terms of imprisonment of a year and a day on each count. On appeal, this court reversed and remanded for a new trial because hearsay testimony was erroneously admitted, cross-examination was improperly restricted and the charge to the jury was in error in two respects, namely, (1) threat of economic harm as an element of intent, and (2) payment alone sufficient to establish intent.
At the second trial, there were thirteen pairs of counts representing, and numbered identically as, those upon which Barash had been convicted at the first trial, charging unlawful payments to Clyne, DeSibio and Coady. On October 21, 1967, the jury returned a verdict of guilty on counts 8, 10, 18, 20-26 and 28-32. On the other counts the jury either returned a verdict of not guilty, or reported that it was unable to agree. Barash was sentenced to concurrent terms of imprisonment for nine months and a fine of $1,000 on each of counts 21-26 and 28-32; to terms of imprisonment of five years, execution suspended, with a fine of $2,500 on each of counts 8 and 10; and to terms of imprisonment of two years, execution suspended with probation of five years, and a fine of $2,500 on each of counts 18 and 20. The total fine was $21,000.
The Facts
The Government’s case against Barash consisted of the testimony of agents Clyne and DeSibio, who had pleaded guilty to charges against them in the indictment, and that of Coady, a Government undercover agent. Clyne, involved in all but three of the transactions resulting in convictions, gave substantially the same testimony at the second trial that he had given at the first.
Appellant’s defense consisted of his own testimony and that of some additional witnesses who testified as to his good reputation. Barash, on the stand, admitted that he gave money to Clyne on several occasions
Defense of Economic Coercion
In the first of many claims of reversible error, Barash asserts that it was error for the trial judge to exclude the defense of economic coercion from the jury’s consideration of the counts under 26 U.S.C. § 7214(a) (2) and 18 U.S.C. § 201(f), the provisions covering unlawful payment of gratuities. In the first appeal of this case we said:
We think that if a government officer threatens serious economic loss unless paid for giving a citizen his due, the latter is entitled to have the jury consider this, not as a complete defense like duress but as bearing on the specific intent required for the commission of bribery. Cf. United States v. Miller, 340 F.2d 421, 425 (4th Cir. 1965). While it is arguable that this is also true with respect to giving gratuities under 18 U.S.C. § 201(f), or to being an accessory to the receipts prohibited by 26 U.S.C. § 7214(a), offenses which have no requirement of specific intent, see United States v. Irwin, [354 F.2d 192, 197 (2d Cir. 1965), cert. denied, 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308 (1966)], and carry a significantly lower punishment, we incline to the view that as to these offenses economic pressure is irrelevant. 365 F.2d at 401-402.6
Although criminal intent is a necessary element for conviction under the gratuity counts, no specific intent is required. In this case, accepting Ba-rash’s version of the facts, the payments were received by the auditors “otherwise than as provided by law for the proper discharge of official duty,” as provided for in § 201(f).
The trial court can scarcely be held in error for following our opinion in which we said that the offenses specified in 18 U.S.C. § 201(f) and 26 U.S.C. § 7214 (a) “have no requirement of specific intent.” The court was entitled to accept our “view that as to these offenses economic pressure is irrelevant.” 365 F.2d at 402. The charge instructed that the receipt (by Clyne and DeSibio) of compensation or reward must have been with “criminal intent” and that Barash to have aided and abetted must have “associated himself with the criminal venture, that he participated in it as something he wished to bring about, that he, by his act or acts, endeavored to make it successful.”
Appellate courts will never know how much or how little a jury is able to absorb from the reading of stilted indictments and adverbial statutes, from the specification of a series of essential elements necessary to convict and the “boilerplate” forced upon trial judges by time-honored and cumulative decisions. Refuge must be sought in trying to appraise the charge as a whole and to decide whether the jury would have been able to place the template of essential elements upon the factual mat laid out before it and thus determine a violation of the law. Such an approach leads to the belief that, if the jury had wished to accept Barash’s version that he was the innocent victim of Clyne’s economic pressure, the charge adequately gave it this choice as to the counts where it could have been, a factor in reaching their determination.
