Petition — Tsanas v. United States

Supreme Court, U. S,

FILED

FEB 9 |

MICHAFI Ron:

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. MW’? - 1120

ANDREW TSANAS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JOSEPH J. LOMBARDO

16 Court Street

Brooklyn, New York 11241

Attorney for Petitioner

Andrew Tsanas

JOSEPH J. LOMBARDO, ESQ.

DONALD E. NAWI, ESQ.

Of Counsel

TABLE OF CONTENTS

CITATIONS TO OPINIONS BELOW.

JURISDICTION. . . . « «

QUESTIONS PRESENTED . .

PROVISION INVOLVED . .

STATEMENT. . « + © ee «

REASONS FOR GRANTING THE WRIT

TABLE OF AUTHORITIES

Cases

Arsenault v. Massachusetts, 393

U.S. 5 (1968)

Berger v. California, 393 U.S. 314

(1969)

Burgett v. Texas, 389 U.S. 109 (1967)

Eskridge v. Washington, 357 U.S. 214

(1958)

Green v. United States, 355 U.S. 184

(1957)

Price v. Georgia, 398 U.S. 323 (1970)

Roberts v. Russell, 392 U.S. 293 (1968)

Stovall v. Denno, 388 U.S. 293 (1967)

United States v. Ferro, 556 F.2d

630 (2d Cir. 1977)

United States v. Mauro, 577 F.2d 588

(2a Cir. 1976)

United States ex rel Hetenyi v.

Wilkins, 348 F.2d 844 (2d Cir. 1955)

United States ex rel Rogers v. LaVallee,

517 F.2d 1330 (2d Cir. 1975)

Witherspoon v. Illinois, 391 U.S. 5196

(1968)

Other

26 U.S.C. 7201, 7206

Rule 31

NO.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1977

ANDREW TSANAS,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

meee eee eee ae i ee ee ee ew ee ee wwe ee ee es eae ae sae ee

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioner prays that a writ of certiorari

issue to review the judgment of the United States

Court of Appeals for the Second Circuit entered

January 13, 1978.

CITATIONS TO OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Second Circuit (hereinafter

"Op", not yet reported) is found in Appendix A

to this petition. There is no district court

Opinion on the issues presented.

JURISDICTION

The Court of Appeals judgment was entered

January 13, 1978. Jurisdiction of this Court

rests upon 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

What is the proper method of instructing

the jury when a lesser offense charge is

appropriate? More particularly, whether,

depending on defendant's election, the trial

judge must require the jury to aquit on the

greater offense before moving to the lesser, or

May permit that after a disagreement. Within

that general question are considerations of

the res judicata effects of a lesser offense

disposition, Green v. United States, 355 U.S.

184 (1957), Price v. Georgia, 398 U.S. 323

(1970) and whether this petitioner ought be

accorded the benefit of a new rule, favorable

to defendants, which he has established on

appeal, although it was not raised in the

trial court because his trial counsel could

hardly have known of it.

PROVISION INVOLVED

The questions presented arise under

F.R.Crim.P. 3l(c):

"(c) Conviction of Less Offense. The

defendant may be found guilty of an

offense necessarily included in the

offense charged or of an attempt to commit

either the offense charged or an offense

necessarily included therein if the attempt

is an offense."

STATEMENT

Andrew Tsanas worked in the J.C. Penny

engineering department. Alleging that he

exacted kickbacks from contractors for Penny

work and failed to report them as income, the

Government indicted him for wilfull tax evasion.

26 U.S.C. 7201. Without Government objection,

the district court also charged as a lesser

included offense wilfully filing a return not

true in every material matter. 26 U.S.C. 7206.

It used the then standard form of submission:

the jury should consider the greater offense

first. Only if it acquitted on that, could it

move to the lesser. The jury acquitted for 1971,

found the lesser offense for 1972, and the

greater for 1973-1975. The district court

imposed a three year prison sentence and a

$15,000 fine.

