# Petition for a Writ of Certiorari — Barash v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0688%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 396 U.S. 832 ## Text ers COURT, U & FILE D 1969 UITICe-cis His Be wed ly Vee JOHIN.F, DAViS, CLERK ic IN THE Bryon Court of the Vuited States 4 Octoper — 1969 © DAVID BERN VARD ARASH, » VS. UNITED STATES OF AMERICA. 7 “a a I 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 $Me) en 7 \ Jolfy v. United States, 170 US. BQ, 18 S.Ct. 624 (1898) . ta _¢ i . | TABLE OF CONTENTS ee, 8 : | : nae, : : PAGE Kent v. United States, 383 U.S. 541,.86 S.Ct. 1045 ay LED csccenuncneccnmeamnenensintn ieasa jn AI Lopez v. United States, 373 U.S: 427, 88 S.Ci 1381 + (1963) . : Sent LEE ST _ May v. United States, 175 F.2d 994 (D.C.Cir. 1949). 23 - Milanovich v. United States, 865 U. S: 551 (1961)... “3,9, | ; 24-28, Rice v. United Staten 356 F.2d 709 (8th Cir. 1966)... Sansone v.* United States, 380 U.S. 343, 85 S.Ct. | IO CE a gncticcseniensconecitsssnnemeenttiinannenblilnliniiaennsapiillansass ~. 29 Sears v. United States, 343 F.2d 139 (Sth Cir. 1965).. 40 Sorrelle v. United States, 387 US. 435, 53 S.Ct. 210 « SOTO. steep binaiicelaisciapnalli tiplanicinacammsness Fevecncanwanmstpely AO State v. Begyn, 34 N.J. 35, 167 A.2d | Matcomeneneoae. | 21 State v. Teahan, 50 Conn. 92....... eee ; = Stirone vy. United States, 361 U.S. 212, SO S.Ct. 270. RRR ons ehceown aiah 49 ? . ‘Tomoya Kawoakita v. United States, 343 US: 717, . 72 S.Ct. 950 (1952). biorgcain RO, 34, 35 Umans v. United States, btn US. 80, 88 ize 293 ; Sortie , : 48 Union Pac.R.Co. v. Public Service Commission of @lissouri, 248 US. 67, 39 S.Ct. 24 (1918) 0. toe. 9 ae United States v. “Alpers, 338 US. 680, 70 S.Ct. 352 ‘$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 ? Me \- . *% 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, to 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, ’ v. ‘ : ; . ‘ fs ae Unitep States oF AMERICA, —, gi Respondent. a + » —} 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 « Va v / . 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? 3 3 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? 4 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. : ; a ‘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 . 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 . os => 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(). e 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 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 - a, ° 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 & 31 ‘*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 ec a ok * ¢ ' ; P . i ~ ee and oe f _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 : . ° . ay wy 34 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 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 36 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. Ss 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 ~ =, ~ . ‘ ‘ 37 . 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: 4 “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 7 \ oO ™~ ow | 38 ) 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- « 39 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 \ \ \ {a 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) 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] »~ » oward the begin- aa ' a, * 3 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. | = : ae % 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, 4 (Footnote continued on following page) Be m Sgby officers and employees of the United. al . _® 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) e { ; 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 é a 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 ee > el we et Be et nt et pnw y “UNITED Srares oF AMERICA V. “ Daviv Bernarv Barasu, Defendant. 4 | No. 65 Cr. 243. 7 United States District Court S. D. New York Dee. 7, 1966. - 266 F. Supp. 126 <> ae Bryan, District Judge: Oo 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- * om 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 e . Sai “~ © e a - e + v _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 on this motion .Hfen. assuming that Barash’s contentions © 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 Ne iL 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 : Sh [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 t 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 . . Defendant’s Memorandum of Law, p. 16. -. © + r *. 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. 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 Me 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 4 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 he had an envelope for him and shortly returned with one © 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 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 inadmissible “hecause it does not satisfy the rules applicable to it in some other capacity and because the jury might improperly consider it in the — latter capacity,” and that. under such circumstances the opponent of the evidence will not prevail by interposing a general objection and is entitled only to a limiting in- struction on timely request. 