UNITED STATES of America, Appellee, v. Anthony M. NATELLI and Joseph Scansaroli, Defendants-Appellants

*328

On SCANSAROLI’s Petition for Rehearing

GURFEIN, Circuit Judge:

This matter comes before the panel again on Scansaroli’s petition for rehearing pursuant to our grant of permission. On the original appeal we had reversed appellant’s conviction and remanded for a new trial. 1

The single count charging violation of 15 U.S.C. § 78ff(a) upon which he was convicted involved the making of a false proxy statement which specified two false items therein: the “footnote” and the “nine-months earnings statement.” We held that there was insufficient evidence to convict Scansaroli on the latter specification. See main opinion, 527 F.2d 311, 322 , decided July 28, 1975.

We then granted a rehearing on the government’s petition and held that under an old doctrine in this circuit we were constrained to decide that the failure of appellant specifically to ask the trial court to withdraw one of two specifications in a single count on the ground that it was insufficiently proved precluded appellate consideration. United States v. Mascuch, 111 F.2d 602, 603 (2 Cir.), cert. denied, 311 U.S. 650 , 61 S.Ct. 14 , 85 L.Ed. 416 (1940); United States v. Goldstein, 168 F.2d 666, 671 (2 Cir. 1948).

We accordingly reversed ourselves on the decision to grant a new trial to Scansaroli. We now withdraw our opinion on rehearing and reconsider this difficult question of appealability de novo.

We start with the proposition that there are many criminal cases where the failure to object has resulted in affirmanee under Rule 30 as applied in Rule 52(a). Appellant’s rather strident cries that our decision against him is unprecedented are hardly impressive. Many convictions are denied appellate review for failure to call the alleged error to the attention of the trial court so as to enable it to consider correction before verdict. Otherwise appellate review would become a game of hindsight.

I

We recognize, nevertheless, that even under the Mascuch-Goldstein line of cases, a proper request to the trial court would save the point. See, e. g., United States v. Adcock, 447 F.2d 1337, 1338-39 (2 Cir.), cert. denied, 404 U.S. 939 , 92 S.Ct. 278 , 30 L.Ed.2d 252 (1971); 2 United States v. Pollak, 474 F.2d 828 (2 Cir. 1973). And see also Warszower v. United States, 312 U.S. 342, 345 , 61 S.Ct. 603 , 85 L.Ed. 876 (1941). 3 As we indicated in our original opinion, that is because Yates v. United States, 354 U.S. 298, 311-12 , 77 S.Ct. 1064 , 1 L.Ed.2d 1356 (1957), 4 and Stromberg v. California, 283 U.S. 359, 367-68 , 51 S.Ct. 532 , 75 L.Ed. 1117 (1931), can be read as covering the situation where a jury may have convicted on the very specification which is insufficiently proved to make out an offense.

That is true, especially, when the specifications in the single count relate to two distinct incidents or fact patterns, see United States v. Guterma, 281 F.2d 742, 747 (2 Cir.), cert. denied, 364 U.S. 871 , 81 S.Ct. 114 , 5 L.Ed.2d 93 (1960), rather than being merely a charge of alternate ways of violating a statute stated in the conjunctive. Cf. United *329 States v. Astolas, 487 F.2d 275, 280 (2 Cir. 1973), cert. denied, 416 U.S. 955 , 94 S.Ct. 1968 , 40 L.Ed.2d 305 (1974).

Assuming, as we have already in our original opinion, that reversal of the conviction of Scansaroli is required if counsel adequately raised the point below, we turn to the question of how much must be done by defense counsel to protect the record.

"II

The Federal Rules of Criminal Procedure cast no light on the matter. Rule 29(a) simply provides for a motion for judgment of acquittal “of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.” No provision is made for a motion to withdraw one of two specifications in a single count on the ground of insufficiency. There may be an implication in Rule 30 that the failure to object to a particular specification is fatal because it amounts to a failure to object to an “omission” from the charge, but that is not clear. Finally, there is nothing in Rule 52(b) that tells us that the failure of the trial court to withdraw the particular specification without request is “plain error.”

