Petition for a Writ of Certiorari — Barash v. United States

Supreme Court brief1969

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ers COURT, U & FILE D

1969

UITICe-cis His Be wed ly Vee

JOHIN.F, DAViS, CLERK

IN THE

Bryon Court of the Vuited States

4 Octoper — 1969 ©

DAVID BERN VARD ARASH,

VS.

UNITED STATES OF AMERICA.

7 “a

PETITION FOR WRIT OF CERTIORARI TO THE

_UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

‘

etna soos aa i,

Louis BEenper,

_ Attorney for Petitioner,

225 Broadway,

_ New York, N. Y.

~ Lioyp A. Haus,

Of Cegneet.

Adams Press Corp., 180 Cedar Street, N. ¥.—Beekman 8-1050-51

Petitioner,

‘TABLE. OF CONTENTS

(

. It was-error to submit to the jury the counts

.under 18 U.S.C. §201 as well as the counts

* winder 26 U.S.C. §7214(a) (2) ncn. 2 eeaesceeneectecee

(a) A majority of ‘the panel, below thought

. Milapovich’ should apply... nee

. It was error for the Court to exclude the

defense of economic coercion from the eounts

under 26 U.S.C. §7214(a)(2) and 18 U.S.C.

§201(f) essehaak a RRGDIRE AC SR Dh a

(a) The Court below presumed that the jury ~

: ‘ PAGE -

Opinion Bgyow........ Bena neecenaen SEER ee tee 1

na St, °

JURISDICTION .....n0--soeeeeooe iad (aac Acabaclaleaitlan dani 2

QUESTIONS” PRESENTED........-------20---0--+-+- rea SRL le oe 2

A ie ; ie »

ConsTITUTIONAL AND Statutory Provisions’ InvoLvep ~ 4

SOUATRMERT OF PHE CHB licihiciccccctsieccieineninrntinnininn

REASONS FoR GRANTING THE WRIT © ees ate

——.-t:-A person may not he co Violating |

—a- statute, here 26 U.S.C. :§7214(a}(2), which —

does not forbid his activities............. ROAST

considered the defense excluded by. the »

trial court olicse Seieieeti Saori ae

.. Allowing .a conviction of an alleged offense

induced by an undercover agent on evidence

manufactured by him brings our system of

criminal justice into disrepufe...........-......-..

ii TABLE OF CONTENTS — -

5. A coerced verdict vitiates the right to trial

by jury..... , 41

‘ (a) The erroneous compulsion of successive

verdicts : silieaniasebes 44

; (b) Imputing guilt to petitioner from the

pleas of co-defendants...- sabia sacs Sa

6. An indictment is invalid which has been re-

turned by a grand jury which has not heard

the evidence allegedly in support_of it............ 48

‘ f Petitioner did not receive a fair trial... 49

“i Conciusion .. mon ~ @

APPENDIX bisitomaas la

_— to Appendix . | | .

Opinion of the Court of Appeals... iateouabcatic —. ia

_ Opinion, of the District Court. "eee 25a

Opinion of © “the\Coutt of eos on the vege

S First:. ‘Trial..._.,...>.. ” . 2a

Judgment of the Distrivt: Court......... 46a

Judgment of the Court of Appeals ee _— 49a -

Court of Appeals” Order Denying

En Bane ms 5la

. Court of Appeals Order Denyi ing Rehearing,

= Granting .Stay - 52a.

| Constitutional and Other ties se SREP 54a

‘Constitution

Aerneatieeh V. 7 54a .

Amendment VI | 54a

- TABLE OF CONTENTS | ‘ii

“PAGE

Statutes af ,

18 U.S.C. ; |

foe © ie | mite 55a

§ 201 (former) — a bane rs dda

$Me) <..... leh Lee (B60

$M) 2 \\ Zs “re

Wy 2

§ 201(g) .......... Sennen “a

er Nae

$ Weis(a)(2) 58a

Federal Rules of Criminal Pro-— \

_eedure \ 4

ee a 50a.

- CaBMation of Resolution of Counts at Second Trial Gla yt

Cases Cited

Allen v. United States, 164 U.S. 492 (1896)........J 41

"Bain, Ex parte, 121 U.S, 1, 7 S.Ct. 781 (1887)... | 49

™ Bennett v. United States, 89 F.2d 52 (5th Cir. 1937)..44, 45

Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct.

, 1697 (1964). , ; 19, 20

Boyd v. United ‘States, 271 US. 104, 46 S.Ct. 442 —

- (1926) Tiateangecaasias 47

Bruno v. United States, 308 U.S. 297, 60 S.Ct. 198

- (1939) , a oe

‘

Ry tee

ae ut f “"

W iS __ TABLE OF CONTENTS

Lv ; ‘ FPAGB

Bucklin v. United States, 159 U.S. 680, 16 S.Ct. 182 |

(1895) .-...: ; Shee a

\\ Chadwick v. United States, 117 F.2d 902 (5th Cir.” -

1941) ooeeecoc 44, 45

Coffin v. United States, 162 U. 8. 664, 16 S.Ct. 943, _

OE Boas 20

Dealy Vv. United States, 152 U\S. 539, 14 S.Ct. 690

Oi es ec ta 44, 45

Delli Paoli v. United ‘cgi, a2 t U.S. 232, 77 S.Ct.

294 (1957)....... CA Mebane eo 38

- Gebardi v. United States,. 287 US. 112, 53 S.Ct. 35

C5 gal eerie eh vaniin HNNRMGD \setcntie ewe ON 20

Green v. United States, 355 US.\I84, 78 S.Ct; 221

CORT. etd SEEN. ‘ ae eRe 44, 45

Green vy. United States, 309 -F.2d eae (6th Gir.

1 REA IRENE EN e: S AA MAREE NS. TRAM ME 41,42

Grunewald v. United States, 353 US. 3, 7 S.Ct.

963 (1957) ry SN OHSLEcRicta LORE 17

_ Heflin Vv. United tates, 358 US. Matai 79 S.Ct. 451 .

(1959) . ‘ sensiisniguionesaieiagiiaciatanccteeiatteaphiois 24

Henderson v. United States,,. asd F.2d 169 (5th Cir. . i

1956) a 40

Hornstein v. Saceouat Pictures, 37. N.Y.S.2d 404 _

(Sp. T.. N.Y.Co. 1942) hiiaiidicceciiaiidiaeteneeagas Vc Rat ee 35, 36°"

Jenikini v. United States, 380 U.S: 445, 85 S.Ct. —e

(1965) Peas > en 7

Jolfy v. United States, 170 US. BQ, 18 S.Ct. 624

(1898) .

_¢ i .

| TABLE OF CONTENTS ee, 8

: | : nae, : : PAGE

Kent v. United States, 383 U.S. 541,.86 S.Ct. 1045 ay

LED csccenuncneccnmeamnenensintn ieasa jn AI

Lopez v. United States, 373 U.S: 427, 88 S.Ci 1381 +

(1963) . : Sent LEE ST

_ May v. United States, 175 F.2d 994 (D.C.Cir. 1949). 23

- Milanovich v. United States, 865 U. S: 551 (1961)... “3,9,

| ; 24-28,

Rice v. United Staten 356 F.2d 709 (8th Cir. 1966)...

Sansone v.* United States, 380 U.S. 343, 85 S.Ct. |

IO CE a gncticcseniensconecitsssnnemeenttiinannenblilnliniiaennsapiillansass ~. 29

Sears v. United States, 343 F.2d 139 (Sth Cir. 1965).. 40

Sorrelle v. United States, 387 US. 435, 53 S.Ct. 210 «

SOTO. steep binaiicelaisciapnalli tiplanicinacammsness Fevecncanwanmstpely AO

State v. Begyn, 34 N.J. 35, 167 A.2d | Matcomeneneoae. | 21

State v. Teahan, 50 Conn. 92....... eee ; =

Stirone vy. United States, 361 U.S. 212, SO S.Ct. 270.

RRR ons ehceown aiah 49 ?

. ‘Tomoya Kawoakita v. United States, 343 US: 717, .

72 S.Ct. 950 (1952). biorgcain RO, 34, 35

Umans v. United States, btn US. 80, 88 ize 293 ;

Sortie , : 48

Union Pac.R.Co. v. Public Service Commission of

@lissouri, 248 US. 67, 39 S.Ct. 24 (1918) 0. toe. 9 ae

United States v. “Alpers, 338 US. 680, 70 S.Ct. 352

‘$a Beans: ae PRE aN Sees Para PR ee Se 19, 24

Unjted States v. Barash, 365 F. 2d 395 (1966)....1,.11-14, 22,

. 26-28, 30, 31,34

\- . *%

vi TABLE OF CONTENTS

oe ® r PAGE

United States v. ‘Davie, 266 Supp. 126 sect

1966) . 2

‘ United States v. Byrd, 352 F.2d 570 (2d Cir, 1965).. x 32

United States y. Cohen, 887 F.2d 803 (2d Cir. 1967)..17, 26

United States v. Dietrich, 126 "Fed. 664 (D. Neb.

1904) 20

United States ex rel. Rosado v. Flood, 394 F.2d 139

(2d Cir. 1968)......-........ : wivieeiorenbouphaii 32

United Statds v. Fromten, 265 F.2d 702 (2d Cir.

* 1959) \ , 23

United’ States w. Gerdel, 103 Naneic 635 (.D.Mo.

1952) . $-* 21

United States ¥. Irwin, $4 Pod 192 (2d Cir. 1965)....28, 31

United Stutes v® James, 290.F 2d 866 (5th Cir. 1961)..48, 49

United States v. Kenner; 354 F.2d 780 (2d Cir.

1965) , 9, 17, 22-34, 26-29

United States v. - Resnick’ 299 ES. 207, 57 S.Ct.

126 (1936) 19

" United States’v. Rogers, 289 F.2d 433 (4th Cir. 7961) 42

United States v. Smith, 353 F.2d: 160 (4th Cir. 1965) 42

United States v. Umans, 368 F.2d 725 (2d Cir.

1906). ; : 26, 28, 29, 32

: ‘

See. 7214(a)

24-33, 36, 39, 41, 44

28 U.S.C.: | —

See. 1254(1)

Rule Cited

Federal Rules of Criminal Procedure: .

Rule 31. ...... SE BO

_ Other Authorities. Cited

Judiciary Law of the State of New York:

‘See. 90

TABLE OF CONTENTS ~ vii

- . PAGE

7 ! Statutes Cited

18 US.C.: ' 6 :

SoC. 2 cecceccsecsesenseaseen 9A, 6, 11, 16, 20, 22, 24, 28, 45

gee an Rmeseieenmer nner fe? cee 45

To) sesvnessernneeeeei DA, 6-8, 10, 15, 18, 23-29, 31.

Sec, 201 (B) cecsesocccccnnneee * 4, 6, 7, 9, UZ, 23, 25, 28-30

||| |; rc oan 3, 4, 6, 7, 9.11, 15, 18, 19, 23,

- ee 25, 28-33, 36, 39, 40

U See. I i oe re es anaes

Sec. 202 6

See. 212 ae ‘18 |

See. 650 23

% U.S.C.: Sra

Sec. 4047(e) (2). (T.R.C. 1939) oo. ecceecceecsseeeceeeeeeee 20, 21

Sece.. 7213 | . mnitcwe

2-4, 6, 7, 10, 11, 15-18, 20-22,

vill ! TABLE OF CONTENTS

PAGE

New York Penal Law:

See. 200.30 18

See. 200.35 18

Sec, 855 .. 18

See. 1826 18

See. 1831 18

a i

Practice Commentary to New York Penal Law:

See. 200.35 .. in 18

Senate Report 1020 (1951, 82d Cong. Ist Sess.),

1951 U.S.Code Cong. & Admin. Serv. Scietcn: ae

~ @

Supreme Court of the United States -

Ocroser Term, 1969

Docket No.

. — «

: Davin B. Barasu, :

Petitioner, ’

‘ : ; .

‘

fs ae Unitep States oF AMERICA,

—, gi Respondent.

+ »< >

—}

q ;

_ PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIF

The petitioner David B. Barash prays that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Second Circuit entered

on April-9, 1969. |

Opinion Below

The opinion of the Court of Appeals, reprinted in the

Appendix bound with this petition, is not yet officially re-

ported. The opinion of the Court of Appeals reversing

petitioner’s first conviction is reported at 365 F. 2d 395.

An opinion of the Unité# States District Court for the

/ . 2

sili District of New York, on remand after the first

appeal, denying a motion to dismiss the counts on which

‘petitioner was subsequently convicted, and in the alterna-

tive to compel an election hetw een those counts and ‘other

counts and for a severance, /is reported_at_266 F. Supp.

126. A copy of each of these pong is appended to this a

petition. | : , ~~ |

x Jurisdiction

The judgment of the Court of Appeals was entered on

April 9, 1969. A timely petition for rehearing and ee

hearing en banc was denied May 23, 1969/ .The Court of

Appeals on the same date granted a stay of ‘the mandate

pending a. pefition to’ this Court for a writ of certiorari.

Jurisdiction in this Court is invoked under 28 U.S.C.

§1254(1).

Questions Presented

1. Does 26 U.S.C. §7214(a)(2), which on its face ap-

plies only to an officer or employee of the United States

who demands or receives a fee, compensation, reward, not~~

prescribed by law, apply to the person on whom such de-

mand is made or from whom such payment is received,

who is not an officer or employee but whose participation.

is necessary in any such ‘offense committed by an officer

or employee? —

2. Is it permissible for an indictment to charge in du-

plicate series of counts that the identical alleged payment

from an accountant to an: ‘Internal Revenue Service audi- .

tor violated 18 U.S.C. $201 as well as 26 U.S.C. §7214(a)- >

(2) via 18 U.S.C. §2?

(a) If so, should both such series of —

submitted to the jury?

a (b) If both. such series be submitted to the jury,

| is an instruction required that the jury may con-

vict on any single transaction under only one count

ere a violation of either statute but not botat

3. Are Sisiiite ‘of Sa: which are sufficient to jenatk:

tute economic coercion by Internal Revenue auditors on

the accountant petitioner who allegedly made payments to

_ them, a defense to the element of willfulness required to

convict under 26 U.S.C. $7214(a) (2) via 18 U.S.C. §2 and.

18 U:S.C. §201(f) ? |

4. May a United States Court of Appeals in reviewing

a criminal ease presume that the jury considered. and re-

jected a defense to the charges on which conviction was,

had where the trial court expressly instructed the jury

.that it could not consider the defense on those charges?

5. May a conviction be affirmed by a three judge panel

of a Court of Appeals when two of ie judges are of the »

opinion:

(a) that the defendant could not violate the stat-

ute, 26 U.S.C. $7214 (a) (2), under gyhich he was

convicted; and

(b) that the duplication of identical transactions

in multiple counts of the indictment under 18 U.S.C.

$7214(a)(2) via 18 U: S.C. g9 and 18 U.S.C. §201 as

presented to the jury violated the principle of Me

lanovich v. United States, 365 U. S. 551 (1961)?

6. Is a defendant entitled to a charge of entrapment

when he offered proof that an Internal Revenue Inspector

acting as an undercover agent by posing as an office audi-

tor manufactured evidence ‘to show at trial that a fraudu-

lent audit had heen conducted and money ‘paid to that

end?

7. Are a defendant’s, rights to due qeeiier and trial by °

jury violated by

(a) the giving of an “Allen” vines before the .

jury announced. any disagregment;

(b) the taking of a verdict on the second day of

deliberation on counts charging lesser offenses and °

then compelling the jury to deliberate anew on

_. eounts covering exactly the same transactions but

which charged more serious offenses with greater

penalties? ° ‘ :

8. Was petitioner denied due process when testimony

of ex-auditors of the Internal Revenue Service that they

had pleaded guilty to charges of receiving unlawful pay-”

ments from him was permitted by the trial court, yet the

trial court failed to instruct the jury that such pleas | of

guilty could not be considered as evidence of petitioner’ Ss

guilt?

9. Was petitioner’s right not to answer to an indict:

‘ment on the felontes charged unless returned by a grand

_ jury violated by the prosecutor’s choice to have the wit-

_ nesses against him testify before a grand jury other than

_ the one which returned the indictment against him?

10. Was petitioner denied a fair trial?

Constitutional” and Statutory Provisions Involved

_.. The Constitutional and statutory provisions involved,

U. S. Const., Amendments V and VI, 48 U.S.C. §$2, 201,

901(b), 201(f), 201(g), 26 U.S.C. §7214(a) (2), as well as

- Rule 31 of the Federal Rules of Criminal Procedure, are

_ reproduced, in the appendix to this petition.

———_$—$—$——— mn

‘ Statement of the Case

This case presents to the Court a reéord replete with

errors from the return of the indictment through appel- |

late review. The error, of basic and general application,

involves conflicts with other Cireuits and prior decisions

of this Court. To grant certiorari in this case, would not

only be the granting of substantial and procedural jus-

tice to the individual petitioner, always important, but

would most economiéally provide this Court with the op-

portunity*to resolve several problems which promise to

_ recur throughout the Federal administration e criminal

justice. : ;

‘The Indictment -

The indictment filed against petitioner originally con- |

tained 35 counts, 32 of which named him as a defendant

(A. 12a-17a).* The 32 counts actually consisted of two

paired sets of counts, each pair involving a single alleged

payment by petitioner to an office auditor for a single In-

ternal Revenue — of a particular tax a ’s return for

‘a particular year.** The additional three-counts, (33-35)

‘were placed in the indictment for a specifi purpose and

“ charged only ex-office auditors of Interiial Revenue Serv-

= with a violation of 18 U.S.C. $201(8). The purpose

7 _

” Citations marked ‘‘A. —a’’ are to the pagination in the ap-~—

- pendix on appeal, a certified copy of which has been filed with

this petition. Citations in the form “R, —’* are to the original |

record on appeal which has-been certified by the Clerk’s office of

the Court of Appeals and mailed directly to this Court.

** At the first trial, petitioner was acquitted of three such

transactions for a total of six counts, involving two* ex-auditors

of the Internal Revenue Service. Thus, at the second trial, from

which. this petition evolves, there was a total of 26 counts, based

. on thirteen transactions with three ex-auditors.

é _—

6 .

of these counts was to allow ‘the ex-office auditor con

cerned to plead guilty to the lesser offense under that

statute instead of pleading guilty under the offense Svith

the greater penalty, 18 U.S.C. $201(¢e), just as they were.

allowed to plead guilty to the lesser offense under 26

US.C. §7214(a)(2) rather than the more serious felony °

of accepting a bribe under former 18. U.S.C. §202 con-

cerning audits before the 1963 revision o€ 18 TLE. $201.

All of ‘the ex-auditors of the Internal Revenue Service so

pleading testified against petitioner and others, and re-

ceived suspended sentences for so doing, as was their

hope by testifying (A. 327a, 448a). They were not even

named as defendants in the bribery counts“although they -

testified at trial that they received bribes from peti-

tioner. —— : 7

A complete chart of the counts extant at the second

trial and their disposition is contained? in the appendix -

to this petition. In sum, they consisted of the following:

(a) Ten counts (1-6, 9, 11, 12, 14) charging petitioner

. with bribery of ‘ex-auditor Clyne An connection with

certain tax returns (former 18 U.S.C. $201 and

present 18 U.S.C. §201(b)), and ten counts (18,-

91-6, 29, 31-2) involving the same alleged payments

to Clyne on the same alleged tax returns (26 ILS.C.