The Court of Appeals affirmed. Its

opinion considered mainly Tsanas' argument

4

that the jury should not have been compelled

to acquit first on the greater offense before

moving to lesser. In a significant departure

from prior law it held (a) that a lesser offense

charge may require an acquittal on the greater

first, or may not; neither is wrong as a matter

of law; (b) that defendant's election of one

of the two forms must be followed; and (c) that

disposition of the lesser offense bars anything

further on the greater no matter which form is

used (Op. 1087 n. 7, 1088). It refused, however,

to extend the benefit of its ruling to Tsanas

because he made no request below for the

alternate instruction. Hence, “not only was

there no ‘plain error affecting substantial

rights,' rather since the less rigorous form of

instruction need be given only on the defendant's

request, there was no error at all." (Op. 1088-

89).

REASONS FOR GRANTING THE WRIT

At the outset of its opinion the Court

of Appeals states that the lesser offense charge

issue is “significant,” is “bound to recur," and

"has not been squarely faced by the Supreme Court,

by us or, so far as our research has disclosed,

by any other circuit” (Op. 1080). The Court

(Friendly, J., writing for himself and Judges

Mansfield and Oakes) then reviews both scholarly

and exhaustively all the considerations with

respect to that issue (Op. 1080-89). These, and

the new rule of law the decision creates,

demonstrate better than anything we could say

that the charge issue is indeed significant, both

in itself and in the administration of justice,

that it has not previously been authoritatively

decided, and that a statement by this Court

which hereinafter will direct the district and

circuit courts is warranted. Additionally this

Court will settle the important res judicata

question alluded to but not decided in Green

v. United States, 355 U.S. 184 (1957) and Price

v. Georgia, 398 U.S. 323 (1970), and which, in

the absence of such decision, comes out different

ways in the circuit courts (Op. 1087 n. 7).

Compare United States ex rel Hetenyi v. Wilkins,

348 F.2d 844 (2d Cir. 1965) (no re-prosecution

on greater offense even if jury expressly does

not acquit on it) with United States ex rel

Rogers v. LaVallee, 517 F.2d 1330 (2d Cir.

1975) (contrary).

That we, rather than the Government, ask

review of issues decided in petitioner's favor

is unimportant* in view of the Circuit's

departure from governing decisions of this Court

(and indeed its own) invariably applying new

rights to at least the appeal defendant (and

often retroactively) even if counsel did not

raise the claim in the trial court. See, e.g.

with respect to assistance of counsel at a

criminal trial, at pretrial proceedings, at

probation revocation hearings, and on appeal;

Pickelsimer v. Wainwright, 375 U.S. 2 (1963),

Burgett v. Texas, 389 U.S. 109 (1967),

Arsenault v. Massachusetts, 393 U.S. 5 (1968),

Stovall v. Denno, 388 U.S. 293 (1967); cf Berger

<

* We believe the issues are of such general

importance and are so clearly and thoroughly

posed in this case, that the Government should

join our request for Supreme Court review,

notwithstanding that the ultimate result in

the Court below was in its favor.

-

v. California, 393 U.S. 314 (1969); Roberts v.

Russell, 392 U.S. 293 (1968), Eskridcge v. Wash- APPENDIX A

ington, 357 U.S. 214 (1958) and Witherspoon v.

Illinois, 391 U.S. 510 (1968). See also United

States v. Ford, 550 F.2d 732 (2d Cir. 1977)

(permit appellant to raise for the first time

on appeal interstate detainer agreement under

United States v. Mauro, 577 F.2d 588 (2d Cir.

1976)); United States v. Ferro, 556 F.2d 630

(2a Cir. 1977) (same; appellant's supplemental

brief). The departure is particularly drastic

in this case because heretofore the standard

instruction was as the trial court proposed to

give it (Op. 1083), and there were no Supreme

Court or circuit decisions clearly addressing

the issue (Op. 1080). The result, if it

stands, unfairly and improperly deprives

Tsanas of a new and significant right of election

he hardly could not have known he had until the

Second Circuit said so.

Respectfully submitted,

JOSEPH J. LOMBARDO

16 Court Street

Brooklyn, New York 11241

Attorney for Petitioner

Andrew Tsana”

JOSEPH J. LOMBARDO, ESQ.

DONALD E. NAWI, ESQ.

Of Counsel

UNITED STATES COURT OF APPEALS

For tae Seconp Crecurr

——_-- > —

No. 341—September Term, 1977.

(Argued November 3, 1977 Decided J anuary 13, 1978.)

