Petition — Standefer v. United States
Supreme Court brief1980
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Sen WOWTK, JR, CLERK
In The . rca
SUPREME COURT OF THE UNITED STATES
No. 6979-383
Term, 1979
UNITED STATES OF AMERICA
vs.
F. W. STANDEFER,
Petitioner
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
HAROLD GONDELMAN
6th Floor, Porter Bldg. GONDELMAN BAXTER MANSMANN
Pittsburgh, PA. 15219 & McVERRY
(412) 765-2500 Attorneys for Petitioner
OO a ee ee er ees a
Questions Presented ----------------------
Federal Statutes and Federal Issues
Involved
Reasons For Granting the Writ ------------
Conclusion @«<<<s9scecccnnnnnnnnnnnnnnonuos
Appendix A - Opinion, Court of Appeals
for the Third Circuit ----------.--.-.-
Appendix B - Judgment on Rehearing--------
Appendix C -: Letter, Clerk, Court of
Appeals for the Third Circuit ----------
Appendix D - Opinion and Order, United
States District Court for the Western
District of Pennsylvania ---------------
73a
TABLE OF CITATIONS
Cases
Ashe v. Swensen, 397 U.S. 446, 90 S.Ct.
1189 (1970) ------------------------------
Baker v. United States, 310 F.2d 924,
930 (C.A. 9, 1962), cert. denied,
273 U.S. 954 -nnnnnn nnn n wenn enna
Bates v. United States, 323 U.S. 15,
65 S. Ct. 15 (1944) ----------------------
Bursten v. United States, 395 F.2d 976, .
981 (C.A. 5, 1968), cert. denied, 409
U.S. 843 --<--------- nnn n nnn nnn nnn nnn nnn
Edwards v. United States, 286 F.2d 681
(C.A. 5, 1960) ------------9--------------
Government of Virgin Islands v. Carmona,
422 F.2d 95, 99-100, n. 6 (C.A. 3,
1970) --------------------9- 29-99-22 ----
Hartzel v. United States, 322 U.S. 680,
64 S.Ct. 1233 (1944) ---------------------
Levine v. United States, 261 F.2d 419
(C.A. 9, 1963) ---------------------------
Lubin v. United States, 313 F.2d 419
(C.A. 9, 1963) ---------------------------
Marson v. United States, 203 F.2d 904,
912 (C.A. 6, 1953) ---------------- 99-9 ---
Morrison v. California, 291 U.S. 82,
92, 54 S.Ct. 281, 285 (1934) -------------
20
14
20
21
21
22
21
21
TABLE OF CITATIONS (continued)
Page
Reg. v. Miles, L.R. 24 Q.B. Div. 423,
43] --------------------------------------- 18
Romontio v. United States, 400 F.2d 618
(C.A. 10, 1968) --------------------------- 22
Sealfon v. United States, 332 U.S. 575,
68 S.Ct. 237 (1948) ----------------------- 16
Sparrow v. United States, 402 F.2d 826,
828 (C.A. 10, 1968) ----------------------- 20
United States v. Azadian, 436 F.2d 81
(C.A. 9, 1971) ---------------------------- 13
United States v. Bernstein, 533 F.2d 775
at 799 (C.A. 2, 1976) aan caret a,
United States v. Fox, 130 F.2d 56 (C.A. 3,
1942); cert. denied, 317 U.S. 666 --------- 21
United States v. Grimes, 413 F.2d 1376,
1378 (C.A. 7, 1969) ----------------------- 20
United States v. Hoffa, 349 F.2d 20
(C.A. 6, 1965); aff'd., 385 U.S. 293,
87 S.Ct. 408, 17 L.Ed. 2d 374 (1966)------- 13
United States v. Howitt, 55 F. Supp. 372
at 374; aff'd., 150 F.2d 82 (C.A. 5,
1945); afft"d., 328 U.S. 189 --------------- 14
United States v. Jones, 425 F.2d 1048
(C.A. 9, 1970) ---------------------------- 14
United States v. Leach, 427 F.2d 1107,
1112 (C.A. 1, 1970); cert. denied,
400 U.S. 829 ------------------------------ 20
iii ™
TABLE OF CITATIONS (continued)
TABLE OF CITATIONS (continued)
Page
Statutes
United States v. Mitchell, 495 F.2d
285, 288 (C.A. 4, 1974) ----------------- 20
me U.S.C. $7MAa) (2) aso~s--2....2-..
United States v. Niederberger, 580 F.2d
63 ( C.A. 3, 1978); cert. den., 99 S65 U.E.C. §2(g@) «-----........2222-26.2
S.Ct. 567 (1979) -----------9------------ 19
United States v. Oppenheimer, 242 U.S.
85, 37 S.Ct. 68 (1916) ------------------ 18
United States v. Prince, 430 F.2d 1324
(C.A. 4, 1970) -------------------------- 11
United States v. Shuford, 454 F.2d 772,
779 (C.A. 4, 1971) ---------------------- 11
United States v. Smith, 478 F.2d 976
(Dist. Col. C.A. 1973) ------------------ 12
United States v. Stevison, 471 F.2d 143
(C.A. 7, 1972); cert. denied, 414
U.S. 819 (1973)-------------------------- 14, 16
United States v. Whitfield, 378 F.Supp.
184 (D.C.E.D. Pa., 1974); aff'd. with-
out opinion, 515 F.2d 507 (C.A. 3,
1975) ------------------------------------ 22
Viereck v. United States, 318 U.S. 236,
63 S.Ct. 561, 87 L.Ed. 734 (1943)--------- 9
iv
In The
SUPREME COURT OF THE UNITED STATES
No.
Term, 1979
UNITED STATES OF AMERICA
vs.
F. W. STANDEFER,
Petitioner
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
F. W. Standefer petitions for a writ of
certiorari to review the judgment of the United
States Court of Appeals for the Third Circuit in
this case.
Opinions Below
The opinion of the Court of Appeals for
the Third Circuit entered August 10, 1979 is
attached hereto as Appendix A, infra (pp. la-72a).
The said opinion and dissenting and concurring
opinions are those of the court en banc on matters
reargued before the Court of Appeais for the Third
Circuit. The Judgment Order of the Court of
Appeals for the Third Circuit, entered August 10,
1979, is attached hereto as Appendix B, infra
(p. 73a). The letter of the Clerk of the Court
of Appeals for the Third Circuit directing matters
to be considered before the court en banc, dated
March 14, 1979, is attached hereto as Appendix C,
infra (p. 74a ). The opinion and order of the
district court on defendant's motion for new trial,
entered May 24, 1978, is attached hereto as
Appendix D, infra, (p. /5a ).
Jurisdiction
The judgment of the court of appeals was
entered on August 10, 1979 (App. A, infra, p. la).
The jurisdiction of this Court is invoked under
28 U.S.C. §1254(1).
Questions Presented
Can a defendant be convicted of aiding and
abetting a principal when the only named
principal, who must be an employee of the
Government of the United States to have
committed the substantive offense, has been
acquitted by a jury of conmitting the sub-
stantive offense of which the aider and
abettor is charged?
Does not the interpretation of the aider
and abettor statute by the court below create
a new substantive crime which Congress never
intended by:
a). allowing an aider and abettor to be
convicted when the principal is tried
by a jury and acquitted;
b). eliminating the need that an aider and
abettor have specific criminal intent
in order to be found guilty of aiding
and abetting;
c). allowing the charge of the court below
to eliminate from the consideration of
the jury the correctness of returns
audited by the Internal Revenue Service
agent in determining the issue of intent
where the jury after deliberation asked
the court whether intent was to be
considered in its deliberations.
Federal Statutes and Federal Issues Involved
26 U.S.C. §7214(a) (2) imposes a criminal
sanction against:
"Any officer or 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."
18 U.S.C. §2(a) provides:
"Whoever commits an offense against the
United States or aids, abets, counsels,
commands, induces or procures its com
mission, is punishable as a principal."
As hereinafter set forth, the courts of appeals
for the District of Columbia, Second, Fourth, Seventh
ee
and Ninth Circuits have held that where the only
named principal has been acquitted by a jury of
the substantive charge, a defendant cannot stand
convicted of aiding and abetting the same defendant
in the commission of the same substantive charge.
The Court of Appeals for the Third Circuit has
held to the contrary, and it is the conflict be-
tween these appellate decisions that should be
resolved by your Honorable Court.
Statement
Cyril J. Niederberger, an employee of the
Internal Revenue Service of the United States, was
indicted for the substantive offense of violating
26 U.S.C. §7214(a)(2) in unlawfully and knowingly
receiving a fee, compensation and reward which was
not prescribed by law for the performance of his
duties as an Internal Revenue agent. Three of the
counts alleged the receipt of a golf trip at the
Beachcomber Lodge and Villas in Pompano Beach,
Florida; a golf trip at Miami, Florida at the Doral
Country Club and a golf trip at the Seaview Country
Club. Of these three substantive offenses, the
jury acquitted Niederberger.
F. W. Standefer, an employee of Gulf Oil
Corporation, was indicted on charges that he did
aid and abet Cyril J. Niederberger in unlawfully
and knowingly receiving a fee, compensation and
reward which was not prescribed by law for the per-
formance of his duties in three separate counts
leging the identical payments and golf trips set
forth in the substantive offense against Nieder-
berger and on which Niederberger has been acquitted.
Pretrial motions to dismiss these three
counts of the indictment against Standefer were
filed for the reason that if the only named
principal -- Niederberger -- had been acquitted of
receiving the very amounts of money and golf trips
which are necessarily involved in 26 U.S.C. §7214
(a)(2), then Standefer cannot be guilty as an aider
and abettor for if Niederberger did not commit the
substantive offense, which only an Internal Revenue
Service agent can commit, then Standefer, who was
not an employee of the Government, could not be
indicted as a principal or convicted as an aider
and abettor. The court below denied the motions
to dismiss the three counts of the nine-count in-
dictment. The case proceeded to trial on all
nine counts.
After the charge of the court, the jury
deliberated and then inquired of the court:
"Is intent to be considered in any
of the nine counts?"
The court then charged that the statutes do not re-
quire a corrupt intention and, over objection of
counsel, instructed the jury that whether the returns
of Gulf Oil were correct or not is not relevant to
their deliberations in the case.
The court instructed the jury that it was
not necessary to show any agreement between the
revenue agent and the aider and abettor and, in
effect, told the jury that if the golf trips were
paid for by Gulf at Standefer's authorization no
specific intent was required, no criminal intent
was required, and no agreement was required in
order to convict the aider and abettor.
The jury returned a conviction on all nine
counts. Post-trial motions were filed, which were
denied by the trial court. An appeal was taken to
the Court of Appeals for the Third Circuit, and ©
argued before a three-judge panel. The three-judge
panel affirmed the conviction in a two-judge per
curiam opinion and a dissenting opinion by Judge
Aldisert. A petition for rehearing by the court
en banc was filed, which petition was granted and
the previous opinion of the court of appeals with-
drawn. After the matter was argued before the
court en banc, a five-judge majority of the court
en benc affirmed the convictian and has held that
even though the principal is found not guilty by
a jury of committing the substantive offense, an
i 3
aider and abettor can be convicted on the same fact
Two judges dissented from the conviction of all .
three counts on which the principal has been acquit-
ted, one judge dissented from a conviction of one
count on which the principal has been acquitted.
Your Honorable Court, as well as the
District of Columbia, Second, Fourth, Seventh and
Ninth Circuits have held that an aider and abettor
cannot be convicted as an aider and abettor of an
offense of which the only named principal has been
acquitted. The Third Circuit establishes the view
that the acquittal of a principal does not preclude
the conviction of an aider and abettor of the only
named principal. This decision is reached despite
a clear expression by the above-named circuits and
your Honorable Court that such a holding is illogical
and not mandated by the aiding and abetting statute.
Reasons For Granting The Writ
This case presents an important issue as
to the meaning of the aider and abettor statute in
the administration of the criminal law of the United
-8-
States. 18 U.S.C. §2is a criminal statute and
should be strictly construed, not broadly construed.
As stated in Viereck v. United States, 318 U.S.
236 at 241, 63 S.Ct. 561 at 563, 87 L.Ed. 734 at
738 (1943):
"One may be subjected to punishment for
crime in the federal courts only for the
commission or omission of an act defined
by statute or by regulation having legis-
lative authority, and then only if punish-
ment is authorized by Congress."
The aiding and abetting statute was amended
in 1951. Prior to the amendment, the statute pro-
_ vided that one who "aids, abets, counsels, comands,
induces or procures (the commission of an offense
against the United States) is a principal". The
1951 amendment changed the last three words from
"is a principal" to "is punishable as a principal".
The legislative history of the amendment is short
and states as follows, 1951 U.S. Code Congressional
Service, p. 2583:
"This section is intended to clarify and
make certain the intent to punish aiders
and abettors regardless of the fact that
they may be incapable of committing the
specific violation which they are charged
to have aided and abetted. Some criminal
statutes of title 18 are limited in terms
to officers and employees of the Govern-
ment, judges, judicial officers, witnesses,
officers or employees or persons connected
with national banks or member banks.
"Section 2(b) of title 18 is limited by the
phrase 'which if directly performed by him
would be an offense against the United States, '
to persons capable of committing the specific
offense. Section 2(a) of such title, while
not containing that language, is open to the
inference that it also is limited in applica-
tion to persons who could commit the substan-
tive offense. If regarded as a definitive
section, the section makes the aider and
abetter a 'principal'. It has been argued
that one who is not a bank officer or em-
ployee cannot be a principal offender in
violations of section 656 or 657 of title 18
and that, therefore, persons not bank
officers or employees cannot be prosecuted
as principals under section 2(a).
"Criminal statutes should be definite and
certain."
In the instant case, the Internal Revenue
Code proscribes certain conduct by employees of the
United States. Niederberger was such an employee.
Niederberger was indicted for accepting compensation
in violation of the substantive offense and was
acquitted on three counts. Standefer was indicted
on the same three counts for providing to Niederberger
-10-
96 Same amounts of money as Niederberger was charged
with receiving for the same golf trips at the same
resorts. Standefer thus stands convicted of aiding
and abetting Niederberger in the receipt of compen-
sation violative of 28 U.S.C. §7214(a) (2) which a
prior jury found Niederberger did not receive for
that was the effect of their verdict of not guilty
as to Niederberger.
Judge Sobeloff in United States v. Shuford,
454 F.2d 772, 779 (C.A. 4, 1971), held:
. . As the indictment and th i
at trial show, Jordan's Pa saa “ay
the substantive crime charged was that of
an aider and abettor of Shuford as principal
It is an accepted rule that where the only
potential principal has been acqut tted, no
crime: ha en es ishe conviction
of an aider and abettor camot be sustained
Shuttlesworth v. City of Birmingham, 373
U.S. 262, 83 S.Ct. 1130, 10 L.Ed.2d 3
(1963). This rule, undeviatinely followed
for generations would be a Pfendod if, on
arene 1, Shuford, the rincipal, should be
e
acquitted and the conviction were - =
allow
to stand as to Jor e al ttor
We therefore vacate Jordan’s conviction on
the substantive count. under 18 U.S
S.C. §§2
and 1001, contingent upon Shuford's Gent
tion, at his retrial, of the substantive
offense charged.'' (Emphasis added)
See also United States v. Prince, 430 F.2d 1324
(C.A. 4, 1970), in which the court reversed the
| m
conviction of the aider and abettor because while
the appeal was pending the principal was acquitted.
The court held:
"His acquittal established that no
crime has been committed."
In United States v. Smith, 478 F.2d 976 (D.C.
C.A., 1973), the conviction of an aider and abettor
was reversed because of prejudicial remarks at the
trial directed at the alleged principal. The court
stated that logically if the principal had been
acquitted, the aider and abettor should also have
been found not guilty so that in the interests of
justice both convictions had to be reversed.
In United States v. Bernstein, 533 F.2d 775
at 799 (C.A. 2, 1976), in affirming a charge that
the guilt of the aiders and abettors was condition-
ed on finding the principal guilty, the court held:
"But it is apr Pry oi pe be
found lty of aidi etting ess
a ner «wr rs he has aided and abetted
committed the criminal act. See Shuttles-
worth v. ae of sine i , 373 U.S. 262,
S.Ct. a L. Ed. 335 (1963) ;
United States v. Hoffa, 349 F.2d 20, 40
in ‘ . 385 U.S. 293, 87
S.Ct. 408, 17 L.Ed. 2d 374 (1966). But cf.
United States v. Bryan, 483 F.2d 88, 93-94
Cia Cz 1573) (hot necessary that principal
~
pe. ne ae Nas a ee
be tried and convicted or even identified) ;
United States v. Provenzano, 334 F.2d 678,
691 (3d Cir.,), cert. denied, 379 U.S. 947,
85 S.Ct. 440, 13 L.Ed. 2d 544 (1964)."
In United States v. Hoffa, 349 F.2d 20, at
page 40, (C.A. 6, 1965), aff'd., 385 U.S. 293, 87
S.Ct. 408, 17 L.Ed. 2d 374 (1966), the court held:
‘Before Hoffa could be convicted as an
aider and abettor, however, it was necess-
ary for the Government to prove that the
principal, Medlin, conmitted the crime.
Shuttlesworth v. City of Birmingham, 373
U.S. 262, 265, 83 S.Ct. 1130, 10 L.Ed. 2d
335 (1963); Hendrix v. United States, 327
F.2d 971, 975 (C.A. 5, 1964); Edwards v.