- §7214(a)(2) and 18 U.S.C. §2 matching the former

18 U.S.C. §201 counts; 18 U.S.C. §201(f) matching

the present 18 USK. §201(b) count) (A. 12a to

17a) ; re ga

“ (b) Two counts (8 and 10) charging petitioner with

pribery of ex-office auditor DeSibio (former 18

U.S.C. §201) ‘and an additional two counts (28° and

30) involving the same alleged payments to De-

Sibio on the same alleged tax returns (26 U.S.C.

$7214(a)(2) and 18 U.S.C. §2) (A. 13a, 16a) ;

coo

a 9 ;

Coady, the undercover inspector posing as an office }

auditor (18' U.S.C. §201(b)) and an additional count

(20) involving the same payment to Coady on the

same alleged tax return (18 U.S.C. §201(f)) (A.

14a, 15a). ? |

No use of 18 U.S.C. §2 to prosecute the ‘alleged payor

of compensation to an Internal Revenue employee under

96. U.S.C. §7214(a)(2) is recorded until after Congress

enacted in 1963, 18 U.S.C. §201(f). This section prehibited

. a wilful payment to a Government employee in connec--

‘tion witle his dutiés).as a lesser included offense under

18 U.S.C. §201(b), biibery of a Government employee. ... |

Prior to the 1963 revision to 18 U:S.C. §201, there was

no statute which penalized the conduct now proscribed

by 18 U.S.C. §201(f). —

~ .This indictment was returned by ‘a grand jury which

- heard none of the evidence from the witnesses who tes-

tified against petitioner at his trial (A. 1071a-73a); that

is, the grand jury merely acquiesced in the drafting of

_ the duplicated multiple counts hy the prosecution. This .

procedure was not merely an inadvertence or oversight

by the prosecution. The ex-office auditors who testified

against appellant had agreed to cooperate with the prose-

cution in any~nymber of cases in exchange for favor-

able siaataaead Inte botore. the return of the indictment

in thefpresent case. In fact, according to the. Govern-

ment’s brief on appeal to the court below, those witnesses

did testify hefore several grand juries other .than, the

one which indicted petitioner, but ‘for no reason as yet

-~ advanced did not testify before the grand jury that-voted

the indictment against petitioner (Appellee’s brief below, ©

p. 38). The coyrt below recites the interests of eeonomy ~*~

i ,

(undemonstrated and irrelevant) (Slip sheet opinion, p. '

1837). What ‘resulted was .a complete violation of peti-

tioner’s rights under the Fifth Amendment, two lengthy

and costly‘ tykals and appeals on amindictment by a grand

~ jury which ndt’ only did not hear the witnesses under’ the

‘prosecution control but which rubber-stamped: a multipli-

eation of charges at the prosectition’ s request to the ulti-

mate trial prejudice of the defendant. Y ae

The Erroneous Sanctions of the Multiple Counts:

In his coneurring opinion on the second appeal, Circuit

‘Judge. slated stated, Circuit — Feinberg concur-

ring: | )

“Tf the ‘eee were res nova, I would have con-

siderable difficulty in believing that an accountant

who makes a payment to an internal revenue agent _

ean properly be convicted for aiding ,and abetting *

the agent in violation .of 26 TS! §7214(a) (2).

The ALI Model Penal Code, whje]r tses the, term

‘accomplice’ to encompass aiding and abetting,

$2.06(3), said in §2.06(6) > r

“Unless otherwise’ prov rided by the.Code or by

‘the law defining the offense, a person is not an,

aecomplice in’ an offense committed by another"

‘person if: :

(b) the offense is so etiad that his eotduet

ae inevitably | incident - to its eommission;

= oe - ~ j cx

This principle “would seem peculiarly applicable

when the legislature has enacted other provisions,

here 18 U:S.C. §201, specifically directed against

the payor, even though Congress decided in 1963

af .

that these were - broad enough.” (Slip sheet ,

opinion, p. 1846) .

7 Judges Friendly and Pelahone: however, felt heedoost

-from reaching the decision they plainly believed to be

‘right by a previous decision: of the Second*Circuit in

United .Statese v. Kenner, 354 F. 2d 780, 785 (2d Cir.

1965). That decision, as well as the upholding of petition-

er’s, conviction as a non-ageht payor under 26 U.S.C.

§7214(a) (2), is ‘contrary to the provisions of: that statute,

its history and purpose, decisions of this Court and

Courts in other Circuits.-

Civouit Judge Friendly, again w ‘with Circuit re Fein .

berg concurring, also stated below: that:

“T am also not entirely persuaded that even- l@

’ Barash could permissibly be held guilty as an aider

‘or_abettor of the agent’s violations of 26 U.S.C.

- §7214(a) (2), he could be convicted both of that and

of a- violation of §201, see Milanovich v. United

. States, 365 U:S. 551 (1961), as he was an counts 8

and 28, and 10.and 30, but thatalso seems to be as-

sump by our previous decisions.” (Slip sheet opin-

ion, p. 1847) /

~ It is ; respectfully subenitind that this carries state decisi$

oe far. Petitioner’s rights to @ fair trial under appro-

ate jiiry instruétions should not be frustrated by “as-

sumptions” in previous decigions | of “the Second Circuit

which neither discussed. nor decided the point, . particu-

larly. when- those “assumptions” are plainly ‘contrary to’

_ this Court’s holding in Milanovich. The prejudicial na-

‘ture of this ruling is revealed by “the instructions given

in the trial court and the action the jury: took thereon.

The trial judge instructed the jury thatit could not re-

“turn a verdict of guilty on both of the paired courts un- S

“der 18 U.S.C. ceo (Counts - and acd and §201().

y Wa 10 |

(Counts 18 and_20) (A. 1010a-1la). Tlie jury returned a

verdict only under the lesser offenses under Section 201

= on these pairs of counts and the trial court, correctly

* construing the jury’s action as an implied verdict of ac- ~

‘quittal on the greater offenses, dismissed Counts 14 and

16 (1124a-25a). However, the trial.court ¥efused to in-

struct the fury that it-could not rettirn a verdict of guilty

against petitioner on the paired counts which charged

the identical transaction ‘as a violation’ of 18 U.S.C. §201

‘(Counts 1:6, 8-12) and 26 U.S.C. §7214(a) (2). (Counts 21-

26, 28-32).(A. Gla). As a result,» petitioner was con-

” victed in the ju first verdict: on*>Counts 28 and. 30

which charged ip ith aiding and .abetting ex-auditor

DeSibio in violation of 26 U.S.C. §7214(a)(2), and after

the jury. v

.tioner, on

; compelled to rede iberate they found peti-

e identical transfctions, guilty, in Counts 28

and 30, ribimg ex- audit or DeSibio, in violation of i”

U.S.C.. §: The conviction, on thef latter two counts ~

have particularly severe’ consequences to petitioner who

was an attorney as well as a certitied public accountant,

because under Section 90 of the Judiciary Law of the

‘State of New York a conviction under 18 @.S,C. §201 au-—

tomatically revokes iis licerise to practice, whereas under

the convictions on allethe other counts’ he would be en-

titled to a hearing before any cae ictal actidh. was

faken. . ¥ 2 ;

The Rejection . of Defenses

_- In both trials petitioner offered the defehse of economic

coercion, contending that pressure put upon him by the

ex-auditors who testified against, him in the form of

-threats to himself and to his practice™fhrough unjust

treatment to-his clients unless he paid for only what he

meena to,.a proper audit of his clignts’ returns,

émonstrated that any payments which the jury, may have

found were made with But the requisite ceriming intent.

1l - “

On the first appeal the Second Circuit reversed petition-

er’s conviction on the same indictment because the first

trial court had erroneously thwarted petitioner’s attempts

to develop it, fully and had erroneously charged the jury

that it was no defense. 365 F. 2d at 400-402. However,

in that opinion the Court of Appeals field that while the

defense of economic coercion did bear on the specific in-

tent required for the commission of bribery, it inclined

to the view that economic pressure was not relevant to

the offenses charged under 18 U.S.C. §201(f) and aiding

and abetting a violation of 26 U.S.C. §7214(a)(2). 365

F. 2d at 402. In the second trial the trial court charged

the jury that it could consider pressure exerted by the

auditors on petitioner as a defense under the bribery

counts relating to auditor Clyne (10 counts), but not upon

the ten additional counts involving the-same alleged pay- |

ments to the same auditor under .18'U.S.C. §201(f) and 26 att .

U.S.C. §7214(a)(2) (A. 1018a). Again, the prejudice to

petitioner is indicated by the jury’s pan 3 ‘On the ten

counts on which the jury was told that it could consider the

defense of economic pressure, it either acquitted petitioner

or returned no ‘verdict (A. 1069a-70a). On the parallel

“ten counts on which it was told it could not consider that_

' Vdefense even though they inv olved the same alleged pay-

‘ments to the same-ex-auditor an the same tax returns, the

jury returned a verdiet of guilty (A. 62a-63a, ‘1069a-70a).

It is undisputed that offenses-charged against petitioner

under 18.U.S.C. §2 and §201(f} do require proof of crim: .

inal intent. Significantly; on the secoid appeal which was

heard by the same panel (Circuit Judges Moore, Friendly

and Feinberg) that heard the first appeal, the Circuit.

court did not adopt as a holding the view to which it had

“inclined” in the first appeal, that economic pressure was

irrelevant to non-bribery payments to the anditors. It

merely said that it could not criticize the trial judge for

° :

oe <<

following the Circuit court’s previous opinion (Slip sheet

opinion, p. 1831).° Indeed, ‘the Cireuit court sidestepped

the issue by holding that it would asstime that the jury

had considered and rejected the defense on the non-brib-

ery counts even though the trial court expressly instructed

the jury to ignore that defense. (Slip sheet opinion, pp.

1831-32). ° .

As this error infects ten of the thirteen .non-bribery

- payments of which appellant was convicted, it is serious

enough to infect the jury’s verdict on the remaining three

- counts as the Circuit court itself held on petitioner’s first

appeal. .365 F. 2d at 403.

The trial court refused petitioner’s charge on the heer

of entrapment as applied to the facts of the alleged pay-—

ment to: the undercover agent Coady (Counts 16 and 20).

Coady was an agent of the Inspection Division of the In-

ternal Revenue Service who was posing as an ordinary of-

fice auditor in order to gather evidence of criminal vio-

lations by office auditars, and the taxpayers and taxpay-

-ers’ representatives, with whom they dealt. The evidence

of entrapment, largely brought out on cross exainination

of Coady himself, showed that Coady was made-no offer

or promise of: payment in connection with the audit by

petitioner (A. 538a-39a), tliat after the conduct of a fully -

professional audit of a taxpayer’s return during which

petitioner showed Coady: full substantiation of the items

to be questioned on the return, Coady had told petitioner

that Coady was leaving the Internal Revenue Service to

go into the Armed Services, complained. that he was deep- -

‘ly in debt, and made petitioner feel that Coady was ap-

pealing to him to alleviate his financial Aplight before he

went off to serve his country (A. 489a, 793a-795a, 940a).

Thereafter, petitioner testified that he gave Coady an en-

velope containing $50.00 in response to Coady’ s pleas (A.

795a). In addition, prior to meeting petitioner, Coady

had pretended to be a friend of auditor Clyne and plied

him with whiskey, had been warned by Clyne that peti-

tioner would not pay an auditor unless he was pressured —

to do so (A. :250a, 288a). It was*also shown that after

Coady had completed the audit with petitioner he falsified

his report of the audit so blatantly that the audit was

-presented as having no‘relationship to the type of audit

he had been requested to perform by his superiors (A.

5l6a, 528a, 535a, 5444-60a).

Assuming that petitioner had any burden of. showing

lack of propeysity, he amply sustained it. As the Second

Circuit held on the first appeal:

“We are dealing here with an attorney and certified

public accountant ‘of hitherto unblemished reputa-

tion, vouched for, among others, by the Surrogate

of Westchester County, a Jystice of the Supreme

Court of New York, and the County Executive of

Westchester.” 365 F. 2d at 403.

—a showing alone sufficient for the jury to conclude that

petitioner would not have willingly made unlawful pay-

ments to Government employees. In addition, auditor.

Clyne had an animus against petitioner because he had

demanded money from petitioner which petitioner refused

to pay (A. 243a, 288a).*. Unfortunately, the Cireuit Court

* On cross examination of Clyne by counsel for petitioner the

following occurred:

**Q. Did you ever try to get, "money from Mr. Barash

which he refused to give you? A. [Clyne] Yes. (A. 243a)

* * x

Q. You also told Mr. Coady that with certain account-

ants you felt you never had to ask them fer anything,

_ they always voluntarily en you the money after the

- audit; isn’t that right? A. [Clyne] I said I ‘didn’t have

to ask for it. That’s uk

Q. But with Bardsh you could get robbed with Barash id

is that what you said? A. That’s correct.’’ (A. 288a) .

14.

ignored the ‘additional proof on the second trial and by

sanctioning the trial court’s refusal to instruct the jury

that onethis evidence they might conclude that undercover

agent Coady had set out to ereate- the ap] rance of

crime, where crime there was not, erroneously reinforced

for the jury the misleading appearance noted by the Sec-

ond Cireuit Court on the first appeal as “Coady, the single

agent whose slate was clean and whose testimony may

thus have carried particular weight.” 365 IF, 2d at. 399.

The Charge to the Jury:

The trial court failed to charge that the testimony of

ex-auditors Clyne ang DeSibio that they had pleaded guil-

ty’ to receiving unlawful payments from petitioner (A.

46a, 379a) could not be considered as ev idence of petition-

er’s guilt.

- The Allen Charge and the Dual Submnission of

Petitioner to the Jury

The jury deliberatecdi-two days, Friday and Saturday.

“It was allowed “to ‘suspend’ its deliberations shortly before

midnight on Friday night and was given an instruction at

that point by the trial court that it thust’ continue in its

deliberations to reach a verdict on all counts.* _When-

petitioner’s counsel objected that a jury should not be in-

structed that it must reach a verdict, the trail court plain-

ly stated that: it intended to coerce a verdict:

‘wufThe Court: They ‘are under a compulsion, and ~

if they hang up I will give them the Allen charge.

*‘<Tf during the morning you reach a point where you are

agreed on a verdict as to any count: or counts we can_take the

verdict on that count or counts if you will just let the Marshal

know and you ean then continue the delibcration on- the other

counts.”’ (K. 1039; emphasis added)

They are under a compulsion. I do not believe in

telling juries that it.is within their province to

disagree. I don’t think so. I think they should 1 re-

turn a verdict. “: (A. 977a)

On Saturday the jury pabviciantt a.verdict of guilty on the:

counts charging petitioner as a payor with the aiding and

abetting of the unlawful exaction of payments by ex- audi- —

tors Clyne and DeSibio (Counts 21-26, 28-32) and the trial

court thereupon gave the jury a- modified version of the

Allen charge as to the necessity of reaching a verdict as

to all*the remaining counts (A. 1064a-66a). Thereafter,

the jury returned a second partial verdict which in¢luded

the only two bribery counts on which conviction was found

(A. er

The iii

Petitioner was sentenced cumulatively 6n each count as

to which a guilty ’erdict was returned: ~ Petitioner’s only

term of imprisonment of nine months was imposed con-

currently on Counts 21-32 which charged him with aiding -

and abetting a violation of 26 U.S.C. §7214(a)(2). He

- also received a cumulative fine of $1,000.00 on each of.

these counts. In addition, he received a sentence of two

years iniprisonment, execution suspended, of five years

probation with a cumulative fine of $2,500.00 on each of

the counts under 18 U.S.C. §201(f) (Coutts 18 and 20)

and a sentence of five years, execution suspended, five

_ Years probation and a cumulative’fing ‘of $2,500.00 on each

of the counts (8 and 10) under 18 U.S.C. §201. 6

The Appeal

With petitioner’s contention that he as the alleged pay-

or could not aid°and abet the auditors’ unlawful Teceipt

of funds from himself in violation of 26 U.S.C. §7214(a)

“

eee OT

“

* (2), 18 US,Cr §2, two of the three judges agreed, yet the

conviction Avas allowed to stand on these eleven counts.

The saine two judges agreed that the case should not.

* have been submitted to the jury on instructions that they

could convict petitioner of bribery under 48 U.S.C. §201 on

the identical payments as to which they’ returned a con-

‘ vietim of aiding and abetting the agents’ unlawful ——

of the. payment. That submission to the jury involved 2

of the 26 counts presented to the jury for decision. =

petitioner’s conviction was allowed to stand.on such a dual

submission, which resulted in the only two verdicts of

guilty on bribery charges of the 13 submitted to the jury,

and that only on the second verdict.

The court below affirened petitioner’s convictions on all

counts as to which a guilty verdict was returned and the

cumulative sentences thereon, even #hough four of the

convictions were returned ‘after the trial court had com-

pelled the jury to deliberate further after’ the return of

its first verdict. -Hajl_ the trial court exctised the jury

- after its-first verdict eae the only defendant on tzial,

its silence as to most

the only two bribery counts on which a guilty verdict was

later returned, — have nee in an fpoplied verdict

of acquittal. *

Reasons for Granting the Writ

1. A person may not be convicted of violating a statute,

here 26 U.S.C. inca (2), which does not forbid

his activities.

The majority of the counts ee which petitioner was con-

victed*—eleven of fifteen—eharged him with aiding and

* As petitioner was convicted only of aiding and abetting In-

ternaP Revenue Service employees’ violation of 26 U.S.C. §7214-

(a)(2) on the first verdict, which petitioner contends was the

only verdict properly received, see Reason 5, infra, a reversal

of petitioner’ s conviction on these counts should work a dis-

- missal of all charges against petitioner.

f the remaining counts, including

om,

x |

_abetting two-auditors of the Internal Revenue, Service in

‘ + their demand and acceptance of fees not. prescribed by

law from petitioner which demand and acceptance was a

violation of 26 U.S.C. §7214(a) (2).. \Section 7214(a) (2),

by its explicit terms, applies only “e Government em-

ployees acting in connection with an Internal Revenue

Law. , va :

Since 1963, a large number of defendants, not employees

of the Government, in addition to petitioner, have been

convicted of similar charges. See, e.g., United States v.