Docket No. 77-1348

>

Usrrep States or Amznica,

Appellee,

v.

Anperw Tsayas,

Appellant.

>

Before:

Frrenpiy, Massrrecp and Oaxzs,

Circuit Judges.

—--o-2—

Appeal from a judgment of the District Court for the

Eastern District of New York, Jacob Mishler, Chief Judge,

convicting Andrew Tsanas, after a jury trial, of income

tax evasion in violation of 26 U.S.C. § 7201 for 1973, 1974

and 1975 and of the lesser included offense of willfully

filing a false tax return in violation of 26 U.S.C. § 7206(1)

for 1972.

Affirmed.

a aa

Dowatp E. Nawt, Esq., Brooklyn, N.Y. (Joseph

J. Lombardo, Esq., of Counsel), for Appel-

lant.

Mary McGoway Davis, Esq., Assistant United

States Attorney (David G. Trager, United

1077

States Attorney, Eastern District of New

York, and Alvin A. Schall and Steven Kimel-

man, Assistant United States Attorneys, of

Counsel), for Appellee.

ow

Farnoxy, Circuit Judge:

A grand jury in the District Court for the Eastern Dis-

trict of New York filed a five count indictment charging

Andrew Tsanas and his wife, Pauline, with evading income

taxes in violation of 26 U.S.C. §7201' for the five years

1971-1975. Pauline pleaded guilty to one count of willfully

filing a false tax return in violation of 26 U.S.C. § 7206(1)?

shortly after the trial commenced. The jury acquitted

Tsanas on Count I relating to 1971, convicted him on the

lesser included offense of § 7206(1) on Count II relating to

1972, and convicted him under § 7201 on Counts III, IV and

V relating to 1973, 1974 and 1975. The court sentenced

i This reads:

$7201. Attempt to evade or defeat taz.

Any person who willfully attempts in any manner to evade or

defeat any tax imposed by this title or the payment thereof shall,

in addition to other penalties provided by law, be guilty of « felony

and, upon conviction thereof, shall be fined not more than $10,000,

or imprisoned not more than 5 years, or both, together with the costs

ef prosecution.

2 This reads:

$7206. Freud and false statements.

Any person who—

(1) Declaration under penalties of perjury.

Wilfally makes and subscribes any return, statement, or other

document, which contains or is verified by a written declaration that

it is made under the penalties of perjury, and which he does not

believe to be true and correct as to every material matter 7

-_ * o

shall be guilty of a felony and, upon conviction thereof, shall be

fined not more than $5,000, or imprisoned not more than 3 years,

or both, together with the costs of prosecution.

1078

Tsanas to concurrent three year terms of imprisonment

and a cumulative $15,000 fine on Counts IT and III and to

three years probation on Counts IV and V following his

release from prison. From these convictions Tsanas ap-

peals.

Tsanas was a subordinate employee of J.C. Penney Co.,

responsible for awarding construction and maintenance

contracts, whose salary ranged from $14,393 in 1971 to

$21,744 in 1975. The evidence, which it is unnecessary to

review in detail, revealed an incredible tale of Tsanas’

exacting some $1.4 million in kickbacks from Howard

Lazar, president of a privately owned general construction

company, and other contractors eager to be employed in

Penney’s reconstruction of its corporate headquarters.

Tsanas received large sums in cash.’ In addition, Lazar

supplied Tsanas with bank checks in amounts ranging

from $2,000 to over $5,000 on leading New York City retail

stores, and paid for the elaborate renovation and sump-

tuous furnishing of a new apartment rented by Tsanas, at

a total cost of some $550,000. Tsanas’ new life style in-

cluded substantial payments by him to his family and to

three women friends. It did not reflect any corresponding

recognition of liability ‘to the United States for federal

income tax; Tsanas’ returns of income reported none of

the amounts here described and were limited to his modest

salary. The defense proffered was that the enormous sums

paid by business firms to or for the account of Tsanas in

return for his aid in obtaining contracts with Penney con-

stituted gifts to him.

