# Petition — Standefer v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0873%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 447 U.S. 10 ## Text Prema Coy f EIL 7 } | f SEP 6 jo79 i] Hes = | 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 @«» "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 Ded nh SE IRE SI ae tc nr 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 et Cas Ke cat meet set AE et ce > Beth het Da a es are nt Ee J i | ; / j i 4 i | 4 d / } 4 ' j { 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 Appendix A - Opinion, Court of Appeals 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 Appendix A - Opinion, Court of Appeals 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. Bry [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0873%3A1. Public record. Not legal advice.