Kenner, 354 F. 2d 780, 785 (2d Cir. 1965), cert. den. 383

-U.S. 958, 86 S. Ct. 1223 (1966); United States v. Cohen,

387 F. 2d 803, 804-06 (2d Cir. 1967), cert. den. 390 U.S.

996, 88 S. Ct. 1197 (1968). In addition, there are un-

_doubtedly a number of indictments outstanding im the

Southern District of New York and elsewhere which also

charged the alleged maker of payments to Government

agents with aiding and abetting the agents’. violation of

26 U.S.C. §7214(a) (29, which indictments have been filed

since 1963. Before 1963, prosecutions of payors as aiders

and abettors are sparse, if not, indeed non-existent. AI-

though Section 7214 (a)(2) and its predecessor sections

have been in foree since the Civil ‘War, see Historical

Note to,26 U.S.C. §7213, and has been used prior to 1963

to proséute Government agents for receiving unauthor-~

ized payments, it:was not used before 1963 to prosecute

the non-agent: payors. See, CI. Grunewald “v. United

States, 353 U.S. 391, 396 n.7, 17S. Gh¥63, 969 n.7 (1957).

What ‘makes 1963 é*watershed year for this misapplica-

_ tion ;of 26 U.S.C. §7244(a) (2) is as curious as it is

_ illegitimate. In 1962 Congress revised the statutes deal-

fj Ing Ww ith bribery and conflicts of interest concerning Fed-

éral employees (present 18 U.S.C. §201, et seq.). -In ad-

dition to proseribing corrupt payments to public officials

made with intent- to influence any. official act (18 U.S.C.”

—-«

§201(b)), Congress also forbade: payments to public offi-

cials for the proper slischafge of their duties (18 U.S.C,

§201(f)). The effective date of the statute was nihety

days after October 23, 1962, the date of: enactment,’ i.e.,

January 21, 1963. Pub. L. 87-849, §4, 76 Stat. 1119; see

Historical Note following present 18 U.S.C.A. §201. -Prior

to the enactment: of 18 U.S.C. §201(f), there was no Fed-

eral statute whiéh specifically applied to the payor of |

an amount of money to a Federal employee acting in

connection with an Internal Revenue law or otherwise,

unless,the payment constituted a traditional bribe (former

18 U.S.C. §201*).

Recently, New York State revised its statute gov erning

payments to public servants, patterning the revision on

the 1963 revision to. the Federal statutes. See Practice -

Commentary to N. Y. Penal Law, §200.35. Pajor to this.

revision the New York statute, like the Federal, had a

general bribery provision and a section paratlel to 26

U.S.C. §7214(a)(2) which applied only to receipt of un-

authorized fees by a public servant, former N.Y. Penal

Law §§855, 1826 and 1831. In 1955 New York enacted

§200.30 of the Penal Law which is parallel to 18 U.S.C.

§201(f). The commentator notes: “The former Penal

Law, however, had. no counterpart provision for the giver

of an unlawful gratuity . .’. Section 200.30 is intended

to fill that gap.” Practice Commeftary to N. Y. Penal

Law, §200.35. It is respectfully stibmitted that prior to

the enactment of 18 U.S.C. §201(f), the Federal statutes

had the same gap.

What the office of the United States Attorney for. the

Southern District of New York has done is to give eX-

* See also former 18 U.S.C. §212 which prohibited —— .

influence customs officers.

post facto application to 18 U.S.C.*§201(f) by charging

a payor of money to an Internal Revenue agent, without

intent to infiuence the agent’s action, as aiding and abet-—

ting the agent’s - receipt of an unauthorized fee, if the

payment occurred prior to the effective date of 18 U.S.C.

§201(f). If exactly the same type of payment, without

intent to influence the agent, was allegedly made by the

same payor to the same agent under the same circum-

stances it is charged as a violation of 18 U.S.C. §201(f),

if the. payment occurred after the effective date of that

statute. « Compare, Count 18 of the indictment in this ;

case with Count 22 (A. 14a-16a). Such a manipulation

of an inapplicable oriininal statute to create a new offense -

not intended by the legislature and of which the defend-—

ant could have. no warning until after commission of the

,acts complained of has frequently been struck down by

this Court as violation‘ of due‘precess.

In United States v. Resnick, 299 US. 207; 209, 37 8. Ct.

126, 127 (1936), this Court held:

“Statutes creating crimes are to be — con-

strued in favor of the accused;. they may not be:

held to extend to cases not covered by the. words —

used.” 299 U.S. at 209,57 S. Ct. at 127.

This holding was further explainedsin United States vw

Alpers, 338 U.S. 680, 681, 70 S. Ct. 352, 303 (1950) : i

“no offense may be created except by the ‘words of

Congress used-in their usual and ordinary sense.

r°There are no constructive offenses.” 338- U.S. at

681, .70 S. \Ct. de 393.

The peril such abuse of criminal statutés poses ‘to the

accused was stated by: this Court in Bouje v. ‘City of

Columbia, 378 U.S. 347, 352, 84 S. Ct. rag 1702 —

-s. ¢

“because the uncertainty as to, the statute’s meaning

is itself not revealed until the court’s decision, a

person is not even afforded an. opportunity to en-

gage in such speculation before’committing: the act

m-quesfion.” 378 U.S. at 352, 84 S. Ct. at-1702.

Petitioner contends that he as the alleged giver of the °

. Money, cannot legally abet the receiver of the money un- -

Sp ee reasonable construction of Seetion 2, Title 18,

S.C. Gebardi v. United States, 287 U.S. 112, 119, "53 8.

oe 35 (1932); United. States vy. Dietrich, 126 Fed. 664,

667 (D. Neb. 1904); State v. Teahan, 50/ Conn? 92, ap-

-propriately quoted with approval in Coffin v. United

States, 162 U.S. 664,,668, 16 5. Ct. 943, 945 (1896).

Section 7214(a)(2) is identical to Section 4047(e) (2),

LR.C., 1939,, its predecessor, which in ,tiirn was derived

from Congressional acts dating back %o 1864 (see Legis-

lative Mistory after Section 7213, Title 26, U.S.€.). In-

deed, it would appear. that, this section derives its’ lan-

guage from the statute based on the common law concept

of eXtortion whigh had -its origin as far back as 1796.

Thus, in State v( Begyn, 34.N.J. 35, 167 A. 2d 161, 166 the -

-Court ‘in referring to. the fact. that the extoftion statute

there had its origin in 1796 and was i Feitepative of the

. common law, en . 3. ;

“The essence of that offense was the receiving or

taking by any public officer, by color of his office,

-of ‘any fee or teward not allow ed -by law for per-

forming his duties.”

The court added further:

“The. purpose would seem to be simply to penalize

“the officer who non-innocently insisted on a. larger

a ‘fee than he was entitled. to or a, fee waen none .

; was permitted or ‘required to be paid for the per- . .

formance of any obligatory function of. his office.

The matter: was” obviously: of | particular impot-

tance in the days when_publie officials received “their

compensation through fees collected and not by

fixed salary. ”. 167 A. 2d at 166.

Ttis to vee noted that the langudge of the statute re-

‘ferred to in State v. Beqyn is almost identical to the lan-

‘guage in, Section 7214(a)(2). That, this wasthe history

cof Section’ 7214(a)(2) is* indicated in United States v.

Gerdel, 103 F. Supp. 635, 637-638 (E.D. Mo. 1952). Re- .

-ferring to Section, 4047° (e) (2), the. predecessor of Seetionr

7214{a) (2), the Court: there. stated ; '

“The law is aimed at. ‘extortion? , ‘fraud’ —and those

who knowingly charge more than, authorized bys

law.” 103 F. Supp. at 638. :

‘

Indegd, as also pointed out in United States v: Gerdel, the

section contains an unusuai penalty. provision in support

of the Congressional intent just’ referred to, wherein it7—

directs thé court to “render judgment” against the said.

officer or,employee “for the amount of damages sustained

in favor of the party injured”, 103 F. SUpiMy at p. 638, to.

be. collected by -execution.

Thus, the entire history of Section 7214(a) (2) indicates

that it was intended as an enactment to prohibit agents

from ~— from persons appearing | beforé them by- ve

“extortion” or “fraud” payments in excess of those that

were,properly due and collectible by such agents. Under

these circumstances, the counts are legally insuffigient be-

cause the petitiener could not aid and abet the commis-

sion of an extortion or fraud upon himself.

win

As Judge Friendly pointed out in his coneurring opin-

ion below (slip sheet*‘opinion, p. 1846), it is contrary

. 9 : . | -

to basic principles ot sriasiadh: respoilsibility to’ use, 18

US.C. §2 to convict an accountant who pays an Internal

~ Revenue*agent of aiding, abetting - the agent in the re-

ceipt of that payment:

—

“The ALT Model Penal Code, which uses the term -

». ‘accomplice’ to encompass hiding and abetting, —

§2.06(3), says in §2.06(6)x %.,

U nless otherwise provided by the Code or by the

law defining the offense, a pérson is not an ac-"

complice in an offense committed by another ‘per-

son if:

» |. (b) the offense is so defined that his conduct. is

inevitably incident to its commission; .. .’

This viiesigi would seem peculiarly applicable, . :

when the oe has enacted other provisions,

here 18 U.S.C. §201, specifically directed against

the payor, even “though Congress decided, in 1963

that these were not broad enough.” (Slip sheet

opinion, p. 1846) - ae

The Court below upheld petitioner’s conviction on the

counts under 26 U.S.C. §7214(a)(2) (Slip sheet opinion,

p. 1845) -and on the first appeal (365 F. 2d at 399 n.3)

relying upon its earlier «decision in United States v.-

. Kenner, 354 F. 2° 780, 785 (2d Cir: 1965).* -In Henner,

the Court below thouglit that the legislative history of»

the 1951 Amendinént to IS U.S.C. §2 allowed the con-

viction of the paton of a Government agent as an aider

and abettor under 26 U.S.C. §7214(a)(2). 354 F. 2d at

* But for the Kenner decision, which petitioner contends was

wrongly decided, a majority of the Court below would have

held that petitioner and others similarly situated-eould not aid ’

and abet the agents’ violation of Section 7214(a)(2).

‘ *

— ~~

785. . The legislative history contained in. Senate Report °

1020 (1951, 82d Cong. Ist Sess.), 1951 U. S. Code Cong.

& Admin. Serv. 2378, 2583, is instructive: In changing

the terminology of Section 2(b) of Title 18 from “which

if directly performed by him would be an offense against

the United States” to “which if directly performed by

him or another would be an offense against the United

States”, Congress intended to reach persons other than

Government employees who “cannet be pregecuted as

principles under Section 2(a)” ‘([bid.) It would seem

then that what was intended by the 1951 Amendment to

Section 2 was to reach persons who would otherwise be

immune from prosecution rather than to multiply the

' number of possible offenses for which any one person

might be prosecuted, | Petitioner was subject to prosecu-

tion under old Section 201. of Title 18 for the period

covered by the counts prior to the 1963 Amendment to

thatstatute for payments to Internal Revenue eniployees,

and after the 1963 Amendment was subject to prosecu-

tion tinder 18°U.S.C. §§201(b) and 201(f).

The cases cited in Kenner for the Court’s conclusion

that “a payor of a bribe [sic] ‘can be an aider and abettor

under 18 U.S.C. §2”, 354 F. 2d at 785, do not support.that

statement. May vy. United States, 175. F. 2d 994, 1003-04.

(D. C. Cir. 1949), involved a conspiracy of three people —

to violate ISU. S.C. §203. United-States v. v. Johnson, 337

F. 2d 180, 196, involved a similar conspiracy and the court

. supheld the substantive charge (of aiding and abetting a

vidlation eof 18°U.S.C. §281 by the payors because they

vere charged with acts beyond the mere payment. United

States vy. F romen, 265 F. 2d 702, 705 (2d Cir. 1959), merely

~ dealt with the sufficiency of evidenée to support ® convie-

= tion of aiding and abetting a hank officer in fhe misappli-

eation of bank funds under 18° U.S.C. $650.

It is respectfully submitted that the description of an

aidex apd /abettor ‘of an agent’s violation of 26 U.S.C.

§7214(a) ) ip the quotation from Kenner, supra, as “a

payor of a bribe”, is symptomatic of what: this Court de-

seribed in United States vy. Alpers, supra, as forbidden

“constructive offenses.” 338 U.S. at 681, 70 S. Ct. at 353.

The Same symptom is shown by the opinion below: “Speci-

fically Barash was indicted in substance for bribery.” (Slip

sheet opinion, p. 1844). By constructing a second bribery

statute out of 26 U.S.C. §7214(a)(2) via 18 U.S.C. §2, the

_ Court below has also-demonstrated the impropriety of

charging petitioner under that statute as well as under the

express briberyystatute, 18.U.S.C. §201, on the same trans-

action and the impropriety of affirming his conviction un-

der both statutes as happened below in Counts 8, 10, 28

Tand 30: ws )

2. It was error to submit to the jury the counts under

18 U.S.C. $201 as well as the counts under 26 U. S.C.

§7214(a) (2). ‘

In Milanovich v. United States, 365 U.S. 551, 81 S.Ct.

728 (1961), this Court had before it,a dual conviction of

_Mrs. Milanovich for aiding and abetting a larceny from a

Naval base and of receiving the currency f rom \the same

larceny. 365 U.S. at 552, 553, 554 n.5, 81 S.Ct. at \728, 729,

730 n.5. This Court in Milanovich approved that portion

of the Fourth Cirecuit’s decision _— held:

" %a defendant charged with’ offenses under statutes

of this eharacter may not be convicted and punished

for stealing and also for receiving the same ‘goods.’ ”

365 U.S. at 553-54, 81 S.Ct. at 729.

See also [¥eflin v. United States, 358 U.S. 415, 79 S.Ct. 451

(1959). Petitioner was faced with a directly analogous

situation in the trial below. Under Counts 1-16 he was

charged with paying bribes to the agents named, while in

Counts 21-32 he was charged, as an aider and abettor,

with receiving those same payments from himself. When

a defendant has been so convicted on both sets of counts

as was appellant below, this Court held in Wilanovich that

it was-not sufficient merely to vacate the sentence on what

may be construed as the lesser offense, but that both con-

victions must be, vacated because on a retrial a jury, Tn,

‘being properly ‘instructed that it could not find *peti-

tioner guilty oif both sets of counts, might conceivabl

vict him of neither. 365 U.S. at 553, 555, S1 S.Ct. 7

730. In any event, this would be required in the present

case hecause the court failed to charge the jury that it

could not yeturn a verdict of guilty on both sets off counts

under 18 U.S.C. §201 and 26 U.S.C. §7214(a) (2) (&4003a-

1004a). In facet, the trial court charged the jury that it

- could convict on both sets of counts (A, 1007a). The

court’s charge in this area further erred by failing to tell

the jury how the elements of the Section 7214(a) (2) counts

and the bribery counts were interrelated, as % did in con-

nection with the parallel counts under Section 201(b) and

Section 201(f) (A. 1013a-1014a). cs

On the first appeal: of this case the Second Circuit sug-

(wosted that the princfple of Milanor ich might apply. $65

F. 2d at 399 n.3.: Before the second trial petitioner. moved

to dismiss one-of the parallel sets of counts under See-

tion 201 of Title 1S or the aiding and abetting counts un-

der 26 U.S.C. §7214(a) (2), or in the alternative to compel

the présecution to elect between -the two sets of, counts.

266 F. Supp. at 127. Resolution of this motion was passed

to the trial gourt, 266 F. Supp. at 129, and ‘the trial court

submitted both sets of counts to the jury. On appgal the

question was not directly ruled upon. Tho main opinion by

— ae ; wn

eee

Cireuit Judge Moore agrees with the analysis in Point VI

of appellarit’s brief below that in United States v. Umans,

368 F.2d 725 (2d Cir. 1966), the application of the Milano-

vich principle was neither briefed nor argued by the ap-

pellant nor discussed in the Second Circuit’s opinion (Slip

sheet opinion, p. 1843 at n.18). Cireuit Judge Moore’s

opinion also is in agreement, with Point VI of petitioner’s

brief below in pointing out that the issue is squarely raised

inthis case as it was. notin United States v. Cohen, 387

F.2d 803 (2d,Cir. 1968), begause here petitioner was con-

victed on both sets of counts, whereas in Cohen the defend-

ant was not. Cireuit Judge Friendly in his concurring

opinion points out that reference was made to the Milano-

vich-principle in footnote 3 of the previous opinion in this

ease, 365 F.2d 394 at 399 n.3.° Footnote 3 of the previous

opinion below_points out that although the fact situation

in United States v: Kenner, 354 F.2d 780 (2d -Cir. 1965)

was simliar to the fact situation of the present case, the

Milanovich problem was neither raised nor discussed. in

Kenner and also was not being considered by the Court

below on fhe first appeal in this case.

a) A majority. of the panel below thought Milanovich

should apply.

_Cireuit Judge Friendly in.a separate opinion;in which

Cirenit Judge Feinberg concurred*expressed serious doubt

as to whether a payor of a bribe to an Internal Revenue

agent can be properly charged at one and the same time

with a violation of 26 USE. §7214(a)(2) and 18 U.S.C.

§201; and further finds-Addl onal doubt as tovwhether in

such a situation a

- U.S.C. §7214(a)(2) can also be €onvicted on the same

transaction under 18 U.S.C. §201 because Wilanovich would

seem to forbid it. (Slip sheet opinion, p. 1846-47).

payor having heen convicted under 26:

| ;

Peculiarly enough, however, Circuit Judge Friendly re-

solved these doubts against petitioner because of his belief,

that these issues were foreclosed by previous decisions of

the court below. Thus, Circuit Judge Friendly goncluded |

that the issue of whether a payor of a bribe can be prop-

erly charged at the same time with a violation of 26 U.S.C.

§7214(a)(2) and 18 U.S.C. §201 was foreclosed in United.

States v. Ke nner, he-tieh to which United Stotes\ ». Cohen,

supra, is cited as a “sce also” reference, However, in the

previous opinion of the court below. on the first. appeal,

Circuit Judge Friendly, specifically pointed out that this.

- issue of whether a payor couldNge charged both ag a -prin-

cipal under 18 U.S.C. 6201 and as an aider and abettor

under 26 U.S.C. §7214(a) (2) “. .. was not raised or dis-

cussed in Kennerand has likewise not been raised in this.

ease.” United: States v. Barash, 365 F.2d at 399 nn. Tn

“Kenner, the appellant had heen acquitted of the bribery

ghavgoa and convicted only of the gratuity counts. The

same oceurred in United States*y. Cohén, supra.

With respect to the application of Wilanovich, if becomes

even more difficult to find any previous decision which fore-

elosed the application of tle principle of that case that

the petitioner could not be convicted of aiding and abetting

in violation of 26 U.S.C... §7214(a)(2) and on the. same

transaction ‘convicted of a violation of 18 U.S.C, 6201 as

petitioner was on the DeSibio counts (8 and 10). ‘The non-

existence of any previous decision foreclosing reversal of

petitioner’s conviction in view ‘of Milanovich may have

heen completely overlooked by. Cireuit FrutGe Friendly and

Cireuit Judge Feinberg who coneurred. Tn hoth issues

squarely raised by Cireuit Judge Friendly, the questions

posed were “res nora”. In view of the statements imade by

Cireuit Judge Friendly, again concurred in by Cireuit

Judge Feinberg, on an issue .of such importance, involving

‘as it does the issues of due process, double jeopardy and

the ‘multiplication of convictions on single factual situ-

ations, there should be a reversal rather than an affirm. .