3 These were:

1971 $ 35,000

1972 140,000

1973 240,000

1974 69,400

1975 473,900

1079

BEST COPY AVAILABLE :

——

We should hardly have thought Tsanas’ appeal from his

convictions to merit an opinion except that appellate coun-

sel has raised a significant question concerning the way in

which a judge should instruct a jury with respect to a

lesser included offense in a case where an instruction on

that subject is appropriate. Surprisingly this question,

which is bound to recur, has not been squarely faced by

the Supreme Court, by us or, so far as our research has

disclosed, by any other circuit.

The indictment here was under 26 U.S.C. $7201, see

note 1 supra, “the capstone of a system of sanctions which

singly or in combination were calculated to induce prompt

and forthright fulfillment of every duty under the income

tax law and to provide a penalty suitable to every degree

of delinquency,” Spies v. United States, 317 U.S. 492, 497

(1943). The lesser included offense here under discussion

is 26 U.S.C. §7206(1), see note 2 supra. As applied to

this case where the criminal act charged was the filing of

false income tax returns, the only difference between the

two offenses is that 47201 requires proof of an intention

“to evade or defeat” a tax whereas § 7206(1) penalizes the

filing of a false return even though the falsity would not

produce tax consequences. The case clearly met one branch

of the test enunciated in Sansone v. United States, 380 U.S.

343, 351 (1965), for determining when a defendant is en-

titled to a lesser included offense charge, namely, that on

the facts of the case the lesser offense must be included

within the greater; if Tsanas willfully attempted to evade

or defeat taxes by filing false income tax returns in viola-

tion of § 7201, he would necessarily have violated 4 7206(1).

It may be more doubtful whether the case qualified under

the second branch of the Sansone test, namely, that on the

facts the lesser offense must not be “completely encom-

passed by the greater.” There must be a “disputed issue

1080

of fact concerning the existence of an element required for

conviction” under § 7201 but not required under § 7206(1).

Id. at 353. As we said in United States v. Markis, 352 F.2d

860, 867 (2 Cir. 1965), vacated on other grounds, 387 U.S.

425 (1967):

The lesser-included offense charge is not required sim-

ply because the jury could exercise its power of ac-

quitting on the greater charge for no reason at all “in

the teeth of both law and facts,” Horning v. District of

Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed.

185 (1920); there must be a rational basis for its

doing so.

The defense that all the payments were gifts would not

qualify under this test. If believed, Tsanas would be inno-

cent of both offenses since gifts are excludable from gross

income, IRC § 102, and if not believed, he world be guilty

of both. Cf. Comment, Jury Instructions on Lesser In-

cluded Offenses, 57 Nw. U. L. Rev. 62, 66 (1962); Sansone

v. United States, supra, 380 U.S. at 353 (“Given petition-

er’s material misstatement which resulted in a tax defi-

ciency, if, as the jury obviously found, petitioner’s act

was willful ... he was guilty of violating both [sections]

. If his cstion was not willful, he was guilty of vio-

lating neither.”) ; Rerra v. United States, 351 U.S. 131, 134

(1956) (“. .. here the method of evasion charged was

the filing of a false return, and it is apparent that the

facts necessary to prove that petitioner ‘willfully’ attempted

to evade taxes by filing a false return . .. were identical

with those required to prove that he delivered a false

return with ‘intent’ to evade taxes... .”). However, the

indictment charged an attempt “to evade and defeat a

large part of the income tax due and owing,” see United

States v. Norris, 205 F.2d 828 (2 Cir. 1957) (“the gist of

1081

tLe affense is the willful attempt to cvade any substantial

part of the tax due”); Cited States v. Vunan, 230 Fitd

576 (2 Cir. 1956), cert. denied, 353 U.S. 912 (1957) (“the

showing by the government must warrant a finding that

the amount of the tax evaded is substantial”), and it is

arguable that a jury could rationally have found that, at

least for some of the years, enough of the payments were

gifts that this greater charge was not sustained beyond a

reasonable doubt, as it evidently did with respect to 1971

and 1972, but that Tsanas’ returns were nevertheless false.

Cf. United States v. Beasley, 519 F.2d 233, 245 (5 Cir.