United States, 286 F.2d 681 (C.A. 5, 1960);
Karrell v. United States, 181 F.2d 981
(C.A. 9, 1950)."
The majority opinion of the Court of Appeals
for the Third Circuit sustaining the conviction
cited United States v. Azadian, 436 F.2d 81 (C.A. 9,
1971), for the proposition that where a principal
is acquitted because she was entrapped, the aider
and abettor could nevertheless be indicted and
convicted on the same offense. Im that case, the
Court of Appeals for the Ninth Circuit did not
extend to the aider and abettor the principal's
defense against entrapment. However, that case is
an entirely different proposition from a case where
the substantive offense was submitted on its facts
to a jury and the principal was acquitted on the
facts, not on constitutional impediments. The
Ninth Circuit would seem to be in accord with your
Honorable Court and the District of Columbia, Second,
Fourth and Seventh Circuits for in United States v.
Jones, 425 F.2d 1048 at 1056 (C.A. 9, 1970), the
court held:
"There is no question but that there must
be a guilty principal before there can be
an aider and abettor."'
The Ninth Circuit then cited Edwards V. United
States, 286 F.2d 681 (C.A. 5, 1960). In United
States v. Howitt, 55 F. Supp. 372 at 374; aff'd.,
150 F.2d 82 (C.A. 5, 1945); aff'd., 328 U.S. 189,
the district court held:
"The basic principle of law is recognized
that an aider and abettor may not be
guilty in aiding or abetting a principal
unless a principal did as a matter of fact
commit a crime."
The trial court also held that whether an aider and
abettor can be convicted if the principal was ac-
quitted was not before the court. United States
v. Stevison, 471 F.2d 143 (C.A. 7, 1972), cert. den.,
puts that circuit in those which hold that a jury
instruction not to convict an aider and abettor if
the principal is not convicted is correct for an
~14-
i i inti: bir satin Dahieae attire asa Bits acts
aider and abettor cannot be convicted of aiding and
abetting an acquitted principal.
The majority opinion of the Court of Appeals
for the Third Circuit conjures reasons for not reach-
ing the logical result that an aider and abettor
cannot have aided and abetted an innocent principal.
Those hypothetical issues are not raised by the facts
of this case. In this case a jury verdict establish-
ed the fact that Niederberger was not guilty of
committing a substantive offense in receiving
compensation from Standefer. Any definition of aid
and abet requires the rendering of assistance, en-
couragement or support to another to conmit a crine.
See Funk & Wagnall's Standard College Dictionary,
New Updated Edition, and Black's Law Dictionary,
Fourth Edition. Thus, the very wording of the
statute compels the requirements that a guilty
principal -- that is, one who has not previously been
acquitted -- be involved in the transaction before
one can be guilty of aiding and abetting.
The doctrine of collateral estoppel pr2-
cludes the Government of the United States from
attempting to relitigate Niederberger's guilt as
a principal on the very facts on which he has al-
ready been acquitted in order to establish the guilt
«1S
of Standefer in a subsequent trial as an aider and
abettor. If Standefer and Niederberger were indict-
ed together, the instructions to the jury set forth
in United States v. Bernstein, supra, and United
States v. Stevison, supra, would have compelled the
court below to charge that if Niederberger were
acquitted of any of the counts of which Standefer
was charged with aiding and abetting, then Standefer
could not be guilty of those cots. ‘That the
executive branch of the Government, through the
Department of Justice, chose to indict Niederberger
and try him first should not give the Government
two bites at the apple. As stated by Mr. Justice
Douglas in Sealfon v. United States, 332 U.S. 575,
68 S. Ct. 237 (1948):
"The instructions under which the verdict
was rendered, however, must be set ina
practical frame and viewed with an eye to
all the circumstances of the proceedings.
We look to them only for such light as
they shed on the issues determined by the
verdict. Cf. DeSollar v. Hanscome, 158 —
U.S. 216, 222, 15 S.Ct. 816, 818, 39 L.Ed.
956. Petitioner was the only one on trial
under the conspiracy indictment. There was
no evidence to commect him directly with |
anyone other than Greenberg. Only if am
agreement with at least Greenberg was in-
ferred by the jury could petitioner be )
-16-
convicted. And in the only instruction
keyed to the particular facts of the case
the jury was told that petitioner must be
acquitted if there was reasonable doubt
that he conspired with Greenberg. No-
where was the jury told that to retum a
verdict of guilty it must be found that
petitioner was a party to a conspiracy
involving not only Greenberg but the
Baron Corporation as well. Viewed in this
setting, the verdict is a determination
that petitioner, who concededly wrote
and sent the letter, did not do so pur-
Suant to an agreement with Greenberg to
defraud.
"So interpreted, the earlier verdict pre-
cludes a later conviction of the substan-
tive offense. The basic facts in each trial
were identical."
Also, in Ashe v. Swensen, 397 U.S.. 446, 90 S.Ct. 1189
(1970), this Honorable Court held:
>»
"Collateral estoppel" is an awkward phrase,
but it stands for an extremely important
principle in our adversary system of justice.
It means simply that when an issue of ultimate ©
fact has once been determined by a valid and
final judgment, that issue cannot again be
litigated between the same parties in any
future lawsuit. Although first developed
in civil litigation, collateral estoppel
has been an established rule of federal
criminal law at least since this Court's
+} %
decision more than 50 years ago in United
States v. Oppenheimer, 242 U.S. 85, 3/7 S.Ct.
68, 61 L.Ed. 161. As Mr. Justice Holmes
put the matter in that case, 'It cannot be
that the safeguards of the person, so often
and so rightly mentioned with solem rever-
ence, are less than those that protect from
a liability in debt.' 242 U.S. at 87, 37
S.Ct. at 69. As a rule of federal law,
therefore, '[i]t is much too late to suggest
that this principle is not fully applicable
to a former judgment in a criminal case,
either because of lack of ‘mutuality’ or
because the judgment may reflect only a
belief that the Government had not met the
higher burden of proof exacted in such
cases for the Government's evidence as a
whole although not necessarily as to every
link in the chain.' United States v. Kramer,
289 F.2d 909, 913."
Similarly, in United States v. Oppenheimer, 242 U.S.
85, 37 S.Ct. 68 (1916), Justice Holmes, wri-ing for
a unanimous Court, cited with approval Judge Hawkins’
holding in Reg. v. Miles, L.R. 24 Q.B. Div. 423, 431,
in which he held:
"Where a criminal charge has been adjudicated
upon by a court having jurisdiction to hear
and determine it, the adjudication, whether
it takes the form of an acquittal or convic-
tion, is final as to the matter so adjudicat-
ed upon, and may be pleaded in bar to any
subsequent prosecution for the same offense.
. . . Im this respect the criminal law is in
unison with that which prevails in civil
proceedings."
ith,
as oo rence eslninaiee a ecinelinallll
The conclusion of the court of appeals
that the 1951 amendment to the aider and abettor
statute abolishes the concept of aider and abettor
and subjects a citizen to indictment as a principal
where Congress changed the language of the Act from
making an aider and abettor "a principal" to making
a citizen "punishable as a principal" is a broad
extension of a criminal statute beyond the rule
of lenity usually applied to criminal statutes.
The confusion which will be engendered in
the administration of criminal justice by allowing
the court of appeals decision to stand is demon-
strated by the fact that the court of appeals had
previously held that the Government did not have
to prove a specific intent or prove a quid pro quo
in order to convict Niederberger. United States v.
Niederberger, 580 F.2d 63 (C.A. 3, 1978), cert. den.,
99 S.Ct. 567 (1979). Although the substantive
offense does not require intent, aiding and abetting,
counselling, commanding, inducing or procuring the
commission of a substantive offense by definition
of the words used would obligate the Government to
prove a specific intent and agreement. The amend-
ment of the statute by judicial fiat now requires
no such agreement and no specific intent and
-19-
subjects Standefer to punishment for a crime not
clearly defined by statute.
The majority of the facts introduced in the
trial court involved Gulf Oil Corporation's audits
and a special report titled the "Bahamas X Report"
and an attempt by the Government to show that some-
how the audits and the "Bahamas X Report'’ were
related to the golf trips. Part of the defense in-
volved the fact that since Gulf had paid some
$150,000,000.00 in additional taxes because of the
audits and Mr. Standefer was not involved in the
"Bahamas X Report’, these facts would bear on
whether Standefer had a corrupt intent in providing
the golf trips or if the golf trips were provided
for business friendship as contended. The trial
court has no discretion to take from a jury the
defendant's theory of his defense on which a founda-
tion is laid by the evidence. See United States v.
Mitchell, 495 F.2d 285, 288 (C.A. 4, 1974); United
States v. Leach, 427 F.2d 1107, 1112 (C.A. 1, 1970),
cert. denied, 400 U.S. 829; Government of Virgin
Islands v. Carmona, 422 F.2d 95, 99-100, n.6 (C.A.
3, 1970); United States v. Grimes, 413 F.2d 1376,
1378 (C.A. 7, 1969); Sparrow v. United States, 402
F.2d 826, 828 (C.A. 10, 1968); Bursten v. United
States, 395 F.2d 976, 981 (C.A. 5, 1968), cert.
=%-
- OO RE it din nl ll
denied, 409 U.S. 843; Baker v. United States, 310
F.2d 924, 930 (C.A. 9, 1962), cert. denied, 372 U.S.
954; Levine v. United States, 261 F.2d 747, 748
(D.C. Cir. 1958); Marson v. United States, 203 F.2d
904, 912 (C.A. 6, 1953).
Finally, it is respectfully submitted that
aiding and abetting requires the interaction of two
persons in violation of the specific and strictly
construed criminal statutes. If only one named
person is a government employee and subject to in-
dictment and conviction for the commission of a
substantive offense, another defendant cannot be
guilty of aiding and abetting the conmission of the
offense unless the principal is tried simultaneously
or tried before the aider and abettor is convicted
of the substantive offense. This would harmonize
the decisional law applicable to aiding and abetting
with the requirements that at least two defendants
be convicted when a conspiracy is charged. See
Morrison v. California, 291 U.S. 82, 92, 54 S.Ct.
281, 285 (1934), which held "conspiracy imports a
corrupt agreement between not less than two ...."';
Hartzel v. United States, 322 U.S. 680, 64 S.Ct.
1233 (1944); Bates v. United States, 323 U.S. Bae
65 S.C6. 15 (1944); dictum in United States v. Fox,
130 F.2d 56 (C.A. 3, 1942), cert. denied, 317 U.S.
fin
666; Romontio v. United States, 400 F.2d 618 (C.A.
10, 1968); Lubin v. United States, 313 F.2d 419
(C.A. 9, 1963); United States v. Whitfield, 378
F. Supp. 184 (D.C. E.D. Pa., 1974), aff'd. without
opinion, 515 F.2d 507 (C.A. 3, 1975). Aiding and
abetting requires a guilty principal as much as a
conspiracy requires at least two guilty conspirators.
Conclusion
As stated by Judge Aldisert, in his dissent-
ing opinion, the conviction of Standefer violates
the very foundation of criminai law --
'"". . . mo one shall be punished for
anything not expressly forbidden by
law.'' ( Appendix A, 40a)
He further stated:
"My position is straightforward and
blunt -- you cannot clap with one hand;
it takes two to tango; to be guilty of
aiding another to commit a crime there
must first be a crime. I do not accept
the convoluted rhetoric advanced by the
government but adhere to the position
I took in United States v. Bryan, ...
that a person cannot be convicted of
aiding and abetting a principal when
that principal has been acquitted of
committing the charged offense."'
(Appendix A, 41a)
-22- 7
It is respectfully submitted that the
majority opinion places an imprimatur of appellate
approval on the presumption of guilt and the broad
construction of criminal statutes rather than the
presumption of innocence and the strict construc-
tion of criminal statutes.
With the proliferation of the use of the
aider and abettor statutes by the Department of
Justice and the divergence of interpretation ex-
hibited by the Third Circuit as opposed to the
District of Columbia, Second, Fourth, Seventh and
Ninth Circuits, this important area of criminal law
and the procedural and substantive extensions of
the aiding and abetting statute should be resolved
and made uniform by your Honorable Court.
Respectfully submitted,
HAROLD GONDELMAN
GONDELMAN BAXTER MANSMANN
& McVERRY
Attorneys for Petitioner
=29.
Appendix A - Opinion, Court of Appeals
UNITED STATES COURT OF APPEALS
For tHe Txuirp Circuit
No. 78-1909
UNITED STATES OF AMERICA
v.
F. W. STANDEFER,
Appellant
On AppeEaL FRom THE Unitep States District Court
FOR THE WESTERN District oF PENNSYLVANIA
Crim No. 77-00139-02
Argued December 12, 1978
Before AupisErT, ADAMs and HiccinspotHaM, Circuit Judges
Reargued En Bane May 17, 1979
Before Serrz, Chief Judge and AtpisErt, ApaMs, GIBBONS,
Rosenn, Hunter, GartH and HiccinsporHam,
Circuit Judges
(Opinion filed August 10, 1979)
HaroLp GoNDELMAN Rosert J. CrnpricH
(Argued) U.S. Attorney
Gondelman Baxter Craic R. McKay (Argued)
Mansmann & McVerry Asst. U.S. Attorrey
Pittsburgh, Pa. 15219 FREDERICK W. THIEMAN
(Argued)
Attorneys for Appellant Asst. U.S. Attorney
Pittsburgh, Pa.
Attorneys for Appellee
la
Appendix A - Opinion, Court of Appeals
2
OPINION OF THE COURT
Apvamgs, Circuit Judge.
This case arises out of a series of substantial gifts
made by the Gulf Oil Corporation and two of its officials to
Cyril J. Niederberger, an agent of the Internal Revenue
Service and the person charged with auditing Gulf’s fed-
eral income tax returns. As a result of these alleged
improprieties, separate indictments were filed against Gulf,
Niederberger, and two Gulf employees, Joseph Fitzgerald
and Fred W. Standefer. Standefer, the appellant here,
was Gulf’s Vice-President of Tax Administration, and
Fitzgerald was his immediate subordinate.
Standefer was convicted on all nine counts of an indict-
ment charging him with providing illegal gratuities to a
public official, in violation of 18 U.S.C. § 201(f), and with
aiding and abetting Niederberger in accepting fees, com-
pensation or rewards, other than as permitted by law, for
the performance of his duty, in violation of 26 U.S.C.
§ 7214(a)(2). Before a panel of this Court, Standefer un-
successfully raised several challenges to his conviction.
The court thereafter ordered rehearing en banc to consider
one of these issues in particular: what effect, if any, should
Niederberger’s acquittal on three of the counts brought
against him under §7214(a)(2) have on Standefer’s con-
viction for aiding and abetting Niederberger in committing
the acts charged in those counts.
We conclude that the outcome of Niederberger’s pros-
ecution has no effect on Standefer’s conviction, and accord-
ingly affirm on all counts.
I. Facts
From May, 1971, to June, 1974, Gulf Oil Corporation,
through Standefer and Fitzgerald, supplied a number of
gifts to Niederberger and his family. Five of these gifts
were in the form of paid golfing vacations to various resorts
2a
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CBRE toe
Dr ta ete WG? SC tee ia? te
SN da On ketene ata
at UNDE Dats
FE et ee ee
Appendix A - Opinion, Court of Appeals
3
and became the subject matter of the indictments returned
against Gulf, Standefer, Niederberger and Fitzgerald.
Specifically, Gulf paid for: the hotel bill for the Nieder-
berger family in Pompano Beach, Florida; a four-day trip
at the Doral Country Club in Miami Beach; a four-day
vacation at the Seaview Country Club in Absecon, New
Jersey; a trip to Del Monte Lodge in Pebble Beach, Cali-
fornia; and a four-day trip to the Desert Inn in Las Vegas,
Nevada.
Gulf Oil pleaded guilty as to certain counts of the
indictment against it, and Fitzgerald entered a plea of nolo
contendere, Niederberger and Standefer elected to submit
their cases to juries, and were tried separately. Nieder-
berger, whose trial took place first, was charged with five
counts of violating 18 U.S.C. § 201(g),' one for each of the
trips listed above, and with five counts of violating 26
U.S.C. § 7214(a) (2),? also one for each of the trips in ques-
tion. These statutes forbid the receipt by an IRS agent
of gratuities in any way related to the performance of an
official duty. Niederberger was convicted on four of the
five § 201(g) counts, but a not-guilty verdict was returned
as to the Pompano Beach trip. The jury found Nieder-
berger guilty on only two of the §7214(a)(2) counts,
however, acquitting him on the counts that charged him
with accepting the trips to Pompano Beach, Absecon and
Miami. He was sentenced to six months in prison to be
1. 18 U.S.C. §201(g) provides:
Whoever, being a public official, former public official, or person selected
to be a public official, otherwise than as provided by law for the proper
discharge of official duty, directly or indirectly asks, demands, exacts,
solicits, seeks, accepts, receives, or agrees to receive anything of value for
a for or because of any official act performed or to be performed by
im.
Shall be fined not more than $10,000 or imprisoned for not more than two
years, or both.
2. 26 U.S.C. § 7214(a) (2) imposes a criminal sanction against:
Any officer or 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.
3a
Appendix A - Opinion, Court of Appeals
4
followed by a five-year period of probation, and fined
$5,000. On appeal to this Court his conviction was affirmed.
United States v. Niederberger, 580 F.2d 63 (3d Cir. 1978),
cert. denied, 99 S. Ct. 567 (1979).