_ ance of the conviction. . :

From the many: prosecutions for unlaw ful payments to

Internal Revenue employees -which the Court below has re-

viewed in recent years, guch as Kenner, Irwin,* Umans,

‘Cohen, it may be seen that in all of these cases the indict-

ment was returned after the 1963 revigion to 18 U.S.C.

§201, and that the prosecutor jias used present Section

201(f) as a lesser offense under 18.U.8.C. §201(b) for pay-

ments after the effective date of the new statute and has

used 18 U.S.C. §2 and_26 U.S.C. §7214(a)(2) instead: of

Section 201(f) for payments which ante-date the 1963 revi-

‘sion to 18 U. S.C. §201. This Would seem to reflect that the

prosecutors are (1) attempting to fill a legislative gap

- Jwith an applicable statute, and (2) regard the 7214(a) (2) -

‘-/ counts against a payor as a stopgap. in the absence of 18

U.S.C. §201(f). a

Bither Section 7214(a)(2) should not be applied to the ©

payor at all or it should be interpreted as another included

offense according to’ the prosecutor’s usage. See United

States v. Umans, 368 F.2d at 728-29. At the trial below

either the 7214(a)(2) counts against appellant*should not

have been submitted to the jury or the court should have ~

instructed the jury that“it a not return a “eonviction

under both: former 18 U.p.C. §201 and 26 U.S.C. §7214

(a)(2) on any singlé alleg Ad ah, By appellant. As al-

ready noted, Milanovich indicates that i in such a situation

the remedy is not merely to vacate a conviction as to one

of the two offenses, but fo vacat@all convictions for a re-

trial on a proper submission to the jury. 865 U.S. at 559, ;

81 S.Ct. at 730. |

* 354 F. 2d 192. iN —

It should also be noted that in United States v. Kenner,

supra, the Court below described a conviction of a payor .

under 26 U.S.C. §7214(a)(2) as “essentially a bribery of

employees of the Internal Revenue Service,” 354 F.2d at

782. The same description of that offense by petitioner

occurred in the opinion helow (Slip: sheet opinion, p.

1844). Certainly, if the description of the offense under

7214(a)(2) in Kenner and in the opinion yelow is cor-

rect, on the evidence presented by the prosecution below in

the case ‘against petitioner, former Section 20] and Sece.

tion 7214(a)(2) covered the same ground. This Court

held in Sansone v. United States, 380 U.S. 343, 350, 85

S.Ct. 1004, 1009 (1965), thaY where on the facts of the |

ease two statutes eovered the same ground,’ it was error

to make a dual submission to the jury. | cer

' There can be no doubt that petitioner: was ptGjudived by

having the jury presented with 26 offenses rather tlhan13,

- particularly in view of the fact that the jury was, forced.

by the trial court to deliberate a second time on the counts

under former 18 U.S.C. §201 after it had already returned

_ the verdict as to the same transactions under the 7214

counts and thus could no longer choose between the two:

offenses even if it were proper for the jury to make such a>

choice. ire

Ts an aiding and abetting of 26 U.S.C. §7214(a)(2) a-

lesser included offense, assuming it istan offense by the

payor at all, under former 18 ‘U.S.C. §201 before the revi-

sion of that statute or. not? The. Second Circuit holds not,

éven though the prosecutor:uses that charfe as an equiva-

lent to 18 U.S.C. §201(f) before the effective date of that

statute and the Second Cireuit has held that 18 U.S.C...

“$Q01(f) is a lesser included offense of 18 U.S.C.° §201(b),

368 F.2d at 730, and that §201(f) and 26 U.S.C. §7214(a)

_(2) have a lesser requirement of* intent than §201, :365 -

F.2d at 402. The risk to all of this holding shbuld be obvi-.

ous. : |

On the rationale of the Second Cireuit, an alleged maker

of a payment to an Internal Revenue agent may he faced

-with a triple set of counts on the same alleged payment,

18 U.S.C. $201(b) and § 201(f) > i in the alternative, and, in

addition to both, aiding and abetting the agents’ violation

of 26 U.S.C. §7214(a)(2). How eould any.jury possibly

avoid convicting a defendant of something on such a aulti--

‘plicity of*charges which the trial court. is incapable of

separately defining fgr the jury in any meaningful sense?

. ;

3. It was error for the Court to esitteile the defense of

economic: coercion from the counts under 26. U.S.C.

§7214(a)(2) and 18 U.S.C. §201(f).

The Court charged the jury that it could consider “pres-

sure” exerted by an office auditor on appellant.

“as bearing on the issue whether the defendant, in

making such payment or payments had the intent

to influence official action, which is an essential el-

ement of the offense under [§201].. ~

“On ‘the other hand, such conduct of Clyne, that

is the pressure to seaure money, fr om the defendant, .

if vou find that there was such eonduet, is irrele-

vant:to the offenses uhder the aiding and abetting ©

statute charged in Counts 21 through 26 and. 28

throught 32.. It is irrelevant to the offenses under |

section. ‘201(f) statute charged in Counts 18 and

20 and such conduct, if you find it-existed, should

not be considered by you in connection with these

last mentioned counts.” (A. 1018a). |

Exception was taken to this portion of the charge (A

1033a). . —

f - : v

‘*In so charging, the trial court ev ridently construed the

Second ‘Circuit's opinion on the first appeal of this case ©

- to rule otit the defense of economic coercion as to the

counts under 18 U.S.C. §201(f) and 26 U.S.C. §7214(a)

(2). See 365 BF. 2d at 402. However, the’ Court of Ap-/

peals did not specifically rute 6n this question, but said:

“While it is. arguable that this is also true with re~

spect to giving gratuities under, 18 U.S.C. §201(f), -

or to being an aceéssory to the reeéipts. prohibited

by 26 U.S.C. §7214(a), offenses<which have nq re-

quirement of specifie intent,see United States v.

Irwin, supra, 354 F. 2d at 197, and ¢ ry a sig-

nificantly lower punishment, we ‘incli

that as to these offenses economic iersieiet is irrel-

evant.” 365 F. 2d at 402.

Irwin only dealt. with 18 U.S.C. §201(f) (not 26 U.S.C.

§7214(a)(2)). While 201(f) has a two year maximum,

7214 has a five vear maximum. Former Section 201 which

was paired with the 7214 counts below carried a maximum

sentence of three years. ;

. The Court helaw held in* United States v. dil 354

o E,: @e 192 (2d Cir. 1965), howev er, that under 18 U.S.C.

said |

““Thé making of a gift ‘for or eae anv official

‘act’ limits the prohibition against’the act of making

a gift to a public official to those which are accom-

panied by and are ‘made with this particular state

_ of mind, design or purpose, w hich is the essence of

intent, Whether this is regarded as a specific in-

tent or as a limitation on the acts that are within

‘the purview of the subsection is of no consequence.

The state of mind with which the act‘is done is an

° essential element of the offense which the Govern-

ment must prove.” 354 F. 2d at 197.

to the view.

“Nothing said i in the first Barash opinion undercuts this re-.

" ~ quirement.

However Section 7214(a)(2) and Section 201 (f) be con-

strued,*the prohibited action must be:deliberate and pur-

- posive:. This may be best illustrated by the counts under

Section’ 7214(a)(2) where petitioner is charged as an aid-

er and abettor, i.e., that by giving Clyne and DBeSibio the |

payments alleged he intended to induce their improper re-

; ceipt of unauthorized pay ments. As thie trial court charged

the jury it had to:

“find that is defendant, in some way, associated

himself with the criminal venture, that he partici-

‘pated in it as something he wished to bring about,

that he, by his act or acts\enleavored “to: make it

successful.” (A. 1907a). - |

In United States v. Deane, 368 F. 2a 725, 728 (2d Cir.

1966), the Court below: held that.such an instruction is °

required. Cf. United States v. Byrd, 352 F. 2d 570, 576

(2d Cir. 1965). ost recently, Chjef Judge Lumbard in

a concurring Bag in United States. ex -rel Rosado v.

- Flood, 394 F. 2d 139 (2d Cir. 1968), held:

“Tn order to aid and abet another to. commit a crime,

it is necessary that one ‘in some sort associate him-

self with the® venture, that he pariigtpate in it as

something ‘that he wishes ‘to bring about, that he

seek by his action: to make, it succeed’.” 394° F. 2d

ie ag | : Ly oes ans *% |

According to petitioner’s version of ‘his transactions

with auditor Clyne, the féw payments petitioner made

were in response to Clyne’s demands and ‘his threats to

withhold action on didits- he conducted with petitioner, to

impose improper disallowances, to institute time-consum- _

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pe Ay , ee fre ee ee

> ec a ok

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oe f < © f P J

=, * . ” * Ge

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mA ee

ing and costly procedures, ‘and to see that petitioner re- °

ceived similar treatment from auditors in other groups, all

of which petitioner feared would ruin his accounting prac:

‘tice. Tt would appear that the jury gave petitioner’s*ver.. >

_Sion.of the transactions weight for they did not convict

“petitioner on a single bribery €ount involving, Clyne. In

deed, they acquitted petitioner-on three.such counts. Peti-

tioner also adduced testimony showing that DeSjbio _»

shared payments extracted from taxpayers and represent- «=~

atives with Clyne and worked with him in such- matters

(A. 301a-304a,. 432a-40a). Had the Jury been allowed to

consider’ the defense of economic coercion on the counts

under Section 7214(a)(2), they might well have’ #éached

a similar conclusion. In terms ,of the present case the

jury .had to find that petitioner made the p iaaeearns .

charged because he wished to do’ so, because he/ wanted —¥

the office auditors to receive unauthorized payinents from

him. ' Petitioner’s festimony is directly ‘to the contrary.

He did not wish to pay Clyne anything and told Clyne on

several occasions that he,would not pay him in connection

,» With any audit. . Clyne himself admitted he told Coady

that petitioner, unlike other accountayts, was unwilling to

_ pay and that. constant threats and odcion had to be ap-

plied to petitioner in-order to receive even the tiniest

of sums. Thus, there was ample evidence in the record

from which the jury could have concluded that petitioner

did not wish the office: auditors’ criminal ventures to suc-

ceed'‘and that, in fact, petitioner attempted to -resist the

auditors’ criminal schemes by refusing to make payment,

and indeed, by attempting to avoid such auditors. By ex- ’

eluding Ee ea from the jury on the 201(f) and 7214° .

counts the trial) court. not only committed error per: se, it

also destroyed the effect of its exceedingly \prief. instrue-

‘tion on aiding and abetting. This allowed the jury to con- >

9 ee petitioner on the’ 7214(a)(2) counts as they did in~ ~~

« ; ¢ ote a :

. ° .

their first verdict (A. 1064a), even though they found that

petitioner's activities in connection with the auditors’ ad-

mitted offenses under Section 7214, in effect, amounted to.

little more than having the auditors put their hands in

his -pockets and remove the alleged amounts of money.

The record of the trial below shows that petitioner was an

extremely reluctant payor who responded only to eco-

nomic coercion, as the Court of Appeals recognized in its

opinion on the first appeal, 365 F. 2d’at 400-402.

In Toimoya Kawakita v. United States, 343 U.S. 717, 72.

S. Ct. 950 (1952), this Court ‘recognized that acts per-

eee under economic or other duress would not be crim- .

imal :- - 4

. “Qf course, an American citizen who is also a Jaip-

anese national living in Japan has obligations \to

Japan necessitated by his residence there. There

might conceivably be cases where, the’ mere nonper-

~. formance of the acts complained of would be a

breach of Japanese law. . Ile-may have employ- :

ment which requires him to perform. certain acts.

The compulsion may come from the fact that he is

drafted for the job or that his eonduct is demanded

by the laws of Japan. die may be coerced by his

employér or supervisor or by the foree of cireum-

stancés to do things which he has no desire or heart

to do. That was one ofjpetitioner’s defenses in this

ease. Such acts—if ddne voluntarily and willfully

—might be treasonable.) But if done under the coyh-

puision of the job orAhe law or some other i

ence, those acts would not rise to tle gravity of that

offense., The trial judge recognized the distinction

in his charge. when he instructed they jury to aequit

petitioner if he did not do the.acts willingly or vol-

untarily ‘but so acted only because performance of

, :%

, ,

y ;

the dhities of bie employ ment required hiin, to do

so or because of other coercion or compulsion.’ ”

343 U.S. at 735, 72 S. Ct. at 961.

Earlier in Union Pac. R. Co. v.-Publie Service € ‘ommigsion

of Missouri; 248 US. 67, 70, 39S. Ct. 24, 25 (1918), this

.Court, speaking through Mr. Justice Holmes, stated:

“The. Railroad Company and its officials were not

bound to take the risk of these threats being veri-

’ fied. . It always is for the interest of a party un- |

der d ress to choose the lesser of fwo evils. But

the fact that a choice was made according to inter-

est dloés not exclude « duress. It is the characteristic

of duress properly so called.” 248 U.S. at 70, 39

S. Ct. ate 25.

‘Relying on that opinion, the New York Supreme Court in

Hornstei im NV. Paramount Pictures, 37 N.YS. 2d 404, 413,

415 (Sp. T. N. Y. Co. 1942 ), unanimously affirmed cf

‘App. Div. 659, unanimously affirmed 292 N.Y. 468, 66 N. E.

2d 740, ruled:

“Statutes sometimes make the doing of an-act crim-—

inal without regard to the doer’s intent or knowl-

edge ..., but I think no statute ev er attempted to

make inveluntary action a crime.” 37 N.Y.S. 2d at

413.

“Blackmail, extortion, and an_ infinite variety of

’ forms of duress have been familiarities in the law

for centuries, and while they doubtless would have

been wiped out. long ago if all citizens refused sub-

mission, T think no instance can be found—certainly

none has been cited—in which submission has" been

made the basis of either criminal or civil. liability.

On the contrary, the law always has treated the

submitter to illegal exaction as’a victim rather than

a wrongdoer and outrager of public policy. Usury,

which clearly is contrary to the public policy of

4 ‘this state would not exist if no citizen submitted to

the exactions of the usurery but those who do sub-

mit certainly are not classed as violators of public

policy because they thereby Pncourage usuary and

make it possible.” .J/ornstein y. Paramount, 37

N.Y.S. 2d at 415.

The same considerations apply to Counts 18 and 20 un-

der 18 U.S:C.. §201(f). As the trial court charged the

jury under those counts: *

“there must be proof that the act of the defendant

was done knowingly, that is voluntarily and inten-

tionally and not by accident, mistake or some other:

reason... .” (A. 1013a) .

This instruction was also underen by the Court’s later

_ eharge that economic coercion was | levant to the of-

~ ) fenses under that statute (A. 1018a).°

The record below fairly indieates that had the issue of

economic coercion not. heen excluded front the jury’s con-

sideration the verdict might well have been otherwise.

a) The Court below presumed that the jury considered

the defense excluded by the trial court.

* Although the panel of the Court of Appeals which heard

the previous appeal then pointed. out that it had inclined |

to the view that economic pressure was irrelevant to the

counts under 26 U.S.C. §7214(a) and 18 U.S.C. §201(f), ©

significantly on the second appeal the Court below did

‘not base its affirmance on that ground. Rather, the Court ~

~ .

‘

seemed to hold that such evidence was relevant and was

considered bythe jury.on the criminal intpnt which is a

necessary element under the so-called gratuity counts.

‘ Judge—Moore’s opinion concluded on this point that even

though the trial court: charged the jury that it- could not

consider the evidence of economie or other pressure on the

so-called gratuity counts, that because the jury heard such

evidence from petitioner and through the cross-examina-

tion of ex-office auditor Clyne, it would be assumed for

the purposes of appellate review that the jury nonetheless

did consider that evidence on the so-called gratuity counts.

Judge Moore’s opinion reads:

“Appellate courts will never know ~_ much-or |

how’ little a jury is able to absorb from the read-

ing of stilted indictments and adverbial statutes,

from the specifieation of a series of essential ele-

‘ments necessary to convict and the ‘boilerplate’

‘\foreed upon frial judges by time- honored and cumu-

lative decisions:.. Refuge must be sought in trying

to appraise the charge as a whole and to decide

whether the jury would have been able to place the

template of-essential elements upon the factual mat

‘laid out before it and thus determine a violation of

the law. Such an approach leads to the belief that,

if the jury had wished to accept'Barash’s version

that he was the innocent victim of nap age tes

pressure, the charge adequately gave it tris choice

_ as to the counts where it could have been a factor

in reaching their determination.” (Slip Sheet Op.

pp. 1831-2) (Emphasis added) ‘,

Thid opinion of the Court below reflects a startling de-

parture from decisions of this Court. which have consist-

ently held that the presumption is that the | jury follows the

trial court’s charge, particularly where limiting instrue-

tions have been gitgn. 7

™~

ow |

) ee |

In Bruno v. United States,.308 U.S. 297, 60 S. Ct. 198

(1939), the prosecution argued, as the Second Cireuit

sepms to hold, that it was not error to refuse a defend-

ant’s requested proper instruction because the jury would

' have distegarded it anyway. Mr. Justice Wrankfurter,

_ writing for a unanimous court reversing the, conviction,

_ ruled that it is egror for an appellate court tf rely on “a

dogmatic amaade ion that jurors, if propenty admonished,

neither could nor would heed the instruction f the trial

court . . .” 308 U.S. at 294, 60 S. Ct. at‘201. Again, in

Delli Paoli v. United States, 352 U.S. 232, 242, 7 Ss. oie

294, 300 (1957), this Court held:

“Tt is a basic premise of our jury system that the

court states the law to the jury and that the jury

applies that law to the facts as the jury finds them.

Unless we proceed on the basis that the jury will

follow the court’s instructions where those instruc-

tions”are clear and the cireumstances are such that ”

the jury can reasonably be expected to.follow them,

the jury system makes little sense. Based on faith

. that the jury will endeavor to follow the court’s m\

structions, our systém of jury trial has produced

one of the most valuable and practical mechanisms

“in human experience for dispensing substantial jus-

tice.” 352 U.S. at 242, 77 S. Ct. at 300.

No other inference is possible than a departure from the

standards set by this Court when the Court below stated:

“if the jury had wished to accept Barash’s version that

he was the-«innocent victim of Clyne’s economic pressure,

the charge adequately gave it this choice as to coints

* where it could have been a factor in ho. their deter-

mination.” (Slip Sheet Op. pp. 1831-32). As the aforecited

decisions emphatically state, the jury is présumed to have

followed the charge of the trial court which expressly ex-

cluded the eyidence of economic préssure or coer¢ion from

its consideration. The trial court below charged: “. .. the

pressure to secure money from the defendant ... should

_ > not be considered. by you in connection with these last

‘mentioned counts [18, 20-32].” (A. 1018a).