Entrapment by Coady
Barash next contends that the trial court erroneously failed to instruct the jury on the issue of entrapment in connection with his payment of $50 to undercover agent Coady. The fact that Barash made no offer or promise to pay Coady with respect to the audit, coupled with Coady’s hints that he was about to go into the armed forces and was in debt establish, it is averred, inducement sufficient to support a charge of entrapment. But the most Barash could testify to was that Coady suggested a general financial need several days before the $50 was given. There was no evidence given sufficient to warrant a jury finding that Coady induced or initiated the crime, a finding necessary to satisfy the first element of entrapment. United States v. Dehar, 388 F.2d 430, 432-433 (2d Cir. 1968). In fact, Barash’s own testimony completely refutes even any inference of attempted entrapment by Coady. Furthermore, Coady’s conversations and behavior fall short even of constituting solicitation, which in itself is insufficient to constitute entrapment. United States v. Berry, 362 F.2d 756, 758 (2d Cir. 1966). Therefore, there was no error in the court’s failure to charge as to entrapment.
Testimony of Lupesco
Jeanne Lupesco, a former Revenue Service auditor, testified that Barash approached her in 1963 and inquired whether she “knew” anybody in a certain group to which Barash had been assigned for an audit. She responded by introducing Barash to Coady. In order to demonstrate what Barash meant by this question, and why Coady was selected, the Government asked her about her prior dealings with Barash. She answered that in 1958 Barash had given her $80 in return for a favorable audit. Barash contends that the admission of this testimony constituted reversible er
Failure of Proof on DeSibio Counts
Barash urges that the testimony offered was insufficient to justify a jury conviction on the counts involving De-Sibio. In support of this position he cites DeSibio’s lack of certainty of the exact amount of the payments made to him or of the exact words used by Barash in suggesting improper payments, and confusing jury instructions. On appeal the evidence must be viewed most favorably to the Government. United States v. Aiken, 373 F.2d 294, 296 (2d Cir.), cert. denied, 389 U.S. 833, 88 S.Ct. 32, 19 L.Ed.2d 93 (1967). DeSibio testified that Barash had told him in words or substance, that “there would be something in it for him” if certain deductions were fraudulently allowed in 1961, and that he would not have prepared the same audit report if he had not believed that payment from Barash was forthcoming. Similar testimony was given as to a later transaction. This evidence satisfied the requisite elements of the bribery statutes here and a fortiori, the less demanding standard of 26 U.S.G. § 7214 (a) (2). Neither do we find merit in Barash’s assertion that the trial judge confused the jury by giving a specific answer to a specific question about a portion of the charge rather than repeating the instructions verbatim.
The Verdict
After more than 13 hours of deliberation over a two-day period, the jury sent a statement to the trial judge that it was unable to reach a verdict on some of the counts. At that point of time, the court accepted the verdict of guilty on those counts as to which the jury had reached a conclusion
Barash further attacks the verdict on the grounds that the trial judge improperly sent the jury back for further deliberations after accepting their verdict of guilty on a number of the counts. But no authority has been offered in support of this proposition. The cases cited by Barash hold that silence by the jury as to its verdict on particular counts in a multi-count indictment operates as an acquittal if the verdict is accepted by the trial judge and the jury is discharged.
Grand Jury Proceedings
It is claimed that reversal of Barash’s conviction is required because of lack of competent evidence before the grand juries which indicted him. The investigations leading to the indictments involved four grand juries and more than 40 witnesses. Clyne, DeSibio, Coady and Lupesco testified in person before one of these grand juries, giving testimony which incriminated Barash. The fact that an Internal Revenue Inspector, in the interests of economy of time, summarized this evidence before
Trial Court’s Charge
Barash has alleged four errors in the court’s charge to the jury. It is first asserted that the court erred in failing to instruct the jury that no inference could be drawn against Barash from the testimony of Clyne and DeSibio that they had pleaded guilty to charges of accepting unlawful payments. The trial judge had indicated that he would give the jury a compromise form of this instruction
Nor do we find that the jury should have been instructed that the audit was “completed” as soon as the auditor had agreed on the amount to be disallowed, or alternatively, that a “no change” report would be filed. Such an instruction theoretically would enable the jury to infer from a payment after “completion” of the audit that the payment was not made to influence the agent’s act. But in view of the considerable evidence showing many continuing responsibilities of the auditor in connection with the audit after “completion,” the trial judge was correct in charging otherwise.