Standefer was charged with four counts of violating
18 U.S.C. § 201(f),2 a companion provision to § 201(g).
Section 201(f) prohibits the giving or offering of gratuities
to a public official for the performance of an official act.
These four counts covered all the trips except that to
Pompano Beach. Standefer was also charged with five
counts of violating § 7214(a)(2), under the theory that he
had aided and abetted Niederberger in accepting the five
golfing trips. Although, on its face, § 7214(a)(2) applies
only to government employees, such a charge is possible
under federal law as a result of 18 U.S.C. § 2,* which allows
the punishment of an aider and abettor as if he were a
principal. The jury convicted Standefer on all nine counts.
He was then sentenced to six months in prison, to be fol-
lowed by a two-year period of probation, and fined $18,000—
$2,000 on each count.
Standefer did not deny that he and Fitzgerald provided
the trips in question to Niederberger or that they were
paid for with Gulf Oil funds:
Q. You have heard Mr. Fitzgerald testify that
there were golf outings and you approved various
3. 18 U.S.C. § 201(f) provides:
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 per-
formed 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.
4. 18 U.S.C. §2 reads:
(a) Whoever commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission, is punish-
able as a principal.
(b) Whoever willfully causes an act to be done which if directly per-
formed by him or another would be an offense against the United States,
is punishable as a principal.
4a
ee ee
Aedes Rese saat: CERAM Kia hialinaih ehh. tne»
lis NS. i RA ri toch Le
Appendix A - Opinion, Court of Appeals
5
lunch, travel and expense vouchers. You heard that
testimony?
A. Yes, sir.
Q. And that’s true, is it not?
A. Yes, siree.®
Thus, despite the refusal of the Niederberger jury to con-
vict Niederberger on either of the Pompano Beach counts,
Standefer conceded that he had arranged for payment for
Niederberger’s Pompano Beach trip:
Q. Now let’s take a look at these various dates
called trip dates.
Do you remember the incident involving Pompano?
A. Yes, sir, I do.
Q. Did you know that that trip was taking place
before it took place?
A. What I recall about that trip, Mr. Fitzgerald
came into my office and he mentioned that he planned
to be in Coral Gables on business, and at that time that
he planned to take a vacation.
He also mentioned—and this may have been a
week or a few days before he left, and he mentioned to
me that Mr. Niederberger planned to be there at the
same time, and he said something to the effect that,
‘‘We will be getting together to play golf, we will be
having dinner together,’’ something along that line.
You know, it wasn’t a long, lengthy discussion or any-
thing heavy and so I said, ‘‘ Well, Fitz, if you are doing
that, why don’t you pick up Mr. Niederberger’s ex-
penses?’’ ®
Similarly, although the Niederberger jury had returned a
not guilty verdict on the §7214(a)(2) counts regarding
Miami Beach and Absecon, Standefer also admitted arrang-
ing for these gifts.”
5. App. 838a.
6. App. 860a-861a.
7. App. 863a-865a (Miami) ; App. 869a-872a (Absecon).
5a
Appendix A - Opinion, Court of Appeals
6
Standefer, therefore, did not premise his defense on a
denial of the facts that formed the basis of the government
charges. Rather, he contended that the gifts were provided
as a matter of friendship, and had no relationship to
Niederberger’s official duties. But here, too, the defense
faced a difficult task. As this Court made clear in United
States v. Niederberger, neither of the statutes involved in
that case obligate the government to prove a specific intent,
nor do they require proof of a quid pro quo.’ Standefer, for
all practical purposes,’ confronted the same statutes. To
find Standefer guilty here, then, it was not necessary for the
jury to find a specific intent on Standefer’s part to bribe
Niederberger, nor did it need to find that Standefer or
Gulf were in any way benefited by actions taken by Nieder-
berger. All that was required in order to convict Standefer
was that the jury conclude that the gifts were given by him
for or because of Niederberger’s official position, and not
solely for reasons of friendship or social purposes.
The jury’s determination in this regard finds sub-
stantial support in the record. Although Standefer argued
that the trips were given for reasons of friendship, there is
no evidence that he ever provided trips for Niederberger
prior to his becoming the IRS case manager for the Gulf
account or that he has done so since Niederberger left that
position. Nor does anything in the record show that
Standefer was as generous with corporate funds in giving
gifts to any non-business related friends.’° And it appears
that Standefer had no social relationship with Nieder-
8. 580 F.2d at 69. Accord, United States v. Irwin, 354 F.2d 192 (2d Cir.
1965), cert. denied 383 U.S. 967 (1966). 18 U.S.C. §201(f) may be con-
trasted with 18 U.S.C. §201(b), which requires a specific intent to bribe a
public official. The penalty for violation of §201(b) is a fine of up to $20,000
(or three times the amount of the bribe, whichever is greater) or a prison term
of up to fifteen years, or both, and possible disqualification from future office.
In contrast, the penalty for violation of §201(f{), under which Standefer has
been convicted, is a fine of up to $10,000 or a prison term of two years, or
both. See 18 U.S.C. § 201.
9. Niederberger, of course, was charged with violating § 201(g), not § 201
(f). The sections are companion provisions, however, and do not vary in
regard to the intent required or the need to demonstrate a quid pro quo.
10. See, e.g., App. 688a-694a; App. 775a-776a; Supp. App. 42b-45b.
6a
Ho Set eRe,
Appendix A - Opinion, Court of Appeals
7
berger, other than the contact he had with him in their
various official capacities.1 Moreover, Standefer’s im-
mediate subordinate, and own witness, Fitzgerald, testified
that he did not believe Standefer and Niederberger to be
‘‘close personal friends,’’ but that he considered them to
be only ‘‘business friends.’’!2 Standefer also regularly
submitted, as he was required to do, representation letters
to his superiors wherein he stated that ail expenditures
made or authorized by him, such as the payments for the
Niederberger trips, were in the ordinary course of Gulf’s
business, and that there was an ‘‘expectation that Gulf
(would) benefit directly or indirectly’? from such ex-
penditures.* Most tellingly, Standefer himself, at one
point, stated that the purpose of his expenditures was ‘‘to
establish rapport’’ with the IRS:
Q. What did you understand your duties to be in
connection with the policies of Gulf Oil as to IRS
agents?
A. Well, it was—My understanding is that I was
to develop a rapport; and as a matter of fact, and
when I first came into Pittsburgh, I had not made this
arrangement, but within a month there was a joint
party between the Gulf people and the IRS; and even
though we were having all the friction at that point,
I observed that it seemed that the people could get out
on the golf course and realize that maybe the other ones
weren ’t—didn’t have horns, and it seemed to improve
communications and rapport.
Q. Did you continue that policy?
A. Yes, sir, I did.
Q. What did you consider those expenditures [the
vacations provided to Niederberger by Gulf] to be,
sir?
11. App. 207a-209a.
12. App. 687a.
13. Supp. App. 124b-125b; Supp. App. 157b-158b.
7a
Appendix A- Opinion, Court of Appeals
8
A. It was to establish a rapport to relieve tension
that built up on one of these big audits. No one can
imagine how difficult these audits are, both on the IRS
as well as Gulf. It is a terrible, terrible procedure to
go through.*
Accordingly, there was ample, perhaps even overwhelming,
evidence in the record to support the jury’s finding that
the gifts Standefer made to Niederberger were not pro-
vided solely for social reasons.
On appeal to this Court Standefer has urged, inter
alia, that three of the §7214(a)(2) counts—those based on
the trips to Pompano Beach, Miami, and Absecon—should
have been dismissed because of Niederberger’s acquittal on
practically identical charges. Specifically, Standefer ar-
gues that as a matter of law he cannot be convictel of aid-
ing and abetting a principal when that principal has been
acquitted of committing the charged offense. A divided
panel rejected this argument, relying on past decisions of
this Court that have permitted the conviction of an aider
and abettor even when the principal has been acquitted.
See United States v. Bryan, 483 F.2d 88 (3d Cir. 1973) (en
banc) ; United States v. Provenzano, 334 F.2d 678, 691 (3d
Cir.), cert. denied, 379 U.S. 947 (1964); United States v.
Klass, 166 F.2d 373 (3d Cir. 1948). The Court ordered re-
hearing en banc in order to reconsider its position in these
cases and to re-examine the law in this area.
II. Tae Stratus or AmeERS AND ABETTORS
Unver FreperaL Law
The primary issue facing the Court at this juncture,
and the one that the Court en banc requested counsel to
address, is whether an aider and abettur may be convicted
notwithstanding the acquittal of the principal he is charged
with aiding and abetting.
At common law, the prevailing rule was that an ac-
cessory to a crime could not be convicted unless and until
14. App. 837a-838a.
8a
ae aes ie
SRN hae RR Set NNR i RR CAEL Nha ed
is ate eas
Appendix A - Opinion, Court of Appeals
9
the principal whom he had assisted had been convicted of
committing the substantive offense. If the principal were
to escape, or to die, or never brought to trial, or tried and
acquitted, no charges could be brought against any acces-
sories charged with assisting him. Federal law, of course,
has no common law crimes, and until 1909 an accessory
to a felony could not be tried at all absent an express
statutory authorization making the aiding of the principal
committing that crime a crime in and of itself2*® A nine-
teenth century federal prosecution for aiding and abetting
thus required a specific ‘‘accessory provision,’’ and several
such provisions were included among the criminal statutes
of the period.’” In 1909, however, Congress altered this
system by enacting a general rule:
Whoever directly commits any act constituting an of-
fense defined in any law of the United States, or aids,
abets, counsels, commands, induces or procures its com-
mission, is a principal."®
It has long been the position of most courts and com-
mentators that, as the Court of Appeals for the Ninth Cir-
cuit put it four years after the statute was passed:
The effect of the section under consideration is to
abolish the distinction between principals and acces-
sories in offenses defined in the laws of the United
States, ... the section under consideration is a recog-
nition by Congress that the old distinction between
principals and accessories which pertained to felonies
15. The prevailing rule, it should be noted, was not uncritically or univer-
ns gestae See, e.g., Regina v. Wallis, 1 Salk. 334, 91 Eng. Rep. 294
16. The rule as to misdemeanors differed, however. No specific statutory
authorization was necessary to prosecute an accomplice, and aiders and abettors
were chargeable as principals. See United States v. Mills, 32 U.S. (7 Pet.)
138, 141 (1833).
_17. See, e.g., Act of March 3, 1825, ch. 64, § 45, 4 Stat. 114 (buying stolen
mail) ; RS. $2323 (1878) (privacy) ; RS. § 5427 (1878) (naturalization
offenses) ; R.S. § 5466 (1878) (destroying mail).
18. Act of March 4, 1909, ch. 321, 35 Stat. 1152. This provision became
§ 332 of the penal code, and is presently codified, with some modifications, at
18 U.S.C. §2(a).
9a
Appendix A - Opinion, Court of Appeals
10
Appendix A - Opinion, Court of Appeals
11
is generally abrogated, and that a charge against one
formerly known as an accessory is good against him
as a principal.”
tor case, including one where the principal has been
acquitted. Despite this concession, the argument seeks to
exonerate Standefer by stressing that nowhere in the legis-
lative history did Congress unequivocally state its desire
: to permit the conviction of an aider and abettor once a
principal has been acqnitted. The solitary support for this
(alae AeA Si: AS ea nah ie meni Salen
This statute, which is now codified, with some changes, e
18 U.S.C. § 2(a), rejects aiiy distinction between a principa
and an aider and abettor. Consequently, the issue pre-
sented here is more accurately phrased in terms of ogee
a jury’s finding as to one ‘‘principal”’ should affect oy
outcome of charges brought against another principa
involved in the same crime—that is, whether the doctrine
of non-mutual collateral estoppel does or should prevail at
federal criminal law. But before this issue is considered,
it is necessary to discuss certain questions that have arisen
in regard to the meaning of 18 U.S.C. § 2, despite gag
eral acceptance accorded the interpretation set out above.
A. The Congressional Intent in
Drafting 18 U.S.C. § 2.
A critical question raised in the course of the Court’s
en banc consideration of this case is whether the original
aider and abettor statute of 1909 was intended by its
drafters to be as broad as this and other courts have as-
sumed over the last seventy years. In particular, the claim
has been made, in Part IV A of the concurring and dissent-
ing opinion by Judge Aldisert, infra, that Congress never
anticipated the use of 18 U.S.C. $2 to allow the conviction
of an aider and abettor after the principal has been
wie contention is premised on the absence of any
expression of an affirmative intent on the part of Congress
to bring about such a result. Implicit in such an argument
is the concession that the language of the statute states a
general rule encompassing the facts of any aider and abet-
_ United States, 203 F. 928, 932 (9th Cir. 1913). This view
has elon aan By Rp majority of the courts of appeals, see cases oa
in note 31, infra. It is also the view taken by the Model Penal Code, Section
2.06(7).
1Ca
argument is one passage of the legislative history. In the
Senate Report on the Act of March 4, 1909, a Senate com-
mittee expressed its view regarding the purpose of the
proposed legislation:
The committee has deemed it wise to make those who
are accessories before the fact at common law principal
offenders, thereby permitting their indictment and
conviction for a substantive offense.
At common law an accessory cannot be tried without
his consent before the conviction or outlawry of the
principal except where the principal and the accessory
are tried together; if the principal could not be found
or if he had been indicted and refused to plead, had
been pardoned or dies before conviction, the accessory
could not be tried at all. This change of the existing
law renders these obstacles to justice impossible.?°
Although the Senate Committee did no%, in either the quoted
passage or elsewhere, express an intention to make any
exception to the general rule announced in the statute it-
self, namely that an aider.and abettor is to be treated as a
principal, it is asserted that the Senate, at least, envisioned
reaching only certain ‘‘obstacles to justice’? which are
clearly set out in the Committee’s notes. The argument
proceeds that inasmuch as the situation at issue in this
case—where the principal has been acquitted—is one of the
more obvious possibilities that might arise in aider and
abettor cases and is not adverted to in the report, a doubt
20. S. Rep. No. 10, pt. 1, 60th Cong., Ist Sess, 26 (1908),
We note that neither Standefer nor the government has adverted to this
Senate Report at any time in the course of this case, either before the
district court, or before the original panel of this Court, or before the
Court sitting en banc.
lla
Appendix A - Opinion, Court of Appeals
12
arises whether the prior law was intended to be altered in
this regard. Such a doubt, it is then asserted, must, under
traditional rules of statutory construction, be resolved in
favor of a criminal defendant and against the government.
We are unpersuaded that this approach yields a proper
interpretation of 18 U.S.C. §2(a). The limited exception
contended for by our colleagues does not appear in the
language of the statute nor is it at any time specifically
endorsed in the legislative history. Further, in the more
than seventy years since the passage of the statute no court
or commentator has ever suggested, even in passing, that
the Congress sought to create or retain such a remnant of
the common law rule. The entire argument is premised on
the fact that a committee did not affirmatively set down, in
a particular report, its intention to reach this precise class
of cases.
It is true that the Supreme Court has recently em-
ployed a somewhat analogous formulation in requiring an
affirmative expression of intent from Congress before it
would read the facially applicable National Labor Relations
Act to include in its scope parochial school teachers.”* But
that opinion, as well as the approach employed therein, was
expressly motivated by the salutary and longstanding rule
that a court is obligated, wherever possible, to avoid a
construction that might raise a constitutional issue. See,
e.g., The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).
Even so, the parochial school decision drew a sharp dissent
from four Justices who were unwilling to allow the ab-
sence of an affirmative expression of intent in the legisla-
tive history to alter the clear language of the statute,”
21. National Labor Relations Board v. The Catholic Bishop of Chicago,
47 U.S.L.W. 4283 (March 21, 1979).
22. The Court requires that there be a “clear expression of an affirmative
intention of Congress” before it will bring within the coverage of a broadly
worded regulatory statute certain persons whose coverage might raise con-
stitutional questions. Ante, at 14. But those familiar with the legislative
process know that explicit expressions of congressional intent in such
broadly inclusive statutes are not commonplace. Thus, by strictly or loosely
applying its requirement, the Court can virtually remake congressional
enactments.
47 U.S.L.W. 4283, 4288 (Brennan, J., dissenting).
12a
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13
even when a constitutional issue is implicated. In cases
such as this one, where no constitutional concern is present,
the insistence on such an affirmative expression of intent in
the course of legislative hearings or in the body of a legis-
lative report would more likely have the effect of under-
mining congressional authority rather than respecting
Congress’ desires.