1975), vacated on other grounds, 425 U.S. 956 (1976). As

against this, § 7206(1) requires proof that the defendant

does not believe the tax return to be true as to every

“material” matter. See Hoover v. United States, 358 F.2d

87 (5 Cir.), cert. denied, 385 U.S. 822 (1966). Whether,

given the facts of this case, it would be possible for a

jury rationally to find that a “large part” of the tax was

not owing but that Tsanas’ tax returns were nonetheless

“materially” false is highly uncertain. However, the Gov-

ernment did not object to the court’s giving the lesser

included offense charge, and in light of our conclusions

we need not determine whether a lesser included offense

charge was justified.

After carefully explaining the nature of the two offenses,

Chief Judge Mishler charged without objection:

The law permits the jury to find the accused guilty

of any lesser offense which is necessarily included in

the crime charged in the indictment whenever such a

course is consistent with the facts found by the jury

from the evidence in the case, and with the law given

and the instructions of the Court. If the jury should

unanimously find the accused not guilty of the crime

charged in the indictment, then the jury must proceed

1082

to determine the enilt ar innocence of the accuvai

as Co the lesser offunse which is necessarily included in

the crime charged.

Appellant now contends that the latter sentence constituted

plain error in requiring a unanimous verdict of not guilty

of the greater offense before allowing the jury to move to

the lesser; it should suffice, he argues, if the jury could

not reach agreement on a conviction for the greater offense.

The instruction given has support in practice. The

charge requested (but not given) in Sansone would have

required the jury to “find” the absence of one element in

the greater offense, see 380 U.S. at 346, and while the pro-

posed charge did not use the word “unanimously,” that

would seem to have been the effect. The instruction here

given also followed the form approved in the then current

edition of Devitt & Blackmar, Federal Jury Practice and

Instructions § 17.11 (2d ed. 1970). It derives some support

also from language in Judge Leventhal’s opinion in Fuller

v. United States, 407 F.2d 1199, 1227-32 (D.C. Cir. 1968),

cert, denied, 393 U.S. 1120 (1969), although for reasons

stated in the margin‘ the case is not at all decisive on the

4 While the court said that the jury “does not even consider the issue

of second degree murder unless it acquits as to first dogree,” 407 F.2d

at 1230, and “{o}nly if the jury has a reasonable douht as to guilt of

the higher offense, may a jury performing its duty acquit of that charge,

and only then may it turn to consideration of whether defendant is guilty

of the lesser offense,” an earlier passage bad characterized the process

as being that the jury would “move on to consideration of the lesser

offense only if they have some reasonable doubt as to guilt of the greater

offense.” Id. at 1227. This language could be taken to he satisfied by

a difference of opinion imong the jurors and is apparently so read in

the 1977 edition of Devitt & Blackmar, § 1805, p. 583. The Fuller coart

was not required to focus on what would be the proper charge since the

issue was whether failure to give any instruction with respect to a lesser

ineluded offense charged in an indictment was “plain error . . . affecting

substantial rights” under F.R.Cr.P. 52(b), no instruction having been

sought. In a later opinion designed “to restate and hopefully to clarify

the ruling in Fuiler,” Judge Leventhal did speak of the jury's duty to

1083

-_--_—- ---

point here at issue. Some courts, however, have used in-

structions similar to that preferred by Tsanas, although

without addressing the pros and cons of the issue.‘

We can readily agree with Judge Leventhal’s statement,

407 F.2d at 1228:

The doctrine of lesser included offenses is not without

difficulty in any area of the criminal law.

At first blush the entire doctrine, now embodied in F.R.

Cr.P. 31(c), is a bit surprising. It could have been argued

with some force that a defendant should be entitled to take

the Government at its word, concentrate his trial prepara-

tion and tactics on the weakest part of the indictment and

receive an acquittal if he engendered a reasonable doubt

about it; if the Government wished to protect itself against

failure to prove an element of the greater offense, it could

have indicted for both. On the other side it could have been

argued that the Government should be entitled to seek a

conviction solely for the greater offense without the jury’s

having an option to convict only on the lesser.

Such arguments, however, have not prevailed. One rea-

son is similar to that which argues for the liberal concep-

tion of joinder embodied in F.R.Cr.P. 8—the desirability,

pass to the lesser offense only in the event of an “acquittal” oa the

greater, United States v. Butler, 455 F.2d 1338, 1340 (D.C. Cir. 1973).