The third alleged error in the charge is that the trial court omitted the element of intent in its instructions to the jury on the counts under § 7214(a) (2). There is no basis for this contention. After clearly indicating that a necessary element for the conviction of Clyne and DeSibio was the receipt of money “with a criminal intent, that is, with bad purpose and motive,” the court instructed the jury on Barash’s intent as follows:
In order to find that the defendant aided or abetted another, in this case Clyne or DeSibio' or both, to commit the offenses charged in these counts, you must find that the defendant, in some way, associated himself with the criminal venture, that he participated in it as something he wished to bring about, that he, by his act or acts, endeavored to make it successful.
This language has been specifically found proper, in United States v. Umans, supra, 368 F.2d at 728.
Finally, Barash contends that the trial judge failed properly to present his defense theory to the jury. He claims
Before considering the separate counts in the indictment I call the jury’s attention to the fact that in these instructions I do not propose to review or summarize the evidence because the trial has not been so long as to make that necessary or desirable. You have heard the evidence presented and on yesterday you had the benefit of the closing arguments of counsel. If I mention any evidence in the course of these instructions it will be only for the particular purpose which will be indicated. You are to attribute no significance to my failure to mention any evidence.
Following brief summaries of the testimony of Clyne and DeSibio, the trial judge told the jury that he referred to “this testimony, * * * which you heard Mr. Barash deny from the witness stand, not to indicate any opinion as to whether you should accept that testimony * * * or not but solely in order to relate the government’s evidence to the different counts and for no other purpose.” Furthermore, the summary of Coady’s testimony was followed by the statement to the jury that “[y]ou [the jury] heard Mr. Barash testify that he did give to Coady an envelope containing $50, but under circumstances different from those to which Coady testified, and with an intent different from that alleged in the indictment.” We find no unfairness in these instructions to the jury.
Duplication of Counts
The concluding point for our consideration is Barash's contention that it was error to submit to the jury the counts under 18 U.S.C. former § 201 as well as the counts under 26 U.S.C. § 7214 (a) (2),
The aiding and abetting counts, unlike the bribery counts, require proof that the Internal Revenue Agent received a fee, not prescribed by law, for*35 the performance of his duty. The bribery counts, unlike the aiding and abetting counts, require proof of a specific corrupt intent to influence official action. From a time standpoint alone, bribery required that money be given or promised with the intent to influence an official’s decision before that decision is reached. Id. at 805-806.
The jury, concluded the court, might well have considered that Cohen did not possess the requisite intent for a bribery conviction, but that the payments were within the reach of the milder standard of § 7214(a) (2). And in fact the jury did convict Cohen only on the lesser counts, handing down acquittals on all charges of bribery. That case is therefore applicable here as to most of the counts, in which the jury came to similar conclusions. But Barash was convicted on the jury’s first partial verdict of aiding and abetting DeSibio in the receipt of payments under § 7214(a) (2) (counts 28 and 30) and a few hours later convicted on the second partial ver-diet of bribing DeSibio under 18 U.S.C. former § 201. Thus this case squarely presents the issue absent in Cohen: can a jury properly convict a defendant on both of these counts?
The question was recently raised in United States v. Umans, supra, but no answer was directly supplied. In Umans, the defendant had been indicted and convicted under the “paired” counts of § 201(b) and § 201(f),
Because of the concurrent jail sentences on all counts of which he was convicted, this point would be without practical effect on Barash except for the aggregate amount of the fines and his argument that the Supreme Court’s decision in Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961) requires reversal of the conviction on all counts rather than merely vacating the sentences on counts claimed to be duplicitous. Quite understandably, Barash does not desire to serve any jail term under any count. The jury, however, having seen and heard Barash and the guilty-pleading agents apparently rejected Barash’s version of being pressured, of making Christmas gifts and tangibly showing monetary sympathy for Coady’s financial plight. Therefore, condemned by his peers, Barash searches for technicalities in that most fertile field, the statutes themselves.
It is fair to assume that each statute was intended to have a purpose. In Congressional zeal to cover every situation, an appearance of duplicitousness often may be created. Specifically Barash was indicted in substance for bribery. The first twelve counts (transactions up to January 21, 1963) being under 18 U.S.C. § 201 and counts 13-16 (subsequent to January 21, 1963) under § 201(b). Simply stated these sections deal with the corrupt giving of money to a government employee with intent to influence him to commit a fraud on the United States. Another statute, 26 U.S.C. § 7214(a) (2) prohibits employees from receiving a reward for the performance of their duties. Thus the giver and receiver are enjoined. In addition, however, the Congress wished to discourage the tempter who by his acts (aiding and abetting) would seek to break down the moral fibre of some not-too-resisting government employees. Thus Barash, as the tempter, quite apart from the direct bribe, would have been the cause of the commission of an entirely different crime by the employee, albeit the same money in both cases.