~~ Tt is clear from the record in this case that the jury

followed this limiting instruction on how the evidence\

should be applied.in this case. On all the counts which

the court charged the jury that it could consider economic

pressure or coercion, that is, Counts 1-6, 9, 11-14, the jury

either acquitted appellant or disagreed. On none of these

counts was a verdict of conviction returned. On the recip-

rocal of these @ounts, which charged the very same transac-

tions as in those enumerated but under 26 U.S.C. §7214(a) ~

(2) and 18 U.S.C, §201(f), where the court’s charge ex-

cluded from the jury’s consideration the pyitence of

economic pressure or coercion, the jury retum@®ed in each

instance a verdict of guilty.

4. Allowing a conviction of an alleged offense induced

by an undercover agent on evidence manufactured by

him brings our system of criminal justice into disrepute.

The Court below upheld the triak court’s refusal to in-

struct the jury on the law of entrapment as it applied to

.the facts of the case (Slip Sheet Op., p. 1832). In so do-

‘ing, it reached a result directly contrary to this Court’s .

decision in Sorrells vy. United States, 287 U.S. 485, 422-43,

03S. Ct. 210, 213 (1932). In Sorrells this Court held a_

defense of entrapment was available where the defendant

admitted the commission of acts which would be a crime

without’ the inducement of a Government officer in addi-

tion to circumstances where the Court: of Appeals had

held that such a defense was available. One of. those

circumstances was where “the accused is placed in the

40 og a

attitude of having committee’ a crime which he did not _

intend to commit.” 287 U.S. at 422,53 S. Ct. at 213, and

the example given was a sale of liquor to an Indian who

was disguised so as tq mislead the accused as his .

identity (Jbid.) Inspection agent Coady disguised the fact

that he was an undercover agent, never told petitioner

that any act Coady did was considered by Coady to be im-

proper, knew from’ Clyne that petitioner activ ely resisted

makirig payments to auditors, posed as a penniless’ audi-

‘tor in need of funds to satisfy his obligations before —

“+ « entering the Armed Forees. These poses and. cireum-

stances were what led petitioner to part with the $50.00 °

and they had nothing to do with the audit. . Later, with-

out any action on the part of the’ petitioner, Coady falsi-

‘fied his report on the Kaiser’ audit to “prove” that a

fraudulent audit had been conducted. Unfortunately, by

misunderstanding the &pplicable law and the facts of. the

ease, the trial court erroneously removed the issue of

entrapment. from the jury.

The decision below js also in conflict w ith decisions of

the Fifth Circuit. See Sears v. United States, 343 F. 2d

139, 143 (5th Cir. 1965) and Henderson v. United States,

937 F. 2d 169 (5th Cir. 1956). ;

There can be little doubtsthat the oktdasl to charge on

entrapment tipped the scales against petitioner. The jury

refused to convict petitioner: of bribing Coady (Count 16)

and ny returned a guilty. verdict under, 18 U.S.C.

§201(f) Count 20) on the second partial verdict. °Had the -

law of entrapment been explained to the jury it ess

. very W ell have acquitted petitioner on Count 20 as well.

To allow a conviction to stand ,on an offense manu--

' factured by an under cover agent can. have only a negative

deterrent effect on others.

« 41 UR miei eer «|

- soe on

5. A coerced verdict vitiates the right to trial by jury.

At the trial below ‘the court gave the juty an dbbre-

viated dynamite charge* (A. 1064a-66a) to which ¢xcep-

tion was.taken (A. 1066a-67a): The dynamite chargé was

given ‘below. after the jury returned its ‘first partial

verilict on _the:.counts under 27 U.S.C. $7214 (a) (2)¢.

(AS31.064a)<!/ Tt is respectfully submitted ‘that the\ trial

courterred in giving this charge because it was coercive

in and of ‘itself and in the context. in which it was given.

: When ‘coungel” for petitioner excepted to the dynamite

charge, the court justified ‘its instruction by stating:

“the juny has never advised us that they are dead-

lo¢ked.”"\ (A. 1067a) ;

An indication of deadlock, however, is the condition prece-

dent for the dynamite charge -even in those cases. wheré

the charge has been tolerated. In Greeny. United States,

309 F. 2d 852, 856 (5th Cir..1962), the Fifth Circuit re-

versed a conviction where the Allen charge had--been

given before any indication that the jury was deadlocked:

The Court stated: °. - Mabes .

“In this ease the dynamite. exploded before there was

any reason to think that blasting was: necessary;

_ the trial judge gave the charge before the jury

_Tetired .... The vice in the charge was the court's

/ interference with jury function. No matter

\ when the charge was made, it gave the jury false

notions of the validity and force ‘of majority opin-

jon; it tended to limit, full and free discussion in

. q Ps

*The trial court used a modified version of the charge from

Allen v. Uaiited: States, 164 U, S. 492, /501-02 (1896). Recently

this Court had before it a case in which a- coercive charge was

used in a proceeding-against a. juvenile. Ment v: United Statcs,

383 U.S. 541, 552-n. 13,-86 S. Ct. 1045, 1052 n. 13 (1966).

6 42 a)

the jury room; it prejudiced the right of ansac-

cused to a hung jury and a mistrial by tending: to

stifle the dissenting voices | ‘of minority jurors.”

309 F. 2d at 856. MDS, i “ty See :

. ‘See also ‘Oeited States v. Smiley 353 F. 2d 166, 168 (4th

" Cir. 1965); United States v. Rogers, 289 F. 2d 433, 436

(4th Cir. 1961).

The jury below deliberated for two days. The Allen

_ charge was given shortly after noon on Saturday, October

21, 1967, the second day of deliberation (A. 1062a-66a).

‘Shortly before midnight on Friday; October 20, 1967, at.

the conclusion of the first day’s deliberation, the court:

instructed the jury: .

_ “If during the mor ning you seach a point ' w wise you

- "are agreed on a verdict as to any count or counts

we can’ take the verdict on that count or counts

at you will just let-the Marshal know and you’

, eee then continue the deliberation on the other

4 eon obs. A, 1039a ; nena added) —

‘This was a clear hakthietion to the jury that it would be

‘required to ‘deliberfte throughout the weekend until it

reached a verdiet on all counts. There was no announce-.

ment to the jurors ‘that they had the right and duty’ to

adhere to their individual *opinions and there,was a com-

plete absence of ‘assurance by the court that it had no

intention to coerce the jurors and that it would aecept |

the jury’s ultimate decision whatever,it might be. - See

Jenkins v. ‘United, States, 380 U.S. 445, 85 S. Ct. 1059

_(1965)5 Race v. United States, 356 F. 2d a: 715, 717-18 °

(8th. Cir. 1966). ° @

a That the procedure followed by the trial eourt was in-

tended to coerce a verdict is clear from the court’s own

é statement:

The Court: They are under a compulsion, and

if they hang up I will give them the Allen charge.

They are under a compulsion. I do not believe in

telling juries that it is within their province to’

disagree. I don’t think so. I think they should re- :

turn a verdict. ” (A. 977a)_

This vig and ‘the action of the trial court which stemmed’

from it were error, as this Court held in Bucklin v. United

; States, 159 U.S. 680, 686, 16 S. Ct. 182, 184 (1995): *

“To say -that the ere w ould not receive from the

* jury a report ofa disagreement as to one defend-

“ant was, in effect, to announce that the jurors would |

be held together until the court should deem it to

be its duty to discharge them finally, and would not

» be discharged unless. or until they returned a ver-

dict of guilty or not guilty. This tended to coerce

: : the jury into making a verdict.’’ 159 U.S. at 686,’

: 16/S./Ct. at 184.

tions was heightened when, during the middle of the sec-

ond day of deliberations on Saturday, Octaber 21, 1967

‘the court accepted a verdict on Counts 21-26 and 28-5 2

and immediately thereafter gave the jury the dynamite

charge as to the necessity of reaching a. verdict as‘to all

- remaining counts (A. 1964a-66a). After several ’ more

tours deliberation, the jury. returned a second partiak ver-

~ diet on which a conviction was returned (A, 1069a).

‘The Allen. case was decided by this Court in 1896. The

use of what has come to be known as the dynamite charge

from that case has repeatedly posed a problem among: the

ess Cireuits.. Tt is respectfully suggested that the

timé is ripe for this Court -to rule on what, if any, CiF--

cumstances render its use proper.

bas

‘The next morning the effect of these coercive instruc- :

. denied petitioner the acquittal to which he was entitled

" ‘

. fag ° g

\ + ) arog ney

_a) The erroneous. compulsion of succesive verdicts.

- The instructions to the jury were further’ coercive in ,

that after the jury returned its first verdict én the see-

ond day of deliberations (as to the counts under 26 U.S.C.

— §7214(a)(2), A. 1062a-644)~and anneunced neither a ver-

dict nor disagreement on the otherggounts as the trial

court recognized (A. 1067a), over thie objecti nf of defense

counsel (A..1040a, 1060a- Gla), the trial court ‘tréated the

jury’s verdict on these counts as a “partial verdict” and —

* directed the jury through the Allen charge to deliberate

further, This was error-for two fundamental reasons: it

- denied petitioner his right to °an acquittal on. the open

counts, and it was beyond the power of the court under

‘the Federal Rules of Criminal Procedure.

This Court long ago held in Dealy v. United Stateé,

152 U.S. 539, 542, 14 S: Ct. 680, 681 (1894), and Jolly v.

United States, 179 U.S. 402, 18 S. Ct. 624, 626 (1898),

th . where a jury Yeturns a verdict as to some counts.

but thet as to others, the jury’s silence is the equivalent

of a verdict of not guilty as to those counts. This view

was later adhered to in Green v. United ‘States, 355 U.S.

- 184, 190-91, 78 8. Ct. 221, 225 (1997). See also Bennett v..

United States, 89 F. 2d 52° (5th Cir. 1937); Chadwick v.

United States, 117 F. 2d 902, 904 (5th Cir. 1941), cert.

den. 313 U.S. 585, 61 S. Ct. 1109 (1941). Under these

precedents, there is little room to doubt that, hag-the

trial court accepted the jury’s first verdict, . petitioner

would have been entitled to the entry of a judgment of ©

acquittal on all the remaining counts. By resubmitting

the remaining counts to the jury, the trial court. not only —

it adopted a procedure which ‘fmpinged upon petitioner's

constitutional guarantee against double jeopardy. These

principles have a particular application to this ease where

- d = ?

"* -- than all counts only in the

*.Even as-to multiple defendants

vide for 1 9 oes submissions to’ thé same jury but only

(~y ]

9.” ~~ fe . o

_the counts resubmitted to the jury were a prosecutorial

recasting” of the same | facts into a different legalistic

form as separate offenses with more ‘severe consequences

for appellant. See Green v. United States, supra;- Dealy

_v. United States,: supra; Jolly. v\, United States, \supra.

' may. refider a verdict a$ to those in regard to whom they do

agree, on Which a judgment shall be entered accor dinglv’; and °

_the cause as to the other defendants may be tried by" agyther

me in Benndtt: v. United States, s a and Chadwick

, United States supra, the jury’s silence was given the

weight of acqyttal where thescounts on which they were ,

silent were successive counts 6f mail fraud (Bennett). and

illegal distribution -of nareoties (Chadw ick), which were

in no way dependent updn or variants of the ie on

which a verdict had been returned.

Rule 31 of the Federal Rul

plicitly provides that a ve

s of Criminal Pr ocedure ex-

ay be recefy ed on less

of multiplé defendants.

e 31(b) does: not pro-

that “the efendants: as to whom it dots not agree ‘may be

tried again? ’ The Notes of the Advisory Committee state

that-Rule 31 b) “is a restatement of existing law, 18 U.S.

‘C.A. former &566.% Former Sdction 566 of Title 18 U.S.C.,*

as Rule 31 (b), provided only for the receipt of a partial

'» verdict as to one or more defendants in a anulti-defendant

trial. No part of that-statute or any other authorized the

receipt of partial and successive verdicts: as to a single

defendant tried alone. There can be no doubt that Rule 31

received thorough and careful consideration by the Advis-

_* Same; several joint détendants. On an indictment «against

several, if the jury cannot agree upon a verdict as to all, they

jury.’’ R.S: §1036, derived from Act June 1, 1872, C255, §10,

17 Stat. 198: . . a

vr:

ory Committe, the Suprernte Court, and many commenta-

tors and practitioners: Reflected in the various drafts as

they worked their way to the final Rule was a deep ‘and

deliberat® concern to prevent any interference with the

jury’s | fpnetion in returning one unanjmous verdict as~to

any defendant—or no verdict—as to each ount. -~ Ss,

b) Imputing guile to petitioner from the pleas of co-

defendants. , = | i 6

The trial court also may w ell haye influenced the jury’s

verdict by allowing the ex-auditors whom. pétitioner was °

charged with aiding and abetting to enter a guilty plea

for him. Cylne and DeSibio each testified on direct exam-.

ination that they had pleaded guilty to the counts in the

indictment which charged them with receiving payments

from petitioner (A. 46a, 379a). Lupesco, another ex-audi-

tor who introduced petitioner to the undercover agent, who

was not_even named in the indictment on which trial was

had, was allowed to testify over objection that she had

pleaded guilty to counts charging her with improper re-

ceipt of payments in other indictments involving other tax-

payers’ representatives (A. 454a). Petitioner submitted a -

written request to charge\t the jury, inter alia:

“The fact that a Government witness may have,

entered a plea of guilty to any of Counts 21 to 32

~ dees not authorize you to, find as a fact each of the

~ elements which T have just pgtlined to you in these

counts.” (Defendant’s Request No. 13, A. 1087a)

This charge was not given and in fact the trial court did

not charge the jury in that language or give any equiva-

lent protective instruction concerning the plea of guilty by

the co-defendants or Lupesco. In fact, the court’s charge

could very well have given the jury the impression that

*."

cm» 47

they mre infer petitioner’ s guilt from. the iilty pléas of .

his co-defendants.* .-

The Second Circuit held that yitibinest waived the point

hy not objecting to the omission of the requested instrue-

tion from the trial court’s charge in addition to submitting

the written request. That decision is a clear departure,

from the decisions of this Court holding that either -a- re-

quest to charge or an exception to the charge as given is

» sufficient to put the trial court on notice and preserve the |

error for review on appeal. Boyd v. United States, 271

us 104, 107, 46 S.Ct. 442, 443 (1996) ; ‘Lope: v. United

States, 373 US. 427, 436, 83 S.Ct. 1381, 1386 .(1963).

Indeed, fn a case such as the present one an instruction

that a witness’ testimony as to his’ plea of guilty to the

very offense for which the defendant is on trial cannot be

used as an implication of thé defendant’s guilt should be

a condition precedent to the submission of such testimony

_to the jury. This caution was omitted: from the charge he-

-% B

* The court said:

““However, so that nothing I may have said confuses

the jury I point out that Mr. Clyne and Mr. DeSibio

pleaded guilty to the offense of receiving from Mr. Barash

while an employee acting under a revenue law payment

for the performance of a duty in violation of Section

7214(a)(2) which we considered a moment ago.’’ (A.

1017a) ;

The court further charged:

**You will consider whether these | Clyne De-

Sibio and Miss Lupesco, bared themselves publicly before

you made a clean breast of their wrongdoing and told

the truth. In short, have they decided after being caught

to come clean and to tell the truth? Those aré questions.

that you, the jury, must answer,’”’ (A. 1025a)

low; indeed the court very nearly: charged the contrary,

and, thus, although petitioner* was atteinpting to exercise

his. Constitutional right to a jury frial-on his plea of not

guilty, hgs co-defendants were improperly allowed, in ef-

_ fect, to enter a guilty plea for-hini.

6. An indictment is invalid which has Xeen returned by

a grand .jury ‘which has’ not heard the evidence al-

legedly in support of it. | -

This case presents a much more grave abuse of the .

grand jury system than was before this Court in Umans v.

United States,.389 U.S. 80, 88 S.Ct. 253 (1967). In Umans,

this Court dismissed the writ of certiorari as improvi-

. dently granted after the United States Attorney for the

Southern District of New York represented that since the

Second Circuit’s opinion in Umans criticizing the use of

affidavits before the grand jury rather than the live testi-

mony of the affiants, that practice had discontinued. The

prosecutor represented below’ (Appellee’s brief below, p.

38) that the ex-office auditors who testified at petitioner’s ee

trial had personally testified before a grand jury but that

grand jury was not the grand jury which returned the. in-

dictment against petitioner.

No known case approves such a procedure. Compare |

United States v. James, 290 F.2d 866, 869 (5th Cir. 1961),

holding proper the return of a superseding indictment

without further. evidence by the same grand jury which,

_ after hearing proper evidence, had returned the. previous

indictment. The procedure utilized to: secure the indict-____

ment against f#etitiorfer es a mockery of the Fifth

Amendment’s guararitee that he should not be held to an-

sweér the feloniés charged except by action of the grand |

jury. Presentment of allegedly proper evidence to a grand

jury wih in no way contvineed the indictment against ,

petitioner nor returned it, cannot justify the lack of proof

before ‘the grand jury which did indict appellant. Com-

pare United States v.. James, supra.

Respondent’s contention below that the graid 3 jury pro-

ceedings however defective cannot be questioned because

petitioner has already yndergtne a trial at which allegedly

sufficient evidence has been produced which the indicting

grand jury might have properly considered had the prose-

cution presented it (A. 1074a) is astounding. This Court’

has repeatedly held that a conviction, no matter how thor-

‘ oughly proven at trial, cannot be based on a charge which

was not considered and returned en toto by the indicting

grand jury. E% parte Bain; 121 US. 1, 'S-S.Ct. 781 (1887),

and cases thereiri cited; Stirone v. United States, 361 U.S.

212, 219, 80 S.Ct. 270, 274 (1960), and cases there cited.

It is respectfully submitted that the time has come for.

the Court to put an end to the prosecutor’s practice of

using the grand jury solely to perform the ministerial

function of handing up an indictment i to it by

' the prosecutor.

2.’ Petitioner did not. receive a fair trial.

Should the writ be granted in this case, petitioner wishes

to reserve the right to demonstrate that he did not receive

a ome trial for additional Teasons.

on rai hey

CONCLUSION |

For thesf various reasons, this petition for a Writ of

Certiorari should be granted.

Respectfully sibmitted,

Louis Benner,

gs Attorney for Petitioner.

Luoyp A. Hate, Sa pote

Of Counsel.

ee P

AP‘PENDIX

Opinion of United States Court of Appeals

UNITED STATES COURT OF APPEALS

-For THE Seconp Cieurr

No. 45—September Term, 1968.

° Docket No. 32225

»s

> a

Untrep States or AMERICA,

i) | Appellee,

‘ —against—. |

\ ; ; . 1 °

Davin Bernarp Barasu, -

a Defendant-Appellant,

Before — : | Si

Moore, Frrenpty and FEINBERG,

d _- Circuit Judges.

[1825]

Appeal from a judgment after a jury trial in the South- |

ern en of New York, Wyatt, Judge, convicting. de-

fendant of bribing and giving gratuities to internal Yeve-

neu agents in violation of 18 U.S.C. §201, and aiding and

aWetting the receipt of rewards unauthorized by law in

violation of 26 U.S.C) 7214(a) (2). eae,

. . Affirmed.

: ”

[la]

2a eae es .