The Act of March 4, 1909 is clear on its face. Both
those who commit crimes and those who aid and abet their
commission are placed in a single class: ‘‘principals.’’ The
statutory language does not admit to any other possibility,
for the transformation fyom the common law rule appears
to be both general and complete, there being no exceptions
provided for in the statute itself. It is undeniable, of
course, that courts no longer exclude evidence of the legis-
lature’s intent on the ground that the meaning of the words
of a statute is plain. But neither do courts, in seeking to
ascertain the purpose of a piece of legislation, disregard
the words chosen by the legislature. ‘‘Illogical though it
was to hold that a ‘plain meaning’ shut off access to the
very materials that might show it not to have been plain
at all, it was equally wreng to deny the natural meaning of
language its proper primacy; .. .’’** Here the words
chosen by the Congress express a general rule. Equally
important, however, the legislative history itself announces
a desire for general application. The very Senate Report
that is relied upon to raise the question of legislative in-
tent states unequivocally that the relevant section, along
with another covering accessories after the fact, ‘‘are new
only in the sense that they are made general in their appli-
cation. They explain themselves.’’ *
Moreover, even as to the passage giving reasons for
the change, set forth in full supra, there is no explicit inten-
tion expressed to create the exception contended for in
Standefer’s behalf. Although the Senate Report lists the
elimination of certain ‘‘obstacles to justice’’ in support of
23. H. Friendly, Benchmarks 206 (1967).
24. S. Rep. No. 10, pt. 1, 60th Cong. Ist Sess. 26 (1908).
13a
Appendix A - Opinion, Court of Appeals
14
the proposed statute, there is absolutely no indication that
the list purported to be all inclusive. In fact, such an
assumption would, in effect, apply the canon of statutory
interpretation known as expressio untus, exclusio alterius
not to the words of the statute but to the language employed
in a committee report.2> Our attention has been called to
no instance where this approach to statutory construction
has been applied; indeed, many general Congressional en-
actments would be seriously limited by such an interpreta-
tion. In proposing general rules congressional committees
need not be expected to anticipate every possible application
of the contemplated rule, nor to voice their desire to bring
about all the applications they do foresee. An insistence
on an affirmative expression of intent would require just
such a clairvoyant legislative report and would bring many
general enactments under scrutiny. Such a demanding
reading of legislative history is not, in our view, in the
best interests of the legislative process.
It also bears emphasizing that the statute at issue is
now over seventy years old and at no time in the period
since its enactracnt has any court or commentator adverted
to this Senate Report to demonstrate that Congress’ intent
was being ignored. Moreover, on several occasions since
1909 Congress has had the opportunity to reform the crim-
inal code, and, indeed, is in the process of doing so now.
Yet, it has never sought to alter 18 U.S.C. § 2 to create the
exception it is claimed to have had in mind in 1909; and
25. Another less drastic approach would be to apply a different canon of
statutory interpretation, ejusdem generis, to the words of the Senate Report.
Under this doctrine, once a statute lists items of one type, any other items are
to be included only if they are of the same type. Thus the list of “obstacles
to justice” found in the Senate Report would not necessarily be all inclusive,
since other “obstacles to justice” not included therein would be deemed within
the legislative intent. But the application of ejusdem generis to legislative his-
tory, rather than the statute itself, is as unprecedented as the application of
expressio unius, exclusio alterius would be. Moreover, the Senate Report con-
tains no words of inclusion, such as “and other such obstacles” which are
usually necessary to invoke ejusdem generis rather than expressio untus, exclusio
alterius—even assuming that canons of statutory interpretation may be applied
to legislative history. Finally, even if ejusdem generis were applicable, the
question would remain whether an outright bar to prosecution of an aider and
abettor after the principal is acquitted may properly be described as an “obstacle
to justice.” :
l4a
a oo ee ee ee re
a ee
kes a heme ct Fhe om
Appendix A - Opinion, Court of Appeals
15
this despite several cases in the federal courts giving the
statute its natural meaning. Although at times it may be
proper to reconsider an interpretation of a statute in light
of new evidence of congressional intent, we believe that
long standing interpretations of statutory language and
purpose should not be lightly overturned if the law is to
have any certainty and consistency.
In sum, we are not persuaded that an objective reading
of the statute and its legislative history can be said to
leave a doubt as to the general nature of the rule clearly
enunciated therein. There is thus no basis for construing
such a doubt in Standefer’s favor. As Mr. Justice Frank-
furter noted in Callanan v. United States, 364 U.S. 587
(1961) :
Petitioner invokes ‘the rule of lenity’ for decision in
this case. But that rule, as is true of any guide to
statutory construction, only serves as an aid for re-
solving an ambiguity; it is not to be used to beg one.
. . The rule comes into operation at the end of the
process of construing what Congress has expressed,
not at the beginning as an overriding consideration of
being lenient to wrongdoers. That is not the function
of the judiciary.”®
We thus reject the view that the Senate Report may be
construed to raise a doubt about the general nature of the
rule set out in 18 U.S.C. § 2(a).
B. The application of 18 U.S.C. § 2 to convict one
who could not be charged as a principal under
the substantive criminal statute.
A second concern that has been expressed is that the
substantive criminal statute under which Standefer was
indicted, 26 U.S.C. § 7214(a) (2), is limited in its coverage
to officers and employees of the United States. Standefer,
26. 364 U.S. at 596.
15a
Appendix A - Opinion, Court of Appeals
16
a private citizen, notes that the government employed 18
U.S.C. § 2(a) to prosecute him as an aider and abettor,
when he could not have been indicted as a principal for the
substantive crime. He questions whether Congress antic-
ipated that a statute that ostensibly does no more than
alter a prior system of classification would be used to ex-
pand the reach of other substantive criminal statutes that
are confined to certain classes of defendants by their terms.
‘‘Congress could not have intended to amend 26 U.S.C.
§ 7214(a)(2) to apply to a non-Revenue Service citizen,’’
he asserts. ‘‘The substantive offense contained in § 7214
(a)(2),’’ the argument continues, ‘‘must be committed by
an employee of the Internal Revenue Service.’’ **
This point might be somewhat convincing were it not
for the 1951 amendment of the Act. But apparently the
very question Standefer raised in this regard had arisen
prior to 1951, because the Congress, in Section 17B of the
Act of October 31, 1951, altered the language of the statute
by replacing ‘‘is a principal’’ with ‘‘is punishable as a
principal.’’ The change was not designed to be purely
formal, for Congress expressed its purpose quite clearly:
This section is intended to clarify and make certain the
intent to punish aiders and abettors regardless of the
fact that they may be incapable of committing the spe-
cific violation which they are charged to have aided and
abetted. Some criminal statutes of title 18 are limited
in terms to officers and employees of the Government,
judges, judicial officers, witnesses, officers or employees
or persons connected with national banks or member
banks.”*
In light of this unambiguous statement by Congress that
18 U.S.C. § 2(a) may be used to reach one who could not
be indicted as a principal, Standefer, despite his private
status, may not be heard to challenge his conviction on this
27. Brief for appellant sur rehearing en banc, at 22.
28. S. Rep. No. 1020, 82nd “3 Ist Sess., (reprinted in (1951)) U.S.
Code Cong. & Admin. Serv. 2578 at 2583
l6a
ee cnn wr Rm ss a
Appendix A - Opinion, Court of Appeals
17
ground. Section 7214(a)(2) is made applicable to Stan-
defer through 18 U.S.C. § 2(a), and he must therefore be
judged, in the circumstances of this case, as though he were
a principal capable of violating that statute.
C. Precedents Bearing on the Question Whether an
Aider and Abettor May be Convicted When a
Principal has been Acquitted.
It is clear that 18 U.S.C. § 2(a) was designed to abol-
ish the common law requirement that any action taken
against an aider and abettor is to be conditioned on the
prior conviction of the principal. Although there is gen-
eral agreement that most elements of this absolute de-
pendency have been abrogated,” the idea of allowing the
conviction of an aider and abettor when a principal has
actually been acquitted still evokes some dissent. At least
one court of appeals has persisted in applying the tradi-
tional common law bar in such a situation, despite the
passage of 18 U.S.C. §2(a).°° The clear majority posi-
tion,*' however, is the view taken by the Model Penal
Code **—namely that no such bar exists.
29. No modern court, to our knowledge, has taken the position that an
aider and abettor may not be convicted if the principal is for whatever reason
never brought to trial. The conviction of a principal is thus no longer a pre-
requisite to the conviction of an aider and abettor in any jurisdiction of which
we are aware.
30. United States v. Shuford, 454 F.2d 772 (4th Cir. 1971) ; United States
v. Prince, 430 F.2d 1324 (4th Cir. 1970).
31. See, e.g., United States v. Deutsch, 451 F.2d 98, 118-19 (2d Cir. 1971),
cert. denied, 404 U.S. 1019 (1972); United States v. Bryan, 483 F.2d 88 3d
Cir. 1973) (en banc) ; United States v. Musgrave, 483 F.2d 327, 331-32 (Sth
Cir. 19973) ; United States v. Kelly, 258 F. 392, 402 (6th Cir.), cert. denied,
249 U.S. 616 (1919) ; Pigman v. United States, 407 F.2d 237 (8th Cir. 1969) ;
United States v. Azadian, 436 F.2d 81 (9th Cir. 1971); United States v.
Coppola, 526 F.2d 764, 776 (10th Cir. 1975) ; Gray v. United States, 260 F.2d
483 (D.C. Cir. 1958).
32. An accomplice may be convicted on proof of the commission of the
offense and of his complicity therein, though the person claimed to have
committed the offense has not been prosecuted or convicted or has been
convicted of a different offense or degree of offense or has an immunity to
prosecution or conviction or has been acquitted.
Model Penal Code, Section 2.06(7) (emphasis added).
This view is also favored by most commentators. See Perkins, Criminal
Law, ch. 6, § 8 (1969) ; 1 Wharton’s Criminal Law and Procedure, § 116 (1957) ;
21 Am. Jur. 2d, Crim. Law, § 128 (1965).
33. A scattering of cases may be said to take an ambivalent view or to be
susceptible to varying interpretations. See, e.g., United States v. Bernstein,
17a
Appendix A - Opinion, Court of Appeals
18
Most, if not all, of the cases urged by Standefer on
this point in fact stand for little more than the abiding re-
quirement that the government must prove every element
of its case in order to sustain a conviction. This is true of
any criminal prosecution, but it has been a particularly
notable factor in the reversal of several convictions of
aiders and abettors when the government has been unable
to establish adequately the commission of the criminal act
by the principal. 18 U.S.C. §2 has not altered the rule
that in order to convict an aider and abettor, the govern-
33. (Cont’d.)
533 F.2d 775, 799 (2d Cir.), cert. dented, 429 U.S. 998 (1976); United States
v. Smith, 478 F.2d 976 (D.C. Cir. 1973) ; United States v. Stevison, 471 F.2d
143 (7th Cir. 1972), cert. dented, 414 U.S. 819 (1973).
In the Bernstein and Stevison cases, both involving situations where the
principal and the aider and abettor were tried together, the issue was whether
it was error for the trial judge to charge the jury that it could not find the
aider and abettor guilty without first finding the appellant principal guilty of
committing the substantive crime. The challenges were made by principals
who contended that such a charge prejudiced them by leading the jury to con-
clude that it could not convict certain defendants, for whom it may have had
little sympathy, without convicting the appellants, for whom it may have had
some. In Stevison, for instance, the principal’s defense had been based on
coercion by the aider and abettor and she reasoned on appeal that the jury
might well have acquitted her had it been permitted to convict her co-defendant
aider and abettor independently.
In both cases the appellate courts rejected the argument tendered by the
princiyals, citing in one case Shuttlesworth, and in the other Giragosian, both
of which are discussed in the text infra. The cases would thus appear to stand
for no more than the proposition that “a person cannot be found guilty of aiding
and abetting unless the principal whom he has aided and abetted committed the
criminal act.” Bernstein, supra, 533 F.2d at 799. These cases might be suscep-
tible to a broader reading, however, because of certain citations and language
used. Thus in Bernstein the Second Circuit indicated that it believed its rule
was contrary to that announced by this Court in Bryan and Provenzano, supra.
(But see United States v. Deutsch, 451 F.2d 98, 118-19 (2d Cir. 1971), cert.
denied, 404 U.S. 1019 (1972) ) (which is in apparent agreement with Bryan and
Provenzano). And in Stevison the Court stated: “The presupposition that an
aider and abettor may be convicted, since 1951, absent conviction of the prin-
cinal is invalid.” 471 F.2d at 148. Were this language to be given its broadest
reading, it would state the common law rule that forbids the conviction of an
aider and abettor altogether unless the principal is also convicted, even in cases
where the principal died or was not tried. Inasmuch as this is plaintly not the
law after 18 U.S.C. §2, we do not think that the court intended so broad a
statement, or to go beyond the cases cited in support of its holding.
The third arguably ambivalent case, Smith, also involved defendants who
were tried together. The conviction of the principal, Smith, was overturned
because the prosecutor threatened a witness, ultimately depriving both defend-
ants of his testimony. The case appears to stand for the proposition that “error
that damaged Smith’s defense was also prejudicial to Jarvis,” the aider and
abettor, thus requiring the reversal of both verdicts. The opinion does not
therefore appear to signal a rejection by that court of the position it took in
Gray v. United States, 260 F.2d 483 (D.C. Cir. 1958).
18a
Appendix A- Opinion, Court of Appeals
19
ment must first demonstrate that a crime has been com-
mitted. See, e.g., United States v. Cades, 495 F.2d 1166,
1167 (3d Cir. 1974).
Thus in Shuttlesworth v. City of Birmingham, 373 U.S.
262 (1963), two ministers charged with aiding protesting
students in conducting a ‘‘sit-down demonstration’’ were
held not to be subject to conviction on an aiding and
abetting charge when the ‘‘sit-down demonstration’’ itself
was held not to be criminal under the federal Constitu-
tion. The act that they had helped to bring about was
simply not a criminal act. In the present case, however,
there is no suggestion that the acts charged, if proven, are
insufficient to constitute criminal offenses.
A different but perhaps more typical example is
Giragosian v. United States, 349 F.2d 166 (1st Cir. 1965).
In that case the court concluded that there was ample evi-
dence to support the jury finding that Giragosian had aided
and abetted a bank official named Page in the misapplica-
tion of bank funds—if such an offense could itself be
proved. But the court held that the evidence of the actual
commission of the substantive offense by Page, the prin-
cipal, was insufficient to support a guilty verdict, inasmuch
as there was no showing of the willfulness necessary to
convict Page under the applicable statute. If the govern-
ment could not prove that there was a substantive criminal
violation, it could not secure a verdict against one charged
with aiding and abetting that violation.™
Giragosian and cases like it, it should be added, are
not themselves universally accepted. Even when the prin-
cipal and the aider and abettor are tried together, whether
by judge or by jury, a conviction of the aider and abettor
may be sustained even if the fact finder concludes that the
principal lacked the requisite intent to commit the substan-
tive crime, provided that the act constituting the crime has
itself been completed. This has been the rule in this Cir-
cuit. United States v. Bryan, 484 F.2d 88 (3d Cir. 1973)
(en banc). Bryan involved an ‘‘innocent dupe’’ who was
34. Accord United States v. Hoffa, 349 F.2d 20, 40 (6th Cir. 1965).
19a
Appendix A - Opinion, Court of Appeals
20
charged as a principal in the theft of 950 cases of Scotch
whiskey. The dupe, Echols, was acquitted because a rea-
sonable doubt existed whether he had the requisite intent
to steal the whiskey. No such doubt existed as to Bryan,
the aider and abettor, and he was convicted by the same
fact finder that acquitted Echols. Although a question was
therefore raised whether the commission of the substantive
crime charged in the indictment had been proved, see 484
F.2d at 97-99 (Gibbons, Circuit Judge, dissenting), a ma-
jority of this Court allowed the conviction to stand. That
case, in fact, appears to present the situation contemplated
by 18 U.S.C. § 2(b).
But the collective teachings of Shuttlesworth, Giragos-
ian, Bryan, and cases like them, when applied to the case
sub judice, do not offer much help to Standefer. The crime
charged here is not constitutionally protected or other-
wise innocent activity as was the case in Shuttlesworth.
Moreover, the theoretical difficulties presented by Bryan
and Giragosian are not present here, where the evidence
offered by the government to prove the commission of the
substantive crime was more than adequate. In Bryan the
evidence established that the named principal did not com-
mit the substantive offense. In Giragosian the evidence
was insufficient as a matter of law to permit a jury to find
that the substantive offense was in fact completed. Here,
in contrast, the evidence produced at Standefer’s trial left
little doubt that the substantive crime was committed, and
by Niederberger. Standefer himself admitted that all the
vacations listed in the indictment were provided to Nieder-
berger and paid for by Gulf,® and the record clearly sup-
35. See text accompanying notes 5-7.
We cannot agree, however, with the position taken by Judge Aldisert in
Part III of his concurring and dissenting opinion to the effect that “it is pre-
cisely because” of Standefer’s admissions that “Niederberger’s acquittal can
only be interpreted as a jury finding that receipt of the vacations in question
was an innocent act.” Standefer’s admissions were not made until his own
trial, well after Niederberger had been convicted. Standefer made no admis-
sions—indeed he did not testify—at Niederberger’s trial. Thus whatever inter-
pretation one may choose to give the findings of the Niederberger jury—if
indeed it is appropriate to interpret them at all—such an interpretation ought
not to be based on statements made by Standefer long after the Niederberger
jury delivered its verdict.
20a
~~ n we SN RD ee
Appendix A - Opinion, Court of Appeals
21
ported a finding of the requisite business relationship.™
Accordingly, Standefer can find no comfort in those prece-
dents requiring adequate proof of the fact of a substantive
criminal act. He must prevail, if at all, on the theory that
the previous determination of the Niederberger jury is in
some way binding on his own jury.
D. The Justification for Permitting the Conviction
of an Atder and Abettor When the Principal
has been Acquitted.
As we have suggested above, the rule that one jury’s
determination as to a principal forecloses a second jury’s
determination as to an aider and abettor—as opposed to
the rule requiring proof of the commission of a criminal
act—is endorsed by only one court of appeals. In United
States v. Prince, 430 F.2d 1324 (4th Cir. 1970), the Fourth
Circuit concluded that the acquittal of Prince’s hunting
companion on a charge of shooting a rail bird from a motor-
boat conclusively established that no crime had been com-
mitted, and therefore required reversal of Prince’s sepa-
rate conviction for aiding and abetting his friend by
operating the motorboat. Were we to apply Prince to the
present case, we would have to conclude that Nieder-
berger’s acquittal on three of the §7214(a)(2) charges
establishes as a matter of law that no substantive crime
was committed as to the offenses charged in those counts,
and thus bars a contrary finding by the Standefer jury.