The jury was highly selective. Affirmative bribery was found as to De-Sibio (counts 8 and 10). There were acquittals as to the Clyne transactions (counts 1, 3 and 9). For Barash’s aiding and abetting Clyne and DeSibio to commit the crime of receiving, the jury returned guilty verdicts as to all the § 7214(a) (2) counts (counts 21-32).
The jury must have been satisfied of aiding and abetting guilt much earlier in their deliberations than on the bribery counts because, pursuant to the court’s advice with respect to agreement on any count or counts, they reported during the morning of their second day that they had agreed on a guilty verdict as to the aiding and abetting counts (counts 21-26, 28-32). After further deliberation, guilty verdicts on bribery, 18 U.S.C.A. § 201, (counts 8 and 10) and payments for the performance of an official act, and 18 U.S.C. § 201(f) (counts 18 and 20) were returned.
From this result, Barash argues that the court should have charged the jury that it could not return a verdict of guilty on the bribery counts and the gratuity counts and “at the very least” he “was entitled to an order compelling the Government to elect to proceed on either the 201 counts or the 7214(a) (2) counts.”
Decisions relating to lesser included offenses are not applicable because such a situation is not presented here. The elements of the two offenses proscribed in the bribery and gratuity statutes were by no means identical. Furthermore, this court has held that a “claim, that a payor to an internal revenue officer can
. Counts 13 through 16 relate to transactions which took place after January 21, 1963, when the present statute came into force. The present § 201(b) contains no change of substance from the prior § 201. See United States v. Barash, 365 F.2d 395, 398, f. 1 (2d Cir. 1966).
. 18 U.S.C. § 2(b) reads: “Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”
. The opinion in the first Barash appeal summarized the nature of the transactions as follows :
Barash would inform Olyne of clients who had received “call-in” letters instructing them to appear for audit of their returns before the group of agents that included Olyne. In violation of office procedures Clyne would obtain the returns and related papers from his supervisor’s file and assign the audits to himself. Barash would suggest relatively small disallowances in unsubstantiated deductions for travel and entertainment expenses, and would offer Clyne compensation for thus passing the returns. 365 F.2d at 398.
. Coady’s testimony concerning this introduction was substantially the same as that of Miss Lupeseo. Miss Lupeseo also testified that in 1958 she had conducted an audit favorable to Barash’s client and was thereafter given $80 in cash by Barash.
. Barash testified that he gave Clyne Christmas gifts of $25 or $50 in 1960, 1961 and 1962, and that he gave another $50 to Clyne in January, 1963.
. Two footnotes, reciting relevant portions of § 201(f) and § 7214(a) have been omitted. The text of these statutes is noted, infra.
. Substantially identical language in § 7214 (a) (2) reads: “except as by law prescribed, for the performance of any duty * * sfc ”
. Counts 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32.
. The text of th.e charge is as follows:
As I took pains to emphasize to the jurors in my instructions on yesterday, you should never surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of other jurors or for the mere purpose of returning a verdict. But it is your duty as pointed out yesterday, and I point it out today, to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to your individual judgment.
Each of you must decide these counts for yourselves but you should do so only after consideration of the evidence in the case with other jurors.
In the course of your deliberations you should not hesitate to reexamine your own views and change your opinion if you find that opinion to be erroneous.
. Barash was found guilty on counts 8, 10, 18 and 20, not guilty on counts 1, 3 and 9, while no conclusion was agreed upon on counts 2, 4, 5, 6, 11, 12 and 14.
. The minimum limits as to prematurity in this court appear to have been established in United States v. Kenner, 354 F.2d 780 (2d Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966), in which an Allen charge was given after the jury had deliberated for three hours and 45 minutes on seven counts of unlawful payments. That case was saved from reversal by the “barest margin,” that margin provided by the trial judge’s disclaimer of intention to “coerce” and by his expression of willingness to accept “the ultimate decision,” whatever it might be. Id., 354 F.2d at 784.