However, this was a case where the defendant had me oy! the “only

upoa ittal” charge and the milder form requested by Tsanas was

a =: Gan See also O’Clair v. United States, 470 F.2d 1199, 1204

(1 Cir. 1972), cert. denied, 412 U.S. 921 (1973).

nited States ¥. White, 225 F. Supp. 514, 519 (D.D.C. 1963),

. onan remanded on other grownds, 349 F.2d 965 (D.C. Cir. 1968)

(“The jurors were told that if they were not unazimously a

of guilt on the greater charge, they should move on to the lesser ) ;

United States v. Fromme, cited in Devitt & Blackmar, supra, § 18.05

at 583. See also United States v. Dizon, 507 F.2d 683 (8 Cir. 1974),

cert. denied, 424 U.S. 976 (1976) (affirming « conviction on « lesser

charge after a deadlock on the greater).

10864

=a

both for the prosecution and the defendant, of disposing of

all charges of criminality from the same or related courses

of conduct in a single trial, see Ashe v. Swenson, 397 U.S.

436, 454-57 (1970) (Brennan, J., concurring). Cf. Petite

v. United States, 361 U.S. 529, 530 (1960) ; Bruton v. United

States, 391 U.S. 123, 131 n.6 (1968). In addition, on the

Government’s side, a defendant guilty of a lesser included

charge of which the indictment has given him sufficient

notice should not go free because the Government has

failed to convince every member of a jury of some element

of the greater crime beyond a reasonable doubt. See Kecble

v. United States, 412 U.S. 205, 208 (1973). And on the de-

fendant’s side, there is a powerful fairness argument favor-

ing the instruction. As the Supreme Court said in Keeble,

supra, 412 U.S. at 212:

. +. it is no answer to petitioner’s demand for a jury

instruction on a lesser offense to argue that a defen-

dant may be better off without such an instruction.

True, if the prosecution has not established beyond a

reasonable doubt every element of the offense charged,

and if no lesser offense instruction is offered, the jury

must, as a theoretical matter, return a verdict of ac-

quittal. But a defendant is entitled to a lesser offense

instruction—in this context or any other—precisely

because he should not be exposed to the substantial

risk that the jury’s practice will diverge from theory.

Where one of the elements of the offense charged re-

mains in doubt, but the defendant is plainly guilty of

some offense, the jury is likely to resolve its doubts in

favor of conviction.‘

6 At one time the doctrine might have been thought essential to protect

a defendant acquitted on the greater offense from a new prosecution on

the lesser. However, two Supreme Court decisions of the last term now

make it plain that the Double Jeopardy clause sufficiently performs that

office. Brown v. Ohio, 45 U.S.L.W. 4697 (1977); Jeffers v. United States,

1085

The rule, however, also bas its dangers—to both sides.

From the prosecution’s standpoint the advantage that the

jury will convict of something must be weighed against

the disadvantage that it may make too little effort toward

achieving unanimity on the greater offense and move too

readily to the lesser one. The danger is partially but not

wholly removed by the rule of Sansone permitting a lesser

included offense charge only if there would be a rational

basis for a jury’s convicting on the lesser but not on the

greater offense and by the power of the judge to impose

a sentence for the lesser offense at the upper part of the

permitted range. From the defendant’s standpoint the

balance is reversed; the advantage gained by giving the

jury an option between a conviction on the greater charge

and setting him free is counterbalanced by the danger that

a juror who could on no account have been persuaded to

convict on the greater and is not truly convinced beyond

a reasonable doubt of all elements of the lesser offense

may nevertheless convict on the latter. The supposedly

unanimous jury that has convicted on the lesser charge

may consist of one group convinced of guilt beyond a rea-

sonable doubt on the greater offense, another group not

so convinced on either, and a third group so convinced on

the lesser but not on the greater offense—with the first

two groups of jurors subordinating their real views to

that of the third in order to avoid a mistrial. As in the

case of the Government, the defendant receives some al-

though not complete protection by the rule that the lesser

included offense instruction may not be given when there

is no rational basis for convicting on the lesser offense

alone. See United States v. Harary, 457 F.2d 471, 479 (2

45 U.S.L.W. 4691 (1977). See also United States ez rel. Rogers v.

LeValiee, 517 F.2d 1330 (2 Cir. 1975), cert. denied, 423 U.S. 1078

(1976).