The superficial attractiveness of this approach is
readily apparent. The problem of allowing two seemingly
inconsistent verdicts to survive is naturally troubling, and
a rule of law thai eliminates such apparently contradictory
results is, therefore, not without appeal. Moreover, in the
criminal context, the government’s success in securing a
guilty verdict against an aider and abettor after failing to
secure such a verdict against a principal may strike some
36. See text accompanying notes 8-14.
2la
Appendix A - Opinion, Court of Appeals
22
as giving the prosecution ‘‘two bites at the apple’’ and
therefore as bordering on unfairness.
But even if it is easy to understand the temptation to
retain at least this one aspect of the common law rule, we
do not believe that Congress has done so,” and the reasons
for not doing so are, on balance, persuasive. First, as a
logical matter, the barring of the prosecution of an aider
and abettor when the principal is acquitted would at times
spawn its own inconsistencies. An example may be drawn
from the present case. Were it beyond question, for in-
stance, that the Niederberger jury must have entertained
a doubt that Gulf Oil money was used to pay Nieder-
berger’s hotel bill, in Pompano Beach—the one vacation
for which Niederberger was not convicted under any stat-
ute—-we would be required to accept as a fact an arguable
jury conclusion that all the parties now before us con-
cede to be false.**
Nor do we believe that this type of conundrum would
be all that untiSual in cases where aiders and abettors are
tried separately from the principals that committed the
crime. It will surely come as no surprise that in many
cases the proof available to the government may vary de-
pending on who is being prosecuted and when the prosecu-
tion is brought. Evidence inadmissible against one defend-
ant may often be used against another. For example,
differing defense strategies may result in different rulings
37. As is elaborated upon in our discussion of the original purpose of 18
U.S.C. §2, see part IIA supra, it is our view that that statute states a general
rule abrogating in its entirety the common law distinction between principal
and accessory before the fact. Of course, an aider and abettor is not deprived
of the benefit of other rules of law, applicable to all principals, if such rules
offer him protection. See Part III infra.
38. This hypothetical example is given only as an illustration. In fact,
several inferences might be drawn from the verdict rendered by the Nieder-
berger jury. We cannot say with any certainty what may have motivated its
apparently contradictory conclusions. Its verdict may be read to indicate
doubt as to certain facts, or confusion on legal standards or have been the
result of compromise or compassion. Whatever may have been at the root of
the Niederberger jury’s conclusions, we do not believe that the district court
trying Standefer was required to seek to rationalize tnat result or that it was
or should have been controlling on the considerations of the Standefer jury.
22a
Appendix A - Opinion, Court of Appeals
23
on admissibility under the Federal Rules of Evidence ® or
as was the case here, different witnesses and different om-
phasis in testimony. Similarly, one defendant may lack
standing to challenge the admissibility of evidence uncon-
stitutionally obtained from a co-defendant, and therefore
inadmissible against the co-defendant but admissible
against him.*° And if there is a substantial time differ-
ence between the trials of the defendants, a key witness at
the first trial may die or be missing at the time of the sec-
ond trial, or conversely, new evidence may be obtained
against the second defendant that was either unknown or
unavailable to the prosecution at the time of the first trial.*?
In short, it may not comport with the realities of criminal
trials to require two juries who are presented with different
records to reach the same conclusion. To insist upon an
absolute congruence of results would leave many courts in
the uncomfortable position of reversing findings of fact
supported by overwhelming evidence because a different
fact finder entertained a reasonable doubt when confronted
with a much less extensive or persuasive record.
Just as logic does not dictate such a result, neither does
fairness. Despite any assumption to the contrary, the gov-
ernment does not get ‘‘two bites at the apple’’ under the
majority rule set forth in the Model Penal Code. The de-
fendant, however, does get such an advantage under the
modified common law rule that is urged upon us here. The
39. Very often a defendant’s decision to testify will present opportuniti
to the government to offer evidence that might not A st Byte os
Should a defendant make a general denial of bribe-taking, for instance, the
prosecution may succeed, by way of rebuttal, in introducing evidence of bribes
other than those es in the indictment. Such evidence of prior bad acts
would normally be excluded under Fed. R. Evid. 404(b).
40. Thus, a defendant normally has standing to raise violation i
constitutional rights, but no standing to raise oo of others. pF Sedge
United States, 394 U.S. 165, 171-72 (1969). In certain cases, then, unconsti-
tutionally seized evidence may be admissible against a defendant who had no
possessory or privacy interest in the place searched or ihe goods seized, but
not against another who had such an interest. See, ¢.g., Brown v. United
a, Ay Vick = gee Cf. _— States v. Azadian, 436 F.2d 81 (9th
3 efen $s entrapment defense not vicari i
defendant who was not chuenell. ee ee
41. This latter possibili th i ;
F.2d 327 (Sth Cir, Lod ty was the case in United States v. Musgrave, 483
23a
Appendix A - Opinion, Court of Appeals
24
double jeopardy clause of the federal constitution prohibits
the government from retrying a defendant after he has been
acquitted, and thus makes ‘‘two bites’’ at the same apple
impossible. A rule forbidding the prosecution of an aider
and abettor once a principal is acquitted, on the other hand,
would allow the aider and abettor the opportunity to pre-
vail in either one of two trials. No matter how strong the
evidence against him at his own trial, he could always hope
to be acquitted vicariously as a result of some fortuitous
development at the principal’s trial. Of course, the gov-
ernment cannot benefit from any developments at the other
trial, and the suggestion that the defendant at the second
trial might therefore be properly convicted vicariously as a
result of the findings of a different fact finder would be
universally rejected out of hand. The aider and abettor is
thus provided with a second trial, at which he is not put in
jeopardy, and from which he can only benefit.
But even if this ‘‘windfall’’ aspect of the common law
rule is considered tolerable, the application of a bar to con-
viction in these cases would cause many guilty defendants
to go free without serving any countervailing purpose. For
instance, in United States v. Azadian, 436 F.2d 81 (9th
Cir. 1971), the principal, a Miss Daniel, was acquitted of
charges of soliciting or receiving bribes in return for al-
tering selective service classifications. Her conviction was
impermissible because the government had entrapped her
through the use of an agent. The government, however,
had not entrapped her accomplice Azadian, who was in-
dicted as an aider and abettor because he was a private
citizen and could not be indicted on the substantive statute
that applied only to government officials. The Court of
Appeals for the Ninth Circuit saw no reason to extend to
him Miss Daniel’s constitutional protection against entrap-
ment when Azadian himself was clearly not entrapped.
Similarly, in United States v. Musgrave, 483 F.2d 327
(5th Cir. 1973), the government’s evidence against the prin-
cipal, one Bryant, was insufficient to convict him at his trial
24a
25
and he was acquitted. Thereafter, new evidence was un-
covered which could have allowed a jury to convict Bryant
of the charged offense—bank fraud. Although it was un-
able to proceed against Bryant because of the fifth amend-
ment’s double jeopardy bar, the government did secure the
conviction of two aiders and abettors, Musgrave and
Womack. The Court of Appeals for the Fifth Circuit de-
clined to offer these defendants relief from a factually
supported verdict merely because Bryant himself was pro-
tected against retrial.
Neither fairness nor justice argue for allowing these
aiders and abettors to escape responsibility for their crimi-
nal activity merely because their respective principals have
escaped punishment. The criminal law abounds with rules
that often require that the guilty go free in order to safe-
guard the individual rights and liberties of our citizens.
Thus, damning evidence of an illegal search will be excluded
from a trial so as to protect the rights of the defendant
to be free from an unreasonable search and seizure, even if
the result might be said to be a miscarriage of justice in
the individual case. In like manner, a confession will be
held to be inadmissible if certain warnings are not given
and the defendant’s fifth and sixth amendment rights are
not thereby protected. Convictions will be reversed, as
well, for a host of trial errors too numerous to list in order
that the principles of fair trial and due process not be en-
croached upon, even when the actual involvement of a
criminal defendant in the crime charged is not in doubt.
Although these rules are often unpopular, and sometimes
misunderstood, the price that they extract from society by
leaving many of the guilty unpunished, and free to repeat
their transgressions, has been thought to be worth the bene-
fits obtained in the protection of human liberty.
But Standefer, like Azadian and Musgrave, has suf-
fered no encroachment on his liberty. He has had a full
and fair trial before a jury of his peers; he has been repre-
sented throughout by able and resourceful counsel; no
25a
Appendix A - Opinion, Court of Appeals
26 |
unconstitutionally seized evidence or coerced confession has
been admitted against him; and his due process rights have
been fully safeguarded. Yet, despite all of this, it is pro-
posed to give him refuge in the imagined remnant of a
common law rule regarding the dependency of verdicts
against aiders and abettors. Such a result might please
those who pursue a tidy consistency for its own sake, but
it would have no relationship to either the facts of this
case or to a policy that seeks to promote individual liberty.
It would serve no purpose, save the maintenance of a com-
mon law system of criminal classification and the fulfill-
ment of the scholastic quiddities of the more traditional
of our legal academics. We believe this Court has been
correct in rejecting such an approach over the last thirty
years, and we decline to accept it now. 18 U.S.C. §2, the
majority of the cases, and the Model Penal Code, all take
the view that an aider and abettor should be treated like
any other principal, and be required to ‘‘stand on his own
two feet.’’ 42 We see no occasion at this time, and on these
facts, to alter this stance.
TIl. Tue Appuication or Non-Mutuat CoLLATERAL
EstToprEL IN A CRIMINAL PROSECUTION.
The conclusion that we have reached in regard to 18
U.S.C. §2 may be summarized briefly: that statute trans-
forms the aider and abettor into a principal, abrogating
any special status afforded to the former under the com-
mon law. This determination, however, does not com-
pletely resolve Standefer’s appeal. For even if we were
to treat Standefer as we would any other principal, it may
be argued that the prior findings of the Niederberger jury
should, as a matter of collateral estoppel, bar contradictory
findings by the Standefer jury.
This argument is distinct from the aider and abettor
issue because such a rule would not be dependent on
42. “Each participant in an illegal venture is required to ‘stand on his own
two feet.’” United States v. Provenzano, 334 F.2d 678, 691 (3d Cir.), cert.
denied, 379 U.S. 947 (1964).
26a
Appendix A- Opinion, Court of Appeals
27
Standefer’s status as an aider and abettor, but would re-
flect a general policy decision to forbid the relitigation of
questions already decided against the government at a
prior trial, even though Standefer was not a party at the
earlier trial. It is a somewhat novel argument because
collateral estoppel has not been thought to apply in crimi-
nal cases when the ‘‘same parties’’ are not before the
court.** Perhaps because of this, the contention does not
appear to have been pressed below, nor was it fully briefed
by the parties either before the original panel or before
the Court en banc. Inasmuch as it is contrary to the policy
of appellate courts to consider legal theories not of consti-
tutional magnitude neither presented to the trial judge nor
fully argued on appeal, we are reluctant to undertake an
examination of this issue at this time. Nevertheless, given
the arguably close relationship between collateral estoppel
and the aider and abettcr question already addressed, and
given the interest expressed in this theory by some of our
colleagues at oral argument, we are constrained to discuss
this contention, although we do so with some diffidence.*
43. Cf. Ashe v. Swenson, 397 U.S. 436, 443 (1970) (emphasis supplied) :
Collateral estoppel is an awkward phrase, but it stands for an extremely
important principle in our adversary system of justice. It means simply
that when an issue of ultimate fact has once been determined by a valid
and final judgment, that issue cannot again be litigated between the same
parties in any future lawsuit.
44. Judge Gibbons has expressed the view, in his opinion concurring in
part, and dissenting in part at 66, that before trial “Standefer did come forward
and put in issue the estoppel effect of Niederberger’s acquittal on several
counts.” The contention referred to reads:
Counts One, Three and Five of the indictment should be dismissed since
the alleged principal has already been acquitted of the same charges.
(emphasis added).
Under this heading the facts are set out in eight numbered paragraphs. The
ninth paragraph then states:
Since Cyril J. Niederberger has been acquitted of receiving said funds and
Cyril J. Niederberger is the only named principal, this defendant cannot,
as a matter of law, be found guilty as an aider and abettor, since a jury
has already found no violation of 26 U.S.C. §7214(a) (2) by the principal.
(emphasis added).
This contention would appear to do no more than raise the aider and abettor
issue discussed in Part II above, and there is no indication in the transcript,
nor did the parties argue on appeal, that it raised the issue of non-mutual col-
lateral estoppel. Thus, although we address this question because it is pressed
on us by our colleagues, we express doubt whether the issue can fairly be said
to have been raised below or preserved on appeal.
27a
Appendix A - Opinion, Court of Appeals
28
Of course, the traditional elements of collateral estop-
pel are constitutionally mandated in criminal cases. Thus,
the double jeopardy clause of the fifth amendment prohibits
the government from trying a defendant twice for the same
crime. Moreover, that constitutional provision has been
‘applied to protect an individual who has been tried and
acquitted of one crime from having to relitigate, at a sub-
sequent trial on different charges, issues decided in his
favor at his first trial. Ashe v. Swenson, 397 U.S. 436
(1970). The justification for such an application grows
out of the fifth amendment itself, which has as one of its ob-
jectives the protection of citizens from repetitive and
harassing lawsuits brought by the government. Accord-
ingly, the prosecution may not seek, through the device of
separate trials on each count brought against a particular
defendant, to repeat litigating the same basic issues until
it is ultimately successful.
It is quite another matter, however, to suggest that
this well-established policy against harassment of an indi-
vidual may be invoked by one who, like Standefer, has
never been put iz any form of jeopardy. Within the past
year, in fact, this Court has ruled that, absent mutuality of
parties, the application of collateral estoppel in a criminal
context is not mandated by the federal Constitution. Hwub-
bard v. Hatrak, 588 F.2d 414 (3d Cir. 1978). Nor are we
aware of any federal statute or common law tradition that
would require our adopting such a rule in this case. But
the apparent novelty of such an approach does not neces-
sarily make it inappropriate or unwise. If non-mutual
collateral estoppel would improve the criminal justice sys-
tem, further important public policies, or afford needed
protection for defendants’ rights, we might be persuaded
to embrace it as a matter of federal common law. Our
analysis of the facts of this case does not convince us, how-
ever, that general application of the proposed rule would
have such a salutary effect. Indeed, we are inclined to
believe that its application to cases similar to this one
28a
ee = Slee nee Or RENE
29
would, on balance, have a negative impact on the adminis-
tration of criminal justice.
In civil cases, the reasons advanced for applying col-
lateral estoppel are relatively straight-forward. It is
thought that the application of the principle will (1) pro-
mote judicial economy by minimizing repetitive litigation;
(2) prevent inconsistent judgments that might undermine
the integrity of the judicial system; and (3) bar the harass-
ment of a defendant through repetitious and vexatious liti-
gation.*® The initial inquiry in our consideration of the
desirability of collateral estoppel in the criminal context
must be whether these purposes are equally well served in
the criminal sphere. As has often been noted, the last of
these reasons—harassment—should be given weight in the
criminal area where the strain on a defendant and the
disparity between the parties is at its greatest. But a
criminal defendant is already protected from repetitious
and harassing litigation by the double jeopardy clause.
Moreover, in that the proposition now being pressed on
the Court is the desirability of non-mutual collateral estop-
pel, harassment is not at all a relevant concern, since the
defendant would be permitted to apply that principle
despite the fact that he has never been tried before. Ac-
cordingly, this reason for collateral estoppel, compelling in
cases such as Ashe v. Swenson, supra, where the defendant
seeks to bar relitigation against himself of issues resolved
in his favor at a previous trial, is of little force in cases
such as the present one, where the defendant is being tried
for the first time.
The judicial economy concern, although it is not to be
minimized, is also, in our view, less persuasive in the crim-
inal context than in the civil context. The primary pur-
pose of a civil court is to allow private parties to resolve
matters between them in an orderly, fair, and non-violent
omy See generally People v. Taylor, 527 P.2d 622, 117 Cal. Rptr. 70 (Cal.
1 .
46. E.g., Mayers & Yarborough, Bis Vexari: New Trials and Successive
Prosecutions, 74 Harv. L. Rev. 1, 32 (1960).
29a
Appendix A - Opinion, Court of Appeals
30
manner. Once a party has been afforded a full and fair
opportunity to litigate a question, considerations of judicial
economy have been found to predominate as a matter of
public policy, even over the risk that a previous incorrect
verdict may bar a meritorious claim in an individual case.*
This result has been rationalized on the ground that while
the public itself has no overriding interest in the outcome
of a particular civil triai, it does have a legitimate concern
in avoiding repetitive litigation.**
In contrast, the purpose of a criminal court is not to
provide a forum for the ascertainment of private rights.
Rather it is to vindicate the public interest in the enforce-
ment of the criminal law while at the same time safe-
guarding the rights of the individual defendant. The
public interest in the accuracy and justice of criminal
results is greater than the concern for judicial economy
professed in civil cases and we are thus inclined to reject,
at least as a general matter, a rule that would spread the
effect of an erroneous acquittal to all those who participated
in a particular criminal transaction. To plead crowded
dockets as an excuse for not trying criminal defendants is
in our view neither in the best interest of the courts, nor
the public.