— : es age

Opinion of the United States Court. of Appeals:

Louts Benper, New York, N. Y. (Lloyd A, Hale, “New

_. York, N. Y., of counsel), for defendant-appellant.

[1826] < |

Davip M. Dorsen, Assistant United States Attorney,

New York, N. Y., Robert M. Morgenthau, United

States Attorney for the Southern District of New

York, New York, N. Y., John E. Sprizzo, Assistant

United States Attorney, of counsel, for plaintiff-

appellee.

~ Moore, Circuit Judge:

This is an appeal by David Bernard Barash from a

judgment of conviction entered against him in the district

court, after a ten-day jury trial. The-case was before. the

district eouttt ‘upon remand, after this court reversed a

previous conviction of Barash at a first trial. United

_ States v. Barash, 365. F. 2d: 395 (1966). ~ ° its

The indictment: named Barash, a certified public ac-

countant and attorney, in 32 couftts relating to 16 trans-

actions,in which he was alleged to have made improper

payments to several Internal Revenue Service agents in

return for favorable adjustments in connection with audits

“- of personal income tax returns of Barash’s clients. Counts

1 through 12 charged him with ‘offering, prom#ing and

‘giving bribes to 3 agents with intent to influence office

*‘ audit examinations in violation of the prior 18 U.S.C.

§201, and counts 13 through 16 charged him with the same

erime ‘in violation of thé present statute, 18 U.S.C: §201-

pb) Counts 17 through 20 charged a oe mia of 18

1 Counts 13 through 16 Sg <a at which took place

after January 21, 1963, when the present statute-eame into force.

The present §201(b) contains no change of substance from the

prior §201. See United States v. Barash, 365 F. 2d 395, 398,

f. 1 (2d Cir. 1966). aT aa,

“4 ow

Opinion of the United States Court of Appeals

U.S.C. §201(f), which makes it a crime to pay a public:

official a sum of money “for or because of any official act

[1827] . a F. : oe

performed or to be performed” by them. Counts 21

through 32 charged Barash with aiding and abetting? the

violation of 26eU.S.€. §7214(a) (2), which proseribes rev-

. enue officers from knowingly demanding or receiving sums

of money: except as prescribed by law.

At the first trial, Barash was acquitted on counts dy Boy.

15, 17, 19 and 27, relating to alleged unlawful payments |

to Internal Revenue Service agents Montello and Wolf,

but was convicted on the remaining counts, which con-

cerned agents Clyne, DeSibio and Coady. He was sen-

tenced to concurrent terms of imprisonment of a year and

a day-on-each count. .On. appeal, this court reversed and

' remafided for a new trial-because hearsay testimony was

erroneously admitted, cross-examination was improperly

restricted and the charge to the jury was in error ‘in two

respects, namely, (1) threat of economic harm as an ele-

ment Of inter and (2) payment alone sufficient to estab- -

lish intent. | oI

At the second trial, there were thirteen pairs of counts

representing, and numbered identically as,’ those upon

which Barash had been convicted at the first trial, charg-

ing unlawful payments to Clyne, DeSibio and Coady. On

October 21, 1967, the jury returned a verdict of guilty on

counts, 8, 10, 18, 20-26 and 28-32. On the other counts the

jury eithér returned a verdict of not guilty, or reported

that it was unable to agree. Barash was sentenced to con-

current terms of imprisonment for nine months and a fine

718 U.S:C. §(2) reads:—‘* Whoever wilfully causes an act to be

done which if directly performed by him or another would be an |

offense against the United States. is punishable as a principal.’’

o &

“

« es

” ° 4

4a Smee Sa or a

Opinion of the United States Court of Appeals

of $1,000 on each of counts 21-26 and’ 2&%325 to terms of

imprisonment of five years, execution suspended, with a

fine of $2,500 on each of counts 8 and 10; and to bona of

[1828]

imprisonment of two years, execution suspended with pro-

bation of five years, and a fine of $2,500 on each of counts

18 and 20. The total fine was $21,000.

k | The Facts : :

The Government’s case against Barash consisted of the

testimony of agents Clyne and DeSibio, who.had pleaded

guilty to charges against them in the indictment, and that

of. Coady, a Government undercover agent. Clyne, in-

~* volved in all but three of the transactions resulting in con-

.« vietions, gave Gubstantially the same testimony at the sec-

‘ond trial that he had given at the first.? He testified that

Barash paid him a total of $225 for false audits in 1960,

- followed by lesser sums in each of the succeeding three

years. DeSibio gave pi ity as to two similar transac-

tions in 1961 involving payments of about $25 each. ‘Coady,

the undercover agent, testified that he met Barash in 1963

upon an introduction by a former’ Tyternal Revenue Serv-

The opinion in the first Barash appeal summarized the nature

a of 1 e transactions as follows. eee. ee eens

Barash would inform Clyne ‘of clients who had received

‘‘call-in’’ letters instructing them to appear for audit of .

/ their returns before the group of agents that _included

| Clyne. In violation of office procedures Clyne would ob-

tain the returns: and related papers from his ‘supervisor’s

~ file and assign the audits to himself. Barash would sug-

gest relatively small disallowances in unsubstantiated de-

: gy for travel and entertainnient expenses, and would

r Clyne compensation for thus passing the returns.

. . Sa 4

a i er .

Opinion of the United States Court of Appeals

; -

_ lee auditor, Miss Jeanne Lupesco,* ayd upon the request

of Barash assigned an audit to himself, contrary to nor-

mal office procedure, and approved certain deductions

without any inquiry as to their accuracy. A few minutes

[1829]

later, according to Coady’s testimony, Barash gave ‘him an

‘envelope containing $50. ees

_ Appellant’s defense consisted of his own testimony and

that of some additional witnesses who testified as to his

good reputation. Barash, on the stand, admitted that he

gave money to Clyne on several oceasions® but said that

those transactions Were Christmas gifts having nothing

to do with the audits. The money, explained Barash, had

been gi merely to create a more pleasant working at-

ere. In’ response to the testimony of DeSibio, Ba-_

rash said that he had taken DeSibio to lunch upon the con-

_. clusion of a normal audit. Both Clyne and DeSibio, Ba-

rash suggested, had implicated him to gain mitigation of

_ Sentences they were to receive for crimes arising from

these and other transactions. And finally, Barash testified

that his $50 payment to Coady was wholly unrelated to

the audit performed, but was given. out of sympathy in-

~ duced by Coady’s indication that he was in debt and -was’

soon to go to a Marine training camp. ,- _

Defense of Economic Coercion is ‘

In the firsf of many claims of reversible efror,. Barash

asserts that it was error for the trial judge to exclude the |

e 2

4 Coady’s testimony concerning. this introduction was substan-

' tially the same as that. of Miss Lupeseo.- Miss Lupesco also testi-

fied that in 1958 she had conducted’ an audit favorable to

Barash’s elieyt and was thereafter given $80 in cash, by Barash:*

* Barash testified that he gave Coady Christmas gifts of $25 or

$50 in 1960, 1961 and 1962, and ‘that he gave another $50. to

Coady in ‘January, 1963. [See corections on rehearing, infra. ]

’

i.)

Opinion of the, United States Couft of Appeals

defense of economic coercion from ‘the jury’s considera-

tion of the counts under 26 U.S.C. §$7214(a)(2) and 18

U.S.C. §201(f), the provisions covering unlawful payment

of gratuities. In.the first ajpeal of this ease we Mid:

We think that if a government officer threatens ser-

ious economic loss unless paid for giving a citizen

his due, the latter is entitled to have the jury con-.

[1830] ,

‘sider this, not as a complete- défense like’ duress

“but as bearing on the specific intent required for

the commission of bribery. Cf. United States v.

Miller, 340_F. 2d 421, 425 (4th Cir. 1965). While

it is arguable that this is also true with respect to

giving gratuities undp? 18 U.S.A.$201(f), or to be-

ing an accessory to the receipts prohibited by 26

U.S.C. §7214(a), offenses which have no ‘require-

ment of specific intent, see Ungted States v. Irwin,

[354 F. 2d 192, 197 (2d Cir. 1965), cert. denied, 383

U. S. 967, 86 8. Ct. 1272, Wi L. Ed. 2d 3084(1966)],

and carry a significantly low®r punishment, we in-

~.<~-¢line to the view that as to these offenses economic:

pressure is irrelevant. 365 F. 2d at 401.402.°

Although criminal intent is a necessary elment for

conviction under the axdeaity counts, no specific intent js

required. In this case, accepting Barash’s version of the

facts, the payments were received by the auditors “other-

wise-than as provided by law for the proper discharge

of official duty,” as provided for in §201(f).7 In measuring

Two footnotes, reciting felevant portions of §201(f) amd—

§7214(a) have been omitted. The text of these statutes is noted,

__ infra. a.

7 Substantially identical language in $7214(a) (2) reads: “ox.

cept as by law prescribed, for the performance of any duty... .”’

—

7a °

Opinion of the United States Court of Appeals

intent, it matters not whether the payments were made

because of economic duress, a desire to create a better —

working atmosphere, or appreciation for a spe®dy and

favorable audit.

It is somewhat of a misnomer to refer to “the defense

of economic coercion”; xathr it” (economic coeypion) is

related to the ultimate fact conclusion of intent. The trial

court did not “rule out” guch coercion as Barash argues.

[1831] ay

Specifically, the trial court told the jury that it could

consider Barash’s version of Clyne’s coersive approach as

“pressure” and that it might “consider” the conduct of

Clyne as bearing on the issue whether the defendant in

making such payment or payments had the intent to in-

fluenge official“action, which is an essential element of the

offense under old Section 201 and present Section 201-B.”

The trial court can searcely be held in error for follow-

ing our opinion in which he said that the offenses specified

in 18 U.S.C. §201(f) and 26 U.S.C. §7214(a) “have no

requirement of specific intent.” The court was entitled

to accept our “view that as to these offenses economic

pressure is irrelevant.” 365 F. 2d 402. The charge in-

Structed that the receipt (by Clyne and DeSibio) of com-

pensation or reward must have been with “eriminal ‘in-

tent” and that Barash to have aided and abetted must

. have “associated himself with the criminal venture, that

_he participated in it as something he wished to bring

about, that he, by his act or acts, endeavored to make it

successful.” , s

_ Appellate .courts. will never know how much or how

little a jury is able to.absorb from the reading of stilted

indictments and adverbial statutes, from the specification

ofa series of essential elements necessary to convict and

the “boilerplate”. forced upon trial judges by time-honored

Opinion of the United States Court of Appeals

and cumulative decisions. Refuge must be sought in try-

ing to appraise the charge as a whole and to decide

whether the jury would have been able to place the tem--

—plate of. essential elements upon the factual mat laid out

before it and thus determine a violation of the law. Such

“an approach leads to the belief that, if the jury had

wished to accept Barash’s version that he was the inno-

cent vietim of Clyne’s economic oe the charge ade-

[1832] ;

quately gave it this choice as -to the conte where it could

have been a factor in reaching their determination.

Entrapment by Coady

_ Barash next contends that the trial court erroneously

failed to instruct the jury on the issue of entrapment in

connectio#with his payment of $5Q to undercover agent

Coady. The fact that Barash made no offer or promise

to pay Coady with respect to the audit, coupled with

Coaddy’s hints that he was about to go into the armed

forces and was in debt establish, it is averred, inducement

_ sufficient to support a charge of entrapment. “But the

most Barash could testify to was te@Coady suggested a

general financial need several days before the $50 was

giv en. There was no evilence given sufficient to warrant

a jury finding that Coady induced or initiated the crime, a

finding necessary to satisfy the first element of entrap-

ment. United States v. Dehar, 388 F. 2d 430, 432-433 (2d

Cir. 1968). In fact, Barash’s own testimony completely

‘refutes even any inference of attempted entrapment by

Coady. Furthermore, Coady’s conversations and behavior

fall short even of constituting solicitation, which in itself

insufficient to constitute entrapment. United States v.

— 362 F. 2d 756, 758 (2d Cir. 1966). Therefore,

there was no error in the court’s failure to charge as to

entrapment.

9a \ a.

Opinion of the United States Court of ppeals

Testimony of Imupesco

Jeanne Lupesco, a former Revenue Service auditor, .

testified that Barash approached her in 1963 and inquired

whether she “knew” anybody in a certain group to which

Barash had been assignéd for an audit. She responded by

introducing Barash to Coady. ,In order to demonstrate

~ What Barash meant by this question, and why Coady was

[1833] yan

selected, the Government asked her about her prior deal-

ings with Barash. She answered that in 1958 Barash had

given her $80 in return for a favorable audit. Barash con-—

tends that the admission of this testimony constituted re-

versible error, primarily because the Lupesco transaction

was too remote from the 1963 transactions and thus had

little prgbative value. Even though the jury was. in-

structed that the Lupesco testimony was to be admitted

as a prior similar act solely as to the Coady transactions,

and even though he was no# convicted on the Coady brib- |

ery count (16), Barash argues that prejudice arose be-

‘cause the testimony “was quite similar to DeSibio’s”’ and

may well have influenced the jury’s verdict as to the

count (20) on which he was convicted. But the evidence

was probative on Barash’s state of mind, by helping to

explain the prior relationship between himself and Miss

Lupesco and the meaning of his conversation with her.

strong, full, superlative, probative value, does not need -

to involve demonstration or to produce persuasion by its

sole and intrinsic force, but merely to be worth considera-

tion by the jury.’ 1 Wigmore, Evidence (3d ed. 1940),

411.” United States vy. Kahaner, 317 F. 2d 459, 471 (2d

Cir.), cert. denied, 375 U.S. 836 (1963). Since the Lupesco

testimony was properly admitted as to the Coady count

(16), and since Judge Wyatt specifically limited the jury’s

@ .

, 10a

Opinion of the United States Court of Appeals:

consideration of this evidence to that count (which was

eventually dismissed), the possible prejudice to Barash |

was minimal, and insufficient to establish grounds. for

reversal.

Failure of Proof on ne counts ,

Barash urges that the testimony offered was insufficient

DeSibio. In support of mis position he cites DeSjbio’s

[1834] q

lack: of certainty of the exact amount of the payments

made to him or of the exact words used by Bafash in sug-

gesting. improper payments, and confusing jury -instrue-

_tions. On appeal the ev idence must be viewed most favor-

ably to the Government. United States v. Aiken, 373 F.

2d 294, 296 (2d Cir.), cert. denied, 389 U. S. 833 (1967).

DeSibio testified that Barash-had told him in words or

substaneé, that “there would he something in it for him”

if certain -deductions were fraudulently allowed in 1961,

and that he would not have prepared’ the same audit*re-

port if he had not believed’that payment from’ Barash

was forthcoming. Similar: testimony was given as to a

later transaction. This evidence satisfied the requisite

elements of the bribery statute here and a fortiori, the

less demanding standard of 26 U.S.C. 7214(a) (2). Neither

do we find merit in Barash’s assextion that the trial judge

confused the jury by giving a specific answer to a specific

question about a portion of the charge rather than repeat-

ing the instructions verbatim.

The Verdict

After more than 13 hours of deliberation over a two--

day period, the jury sent a statement to the trial jud

that it was unable to reach a verdict on some of the

lla : -

Opinion of the United States Court of Appeals .

counts. At that point of time, the-court accepted the

verdict of guilty on those counts as to which the jury had

reached a conclusion® and in a supplemental charge asked

dhe jury to deliberate further as to the remaining counts.

[1835] | :

Following an additional three hours of deliberation, the

jury announced as to the remaining counts that it had

reached a verdicteon some counts but could not agree on. +

the others.” Barash maintains that the trial court erred

in giving what he characterizes as an Allen charge be-

cause it was coercive in and of itself, and in the context

in which it was given. We disagree. The lower court’s

charge “made: it sufficiently clear that a juror ought not

abandon his. personal conviction.” United States v. Bilatti,

‘

® Counts 21, 22, 23, 24, 25, 26, 28, 30, 31, 32.

® The text of the charge is as follows:

As I took pains to emphasize to the jurors in my instruc-

tions on yesterday, you should never surrender your honest

conviction as to the weight or effect of evidence solely

because of the opinion of other jurors or for the mere

purpose of returning a verdict. But it is you duty as

pointed out yesterday, and I point it out today, to con-

sult with one another and to deliberate with a view to

reaching an agreement if you ean do so without violence

to your individual judgment. - 4

Each of you muste+ decide these counts for yourselves but

you should do so only after consideration of the evidence

in the case with other jurors.

In the course of your deliberations you should not hesitate

to re-examine your own views and change your opinion if

you find that opinion to be erroneous.

10 Barash was found guilty on counts 8, 10, 18 and 20, not

guilty on counts 1, 3.and 9, while no conclusion was agreed upon

on counts 2, 4, 5, 6, 11, 12 and 14,

12a

Opinion of the United States Court of Appeals

380 F. 2d 649, 654 (2d Cir.), cert. denied, 389 U. S. 944

(1967). Furthermore, in veiw of the fact that more than

three hours elapsed between the time of the charge and

jury’s final verdict, the jury had ample“time for thought-

ful consideration which would negate . United

States v. Furlong, 194 F. 2d }, 4 (7th.Cir.), cert. denied.

343 U. S. 950 (1952); United States v. Rao, 394 F. 2d -

304, 356 (2d Cir. 1968). Similarly, the claim that the sup-

plemental charge was. given prematurely has no merit.

The jury here retired to deliberate at 11:25 a.m. and

emerged at 11:30 p.m. to announce that it was unable to

reach a unanimoiis de¢ision on a number of counts., The

court permitted the jury to, go home to sleep. The next

[1836] | tae

day the jury deliberated for’ two more hours before the

court gave its supplemental charge. We think the trial

_court acted well within its proper discretion in so timing

the charge." : .

Barash further attacks the verdict on the grounds that

the trial judge improperly sent the jury back for further

deliberations after accepting their verdict of guilty on a

number of the counts. But no authority has been offered

in support of this proposition. The cases cited by Barash

shold that silence by the jury as to its verdict on particular

11 The minimum limits as to prematurity in this court appear

to have been established in United States v. Kenner, 354 F. 2d

780 (2d Cir. 1965), cert: denied, 383 U. 8. 958 (1966), in which

an Allen charge was given after the jury had deliberated for

three hours and 45 minvtes on seven counts of unlawful, pay-

ments. That case was saved from reversal by the ‘‘barest

margin,’’ that margin provided by the trial judge’s disclaimer

of intention to ‘“‘coerce’’ and by his expression of willingness to

accept ‘‘the ultimate decision,’’? whatever it might be. Id. at

784.

13a

Opinion of the United States Court of Appeals

counts in a multi-count indictment operates as an acquittal

if the verdict is accepted by the trial judge and the jury

is discharged.'2 This rule is designed to protect a defend-

ant agianst double jeopardy in cases of retrial on the

counts as to which the jury had been silent, and is ‘inap-

plicable to the present situation. The practice ot sending

the jury back for further deliberations on. unresolved

counts has been followed in this circuit since United States

v. Cotter, 60 F. 2d 689, 690-691 (2d Cir.), cert. denied, 287

U.S. 666 (1932), see also United States v. Frankel, 65 ¥., .

and we adhere to that practice here.