1086

Cir. 1972) (prosecution is not entitled to submission of

count charging lesser offense over defendant’s objection

when there is no rational basis for conviction on lesser

rather than greater offense.) It is against this gencral

background that we must weigh the merits of the two

forms of instruction here at issue. _

The instruction given here has the merit, from the Gov-

ernment’s standpoint, of tending to avoid the danger that

the jury will not adequately discharge its duties with re-

spect to the greater offense, and instead will move too

quickly to the lesser one. From the defendant’s standpoint,

it may prevent any conviction at all; a jury unable either

to convict or acquit on the greater charge will not be able

to reach a lesser charge on which it might have been able

to agree.’ But it entails disadvantages to both sides as

well: By insisting on unanimity with respect to acquittal

on the greater charge before the jury can move to the

lesser, it may prevent the Government from obtaining a

conviction on the lesser charge that would otherwise have

been forthcoming and thus require the expense of a retrial.

It also presents dangers to the defendant. If the jury is

heavily for conviction on the greater offense, dissenters

favoring the lesser may throw in the sponge rather than

cause a mistrial that would leave the defendant with no

7 It might be thought to bave the further advantage of producing a

clear acquittal on the greater charge which would plainly forbid re

tion on that charge after a successful appeal from the ennviction

the lesser charge. But, here again, such a reprosecution apparently

jeopardy clause regardless of the form of in-

struction. . United States, 355 U.S. 184 (1957); Price v.

Georgia, 398 U.S. 323 (1970); United States v. Barash, 412 F.2d 26,

82 (2 Cir.), cert. denied, 396 U.S. 832 (1969); ef. United States ez rei.

Hetenyi v. Wilkins, 348 F.2d 844 (2 Cir. 1965), cert. denied, 383 U.S.

913 (1966). Contrast United States ez rel. Jackson v. Follette, 462 F.2d

1041 (2 Cir.), cert. denied, 409 U.S. 1045 (1972) (premeditated murder

and felony murder, both being murder in first degree, were the same,

not a greater and « lesser included offense).

Z

:

oe

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bine

conviction at all, although the jury might have reached

sincere and unanimous agreement with respect to the

lesser charge.

An instruction permitting the jury to move on to the

lesser offense if after all reasonable efforts it is unable to

reach a verdict on the greater likewise has advantages and

disadvantages to both sides—the mirror images of those

associated with the charge actually given here. It facili-

tates the Government’s chances of getting a conviction for

something, although at the risk of not getting the one that

it prefers. And it relieves the defendant of being con-

victed on the greater charge just because the jury wishes

to avoid a mistrial, but at the risk of a conviction on the

lesser charge which might not have occurred if the jury,

by being unable to agree to acquit on the greater, had

never been able to reach the lesser.

With the opposing considerations thus balanced, we can-

not say that either form of instruction is wrong as a mat-

ter of law. The court may give the one that it prefers if

the defendant expresses no choice. If he does, the court

should give the form of instruction which the defendant

reasonably elects. It is his liberty that is at stake, and the

worst that can happen to the Government under the less

rigorous instruction is his readier conviction for a lesser

rather than a greater crime. As was said in Beil v. United

States, 349 U.S. 81, 83 (1955), albeit in a different context:

It may fairly be said to be a presupposition of our

law to resolve doubts in the enforcement of a penal

code against the imposition of a harsher punishment.

Here, however, Tsanas’ trial counsel made no request for

the form of instruction now advocated. Hence not only

was there no “plain error affecting substantial rights,”

rather since the less rigorous form of instruction need be

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a a eRe ee te ee

given only on the defendant’s request, there was no error

at all.

Tsanas makes a further argument on lesser included

offenses. He contends that the court should also have

charged a violation of the first sentence of 26 U.S.C. § 7207.°

Just as § 7201 is the “capstone” of tax offenses, § 7207 lies

at the bottom.