Just as was the case in our evaluation of the status of
aiders and abettors, therefore, one of the most troubling
points in considering the application of non-mutual col-
lateral estoppel is the desirability of consistency of verdicts.
We agree that confidence in the integrity of the criminal
47. See Parklane Hosiery Co. v. Shore, 47 U.S.L.W. 4079 (January 9,
1979) ; Blonder-Tongue Laboratories v. University of Illinois Foundation, 402
U.S. 313 (1971) ; Bruszewski v. United States, 181 F.2d 419 (3d Cir. 1950) ;
Bernhard v. Bank of America Nat'l Trust & Savings Ass’n, 19 Cal. 2d 807,
122 P.2d 892 (1942).
48. Of course, some civil litigation, such as actions brought to enforce
antitrust or antidiscrimination laws, is of consequence to the general public and
not merely the parties to the litigation. With respect to this type of litigation,
implementation of substantive policies, in addition to concerns with judicial
economy, may influence the effect given to non-mutual collateral estoppel. Cf.
15 U.S.C. §16(a) (Clayton Act judgment obtained by United States that the
defendant has violated antitrust laws shall be prima facie evidence against
defendant in any later private action).
30a
Appendix A -Opinion, Court of Appeals
31
justice system is, to some extent, diminished when one
criminal escapes punishment while another—particularly
one charged as a result of acts performed by the acquitted
defendant—is convicted and sentenced. But, unlike Judge
Gibbons, we do not believe the ‘‘appearance of evenhanded-
ness’’ is so overriding a concern that it should, as a general
matter, warrant the same type of protection as is mandated
by the Constitution. To transfer, virtually untouched, a
rule fashioned for the protection of an individual defend-
ant’s constitutional rights to a class of cases unrelated to
the double jeopardy concern that motivated it, would be to
extend the rule not to the limits of its logic, but beyond
those limits.
We do not believe that the perception of evenhanded-
ness would itself justify, except in the unusual case, the
transference of civil non-mutual collateral estoppel to the
criminal sphere. To forge another bar to prosecution,
when the constitutional rights of the defendant are not
even arguably implicated, is both unnecessary and unwise.
Indeed, it may be that the loss of confidence that might
occur from such a rule, as well as the loss implicit in any
judicial decision not to pursue the truth-determining
process, would outweigh any gain in the appearance of
evenhandedness.*®
As noted in our earlier discussion,” a large number of
acquittals result from the enforcement of evidentiary and
constitutional rules that prohibit the prosecution from
proving as much as it might were it completely unfettered.
These rules may be considered by some to obstruct justice
because they often result in the frustration of the public’s
interest in the enforcement of the criminal law. But such
results are accepted for good and understandable reasons.
49. As the Court of Special Appeals of Maryland recently observed:
To acquit where guilt is confessed or conclusively proven solely to effect
a “logical consistency” pits logic against common sense and permits the
latter to fall.
Gardner v. State, 396 A.2d 303, 311 (Ct. Sp. App. 1979). Like the Maryland
court, we are unpersuaded by the argument that the public will be more shocked
by a lack of consistency than by a lack of common sense in criminal cases.
50. See part IID supra.
3la
_ Appendix A - Opinion, Court of Appeals
32
General application of non-mutual collateral estoppel, how-
ever, would serve to expand the effect of such acquittals to
all confederates and accomplices, even when the good and
understandable reasons do not apply in their cases, and no
public policy would be served thereby.’ The result would
be an increase in the number of transgressors who are re-
leased, and an understandable reluctance on the part of the
government to try co-defendants separately.”
Still another result could be the refusal by the govern-
ment to prosecute some co-defendants at all for fear of
jeopardizing stronger cases yet to be tried, or convictions
already obtained. Judge Gibbons declines to give the pro-
posed doctrine retroactive effect, notwithstanding an ex-
pressed concern for the ‘‘appearance of evenhandedness.’’
Of course, the perceived inequity of inconsistent results is
undiminished by the order in which such results are ob-
tained. There is no logical reason why a verdict of ac-
quittal as to A should inure to the benefit of B, who is
awaiting trial, but that a verdict of acquittal as to B should
not inure to the benefit of A, who has already been con-
victed.= But if the doctrine is to be given retroactive
51. Section 88 of Tentative Draft No. 3 of Restatement (Second) of Judg-
ments recognizes that the application of non-mutual collateral estoppel may be
inappropriate because of circumstances peculiar to the first litigation. See id.
§ 88(1), (8). Thus, any application of non-mutual collateral estoppel in crimi-
nal cases would require consideration of whether the government had a full and
fair opportunity to litigate in the first proceedings those issues which it seeks
to relitigate in the subsequent prosecution of another defendant.
But as Judge Gibbons notes, it is unclear whether the application of the
exclusionary rule to bar the admission of unlawfully seized evidence in one
case will constitute the deprivation of a “full and fair opportunity” to liti-
gate a question. If it does not amount to such a deprivation, the applica-
tion of non-mutual collateral estoppel to the criminal sphere might have the
effect of undermining Alderman v. United States, 394 U.S. 165 (1969) in-
asmuch as a defendant whose rights were not violated would have the benefit
of rulings as to a defendant whose rights were violated. Again no constitu-
tional policy would be served by such a rule—only the appearance of even-
handedness.
52. As Judge Gibbons observed in Hubbard v. Hatrak, supra, prosecutors
would understandably be reluctant to be so solicitous to a defendant’s right to
a separate trial under Bruton v. United States, 391 U.S. 123 (1968), if every-
thing decided adversely to the prosecution in one trial is held to preclude
litigation in the other.
53. Judge Gibbons points to the “finality of judgments” as the counter-
vailing policy justifying his abandonment of the “appearance of evenhanded-
ness” in cases where an inconsistent acquittal follows a conviction. He sug-
32a
Appendix A - Opinion, Court of Appeals
33
effect, many prosecutors would need to calculate when to
stop pursuing confederates and co-conspirators for fear of
automatically reversing a string of successful prosecu-
tions.“ Alternatively, if the doctrine is not to be given
retroactive effect, a decisive premium is placed on the order
in which defendants are prosecuted; prosecutors would
therefore have to consider carefully which cases are the
stronger, and bring them only in the correct order, from
the strongest to the weakest. There is no basis for be-
leving that either alternative would improve confidence
in our criminal justice system.
There is another reason that weighs against an ex-
panded use of non-mutual collateral estoppel in the criminal
context: It has been recognized that in a criminal trial a
verdict of not guilty is not the equivalent of an affirmative
53. (Cont’d.)
gests that the finality of judgments is “equally essential to the doctrine of
collateral estoppel.” Concurring and Dissenting Opinion at 62.
The finality of judgments is the basis for applying collateral estoppel in
the civil context. It reflects both a concern for judicial economy and for the
rights of the parties to be secure in judgments obtained. It is difficult to see
why either concern should apply here. As suggested above, judicial economy
is not an overriding value in the criminal context. Supra at p. 29. Moreover,
the right of the government to be secure in a judgment obtained can hardly
be said to outweigh the right of a defendant to be free of an improperly
obtained verdict.
Under our system of justice, criminal verdicts, if flawed, are never final.
They may be, and are, persistently challenged through the writ of habeas
corpus. If the concern for the appearance of evenhandedness truly rose to a
level sufficient to justify general application of non-mutual collateral estoppel,
there would be no reason other than convenience to bar previously convicted
defendants from asserting it in a habeas corpus petition.
54. One way to mitigate this problem would be to refuse to give collateral
estoppel effect to previous inconsistent judgments. This is the view taken for
civil cases by the Restatement (Second) of Judgments, Tentative Draft No.
3, §88(4) which suggests that prior inconsistent determinations of a question
would preclude giving either determination estoppel effect.
Such a limitation may be helpful if non-mutual collateral estoppel is to be
given general application in the criminal context. But just as is the case with
the refusal ever to give an acquittal retroactive effect, the limitation on the
proposed rule seems to be more the result of prudence than principle. More-
over, like the rejection of retroactivity, the use of § 88(4) in this manner places
a high priority on the order of trials. The government would be advised to
always try its strongest case first, thereby gaining a conviction that would
allow it to try as many others as needed without fear of non-mutual collateral
estoppel. The rule would give every collaborator in a crime no more than two
chances at acquittal: his own trial and the trial of the first accomplice brought
to trial. Except in rare cases, there seems little reason to afford a defendant
more than one opportunity to avoid conviction, and no reason to place a
priority on the order cases are tried.
33a
Appendix A - Opinion, Court of Appeals
34
finding of innocence.” If the fact finder admits to a rea-
sonable doubt, it must acquit, whereas in a civil case a
jury or judge finds facts on the basis of the preponderance
of the evidence. Despite the standard of proof which gov-
erns in criminal trials, the Supreme Court held in Ashe v.
Swenson, supra, that a court, when confronted with a col-
lateral estoppel claim founded upon the constitutional guar-
antee against double jeopardy, must scrutinize the entire
record of a prior proceeding to ascertain what a rational
jury must have decided in reaching its decision. If a crimi-
nal defendant were to assert a claim of nonmutual collateral
estoppel based on a prior criminal proceeding to which he
was not a party, the court, if the collateral estoppel claim
were otherwise proper, of course, would have to scrutinize
the record of the prior proceeding with extreme care so as
not to give the non-party defendant the benefit of any
factual findings that were the result of jury confusion,
doubt, or compromise.
Moreover, there are additional problems that would
ensue if non-mutual collateral estoppel were generally ap-
plied in criminal cases tried before a jury. The precise
determination of what a jury decided and why can be par-
ticularly difficult. In non-jury cases an appellate court is
presented with the decision of a trial judge and an explana-
tion of his reasoning. But non-jury verdicts are the ex-
ception rather than the rule. In jury cases verdicts fre-
quently are internally inconsistent. It is for this reason
that the law long ago abandoned the search for absolute
consistency in jury verdicts, however desirable such a result
might be in the abstract. Dunn v. United States, 284 U.S.
390, 393 (1932) ; United States v. Cindrich, 241 F.2d 54, 57
(3d Cir. 1957).
The possible inconsistency of verdicts rendered by even
a single jury is rather pointedly illustrated by the Nieder-
berger jury itself, which, as to certain of the counts, con-
victed him of receiving something of value ‘‘ because of any
55. Cf. Standlee v. Rhay, 557 F.2d 1303 (9th Cir. 1977) (acquittal on
criminal charge is not binding in a subsequent civil case inasmuch as burdens
of proof differ).
34a
Appendix A - Opinion, Court of Appeals
35
official act performed or to be performed by him,’’* but
acquitted him of receiving ‘‘any fee, compensation, or
reward ... for the performance of any duty.’’*’ It cannot
be said with any certainty what prompted the jury to arrive
at these seemingly contradictory findings. An insightful
observation regarding this phenomenon of disparate jury
verdicts was made by Mr. Justice Holmes in Dumn, where,
relying on a quotation from an opinion by Judge Learned
Hand, he said:
The most that can be said in such cases is that the ver-
dict shows that either in the acquittal or the conviction
the jury did not speak their real conclusions, but that
does not show that they were not convinced of the de-
fendant’s guilt. We interpret the acquittal as no more
than their assumption of a power which they had no
right to exercise, but which they were disposed through
lenity.
That the verdict may have been the result of com-
promise, or of a mistake on the part of the jury, is
possible. But verdicts cannot be upset by specula-
tion or inquiry into such matters.
Inasmuch as this is true of a single jury it is a fortior
true of different juries, and the likelihood of inconsistent
verdicts is in fact increased in the criminal context where
the evidence permitted to go to the jury may vary so sub-
stantially depending on the particular defendant and the
time of trial.
Because mutual collateral estoppel is constitutionally
required in criminal cases before a jury, Judge Gibbons
challenges our reluctance to apply non-mutual collateral
estoppel in such cases. It is no accident, however, that
every case cited in support of giving a general jury verdict
collateral estoppel effect—Ashe v. Swenson, 397 U.S. 436
(1970) ; United States v. Mespoulede, — F.2d — (2 Cir.
56. 18 U.S.C. § 201(g).
57. 26 U.S.C. § 7214(a) (2).
58. 284 U.S. at 393-94 (quoting Steckler v. United States, 7 F.2d 59, 60
(2d Cir. 1925)).
35a
Appendix - Opinion, Court of Appeals
36
1979) ; United States v. Venable, 585 F.2d 71 (3d Cir. 1978)
—involves a defendant seeking to assert the collateral
estoppel effect of a jury verdict that was entered at his
own previous trial. These cases are double jeopardy cases
and they should not, it bears emphasizing, emphasized, be
confused with the present case.
Of course, we quite agree with Judge Kaufman, whose
observation in a footnote in Mespoulede is noted by Judge
Gibbons, that the vagaries of jury deliberations—whether
prompted by compromise, compassion, confusion, or hostil-
ity to the government—may not be relied upon by the
government in a double jeopardy case. Otherwise the pro-
tection afforded by Ashe v. Swenson would be largely
eviscerated. It requires a considerable leap, however, to
seek to apply the language in the Wespoulede footnote, to
cases where double jeopardy is not an issue. If a jury
chooses to show compassion, or to compromise, or to other-
wise mitigate what it perceives to be a severe punishment
as to one defendant, that defendant ought to be given the
benefits of his jury’s determination at any later trial. It is
a wholly different matter to suggest that any such com-
passion or compromise should be transfered, ipso facto,
to another defendant who might not have merited the
jury’s sympathy, had he faced trial before them. A jury’s
decision to refuse to convict a particular defendant, despite
overwhelming evidence of his guilt, is an aspect of the
ancient common law tradition that has long been viewed as
a final safeguard against unjust, or sometimes political,
prosecutions.®® Such verdicts, however irrational they may
seem, ought not to be overturned, or even undermined, by
giving the government a second opportunity to prosecute
the sympathetic defendant. There is no reason, however,
59. See, e.g., the discussion of the 1670 trial of two Quakers, Penn and
Mead, in D. Ogg, England in the Reign of Charles II, 520 (1934); see also
H. Hallam, Constitutional History of England, 614-16 (1869) (“Unfortunately
it has been sometimes the disposition of judges to claim to themselves the
absolute interpretation of facts, and the exclusive right of drawing inferences
from them, as it has occasionally, though not perhaps with so much danger,
been the failing of juries to make their undeniable right of returning a general
verdict subservient to faction or prejudice.” Jd. 616.
36a
Appendix A - Opinion, Court of Appeals
37
for extending the impact of these verdicts beyond the indi-
vidual defendants who have been fortunate enough to
receive them.
Thus the concern voiced by Judge Gibbons that our
refusal to extend Ashe v. Swenson type estoppel, ‘‘if pushed
to its logical extreme, would prohibit collateral estoppel,
not only in cases like this one, but also in double jeopardy
cases,’’ is simply misplaced. Nothing we have said under-
cuts the right of a defendant to plead the estoppel effect of
a prior verdict in his favor, even if the court or the public
is convinced he never merited that verdict. The benefits
of a jury’s compassion or compromise are guaranteed a
defendant by the fifth amendment to the Constitution and
his verdict cannot, and ought not, to be overturned even if
it seems plainly erroneous. But a defendant who has never
faced trial is not constitutionally entitled to the same level
of protection.
It may be, of course, that even in criminal cases certain
situations will arise that would warrant a court to refuse,
on grounds of judicial economy or fundamental fairness, to
permit the relitigation of matters already clearly resolved
in a prior adjudication. In a rare federal case adopting
this approach, United States v. Bruno, 333 F. Supp. 570
(E.D. Pa. 1971), Judge Masterson refused to allow the
government to relitigate the falsity of a certain letter
against two defendants charged with conspiracy after he
had already ruled, in the trial of two other co-conspirators,
and on the same evidence, that a jury could not possibly
conclude beyond a reasonable doubt that the letter was
fraudulent. And in State v. Gonzalez, — N.J. —, 380 A.2d
1128 (1977), the New Jersey Supreme Court, on grounds of
fairness, invoked non-mutual collateral estoppel to require
the suppression of evidence offered against Gonzalez when
the same evidence obtained in the same manner had previ-
ously been ordered suppressed against a co-defendant. The
New Jersey Court expressed a strong preference for joinder
in such cases, seeing no justification for separate judicial
37a
Appendix A - Opinion, Court of Appeals
38
determinations of the same question. Similarly, in People
v. Taylor, 527 P.2d 622, 117 Cal. Reptr. 70 (Cal. 1974), the
California Supreme Court, on the grounds of fairness, used
non-mutual collateral estoppel to reverse a felony-murder
conviction of a defendant not even present at the site of
the crime, when the defendant who had actually com-
mitted the felony had previously been acquitted because
he lacked the requisite state of mind.®
Whatever the merits of these decisions,®* however,
whether as a matter of judicial economy, fundamental fair-
ness, or the perception of judicial integrity, we do not
believe that the reasoning employed in them can be ex-
tended to cover the present case. In those situations the
determinations made by the earlier fact finders were un-
ambiguous. In Bruno, the identical government case had
been previously found by a judge to be insufficient as a
matter of law—and the government had not sought to
supplement it. In Gonzalez, the search of a car was found
by a judge to be unconstitutional. In Taylor, the necessary
malice to support a felony-murder verdict had not been
nroven as to the only defendant who could have entertained
such malice. Here, in contrast, it is not at all clear what
determinations resulted in the internally inconsistent
Niederberger verdict.
