566 F.2d 361 | 2d Cir. | 1977
Lead Opinion
This appeal is from a judgment of conviction for violation of 26 U.S.C. § 7206(1), entered after a jury trial in the United States District Court for the Northern District of New York, James T. Foley, Chief Judge. Appellant was charged in a one-count indictment with willfully subscribing, under penalty of perjury, a statement of financial information in connection with an Internal Revenue Service settlement, know
An indictment is invalidly duplicitous when it joins in a single count two or more distinct, separate offenses. United States v. Gibson, 310 F.2d 79, 80 n.1 (2d Cir. 1962); United States v. Starks, 515 F.2d 112, 116 (3d Cir. 1975). But Fed.R.Crim.P. 7(c)(1) permits allegation in a single count that an offense has been committed in a multiplicity of ways; such a count is not duplicitous. See 1 C. Wright, Federal Practice and Procedure § 142, at 307-10 (1969). It has been held, for example, that an indictment charging both “accepting” and “receiving” wagers in one count is not improper. United States v. Conti, 361 F.2d 153, 157-58 (2d Cir. 1966), vacated on other grounds, 390 U.S. 204, 88 S.Ct. 899, 19 L.Ed.2d 1035 (1968); Driscoll v. United States, 356 F.2d 324, 331-32 (1st Cir. 1966), vacated on other grounds, 390 U.S. 202, 88 S.Ct. 899, 19 L.Ed.2d 1034 (1968). Thus, had this indictment charged alternatively that appellant had violated the law either by falsely saying he had not disposed of the asset or by falsely omitting to mention that he retained the asset, it clearly would not have been duplicitous. See United States v. Conti, supra, 361 F.2d at 158 (“[c]harging alternative ways of violating- a statute in the conjunctive is permissible”).
The alternative falsifications charged here, however, required entirely different proof as to the two matters alleged, even though the crime as to both was willfully making “any return, statement, or other document” that the maker does not believe to be correct “as to every material matter.” 26 U.S.C. § 7206(1). But because no objection or request to elect was made we need not decide whether the indictment was duplicitous.
Nor need we decide whether the evidence was sufficient to go to the jury on the asset-disposal question. “The general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as [appellant’s] indictment did, the verdict stands if the evidence is sufficient with respect to any one of the acts charged.” Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 654, 24 L.Ed.2d 610 (1970); see United States v. Conti, supra, 361 F.2d at 158. Here it is undisputed that the evidence was sufficient to sustain the charge that appellant understated his income.
Judgment affirmed.
. Duplicity, of course, is only a pleading rule and would in no event be fatal to the count. Reno v. United States, 317 F.2d 499, 502 (5th Cir.), cert. denied, 375 U.S. 828, 84 S.Ct. 72, 11 L.Ed.2d 60 (1963); 1 C. Wright, Federal Practice and Procedure § 142, at 311 (1969).
Concurrence in Part
concurring in part and dissenting in part:
I concur in the judgment of affirmance on the ground that, when a jury returns a general verdict of guilty on an indictment charging several acts in the conjunctive, the verdict stands if the evidence is sufficient
Since in my view no more is needed to justify affirmance of the judgment of conviction, I respectfully dissent from the balance of the opinion which, being largely dictum, is without precedential force.