[1837]

2d 285, 288-289 (2d Cir.), cert. denied, 29 U. S. 682 (1933),

Grand Jury Proceedings

It is claimed that ‘reversal of Barash’s coriviction is re-

quired because of lack of competent’ evidence before the

grand juries whiclf indicted him.” The investigations lead-

ing to the indictments involved four grand juries and more

than 40 witnesses. Clyne, DeSibio, Coady and Lupesco

_ testified in person before one of these grand juries, giving

testimony which incriminated Barash. The fact that an

Internal Revenue Inspector, in the interests of economy

of time, summarized this evidence befote the -grand jury

which - ultimately indicted Barash, Was -not improper?

Though caveats had been issued against excessive use of |

hearsay before grand juries; its use has always been ac-

cepted, where, as here, it is “demonstrably ‘inconvenient to

summon witnesses able to testify to facts from personal

%° Dealy v. United States, 152 U. S. 539, 542. 14 9. Ct. 680

(1894) ; Jolly v. United States, 170 U. S. 402. 408. 18 §. Ct. 624

(1898) ; Green v. United States, 355 U. S. 184. 190-191, 78. S. Ct.

221, 2 L.. Ed. 2d 167 (1957); United States er rel. Hetenyi v.

Wilkins, 348 F.. 2d 844, 857 (2d Cir. 1965). ,

e | _—

wae

ita

Opinion of the United States Court of Appeals

knowledge. ” United States v. Umuans, 368 F. 2d.725, 730

(2d Cir. 1966), cert. dismissed; 389.U. S. 80 (1987); Cos-

tello v. United States, 350 U. S. 359, 363, 76 S. Ct. 311, 100

L. Kd. 406 (1955). In view of the array of grand juriesg

involved here, and the i inconvenience in recalling witnesses

who had already testified from personal know ledge, the

instant case is-well within the Umans rule, supra. Further-

more, Barash’s related contention, that there was reversi-

ble erfor because he ,was. allegedly given ee jury

minutes only after Clyne left the witness-Stand carfnot

prevail—patticularly since the epurt offered » permit

Clyne’s recall.

Trial Court's Charge plese che 3)

Barash has alleged four errors in the court’s charge_to

tlie jury. It is first asserted thatthe court erred in failing

, to instruct the jury that no inference could be, drawn

~-against Barash from the testimony: of Clyne and DeSihio

[1838] m4

that they had ower’ guilty to hiesien of accepting un-

lawful payments. The trial judge had indicated that he

would give the jury a compromise form of this instruc-

tion but thereafter failed to do so. Barash, however,

neglected to bring this omission to the court’s attention

and is, therefore, precluded from raising the point on ap-

peal. Federal Rules of Criminal Procedure, Rule 30."

13 TMB modified charge read:

There was testimony by Jebemiah Clyne and Erasmo

DeSibio that they had pleaded guilty to certain counts of

this indictment. , You must ‘not consider that testimony or

any such pleas as indicating the guilt of the defendant.

14 The. relevant portion of Rule 30 reads:

No party may assign as error, any portion of the charge

or omission therefrom unless ke objects thereto before, the

jury retires to consider its verdict, stating distinctly: the

matter to which he objects and the grounds of his ob-

jection.

coy eae)

15a

Opinion of the United States Court of Appeals

Nor do we find that the.jury should have been instructed

* that the audit was ®ompleted” as soon as the auditor had

agreed on the amount to be disallowed, or alternatively, .

that a “no change” report would be filed. ‘Such an instruc-

tion theoretically would enable the jury to infer from a

payment after “completion” of the audit that the payment -

‘was not-made to influence the agent’s act. But in view _

of the considerable evidence showing many continuing - .

responsibilities of the-auditor in connection with the audit

after “completion,” the trial judge was correct in charging

otherwise.” ) : . oa

The third alleged error in the charge is that the trfal

court omitted the element of intent in its instructions to

the jury on the counts ‘under §$7214(a)(2). There is no

[1839] .

basis for this contention. After clearly indicating that a

necessary element for the convictiontof Clyne and DeSibio.

was the receipt of money “with a criminal intent, that is,

with bad purpose..and motive,” the court ‘instructed the

jury on Barash’s intent as follows: - ; :

- In order to. find that the defendant aided or abetted

another, in this ease Clyne or DeSihio or both, to

. commit the offenses charged in-‘thése counts, you

must find that the defendant, in some way, associ-

ated himself with the criminal venture. that he par-

ticipated in it as something he wished to -bring .

1 The jury was leas

The relevance of the making of the payment before or F

after the audit or audit settlement is agreed to is simply

the question whether the defendant, when the payment -

', was made, believed that there was. no official ‘action to

be taken by the public official . . .,. . a

laa

‘. “ey

Opinion of the United States Court of Appeals

about, that he, by his acts or acts, endeav ofed to...

make it successfuk

This Janguage has been specifically found pr opery in United

ecsid v. Umans, supra, at 728. je

* Finally, Baras¥®vontends that the ise ‘idles failed:

properly to present his defense theory 8 the Jury. He

claims that his case was characterizéd as a mere.denial of

the testimony of the Government’s witnesses, thus tending

“to eliminate from consideration by the-jury of [his]

factual testimeny of the cireumstan¢ées of each audit.” We :

have examined the record, however, and find that the fac-

tual summary was fair. and accurate. T

ning of his instructions,’ the trial judge said:

Before considering the separate counts: in the indict-

ment I call the jury’s attention to the fact that in

these instructions I. do not propose to review or

‘ summarize the evidence because thé trial has not

been so long as-to make that necessary or desirable. -

You Ifave heard the evidence presented and on yes-

terday you had the benefit of the closfm& arguments -

of counsel. If I mention any evidence in*the course

of these inStructions it will be only for the particu-

[1840] ipag tient ee

~ lar purpose which wil be indicated. You are to at-

tribute no significance to my failure to mention any |

evidence. : ;

Following Rivet suiumatios of the testimony of Cink and. ae

DeSibio, the Arial judge told the jury that he referred to

“this testimony, * * * which you heard Mr. Barash deny

from the witness stand, not to’ indicate any opinion as to -

whether you should aceept that estimony * *-* or not but

solely in order to relate the government’s evidence to the ;

»~

oward the begin-

' a, *

Opinion of the United States Court of Appeals

different counts and for no other purpose.” Furthermore,

the summary of Coady’s testimony was followed by the

statement to the jury that “[y]aqu [the jury] heard Mr.

’ Barash testify that he did give to Coady. an envelope con-'

taining $50, but under circumstances different from those

to which Coady testified, and with an intent different {rom

that alleged in the indictment” We find no unfairness in

these instructions to‘the jury. | = :

Duplication of Counts | |

_ ~The concluding point for our consideration is Barash’s

contention. that it was error to submit to the jury the

.counts.under 48 U. S. C. former §201 as well as the counts

under 26 U. S.C. 7214(a)(2),!* thus permitting the jury, ee

1696 U.S.C. §7214(a)(2) reads as -follows: do

: §7214, Offense:

States.

(a) Unlawful acts of revenue officers or agents.—Any

’ — officer or employee of the United States acting in. connec- .

tton with any revenue law of the United States’ ee 9.-{%)

. who knowingly demands other or greater”than are auth-

-orized by lv, or receives—any fee, compensation, or re-

ward, except as by law prescribed, for the performance of

- any duty * * * shall be dismissed from offic or discharged

* from employment and, upon conviction thereof, shall be-

fined not’more than $10,000, or imprisoned not more ‘than

‘oni. or both @ :

ve.

** 18-U.S.C. §201 reads as follows: . -

= §201._ Offer to officer or other- person. Pa ie

Whoever promises, offers, or gives any money or thing

of value, or makes or tenders .any check, order, contract,

(Footnote continued on following page)

Be m

Sgby officers and employees of the United.

_®

18a

Opinion of the United States Court of Appeals

[1841] : oo ewe

to,convict on both counts. In the recent@lévision of United

. States vy. Cohen, 387 F.2d 803 (2d Cir. 1967), we made

clear. the differences in the requirements for cony ietion

under these segtions :

_ The aiding and abetting counts, unlike the bribery

ts uire proof that the Internal Revenue

Agént received a fee, not prescribed by law, for the

performance of,his duty. The bribery counts, unlike

* the aiding and tting ‘counts, require proof of a

————specifie cor intent to inflgence official action.

From a time standpoint alone, bribery required that

given or promised with the intent to influ-

ficial’s decision“before that decision is

The jury, conPuded ‘the court. t might well have considered

" that Cohen did not possess the requisite intent for a brib-

(Footndte continued from preceding pag

undertaking, obligation, gratuity, or security for the pay-

ment of money or r.the delivery or” conveyance of any-

thing of value, to any officer or employee or person acifhg

« for or on-behalf of the United States, or any department

or thereof. ‘in any official function, * * * with’ in- ~~

> tent to influence his decision or action on any, question,

matter, cause, or te cam which may at ary time be

: pending, or which May by law be brought before him in

_ his official capacity, or in his place of trust or profit, or

t with intent to influence him to commit or aid in commit-

_. fing, or to collude in,,or allow, any fraud, @Ahake oppor-

tunity for the commission of any fraud, on the United

States, or to induce him to do or omit to do any act in

violation of his lawful duty, shall be fined not more than

three times the amountgof such money or value such

thing or imprisoned_ not mor{ than three years, fro

19a ot a

2 Opinion of the United States Court of Appeals -

ery conviction, but that the payments were within the ,.

reach of the milder standard of §7214(a)(2). And in facet

the jury did convict Cohen only on the lesser counts, hand-

ing down acquittals on, all charges of bribery. That case

is therefore applicable Neré as to most ‘of the counts, in

[1842] {

which the jury came to similar conclusions. But Barash -

‘was convicted on the jury’s first partial verdict of aiding

and abetting DeSibio in the ‘receipt of payments under

§7214(a)(2) (Counts 28-and 30) and «& few hours later

convieted on the second partial verdict of bribing DeSibio

_under 18 U. S. C. former §201. Thus this case squarely

presents.the issue absent in Cohen: ean a jury properly

convict a defendant on both of these counts? | ;

_ The question was recently -raised in United States v.

Umans, supra, but no answer Was directly. supplied. In

~ . Umans, the defendant had been indicted and convicted un-

j~* .der the “paired” counts of §201(b) and §201(f),"7 and un-

Net ia!

- 18 U.S.C. §201(b) reads as follows: =

‘. §201(by. Whoever, directly or indirectly, corruptly gives,

offers or promises anything of value to any public official

or person who has been selected to be a public official, or

offers or promises any public official or any person who

has been selected to be a public official to’ give anything

of value to any other person or entity, with intent—

{266 - influence any official act; or

(2) to influence such publie official or person who has

been selected to be a. public official to commit or aid in

committing, or collude in, or allow, any fraud, or make

opportunity for the commission of any fraud, on the United

“States; or rose 2 rane

. _ . (Footnote continued on following page)

{

; 20a

* Opinion of the United States Court of Appeals

[1843] ) « :

der the old paired counts of former §201 and §7214(a) (2).

After rejecting the defendant’s claim that the pairs of

_statutes contained contradictory elements of proof,’* the

court found that “the correct relationship between §201(b)

and §201(f) is that §201(f) is a lesser included offense

(Footnote contiyued from preceding page)

(3) to induce such pnblie official or such person who

has been selected to be a public official to do or-omit to do

any act in violation of his lawful duty * * * shall be fined

not more than $20,000 or three times the monetary equiva-

lent of the thing of value, whichever is greater, or im-

prisoned for not more than. fiften years, or both, and may

be disqualified from holding any office of honor, trugt, or

profit uhder the United States.

18 U.S.C. §201(f) reads as follows:

§201(f). - 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 performed 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.

18The court rejected defendant’s claim that it was error to

convict him of having committed ‘‘mutually inconsistent crimes,’

saying:

It appears that in- both claimed inocinsiatent fentennes one

of the two statutes requires proof of an extra element to

convict, a specifie intent to influence official action, while

the other statute only requires proof that payment was

mde to an agent in a situation where no payment was

necessary. There are not contradictory elements of required

proof betw the two statutes; only additional elements

of.proof. United States v. Umans, supra, at 728-729.

‘a

2la

wo’

Opinion of the United States Court of Appeals

of §201(b). There is no reason to beliéve that Congress

intended that there should be concurrent convictions and

sentences under both sections, and we should not allow

multiple convictions based on the same transactions even

where the sentences are concurrent.” Id. at 730. The

sentences on the §201(f) counts were therefore vacated,

with the court noting that there would be no effect upon

the defendant’s prison term since the vacated sentences

were concurrent with those which remained in force. The

court said nothing, however, on the question of whether

such reasoning should apply with equal force to the 7214 °

(a)(2) convictions_and sentences, each of which had a for-

mer §201 counterpart, even though both “pairs” .of counts

had heen treated equally in previous portions of the opin-

ion.

Because of the concurrent jail/sentences on all counts

of which he was convicted, thiS point ‘yould be without

practical effect on Barash except for the aggregate amount

of the fines and his argument that the Supreme Court’s

decision in Milanovich vy. United States, 365 U. S. 551.

[1844] |

(1961) requires reversal of the conviction on all counts

rather than merley vacating the sentences on counts

claimed to be duplicitous. Quite understandably, Barash

does not desire to serve any jail term undér any count.

The jury, however, having-seen and heard Barash and the

guilty-pleading agents apparently rejected Barash’s ver-

‘sion of being pressurized, of making Christm&s gifts arid

tangibly showing monetary sympathy for Coady’ s financial

plight. Therforeé, condemned by his peers, Barash

searches for technicalities in that most fertile field, the \

statutes themsely es,

It is fair to assume that each statute was intended to

have a purpose. In Congressional zeal to cover every

22a

c Opinion of the United States Court of Appeals

~ ; ~ :

situation, an appearance of duplicitiousness often may be

created. Specifically Barash was indicted in substance

for bribery. The first twelve counts (transitions to

January 21, 1963) being under 18 U.S.C. §201 and c&tints

13-16 (subsequent to January 21, 1963) under §201(b).

Simply stated these sections deal with the corrupt giv-

ing of money to a government employee with intent to

influence him to commit a fraud on the United States.

Another statute, 26 U.S.C.47214(a)(2) prohibits employees

from receiving a reward for the performance. of their

duties. Thus the giver and. receiver are enjoined. In

addition, however, the Congress wished to discourage the

‘tempter who by his acts? (aiding and abetting) would

seek to break down the moral fibre of some not-too-resist-

ing government employees. Thus Barash, as the tempter,

quite apart from the direct bribe, would have been the

cause of the commision of an ‘entirely different crime by ~

the employee, albeit the same money in both cases.

The jury was-highly selective. Affirmative brihery was

found as to DeSibio (counts 8 and 10). There gin ac-

[1845] , as

quittals as to the Clyne transactions adage Bo 1, 3 and 9).

For Barash’s aiding and abetting Clyne afid DeSibio to

commit the crime of receiving, the jury returned guilty

verdicts as to all the §7214(a)(2) counts (counts: 21-32).

The jury must have been satisfied of aiding and abet-

ting guilt much earlier in their deliberations than on the

bribery counts because, pursuant to the court’s advice with

respect to agreement on any count or counts, they re-

ported during the morning of\their second day that they

had agreed on a guilty, verdict as to the aiding and abet-

ting counts (counts 21-26, 28.32). After further delibera-

tion, guilty verdicts on bribery were returned (counts 8,

10, 18 and 20). [Corrected on reargument, infra]

23a

Opinion of the United States Court of Appeals

From this result; Barash argues that the court should :

_ have charged the jury that it gould not return a vérdict .

of guilty on ‘the bribery counts and the gratuity counts

and,“at the very least” he “was entitled to an order -com-

pelling the Government to elect to proceed on either the

201 counts or the 7214(a)(2) counts.” |

~ Decisions relating to lesser included offenses are not

applicable. because such a situation is not presented here.

The elements of the two offenses proscribed in the brib-

ery and gratuity statutes were by no means identical. |

Furthermore, this court has held that a “claim, that a

payor to an internal revenue officer cannot be an aider’

and abettor of the latter’s violation of 26 U.S.C. §7214(a), .

iS foreclosed by United States v. Kenner, 354 F: 2d. 780,

785 (2d Cir. 1965), cert. denied, 383 U. S. 958, 86 S. Ct.

1223, 16 L. Ed. 2d 301_(1966).” 365 F. 2d at 399 n. 3. The

effect of Kenner whs tlfiS\considered in the previous

Barash appeal insofar asthe overnment’s right to pro-

ceed under both statites is concérmed. Although Kenner

had been acquitted on the bribery counts and convicted

[1846]

of aiding and abetting on the gratuity counts, there is: no

such inconsistency in the counts here as to require-a dif- .

ferent result. See also United States v. Cohen, 387 F.

2d 803 (2d Cir. 1967). ‘

& \

FRIENDLY, Circuit Judge, concurring (with whom Fery- \

BERG, Circuit*Judge, also concurs) : t

If the issue ‘were res nova, I would have considerable

difficulty in believing that an accountant who makes a pay-

ment to an internal revenue agent can properly be con-

victed for aiding. and abetting the agent in violation of

26 U.S.C. §7214(a) (2). The ALI Model Pemal Code, which

uses the term “accomplice” to encompass aiding and abet-

ting, $2.06(3), says in §2.06(6):

= 24a

Opinion of the United States Court of Appeals

“Unless otherwise provided by the Code or by the

law defining the offense, a person is not an accom- -

plice in an offense committed, by another person if:

(b) the offense is so defined ‘that his conduct is

inevitably incident to its commission;~~. .”

‘This principle would seem perculiarly applicable when the

legislature has enacted other provisions, here 18 U.S.C.

§201, specifically directed against the payor, even though

Congress decided in 1963 that these were not broad

enough. 4

- However, this court crossed that bridge Sin United

v. Kenner, 354 F. 2d 780, 785 (2 Cir. 1965), cert. denied,

- 383 U.S. 958 (1966), the Applicability of which we as-

sumed on Barash’s earlier appeal, 365 F. 2d at 399 né 3,

see also,United States v. Cohen, 387 F.92d 803 (2 Cir.

1967). I understand that the Government now. “pairs”

with §201(b) only the lesser included offenses of §201(f),

[1847] ae

and Barash was convicted on two: counts under old §20%

_which would have amply supported the nine months im-

prisonment that -he must serve. I am also not entirely

persuaded" that even if Barash could permissibly be held

guilty as an aider or abettor of the agent’s violations

of 26 U.S.C. §7214(a)(2), he could be convicted both of

that and of a violation of §201, see Milanovich v. United

States, 365 U.S. 551 (1961), as he was on counts 8 and 28,

and 10 and 30, but that also seems to be assumed by our

previous decisions. Under the cir fumstances I do not feel

warranted in seeking reconsideratfOn of the issue by the

full court. | ae

In all other respects I agree with Judge Moore’s care-

ful opinion. t

| rn of United States District Court

we et Be et nt et pnw y

“UNITED Srares oF AMERICA

“

Daviv Bernarv Barasu, Defendant.

| No. 65 Cr. 243.