Moreover, here the evidence before the second fact
finder differed in material aspects from that presented to
the first fact finder. From what can be gleaned from the
Bruno, Gonzalez and Taylor opinions, the testimony, evi-
dence and issues confronting both fact finders appear to
have been identical. Here the two trials differed. Nieder-
. lor is the only criminal case of which we are aware in which a
ily as opposed a a judge’s ruling, has been given non-mutual col-
lateral estoppel effect.
61. Contrast Clark v. State, 378 N.E2d 850 (Ind. 1978), where Indiana,
despite its adherence to the common law rule on aiders and abettors, refused
te adopt a general rule of non-mutual collateral estoppel. _See also United
States v. Brown, 547 F.2d 438, 444 (8th Cir.), cert. denied 430 U.S. 937
(1977) ; United States v. Musgrave, 483 F.2d 327, 332 (5th Cir. 1973) ; Gray
vy. United States, 260 F.2d 483 (D.C. Cir. 1958).
38a
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39
berger contested receipt of the gifts, at least as to whether
they were received within the Western District of Penn-
sylvania.” Standefer did not. Indeed Standefer admitted
giving the trips to Niederberger, and relied instead on a
‘*social purposes’’ defense. The witnesses heard and the
evidence admitted at the two trials accordingly varied, and
the somewhat differing verdicts, if not predictable, are
understandable.
In light of the different nature of the trials and the
lack of certainty as to what factual findings were made by
the Niederberger jury, as well as the overwhelming evi-
dence in the record here, we are persuaded that resort to
the use of non-mutual collateral estoppel in this case would
be unjustified. That doctrine is of relatively recent origin,
and the precise role it is to play in our criminal juris-
prudence has yet to be fully established. But whatever its
ultimate extent may be, we do not believe that this appeal,
essentially amounting to a classic example of somewhat
inconsistent jury verdicts, presents a situation in which a
trial court’s refusal to appiy non-mutual collateral estoppel
can be termed reversible error.
Accordingly, the judgment of the district court will be
affirmed on all nine counts.”
62. Niederberger challenged the jurisdiction of the court on the ground
that none of the trips was received within the Western District of Pennsyl-
vania. Putting aside the merits of this claim, it may be that the jury nuded
that the alleged defect should bar conviction as to certain trips. Of course,
several other explanations of the jury’s findings are possible.
63. Standefer alleges certain other errors. He argues that the trial judge,
in his instructions to the jury, misrepresented the relevance of testimony of
evidence showing an absence of impropriety in N iederberger’s audits of Gulf’s
tax returns; that the trial court erred in charging the jury that there was no
need to show an agreement between Standefer and Niederberger; that the
court erred in failing to give prior notice to counsel that a point for charge
was affirmed; that the court erred in charging the jury as a matter of law
that the vacation trips provided Standefer were not authorized; that the court
erred in not charging the jury that the government’s failure to call Nieder-
berger should result in an unfavorable inference; and that the court erred in
failing to instruct the jury that the fact that the trips were undertaken openly
and publicly could be considered as negating evidence of wro oing.
These points were considered by the panel that heard this appeal and it
was not persuaded that a reversal of the jury’s verdict is warranted. The
Court en banc has not chosen to disturb the panel’s conclusions in disregard.
39a
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40
Aupisert, Circuit Judge, concurring and dissenting.
The majority of the court finds no fault with Stande-
fer’s convictions on Counts 1, 3 and 5 of aiding and
abetting a federal revenue agent to receive a gratuity
when the agent, Niederberger, as principal, had been
acquitted in a previous jury trial. Count 1, relating to the
Pompano Beach gratuity, charged Standefer with aiding a
violation of 26 U.S.C. § 7214(a)(2);1 Count 3 was related
_to the Doral Country Club, and Count 5, the Seaview
Country Club. Niederberger had been acquitted of the
same charges under 26 U.S.C. § 7214(a) (2), although con-
victed under 18 U.S.C. § 201(g)? with regard to the Doral
and Seaview vacations. Because I would hold that Counts
1, 3 and 5 should have been dismissed as a matter of law,
I would reverse those convictions and vacate the sentences
imposed thereon, while affirming the convictions on the re-
maining six counts.
My disagreement with the majority reaches to the
foundation of criminal law—nullum crimen, nulla poena,
sine lege (no one shall be punished for anything not ex-
pressly forbidden by law). The government, not content
with convictions on six facially legitimate counts, presses
for an affirmance of these three controversial counts, on
which concurrent sentences were imposed, for aiding and
abetting a principal to commit a crime previously found
not to have been committed.
1. 26 U.S.C. § 7214(a) (2) imposes a criminal sanction against :
Any officer or 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.
2. 18 U.S.C. §201(g) provides:
Whoever, being a public official, former public official, or person selected
to be a public official, otherwise than as provided by law for the proper
porn atppacne duty, directly or indirectly asks, demands, exacts,
solici ks, accepts, receives, or agrees to receive anything of value for
himself for or because of any official act performed or to be performed by
him ;
Shall be fined not more than $10,000 or imprisoned for not more than two
years, or both.
40a
Appendix A - Opinion, Court of Appeals
41
My position is straightforward and blunt—you cannot
clap with one hand; it takes two to tango; to be guilty of
aiding another to commit a crime there must first be a
crime. I do not accept the convoluted rhetoric advanced
by the government but adhere to the position I took in
United States v. Bryan, 483 F.2d 88 (3d Cir. 1973) (in
banc) (Gibbons, J., dissenting), that a person cannot be
convicted of aiding and abetting a principal when that
principal has been acquitted of committing the charged
offense.
I,
In granting rehearing in banc, the court solicited brief-
ing on the question whether Bryan should be overruled.
The court, however, has now excursed into new territory
beyond the jural exploration of any cited precedent, and
has transformed the dubious rule of Bryan into a prece-
dent fortissimo.
The crime charged in Bryan was stealing whiskey, a
crime which requires proof of criminal intent. The ques-
tion posed at Bryan’s trial was whether the principal had
a criminal intent to steal or was an ‘‘innocent dupe.’’ The
district court, sitting as trier of fact, found no criminal
intent on the part of the principal and therefore acquitted
him. It nevertheless found that although the principal did
not intend to steal, Bryan intended that the principal steal
the whiskey, and accordingly convicted him. This court
affirmed Bryan’s conviction as an aider and abettor.
Two factors distinguish Bryan from this case. First,
the offense in Bryan required proof of the principal’s
criminal intent, and second, Bryan might have been charged
as a principal rather than as an aider and abettor. With
respect to criminal intent in Niederberger’s case, however,
we held that the guilt of the principal could be established
by proof of
a public official’s receipt of a gratuity, to which he was
not legally entitled, given to him in the course of his
4la
Appendix A - Opinion, Court of Appeals
42
everyday duties, for or because of any official act per-
formed or to be performed by such public official, and
he was in a position to use his authority in a manner
which could affect the gift-giver.
United States v. Niederberger, 580 F.2d 63, 69 (1978).
Thus, this court determined that the government, to make
out a case under §7214(a)(2), need not prove criminal
intent by Niederberger to do a specific reciprocal act.
Furthermore, it is a crime to receive a gratuity under 26
U.S.C. § 7214(a)(2) only if the gratuity is received by a
federal revenue agent in his official capacity. Not being a
federal agent, Standefer could not have been indicted as a
principal as a matter of statutory definition. Standefer’s
convictions could thus be reversed without disturbing the
viability of the rule in Bryan; conversely, Standefer’s
convictions cannot be affirmed without a dramatic extension
of Bryan.
II.
The court characterizes its affirmance as adherence to
the ‘‘clear majority position,’’ the view of the Model Penal
Code, and the view favored by most commentators. Maj.
op. at 17. I disagree with this conclusion of the major-
ity. Indeed, upon analysis, it can be seen that our court’s
approach here is a lonely one. The majority cites only one
case which remotely resembles the unusual setting of this
case—conviction of an aider and abettor, despite acquittal of
the principal, of a crime for which he could not himself
have been charged as a principal. Umited States v. Aza-
dian, 436 F.2d 81 (9th Cir. 1971). Even the questionable
decision in Azadian is distinguishable because the sole rea-
son for the public official’s acquittal there was the trial
court’s dismissal of the charge due to her entrapment by a
government agent. Because the rule in the Ninth Circuit
requires a defendant to admit the criminal act before he
can successfully assert a defense of entrapment, it is evi-
dent that the offense by the principal was established at
42a
Appendix A - Opinion, Court of Appeals
43
the joint trial. The principal was acquitted ‘‘not because
inducement establishes the fact of innocence; but because
Government agents should not be permitted to act in such
a fashion. The defense does not so much establish inno-
cence as grant immunity from prosecution for criminal acts
concededly committed.’’ Id. at 83 (my emphasis). Thus
Azadian involved conviction of an aider and abettor when
the principal’s criminal acts were conceded. In an effort to
apply Azadian to the facts in Standefer, the majority in-
timates that a similar concession exists here. Although the
occurrence of certain golfing trips was established, the
criminality of those events is ably and vigorously contested
by Standefer and is controverted by the jury verdict at
Niederberger’s trial.
The majority recognizes the cases of United States v.
Shuford, 454 F.2d 772 (4th Cir. 1971) and United States v.
Prince, 430 F.2d 1324 (4th Cir. 1970), which held unam-
biguously that no conviction of an aider and abettor can
stand when the only named principal has been acquitted.
And in a markedly understated tone, the majority opinion
notes a ‘‘scattering’’ of cases which ‘‘take an ambivalent
view.’’*® I do not find the cases to be ambivalent; I sug-
gest that they unequivocally oppose the result reached by
the court and that they severely cloud the ‘‘clear’’ majority
position. The question is far closer than the court is will-
ing to admit.
Even if it were the ‘‘clear majority position’’ that an
aider and abettor may be convicted despite acquittal of the
principal, the result reached in this case is a giant step
beyond the holdings in any of the cases cited by the ma-
jority. Professor Edward H. Levi has neatly described
the common law decisional process: ‘‘the scope of a rule of
law, and therefore its meaning, depends upon a deter-
mination of what facts will be considered similar to those
present when the rule was first announced. The finding
3. United States v. Bernstein, 533 F.2d 775, 799 (2d Cir.), cert. denied,
429 U.S. 998 (1976) ; United States v. Smith, 478 F.2d 976 (D.C. Civ. 1973) ;
United States v. Stevsson, 471 F.2d 143 (7th Cir. 1972), cert. denied, 414 U.S.
819 (1973). o
43a
Appendix A - Opinion, Court of Appeals
44
of similarity or difference is the key step in the legal
process.’’* Recognition of the differences between the ma-
terial facts of this case and those implicated in every case
cited in support of the result reached by the majority leads
me to conclude that the cases do not authoritatively support
the majority’s result.
The Second and Tenth Circuit cases, United States v.
Deutsch, 451 F.2d 98 (2d Cir. 1971), cert. denied, 404 U.S.
1019 (1972), and United States v. Coppola, 526 F.2d 764
(10th Cir. 1975), were both plea bargain cases. Both af-
firmed aiding and abetting convictions when principals had
pleaded guilty to lesser included offenses or to other counts
of the indictments. Recognizing the compromise nature of
such proceedings, the courts saw no inconsistency in the
aiding and abetting convictions. Neither case involved the
acquittal of the principal.
The Sixth Circuit case, United States v. Kelly, 258 F.
392 (6th Cir.), cert. denied, 249 U.S. 616 (1919), did not
even involve an indictment under the aiding and abetting
statute. In rejecting a challenge to the sufficiency of the
indictment, the court’s alternative answer included, in dic-
tum, a statement that persons formerly chargeable as aiders
and abettors ‘‘may be indicted and prosecuted as principals,
whether the principal offender has been indicted and ac-
quitted ... or has not been indicted at all... .’’ Id. at 402
(citations omitted). The statement certainly cannot be re-
garded as part of the holding of the case.
The Eighth Circuit case, Pigman v. United States, 407
F.2d 237 (8th Cir. 1969), likewise involved no aiding and
abetting charge. Rejecting appellant’s contention that the
government’s theory pointed to a codefendant as the prin-
cipal, the court stated that the appellant ‘‘appears to be
the instigator and the principal. But if not the principal,
the evidence duly shows him to be an aider and abettor.
The principal need not be convicted in order to convict a
person as an abettor,’’ relying on Hendria v. United States,
4. Levi, An Introduction to Legal Reasoning, 15 U. Cur. L. Rev. 501, 502
(1948).
44a
Appendix A - Opinion, Court of Appeals .
45
327 F.2d 971, 975 (5th Cir. 1964). In Hendria, the appel-
lant was charged both as an aider and abettor and as a
principal, and his conviction was affirmed despite insuffi-
ciency of identification evidence against a codefendant.
The court simply held that an aider and abettor may be con-
victed if he assisted a principal, even if the principal is not
identified. Neither Hendria nor Pigmam stands for the
broad proposition asserted by the majority.
Gray v. United States, 260 F.2d 483 (D.C. Cir. 1958),
is a very brief per curiam opinion in which it appears that
the appellant was charged as a principal, not as an aider
and abettor. That opinion relies on two eases, neither of
which involved acquittal of a principal. In one, Meredith
v. United States, 238 F.2d 535, 542 (4th Cir. 1956), no
principal was charged, and in the other, Colosacco v.
United States, 196 F.2d 165, 167 (10th Cir. 1952), the prin-
cipal had pleaded guilty. Moreover, the more recent case
of United States v. Smith, 478 F.2d 976, 979 (D.C. Cir.
1973), suggests that the District of Columbia Circuit would
now require acquittal of an aider and abettor if the prin-
cipal were acquitted :
Jarvis was convicted upon the theory that he aided
and abetted Smith. Logica'ly it follows that if the prin-
cipal Smith had been acquitted Jarvis should also have
been found not guilty; in other words error that dam-
aged Smith’s defense was also prejudicial to Jarvis.
Accordingly we think the interests of justice require
that the conviction of Jarvis should also be reversed.
The First Circuit case of Giragostan v. United States,
349 F.2d 166 (1st Cir. 1965), also discussed in the majority
opinion, charged an aider and abettor with a crime for
which he could not have been indicted as a principal be-
cause the substantive statute, 18 U.S.C. § 656, applied only
to bank officers, directors or employees. The conviction of
the aider and abettor was reversed because the government
had failed to produce sufficient evidence that the principal,
45a
Appendix A - Opinion, Court of Appeals
46
a bank officer who was not tried, had committed the sub-
stantive offense.
Both the Second and Seventh Circuits have recently
rejected this court’s position in Bryan. Each approved an
instruction to a jury in trials of defendant principals that
a codefendant aider and abettor could not be convicted
without conviction of the principal. In United States v.
Bernstein, 533 F.2d 775, 799 (2d Cir.), cert. denied, 429
U.S. 998 (1976), the court stated that because ‘‘it is the
law that a person cannot be found guilty of aiding and
abetting unless a principal whom he has aided and abetted
committed the criminal act,’’ it was not error to instruct
the jury that the aider and abettor could not be convicted
unless the jury also convicted the principal. Umted States
v. Stevison, 471 F.2d 148, 147-78 (7th Cir. 1972), cert.
denied, 414 U.S. 819 (1973), under almost identical facts,
affirmed a similar jury instruction because ‘‘[t]he pre-
supposition that an aider and abettor may be convicted,
since 1951, absent conviction of the principal is invalid.’’
Therefore, our Bryan case and the Fifth Circuit case
of United States v. Musgrave, 483 F.2d 327 (5th Cir. 1973),
are the only two cases which unequivocally hold that the
acquittal of the only principal does not preclude conviction
of the aider and abettor. If circuit-counting is a proper
consideration, there is more precedential support to the
view I espouse than there is for this court’s majority view.
IIT.
The court distinguishes the acquittal of the aiders and
abettors in Shuttlesworth v. City of Birmingham, 373 U.S.
262 (1963), because ‘‘[t]he act that they had helped to
bring about was simply not a criminal act’’ but was con-
stitutionally protected. The court, therefore, finds irrele-
vant the Supreme Court’s statement, ‘‘It is generally
recognized that there can be no conviction for aiding and
abetting someone to do an innocent act.’’ Shuttlesworth,
46a
Appendix A - Opinion, Court of Appeals
47
supra, at 265. But it is precisely because ‘‘Standefer him-
self admitted that all the vacations listed in the indictment
were provided to Niederberger and paid for by Gulf,’’ maj.
op. at 20, that Niederberger’s acquittal can only be inter-
preted as a jury finding that receipt of the vacations in
question was an innocent act. I do not think Shuttles-
worth, the only Supreme Court pronouncement on the sub-
ject, can be so cavalierly dismissed.
IV.
My focus thus far has been to demonstrate major
distinctions between the material facts before us and those
present in Bryan and other cases relied on by the major-
ity. This is not to agree that Bryan was a sound decision,
however, for with Chief Judge Seitz I joined in Judge
Gibbons’ dissent. I reaffirm my endorsement of Judge
Gibbons’ analysis in Bryan;* a fortiori, I would not ex-
tend that holding beyond the facts which controlled there.
A court ‘‘must be alert to see that a doubtful precedent be
not extended by mere analogy to a different case if the
result will be to weaken or subvert what it conceives to
be’’ sound legal precepts. Dimick v. Schiedt, 293 U.S. 474,
485 (1935).