. Dealy v. United States, 152 U.S. 539, 542, 14 S.Ct. 680, 38 L.Ed. 545 (1894); Jolly v. United States, 170 U.S. 402, 408, 18 S.Ct. 624, 42 L.Ed. 1085 (1898); Green v. United States, 355 U.S. 184, 190-191, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844, 857 (2d Cir. 1965).
. The modified charge read:
There was testimony by Jeremiah Clyne and Erasmo DeSibio that they had pleaded guilty to certain counts of this indictment. You must not consider that testimony or any such pleas as indicating the guilt of the defendant.
. The relevant portion of Rule 30 reads:
No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.
. The jury was charged as follows:
The relevance of the making of the payment before or after the audit or audit settlement is agreed to is simply the question whether the defendant, when the payment was made, believed that there was no official action to be taken by the public official * * *.
. 26 U.S.C. § 7214(a) (2) reads as follows :
§ 7214. Offenses by officers and employees of the United States.
(a) Unlawful acts of revenue officers or agents.- — Any officer of employee of the United States acting in connection with any revenue law of the United States * * * (2) who knowingly demands other or greater sums than are authorized by law, or receives any fee, compensation, or reward, except as by law prescribed, for the performance of any duty * * * shall be dismissed from office or discharged from employment and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.
18 U.S.C. § 201 reads as follows :
§ 201. Offer to officer or other person.
Whoever promises, offers, or gives any money or thing of value, or makes or tenders any check, order, contract, undertaking, obligation, gratuity, or security for the payment of money or for the delivery or conveyance of anything of value, to any officer or employee or person acting for or on behalf of the United States, or any department or agency thereof, in any official function, * * * with intent to influence his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, or with intent to influence him to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States, or to induce him to do or omit to do any act in violation of his lawful duty, shall be fined not more than three times the amount of such money or value of such thing or imprisoned not more than three years, or both.
. 18 U.S.C. § 201(b) reads as follows:
§ 201(b). Whoever, directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent—
(1) to influence any official act; or
(2) to influence such public official or person who has been selected to be a public official to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
(3) to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of his lawful duty * * shall be fined not more than $20,000 or three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.
18 U.S.C. § 201(f) reads as follows:
§ 201(f). Whoever, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official * * * shall be fined not more than $10,000 or imprisoned for not more than two years, or both.
. The court rejected defendant’s claim that it was error to convict him of having committed “mutually inconsistent crimes,” saying:
It appears that in both claimed inconsistent instances one of the two statutes requires proof of an extra element to convict, a specific intent to influence official action, while the other statute only requires proof that payment was made to an agent in a situation where no payment was necessary. There are not contradictory elements of required proof between the two statutes; only additional elements of proof. United States v. Umans, supra, 368 F.2d at 728-729.
Concurrence Opinion
concurring (with whom FEINBERG, Circuit Judge, also concurs):
If the issue were res nova, I would have considerable difficulty in believing that an accountant who makes a payment to an internal revenue agent can properly be convicted for aiding and abetting the agent in violations of 26 U.S.C. § 7214(a) (2). The ALI Model Penal Code, which uses the term “accomplice” to encompass aiding and abetting, § 2.06(3), says in § 2.06(6):
“Unless otherwise provided by the Code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:
(b) the offense is so defined that his conduct is inevitably incident to its commission; * * * ”
This principle would seem peculiarly applicable when the legislature has enacted other provisions, here 18 U.S.C. § 201, specifically directed against the payor, even though Congress decided in 1963 that these were not broad enough.
However, this court crossed that bridge in United States v. Kenner, 354 F.2d 780, 785 (2 Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966), the applicability of which we assumed on Barash’s earlier appeal, 365 F.2d at 399 n. 3, see also United States v. Cohen, 387 F.2d 803 (2 Cir. 1967). I understand that the Government now “pairs” with § 201(b) only the lesser included offense of § 201(f), and Barash was convicted on two counts under old § 201 which would have amply supported the nine months imprisonment that he must serve. I am also not entirely persuaded that even if Barash could permissibly be held guilty as an aider or abettor of the agent’s violations of 26 U.S.C. § 7214(a) (2), he could be convicted both of that and of a violation of § 201, see Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), as he was on counts 8 and 28, and 10 and 30, but that also seems to be assumed by our previous decisions. Under the circumstances I do not feel warranted in seeking reconsideration of these issues by the full court.
In all other respects I agree with Judge Moore’s careful opinion.