7 United States District Court

S. D. New York

Dee. 7, 1966.

- 266 F. Supp. 126

Bryan, District Judge:

Defendant Barash, an accountant and lawyer, was or-

iginally convicted on 26 counts of a 32 count indictment

charging various violatians of law with respect to pay-

ments to internal revenue agents in connection with their

,, Office audit examinations of income tax returns of his eli-

ents. The Comrt of Appeals unanimously reversed the

conviction for a variety of errors committed at the trial

and remanded for a new trial. United, States’ v. Barash,

365 F. 2d 395 (2 Cir. 1966). on

Barash now moves (1) to dismiss either Counts 1-6, 8-

12, 14 and 16, charging violations of 18 U.S.C. $§ 201 and

- 201(b),' or Counts 16, 21-26 and 28-32, charging violations

* Present. § 201(b), enacted by 76 Stat. 1119. (1962), was simp-

ly a rewording of former § 201.

‘ Po

26a

Opinion of the United States Court of —

of 18 U.S.C. §§ 2, 201(b) and 26 U.S.C. § 7214(a) (2), or,

inthe alternative, to require the United States to elect be-

twen the to groups of counts; and (2) to sever Counts

16 and 20. | :

Counts 1-6, 8-12, 14 oa Counts 21-26, 28-32,

Barash’s primary claim is that he may not be tied si-

multaneously on Counts 1-6, 8-12 and 14, on the one hand,

and Counts 21-26 and 28-32, on the other. Counts 1-6, 8-

}

12 and 14 charge violations of 18 U.S.C. § 201 (or 201(b)

dependiag upon the time of the alleged offense) and allege _

in substance that Barash knowingly gave money to In-

ternal Revenue employees “with intent to influence their

decisions and actions on questions * * * then pending * * *

before them in their official capacities.”2 — These/ counts

will be referred to as the bribéry counts. Fee Seen

Counts 21-26 and 28-32, which relate to the sdme pay-

ments referred-to in the bribery counts, charge that Bar-

ash aided and abetted the same Internal Revenue em-

plovees in receiving illegal fees for the performance of

their dutis in violation of 18 U.S.C. §2, and 26 U.S.C.

§ 7214(a)° (2).3 These counts will be referred, to as the

aiding and abetting counts.

2 ‘The sthiiniliio of Count 14 differ somewhat from the others,

but not materially. A

3 This section provides: ‘

‘‘(a) Unlawful acts of revenue officers or agents. —Any

officer or employee of the United States acting in connec-

tion 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, compensa- -

tion, or reward, except: as by law prescribed, for “the per-

formance of any duty’’ is guilty of an- offense against

the United States.

27a:

Opinion- of the United. States Court of Appeals

Barash claims in essence that under *Milanovich V.

United States, 365 U.S. 551, 81S. Ct. 728, 5 L. Ed. 2477 }

(1961) and Heflin'v. United States, 358 U. S. 415, 79 S.

Ct. 451, 3 L. Ede 2d 407 (1959), the Gover&ment cannot

.preceed against him on both the bribery counts and the

aiding and abetting counts. Barash maintains that he has

been “charged in’ one indictment with the crime of brib-

ing Internal Revenue ‘Agents and in separate counts with

_the crime of receiving those bribes from himself.” = Un-

der these circumstances, it is said, Congress could not

have intended to.*pyramid penalties”-for essentially the

same. criminal acts. 358.U.S. at 419, 79 S. Ct: 451.

[1] On the merits Barash's claims appear to be fore-

- Closed by recent decisions of the Court of Appeals of this

Circuit. -It is settled that a payor of a bribe ean be

charged ‘and convicted of ailing and abetting violations

of 26 U.Q.C. § 7214(a) (2). United States y. Kenner, 354

F. 2d 780 (2 Cir. 1965), cert. den., 383 U.S: 958, 86 S. Ct.

1223, 16 L. Ed. 2d 301 (1966). Furthermore, in United °

States v. Umans, 368 F. 2.725 (2 Cir: 1966). cert. granted,

— 886 -U.S. 940, 87 S.Ct. 975, 17 L. Ed. 2d 872 (1967), the

Court of Appeals affirmed a conviction of the pavor of a

bribe to Internal Revenue employees both for bribery as

a principal under 18 U.S.C. § ¢214(a) (2). As appears

from the indictnient, -the same nine illegal payments

formed the basis for nine bribery counts and nine aiding

and. abetting counts. Though the Court in Umans did not

specifically refer to Mildnovich; it reversed convictions on

three other counts charging violations of 18 U.S.C. § 201

(f)—making it a-crime to pay a public official “for or be-

* Defendant’s Memorandum of Law, p. m

28a

Opinion of the United States Court of Appeals. 7

=. ¢ ‘

cause -6t. any official act’°—hecause deféndant had also:

been convicted on three § 201(b) bribery counts for the

same criminaf acts. Reversal was thought to;be neces-

sary on ‘these counts because: .

“the. ‘correct relationship between § 201 (b) and § 201°.

(f) is that § 201(f) is a lesser included offense of

§ 201(b). There is no reason to believe that Con-

» gress intended thatt here should be concurrent con-

victoins and sentences under both sections, and we

should not allow multiple convictions based on ‘the

‘ same transactions even. where the sentences are con-

current. The sentences on the § 201(f) counts

are theréfore vacated.” 368 F. 2d at cf erie

However, since the coufrt affirméd the convictions on the

other counts ev idently it was of the view that the defend-

ant could be tried: simultaneously for the Same criminal

acts for bribery under § 201 and. for aidfng and abbetting.

under: §7514 (a) (2). Contrast Model Penal Code- $1. 07

(Proposed Official Draft, 1962). ;

“[2] But it is unnecessary finally to resolve that anestwn

have merit, they cannot be disposed of by motjon, to als:

sce) Whoever, ddueewine than as provided by “law for the

proper discharges of official duty, directly or indirectly gives,

offers, or promises anything of value to any public official’ for-

mer public official, or person ‘selected to be’ a_ public official,

for or because of any offitial act performed or to be performed

~ by such public. official, former —— official, or person selected

to be a public official. oe sy

Shall‘ be fined not more than $10, 000 or imprisoned for not

_ more than two years, or both.” 2 .

‘ 29a ~

Opinion of the United \States Court-of Appeals

> 2 val is

miss. “In Milanovich the Supreme Court held that a de-

ne fendant could not Ke. convicted of both stealing and re

US. at-555, 81 S.Ct. at 730°

ceiving the same gods he has stolen. However, the Court

did not require dismissal“of one of the counts: or election ‘-

between them prior to trial, Tt held, rather, “that the

trial judge erred in not charging that the jury could con-.”

vict of either larceny or réceiving, but not of both.” 365

The present case should preceed in similar fashien.

After the evidence is in the trial judge will be in aw posi-:

tion to give appropriate instructions to the: jury concern.

ing the verdict to be rendered with” respect to the bribery

counts or, the aiding or abbetting caunts or both. —Con-

ceivably, since the bribery counts ‘require proof of an ad-

ditional element,.i. e., a specific intent to influence official :

action, see United States vy. Umans, supra, the evidence |

may be insufficient*to sustain simulatenous convictions on

both counts in any event. However the facts may develop,

decision must await trial. a :

Count 16 as

[3] Barash bases hig motion to dismiss Count 16 on a

_ dictum in. the opinion of the Court of Appeals in this case

to‘ the effect That “it is questionable” whether the Getern- -

ment made out enough’ to’ go to the jury” on. this count.

65 F.2d at 399. However questionable the proof. may

have a there is nothing to prevént. the Government

from @orrecting ,any deficiencies ‘upon re-trial if it ean;

an .

Unlike Merrit y. United States, 334 F.2d 359 (5 Cir. 1959)

(per curiam), relied upon by. defendant, the: Court of |

Appeals did not squarely hold that the proof on Count 16

was insufficient as a matter of lavy.. Obviously this edurt

Opinion of the U nited Staiés.Court of. Appeals

B-

count ‘before trial ‘on gfound that at the last trial the

-Government’s case w id to be “questionable” in some

respects.

cannot ge further on a and direst a dismissal of the

Severance of Counts 16 and 20

*(4) In order to prevail on a motion to sever a defend-

ant must demonstrate that he “is prejudiced by a joinder

of offenses.” Rule 14, F.R.Cr.Pro. The Government

_ strenuously urges that Barash has waived -any objection

by failing’to raise it at the first trial. See Rule 12(b) (2),. °

F.R.Cr.P. But it is ynnecessary to decide whether defend-

ant has waived, or if so, may be relieved from his waiver

on this motion; for he has not made a sufficient showi ing

of prejudice to justify a severance at this time.

[5] Barash claims that Counts 16 and 20 stand in a

unique position because they “involve an alleged payment

-to Coady, who, unlike the otlier twg office auditors who

by their testimony and pleas of ‘guilty in many cases -

have admitted their corruption, was an undercover agent

working for the Inspection Service, hence supposedly in-

corrnptible, hence supposedly ‘truthful.”* He also urges

that his defense to Counts 16 and 20 is likewisé somewhat

unique, though he fails .to demonstrate in what respects :

this is so.

(*] For purposes of this motion it is sufficient to say

that these contentions fall far short of demonstrating a

likelihood of “any confusion or injustice arising from

the joint rial” Opper v. United States, 348 U.S. 84, 95,

75 S.Ct. 158, 99 Lied. 101 (1954). Of course, the trial ;

alt .

3la

Opinion of the United States Court of Appeals

judge is under “a “continuing duty at all stages of the

trial to grant a severance if prejudiced” to a defendant

becomes evident. Schaffer y. United States, 362 U.S.

511, 516, 80 S. Ct. 945, 948, 4 L.led.2d 921 (J960); see

United States v. Kelly, 349 F.2d 720, 759 (2 Cir. 1965).

Thus ‘Barash’s rights can ‘be fully protected as the evi-

dence unfolds at:the trial. The motion te sever, like the

moion to dismiss, is premature,

Both motions are denied without prejudiced to * re-

. fiewal at the trial.

<a is so ordered.

® .

a. °

&. *

” ie ’

a .

. ©

~ ‘#

;

- ~ my o

32a

Opinion of United States Court of Appeals

—

par

UNITED STATES of Ameriéa,

Appellee,

Vv.

David Bernard BARASH, -Appellant. .

No. 459, Docket 30402.

United States Court of Appeals

cic Second Circuit. .

~ Afeued J une 24, 1966.

Decided Aug. 3, 1966.

365 F. 2d 395 (1966)°

Fret pLy, Circuit Judge: ,

A grand jury in the District Court for the Southern

District of New York returned a rather confusing 32.

count indictment against David Bernard Barash, a verti-

fied public accountant and attorney, relating to improper

payments to internal revenue agents’ in connection with

their. office audit examinations of intome tax returns of

Barash’s clients. Counts 1-12 charged him with giving |

money to Agents Clyne, Montello and DeSibio in 1960,

_ 1961, 1962 and on January 18, 1963, with intent to influ-

ence their official acts in violation of 18 U.S.C. § 201; and

counts 13-16 charged him with gifts to Agents Clyne,

MonteJlo, Wolf and an agent subsequently identified as

33a

Opinion of the United States Court of Appeals

Coady for a similar purpose later in 1963 in violation of

18 U.S.C. § 201 (b) as the statute now stands.' Counts 17-

20 charged him with making the same gifts alleged in

counts 13-16 for and because of the agents’ official duties,

in: violation of 18 U.S.C. § 201(f), added in the amend-

ment of October 23, 1962, which became effective 90 days

after passage. Finally counts 21-32, which related to the

same payments alleged in counts 1-12, charged him with .

aiding and abetting Clyne, Montello and DeSibio in re-

ceiving illegal Tees for the performance of their. duties in

' violation of 26 U.S.C. § 7214(a) (2). After trial before

Judge “MacMahon and a jury, Barash was acquitted on

the six counts. relating to Montello\and Wolf but found

guilty on the twenty-six (involving thirteen transactions) /

which concerned Clyne, DeSibio and Coady.. He was sen-

tenced to imprisonment of a year and a day on each

count, the sentences to run concurrently.

The Government’s case ‘was presented throu the

agents. Clyne and DeSibio had pleaded guilty to offenses

charged in the instant ‘indictment and to others; Coady

had been operating in an undercover capacity. Clyne, who

was the receiving party in ten of ‘the thirteen incidents

resulting ‘in convictions, testified to a pattern of conduct

sore ao ek as follows: Barash would inform Clyne of

clients who had received “call-in” letters instructing them

to appear for audit of their returns before the group of

agents*that included Clyne. In violation of off proced-

pres Clyne would obtain the returns and rela (l papers

from his supervisor’s file and assign the audits to him!

. | ;

“1 $0 far as concern the offense of bribery, the amendment ef-

- fected by 76 Stat. 1119 (1962) was only a rewording and made

, no change of substance. ah

3ta

Opinion of the United States Court of Appeals .,

~ self, Barash would suggest relatively small disallowances

in’ unsubstantiated deductions for travel and entertain-

ment expenses, and ‘would offer Clyne compensation for

thus passing the returns. When Clyne obliged, Barash

would make payments rangingfrom $20 to $50 per re-

turn. DeSibio, who figured in two incidents in 1961, gave

similar testimony except that he did not say Barash had

taken the ipitiative in getting the audits assigned to him.”

‘Coady testified that in July 1963 @arash, after being in-

troduced to him by a fellow-employee, Jeanne Lupesceu,

asked if Coady could get a tax return from the files and

assign it to himself; when Coady answered:in the affirma-

‘tive, Barash furnished him the details, requested a “no-

change” report the next day and, on Coady’s assent, said

containing $50.

The theory of the defense was that Clyne and DeSibio

had implicated Barash in order to get favorable consid-

eration as to their sentences for other crimes, and that |

Coady. had distorted an incident that was wholly inno-

eght. Barash-denied offering anything to the agents .in

connection with the audits, although he admitted -having

given Christmas presents of $25 or $50 to Clyne in 1960,

1961 and 1962:and making a $50 payment in January

1963, having DeSibio to lunch, and having made a $50 gift

to Coady in appreciation of the latter’s expediting the

gaudit and in response to a remark, admittedly made by

Coady, That he was'soon going off to Marine Corps sum-

mer camp. Barash also testified as to pressure from

Clyne, beginning with a mild suggestion on an-audit in\Yhe

spring, of 1961 anc thomnting”in } penny thereafter,? all

? Specifically Barash testified that in N&ember 1961, on the

audit of the returns mentioned in counts 11 and 31, Clyne re-

fused to look at his substantion, saying that unless he were paid

from $100 to $200 per audit, Barash would never get a case. ap-

proved Nj Clyne’s group and Clyne would ‘‘louse’’ him up in

other groups; and in the summer of 1962, Clyne said, “You cut

your throat in this vaditenins group, and as far:as I am con-.

cerned, you may have cut it in other groups.’’

.~ : ae

35a

Opinion of the United States Court of Appeals .

2. F, . 6

of whith ¢ ‘lyne had denied on cross-examination, and was

again to deny on rebuttal. :

6 (1, 2] “Barash raises many claims of trial error; the

Government defends the. judge’s rulings and instructions

and argues in the alternative. that any error ean be quar-

antined to particular counts and is immaterial in view

< of the concurrenf sentences. See Lawn v. United Atates,

3A) U.S. 339, 359, 362, 78 S.Ct. 311, 2° L.Ed. 2d 321

(1958). However, as Judge Clark made clear: for ‘us, the

doctrine of the one good -eount is ot a fetish; we must

inquire whether “the nature of Ue error committed be-

6 low or other circumstances suggest thatthe accused might

have received a longer sentence than otherwise would have

been imposed, or that he has been prejudiced by the re-

sults of the proceedings.” United States y. Hines, 256

F.2d 561, 563 (2 Cir. 1958). -- :

[3-5] «We begin with the two counts relating to Coady, .

the single agent whose slate was clean and whose testi-

mony may'thus have carried particular weight. Cross-

” examination had emphasized that Barash had given him

g ** An additional claim. that a payor to an internal revenue

officet cannot be an aider and abettor of ‘the latter’ violation of -

26 U.S.C.-§ 7214( a), is foreclosed by United States y. Kenner,

354 F. 2d 780, 785 (2 Cir. 1965), cert. denied, 383 v. S. 958,

86 S. Ct. 1223, 16 L. Ed. 2d 301 (1966). On its facts the Ken-

ner decision would also rule out a claim that the G ernment ~

may not proceed against a payor both as’ a ‘principal under

18 U.S $: § 201 and as an aider and abettor of a violation of

26 U.S.C. § 7214(a).’ The point, however, was not raised ot dis-

cussed in Kenner, and has likewise not been raised in this case, .

We thus have no eccasion to consider whether Milanoviech y,

United States, 365 U. s. 991, 81 S. Ct. 728. 5 T.. Ed. 2d 773

, (1961), is applicable to offenses such as those here at issue,

36a

Opinion of the United States Court of iia

$50 only after the audit had been concluded ail there-

fore could not have intended the payment to ¢nfluence any

action on his part. The Government sought to counter

this by asking Coady on redirect whether prior. acts had

_led him to believe he would be paid, He mentioned three

—the suggestion that he pull the return and assign it to

himself, the request for a no-change without substantia-_

tion, dot over objection, the introduction of Barash to

him by Jeanne Lupescu “because Miss Lupgscu had never

introduced me to anyone except someone 4vho was going

to pay me off.” Granted that a promise to, pay can be

conveyed only by a wink of the eye, it is questionable

whether even if all this evidence were properly received,

the Government made out énough to go to the jury on the

bribery count with respect to Cgady. But the testimony

as to Lupescu should not have been admitted. Its hear-

- say nature, which would have been obvious if Coady had:

said Lupescu had told him that Barash -had previously

paid her or other agents and thus was an accountant of

the paying kind, was not removed because she conveyed

her meaning without the use of words. The guiding prin-

ciple was stated long ago by Baron Parke in thhe leading

ease of Wright v. Tatham, 7 Ad. & E. 313, 388- 389, 112

Eng. Rep. 488, 516-17 (1837):

“* * * proof of a particular fact which is ; not of -

@~ itself a.matter in isspé, | but which is relevant only

as implying a statement or opinion of a third per-

son on the matter infissue, is inadmissible in all

_ eases. where such a statement or aonee not on

oath would be of itself inadmissible.”

” a | Mag E Rot

See Morgan, Hearsay Dangers and the Application of the .

Hearsay Concept, 62 Harv.L.Rev. 177, 190-192 (1948); ,

37a

tyne 2 =

Opinion of the United States Court of Appeals

3 ae

. ree

McCormick, Evidence § 229 (1954), and eases cited. The

_ Government, not seriously challenging this, argues that

_ the evidence was nevertheless admissible since, without

regard to the truth of the implicit assertion,..it showed

that when Coady dealt with Barash, he expected to be

* paid. It is true enough that evidence admissible for one

purpose .is not rendered inadm

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