Clearly Tsanas was not entitled to have both § 7206(1)

and § 7207 charged as lesser included offenses. Under the

facts of this case any violation of § 7207 would have been

the filing of a false-tax return, the very offense defined in

§ 7206(1) and thus “completely encompassed” by it. San-

sone v. United States, supra, 380 U.S. at 350. To have

charged both would only have “invite({d] the jury to pick

between the felony and the misdemeanor so as to deter-

mine the punishment to be imposed, a duty Congress has

traditionally left to the judge.” Id. at 350 n.6. Cf. United

States v. Bishop, 412 U.S. 346 (1973) (holding that § 7207

should not be charged as a lesser included offense to

§ 7206(1) where the former is, on the facts, encompassed

by the latter). We have been cited to no decision and

know of no principle that would require the charging of

the lesser rather than the greater of two lesser included

offenses in such a situation. See United States v. Coppola,

300 F. Supp. 932, 934 (D. Conn.), aff'd, 425 F.2d 660 (2

Cir. 1969) (“The fact that in some instances the evidence

relied on... to establish a violation of the felony section

might be identical with that relied upon to show a viola-

8 This reads:

$7207. Fraudulent returns, statements, or other documents.

Any person who willfully delivers or discloses to the Secretary

or his delegate any list, return, account, statement, or other docu-

ment, known by him to be fraudulent or to be faise as to any

material matter, sball be fined not more than $1,000, or imprisoned

not more than 1 year, or both.

1089

tion of the misdemeanor statute does not . .. require that

the conduct be prosecuted as a misdemeanor rather than

as a felony.”) ; cf. United States v. Ruggiero, 472 F.2d 599,

606 (2 Cir. 1973) (“. . . where criminal statutes overlap

the government is entitled to choose among them provided

it does not discriminate against any class of defendants.”).

Any such rule would aggravate the dangers in a practice

that already has enough.

Tsanas’ other points require little comment. We find no

error in Chief Judge Mishler’s instruction with respect to

the claim that the payments constituted gifts.* The judge

excused two jurors who in his interrogation of the jury

admitted to having read newspaper accounts of Mrs.

Tsanas’ guilty plea, contrast Marshall v. United States,

360 U.S. 310 (1959), where jurors who had read the prej-

udicial article were not excused. The judge may inquire of

the jury collectively whether it has read a prejudicial

article and then, as here, ascertain individually and out-

side the presence of the other jurors the effect of the

publicity upon the individual jurors who have in fact

read the material in question. Margoles v. United States,

407 F.2d 727, 735 (7 Cir.), cert. denied, 396 U.S. 833 (1969) ;

United States v. Lord, slip op. 347, 358-59 (2 Cir. Novem-

ber 15, 1977). In other words, there is no requirement that

each juror must be examined individually to determine

whether he has even iead the material in question. But

4 The principa! claim is that it was error to use language derived from

approving quotations from other opinions in CIB v. Duberstein, 363 U.S.

278, 285 (1960), such as “detached and disinterested generosity” and

“affection, respect, admiration, charity or like impulses,” in the case of

a corporation. Compare Joshel v. CIB, 296 F.2d 645, 647 (10 Cir. 1961) ;

United States Vv. Transamerica Corp. 392 F.2d 522, 524 (9 Cir. 1968).

We find no merit in this. Duberstein itself involved an alleged gift by

& corporation, 363 U.S. at 281. See Greentree v. United States, 338 F.2d

947 (4 Cir. 1964); Grinstead v. United States, 447 FP2d 937 (7 Cir.

1971).

1090

ef. Mares v. United States, 383 F.2d 805, 809 (10 Cir. 1967),

cert, denied, 394 U.S. 963 (1969) (reporting during trial

of withdrawn guilty plea and excluded confession required

voir dire of each juror out of presence of other jurors).

Tsanas’ final complaint is that the court refused to sub-

poena the corporate income tax returns of the Lazar Com-

pany. The argument is that these might have disabused

the jury of any impression created by the Government’s

interrogation of Lazar that the company deducted the

payments to Tsanas as business expenses. However,

Tsanas had all the books and records of the company

available to him and the case is not one where its corpo-

rate tax returns would “directly” affect the resolution of

his guilt, as required by the recently enacted 26 U.S.C.

§ 6103(h) (4)(B) or (C).

Tsanas received an eminently fair trial at which his

guilt was established beyond any doubt. The convictions

are affirmed.

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