Ill

We must also consider the matter in practical terms, not only from the point of view of the particular defendant, but also in consideration of the requirements of the criminal justice process. Rule 7(c)(1) provides that “[i]t may be alleged in a single count that ... he [the defendant] committed it [the offense] by one or more specified means.” The government treats the separate incidents of “the footnote” and the “nine-months statement” as specified means for committing the single crime. See original opinion, at 314r-315. And no one doubts that for pleading purposes the prosecution is right.

The government has argued from this that if our original ruling stands, it would compel the government in any false statement case, simply out of caution, to allege each incident constituting the “means” of committing the offense in a separate count or risk the reversal of a conviction based on afterthoughts on appellate review. We believe that this might be the better practice in cases like this where the incidents charged as in violation of a statute are discrete. On the other hand, when that is not done, appellate review is not generally available when the particular insufficiency has not in some way been called to the attention of the trial judge. We do not believe that Yates, supra, in spite of its broad language, dictates a contrary result. Cf. Turner v. United States, 396 U.S. 398 , 420 & n.42, 90 S.Ct. 642 , 24 L.Ed.2d 610 (1970).

What prompts our present consideration of Scansaroli’s petition for rehearing is his argument that he did make it sufficiently clear to the trial judge that he wanted a judgment of acquittal or some equivalent on the “nine-months earnings statement” specification. On reconsideration, we agree that the arguments of counsel for Scansaroli with respect to the sufficiency of the evidence, his motion to strike the evidence relating to the Eastern commitment (an essential part of the “nine-months earnings statement” specification) and the co-defendant’s specific motion to withdraw the specification on the nine-months earnings statement make this a close question. 5 Cf. United States v. Lefkowitz, 284 F.2d 310 , 313 n.l (2 Cir. 1960). As the Supreme Court has recently intimated in Anderson v. United States, 417 U.S. 211 , 223 n.12, 94 S.Ct. 2253, 2262 , 41 L.Ed.2d 20 (1974), we may, in our discretion, consider a “sufficiency- *330 of-the-evidence claim” even though the question arose below “only with respect to the admissibility of [certain] testimony.” While Anderson also involved the question of whether the particular indictment was unconstitutionally vague, and all the cases cited by Mr. Justice Marshall involved similar constitutional questions, we have concluded that we have sufficient discretion to adopt the reasoning in Anderson on this appeal.

Accordingly, we do not purport to lay down a firm rule to govern the precise action required below for appealability where a single count contains more than one specification. Indeed, we could hardly do so without the empaneling of an en banc court. We decide simply, on further consideration, that appellant in this case did enough below to satisfy the spirit of the Mascuch-Goldstein rule. We accordingly withdraw our opinion on the government’s petition and reinstate our original opinion as to Scansaroli in all respects. Cf. United States v. Love, 472 F.2d 490, 496 (5 Cir. 1973).

. This opinion assumes knowledge of our original opinion, 527 F.2d 311 (2 Cir. 1975).

. In Adcock , we reversed a conviction which charged the making of a false statement in violation of 18 U.S.C. § 1001 where the count ultimately reversed contained three assignments of falsity, two of which were sufficiently supported by the evidence. The government conceded on appeal that a proper motion to strike had been made pursuant to the Mascuch-GoIdstein rule, but argued that appellant should, in addition, have moved for a special verdict. We held in Adcock that a special verdict would have been improper and hence a motion for such a verdict was unnecessary.

. There the defendant had moved to strike from the record or exclude from the consideration of the jury each of the four alleged false statements.

. In Yates it is not clear what protective measures appellant had taken below. The Court of Appeals had noted that many motions had been made. 225 F.2d 146 , 149 (9 Cir. 1955).

. We recognize that we cannot find fault with the distinguished District Judge, Harold Tyler, for not recognizing the various motions as a single request. We treat them, however, as sufficient to permit review in the interests of justice.