What divided the Bryan court and what divides the
court here is the weight to be placed on competing princi-
ples of criminal law when the source of decision is not
unerringly supplied by precedent, statute or the Constitu-
tion. My conclusion is predicated on different principles
than those selected by the majority. Three fundamental
reasons convince me that an aider and abettor cannot be
convicted when the only possible principal has been
acquitted.
5. Judge Gibbons has now retreated somewhat from the position he took in
1973. See concurring opinion, p. 59: “I agree with the conclusion in Parts I
and II of the majority opinion that the acquittal of a principal does not
necessarily preclude the conviction of one charged with aiding and abetting.”
47a
48
A.
The first is my doubt that Congress, in enacting 18
U.S.C. § 2, the aiding and abetting statute, ever intended
that an aider and abettor might be convicted when the
principal has been acquitted. Although this court has
asserted for thirty years that a defendant may be con-
victed of aiding the commission of a felony under 18 U.S.C.
§ 2 even though the alleged principal has been acquitted,
see United States v. Klass, 166 F.2d 373, 380 (3d Cir. 1948),
I believe that our position has not properly reflected con-
gressional intent.
Common law distinguished between felonies and mis-
demeanors for the purpose of accomplice liability. See W.
LaFave & A. Scorr, Criminau Law 496 (1972). The crim-
inal responsibility of an accessory to a non-capital felony
was purely derivative, that is, conviction or outlawry of
the principal was an absolute prerequisite to conviction of
the accessory. If the principal was unknown, at large, or
pardoned prior to trial, the accessory could not be punished.
Needless to say, acquittal of the principal precluded con-
viction of the accessory. See generally id. at 495-501.
Where the substantive offense was a misdemeanor, how-
ever, all participants, including accessories before the fact,
were considered principals in the offense and could be tried,
convicted, and punished without regard to the disposition
of charges against other parties. See id. at 496.
Under federal law, of course, there are no common law
crimes. The federal courts have jurisdiction only over
actions specifically proscribed by Congress. United States
v. Hudson, 11 U.S. (7 Cranch) 32 (1812). Thus, in the
nineteenth century, a person could be convicted in federal
court of aiding and abetting a particular felony only if
Congress had defined aiding and abetting that felony as a
crime. See, e.g., Umted States v. Crane, 25 F. Cas. 691
(C.C.D. Ohio 1847) (No. 14,888). Congress, employing a
variety of formulations, scattered a number of specific
Appendix A - Opinion, Court of Appeals
49
accessory provisions throughout the statutes of the period.
See, e.g., Act of March 3, 1825, ch. 64, § 45, 4 Stat. 114
(buying stolen mail); R.S. §5323 (1878) (piracy); R.S.
§ 5427 (1878) (naturalization offenses) ; R.S. § 5466 (1878)
(destroying mail).
Where a federal statute made the substantive offense a
misdemeanor, however, no specific statutory authorization
was necessary to prosecute an accomplice. See United
States v. Mills, 32 U.S. (7 Pet.) 138, 141 (1833). The fed-
eral courts simply assumed that Congress had acted on the
common law principle that ‘‘all who aid, abet, procure, or
advise the commission of a misdemeanor are guilty as
principals.’’ United States v. Snyder, 14 F. 554, 556
(C.C.D. Minn. 1882). See also Gallot v. United States, 87
F. 446, 448 (5th Cir. 1898).
This scheme prevailed until Congress revamped the
federal penal code in 1909, when it enacted a general pro-
vision making it a crime to aid or abet the commission of
any federal offense:
Whoever directly commits any act constituting an
offense defined in any law of the United States, or aids,
abets, counsels, commands, induces, or procures its
commission, is a principal.
Act of March 4, 1909, ch. 321, 35 Stat. 1152. This provision
became § 332 of the penal code and has survived without
relevant substantive change. It is now codified at 18 U.S.C.
§ 2(a), the provision at issue in this case.
Four years after the enactment of § 332, the Ninth
Circuit offered an interpretation of Congress’s intent:
The effect of the section under consideration is to
abolish the distinction between principals and acces-
sories in offenses defined in the laws of the United
States, whether the same be felonies or misdemeanors.
. . . [Section 332] is a recognition by Congress that
the old distinction between principals and accessories
49a
Appendix A - Opinion, Court of Appeals
50
which pertained to felonies is generally abrogated, and
that a charge against one formerly known as an acces-
sory is good against him as principal.
Rooney v. United States, 203 F. 928, 932 (9th Cir. 1913).
Several courts, including our own, accepted Rooney’s
analysis uncritically, holding that Congress had intended to
treat all accessories in the same manner as accessories to
misdemeanors had been treated at common law. See United
States v. Klass, supra, 166 F.2d at 380; Von Patzoll v.
United States, 163 F.2d 216, 218 (10th Cir. 1947). See also
United States v. Bryan, 483 F.2d 88, 95, 98 (3d Cir. 1973)
(in banc) ; Kelly v. United States, 258 F. 392, 402 (6th Cir.
1919). In the absence of other evidence, this analysis might
be persuasive because Congress treated felons and mis-
demeanants uniformly and employed the terminology ‘‘is
a principal’’ which was often used at common law to refer
to the legal status of an accessory to a misdemeanor.
Primary evidence of congressional intent, however, is
available. The final form of § 332 was reported out of the
Senate on January 7, 1908. The report accompanying the
bill is enlightening. See S. Rep. No. 10, pt. 1, 60th Cong.,
Ist Sess. (1908). First, the report indicates that § 332 was
derived, not from common law or state statutes, but from
two specific accomplice statutes then in effect, R.S. § 5323
(piracy) and R.S. §5427 (naturalization offenses). In
explaining the introduction of § 332 and its companion pro-
vision setting the relevant penalties, the Senate noted
‘*[t]hese sections are new only in the sense that they are
made general in their application. They explain them-
selves.’’ See S. Rep. No. 10, pt. 1, at 26.
Moreover, the Senate cleariy stated its purpose in
enacting a general accomplice provision:
The committee has deemed it wise to make those
who are accessories before the fact at common law
principal offenders, thereby permitting their indictment
and conviction for a substantive offense.
50a
Appendix A - Opinion, Court of Appeals
ol
At common law an accessory cannot be tried with-
out his consent before the conviction or outlawry of the
principal except where the principal and the accessory
are tried together; if the principal could not be found
or if he had been indicted and refused to plead, had
been pardoned or died before conviction, the accessory
could not be tried at all. This change of the existing
jaw renders these obstacles to justice impossible.
S. Rep. No. 10, pt. 1, at 13.
This report does not indicate that the Senate even
recognized the common law distinction between felonies and
misdemeanors for the purpose of accomplice liability, let
alone intended to abrogate it entirely. I cannot conclude
that Congress would have abolished such a rule of law, as
suggested by Rooney, without indicating in some way that
it perceived the rule in the first place.
In addition, the report tells us that an accomplice could
be convicted when the principal escaped, failed to plead,
was pardoned, or died. The Senate expressed a clear in-
tention to remove ‘‘these’’ impediments to justice. Con-
spicuously and significantly absent from this litany is any
mention of the case where the principal has been acquitted.
To the extent that Rooney and subsequent cases inter-
preted § 332 and its descendants by generalizing the
common law misdemeanor rule, I believe they have been in
error. Congress has spoken on the issue, and what am-
biguity remains must be construed in favor of the defend-
ant. Chief Justice Marshall, in a similar context, stressed
the predominance of this latter rule over other ‘‘maxims
or rules for the construction of statutes’’:
The rule that penal laws are to be construed strictly,
is perhaps not much less old than construction. itself.
It is founded on the tenderness of the law for the rights
of individuals; and on the plain principle, that the
power of punishment is vested in the legislative, not in
the judicial department.
5la
Appendix A - Opinion, Court of Appeals
52
United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95
(1820). The viability of this principle has been reasserted
with emphasis in recent Supreme Court opinions. Dunn v.
United States, — U.S. —, 47 U.S.L.W. 4607, 4611 (June 4,
1979) ; United States v. Naftalin, — U.S. —, 47 U.S.L.W.
4574, 4577 (May 21, 1979); United States v. Culbert, 435
U.S. 371, 379 (1978).
B.
The second reason why I think acquittal of the prin-
cipal requires acquittal of the aider and abettor has been
aptly stated by the majority:
The problem of allowing two seemingly inconsistent
verdicts to survive is naturally troubling, and a rule of
law that eliminates such apparently contradictory re-
sults is, therefore, not without appeal. Moreover, in
the criminal context, the government’s success in se-
curing a guilty verdict against an aider and abettor
after failing to secure such a verdict against a prin-
cipal may strike some as giving the prosecution ‘‘two
bites at the apple’’ and therefore as bordering on
unfairness.
Maj. op. at 21-22. ‘‘There is much to be said, in the criminal
law context, for associating the doctrine of collateral estop-
pel with the principles of due process. Plainly, the appear-
ance of evenhandedness in the administration of justice
weighs heavily among our jurisprudential concerns, and
estoppel is directly addressed to that appearance.’’ United
States ex rel. Hubbard v. Hatrak, 588 F.2d 414, 417 (3d
Cir. 1978). This is an institutional reason,’ implementing
the maxim that ‘‘justice must satisfy the appearance of
6. I use the description “instituwiional reason” in this respect somewhat
differently than Professor Robert S. Summers in his important taxonomic
analysis of substantive reasons in judicial opinions. See Summers, Two Types
of Substantive Reasons: The Core of a Theory of Common-Law Justification,
63 Cornet L. Rev. 707, 722-24 (1978).
52a
Appendix A - Opinion, Court of Appeals
53
justice,’’* which has little to do with the individual rights
of Standefer.
Surely the public will not readily understand the
court’s holding that a revenue agent did not receive a gift
but a private citizen helped him receive the gift he did not
receive. This is the stuff that ‘‘sidebars’’ in newspapers
are made of, that smirking telecasters eagerly devour in
thirty-second squibs. ‘‘People do take judicial reasoning
seriously,’’ Professor Charles A. Miller has observed, ‘‘and
they are not fools nor being fooled in doing so, at least no
more than in other forms of communication or with respect
to other strands that form the web of a political culture.’’ ®
Legal reasoning cannot be artificial, esoteric, or under-
standable only to an elite legal priesthood; it must be ca-
pable of public comprehension.
Standefer is not proposing, nor do I propose, ‘‘to give
him refuge in the imagined remnant of a commen law rule
regarding the dependency of verdicts against aiders and
abettors.’’ Maj. op. at 26. But neither do I assume that
‘ta tidy consistency’’ is equivalent to a foolish consistency,°
and I am undaunted by accusations of pursuing ‘‘scholastic
quiddities.’’ Jd. I insist that a small measure of con-
sistency is essential, that there must be some dependency
between aiding or abetting and the offense that is aided or
abetted. Simply put, in our language these are transitive
verbs. It is no justification for Standefer’s conviction that
public reaction to exclusionary rules may be unpopular.
Public reaction to Standefer’s conviction for aiding Nie-
derberger to commit an offense which a previous jury had
acquitted Niederberger of committing will be, and should
be, equally unpopular.
7. Offutt v. United States, 348 U.S. 11, 14 (1954) ; accord 2 J. B. Atlay,
Victorian Chancellors 460 (1908) (quoting Lord Herschell: “[{I]mportant as
it was that people should get justice, it was even more important that they
should be made to feel and see that they were getting it.”). United States v.
Birdman, — F.2d —, — n.25 (Nos. 78-1940 et al., 3d Cir. 1979).
8 C. Mrtter, THe SuprREME Court AND THE Uses or History 12 (1969).
9. “A foolish consistency is the hobgoblin of little minds, adored by little
statesmen and philosophers and divines.” Emerson, Self Reliance (1841).
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Appendix A - Opinion, Court of Appeals
54
The result I would reach concededly may be considered
an application of some form of collateral estoppel. To
reach the result, however, it is not necessary to broadcast
a principle that non-mutual collateral estoppel will hence-
forth control all criminal cases in this circuit. I am mindful
of the pitfalls noted by the majority which would attend
promiscuous and indiscriminate application of the concept.
I agree that if this were the law, ‘‘many prosecutors would
need to calculate when to stop pursuing confederates and
co-conspirators for fear of automatically reversing a string
of successful prosecutions.’’ Maj. op. at 33. “In the rush
to reaffirm and extend the rule of Bryan, however, the case
of Mr. Standefer seems somehow to have been forgotten.
Regardless of the issue on which rehearing in banc was
granted, the court is deciding this criminal case and no
other. Instead of speculating about a string of successful
prosecutions in other cases, we must focus on a relatively
short string of prosecutions—the successful trial of Stan-
defer preceded by the unsuccessful trial of Niederberger.
We need not theorize about complex inchoate criminal cases
with multiple and lengthy trials, multiple defendants, great
variations in available and admissible evidence and a host
of other factors not present in this case. Our system of
adjudication is the common law tradition, the adjudication
of the specific instance. ‘‘Every new case is an experi-
ment; and if the accepted rule which seems applicable yields
a result which is felt to be unjust, the rule is reconsid-
ered.’’ © Our tradition ‘‘creeps from point to point, testing
each step,’’?* and is preeminently a system built up by
gradual accretion. We decide only the facts before us, at-
taching a definite detailed legal consequence to a definite
detailed set of facts.
To consider consequences that might occur in other
cases containing factual problems not before us is always
legitimate, whether in a lawyer’s brief or a judge’s opinion,
10. M. Smrrn, JURISPRUDENCE 21 (1909).
11. A. Wurreneap, Apventures oF Ipeas, Chap. 2, § 6.
54a
Appendix A- Opinion, Court of Appeals
ahs)
but it is just argument. The rules of logic inexorably limit
permissible rhetoric; one risks committing the fallacy of
division, erroneously reasoning that what holds true of a
composite whole necessarily is true for each component
part considered separately, or being seduced into the fallacy
of ignoratio elenchii, irrelevant evidence, proving unrelated
point B instead of point A, which is at issue, or disproving
point D instead of point C.
Here, we are confronted with two short trials of two
individual defendants on virtually identical indictments
returned simultaneously by the same grand jury on essen-
tially the same evidence involving a common set of facts.
If, in this case, my analysis is an application of collateral
estoppel, I do not argue that collateral estoppel is man-
dated by due process. But to hold that estoppel is not con-
stitutionally required does not mean that other sound rea-
sons do not warrant its application. I am convinced that
under the facts of this case, the need for the appearance of
justice demands this result. To this extent I join Judge
Gibbons’ views on collateral estoppel set forth in his con-
curring opinion.
C.
Finally, I detect in the majority’s analysis what seems
to be a presumption of guilt which cannot be overcome by
a jury verdict of acquittal. Because of **seemingly con-
tradictory findings,’’ maj. op. at 35, the court apparently
feels free to speculate as to what might have prompted
N lederberger ’s acquittal—presumably something other than
his innocence. The majority sees no injustice in allowing
the government another chance to prove Niederberger’s
guilt in a second trial, so long as Niederberger is not pres-
ent to defend himself. Because the government was per-
mitted to convince Standefer’s jury that Niederberger was
guilty, the majority finds both a guilty principal and a
valid aiding and abetting conviction without anyone having
been placed twice in jeopardy. This reasoning is foreign
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Appendix A - Opinion, Court of Appeals
56 4
to our system of criminal law; that it constitutes funda-
mental unfairness to Standefer cannot be gainsaid.
The competing principles at work here are well known.
The government has a justifiable interest in seeing that
crime be prevented, public safety promoted, public norms
of behavior vindicated by the imposition of merited punish-
ment, and anti-social conduct deterred by the imposition of
penalties. The appellant, on the other hand, invokes the
guiding principle of criminal law—the presumption of
innocence—and the complementary principles that penal
laws are to be strictly construed, that ambiguities should
not be resolved so as to embrace offenses not clearly within
the law, that facts charged and proved must bring the
defendant plainly and unmistakably within the statute, and
that no person can be criminally punished unless the acts
for which he is punished were clearly forbidden.
Judges constantly strive to seek an accommodation
between these sets of competing principles. There are
times, however, when the scales seem evenly balanced,
when it is difficult to determine exactly where the weight
does lie. At these times the jural philosophy of the indi-
vidual judge comes into play, consciously or otherwise, by
means of a value judgment that places a greater weight
on one competing principle than another. ‘‘Indeed, the
most important attributes of a judge are his value system
and his capacity for evaluative judgment,’’ writes Profes-
sor Robert S. Summers. ‘‘Only through the mediating
phenomena of reasons, especially substantive reasons, can
a judge articulately bring his values to bear.’’ ”
12. Summers, supra note 6, at 710.
Consider also the observations of Professor Paul Freund:
Much of law is designed to avoid the necessity for the judge to reach
what Holmes called his “can’t helps,” his ultimate convictions or values.
The force of precedent, the close applicability of statute law, the separation
of powers, legal presumptions, statutes of limitations, rules of pleading and
evidence, and above all the pragmatic assessments of fact that point to
one result whichever ultimate values be assumed, all enable the judge in
most cases to stop short of a resort to his personal standards. When these
prove unavailing, as is more likely in the case of courts of last resort at
the frontiers of the law, and most likely in a supreme constitutional court,
the judge necessarily resorts to his own scheme of values. It may there-
56a
Appendix A - Opinion, Court of Appeals
57
The issue before us constitutes a classic example of
how one’s jural philosophy may predetermine a decision.
When confronted by a close case in criminal law, neces-
sitating the expression of a value judgment, I cast my lot
in favor of the individual and not the society that seeks to
regulate his conduct. To me this is an a priori proposition
distilled not only from the Constitution but from the philo-
sophical
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