1 Wigmore, Evidence § 13, at 300 (3d ed..1940); Malatkofski v. United States, -179 F.2d 905, 914 (1 Cir. 1950); United States v. Smith, 283 F.2d 760, 764 (2 Cir. 1960), cert. denied, 365 U.S. 851, gy S.Ct. 815, 5° L.Kd.2d 815 (1961); United States v. Mont, 306 F.2d 412, 415-416 (2 Cir.), cert. denied, 371 U.S. 935, S- S.Ct. 310, 9 L.Ed.2d 272 (1962). But here Coady’s st&te- of mind was irrelevant unless induced. by Barash, a fact. as to which the Lupescu story was hearsay; it was thus inadmissible for any purpose. Since the evidence was highly material and the jary cannot realistically be sup- posed to have considered it only in relation to the bribery count, the convictions on both Coady counts would have to be reversed if they stood alone.‘ e s 4 We therefore need not consider. defendapt’s further complaint as to the charge on entrapment by Coady. Although what the judge’ said as to burden of proof was indeed in conflict with — our devisions in United States v. Sherman. 200 F. 2d 880, 882° 883 (2 Cir. 1952), and United States v. Pugliese, 346 F 2d 861, 862-863. (2 Cir. 1965), it is questionable whether there was, atiy showin? of inducement sufficient to raise the issue. Cf. United . States v. Riley, 363 F. 2d 955 (2 Cir. 1966). al : ° *- * 38a Opinion of the United States Court of Appeals [6] Another error ‘occurred in the course of ,cross-ex- amination of Clyne. When defense counsel asked if he _ had ever threatened Barash, Clyne answered in the nega- tive. Counsel then proceeded to cross-examine on the ba- sis of tape recordings, furnished to him by the Goyern- ment, which Coady had made of a “bull-session” at a hotel between himself, Clyne and another corrupt agent, where- ., in Clyne frankly revealed his practice of putting pressure on accountants to pay off. In sharp contradiction of what Clyne had just testified and in support of what Baragh was later to testify, counsel developed, without objection, that Clyne boasted of having told Barash he was “get- ting away with murder”; that on discovering Barash was -trying to have some audits done without paying off, Clyne told him he had cut his throat in Clyne’s group; that he complained of how ‘in another case Barash had: beaten ‘ him out of fifty. dollars,> and on this or another occasion Clyné had asked $150 but got only $100; and that he had compared Barash unfavorably with Eugene Kenner, see 354 F.2d 780, who “when he comes in on a case, you never ~ have to ask him.’’ Inexplicably a question whether Clyne remembered having told Coady “you get “your money’s worth with Gene Kenner; you'll get robbed * * *,” trig- \ gered an objection. The judge sustained this, saying, in the presence of the jury; that he had been waiting for it all afternoon and that if th®@ Assistant United States At- torney had objected earlier, “We. might have saved an -ewful lot of time.” Defense counsel then asked whether Clyne told»Coady “about a particular case that you had . where you set the taxpayer up by bemg very tough on the audit. * * *” At this point the judge asked counsel 5. — ane : On this 8th day of December, 1967, came the attorney for the government and the defendant appeared in person “and by counsel. . Ir Is Apsuncep that the defendant upon his plea: of not guilty and a verdict of guilty by a jury has been con- victed of the offense of unlaWfully, w ilfully and knowing- ly giving, money to Internal Revenue Service employees to influence decisions and actions on questions pending be- fore them in office audit examinations of Federal Ineome tax returns (Title 18, Section 201(b) U. S. Code); un- lawfully, wilfully and knowingly giving money to Internal Revenue Service employees for and because of official acts performed and to be performed in office audit exami- nations of Federal Income Tax returns. (Title 18, See- tion 201(f) U. S. Code.) ; unlawfully wilfujly and know- ingly aiding, abetting, inducing and proguring the receiv- ing of fees, compensations and rewards, not prescribed by law, by employees of the Internal Revenue Service. (Title - 47a ‘Judgment of the United States District Court 26, Section 7214¢a) (2): U. S. Code and Title 18, Section 2, U. S. Code.) as charged in counts 8, 10, 18, 20 through 26 inclusive and 28 through 32 inclusive and the court having asked the defendant whether he has anything to say Why judgment should not be pronounced, and no suf- ficient catise to the contrary being shown or appearing to the sags Ir Is a ED that-the defendant i is guilty as charged and convicted. oe Ir Is Apsupcep that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of Nive (9) Montus on each of counts 21 through 26 inclusive and 28 through 32 inclusive to run concurrently with each other and Finep $1, 000.00 on each count. Fivs (5) YEARS and Finxep $2,500. 00 on each \ pBRounts 8 and 10. Two (2) Years and Frxep $2,500.00 on each of counts 18 and 20. Prison sentence on counts 8, 10, 18 & 20 to run concurrently. with each other. Execution ofprison sentence on counts 8, 10,.18 & 20 suspended. Defendant placed on probation for Five (5) Years, to commence upon expiration of confinement imposed on counts 21 through 26 inelusive and 28 through 32 indusive, subject to the standing probation order of this court. The defendant is to stand committed until the fines of ~ $11,000.00 imposed on counts 21 through 26 inclusive and 28 through 32 inclusive are paid or he is otherwise dis- charged according to law. The fines of $10,000.00 imposed — . on ‘ecounts 8, 10, 18 and 20 are to be paid at such times ‘ and in such amounts as the Probation Officer shall deter- * mine. ° es | 48a rf | Judgment of the United States District Court ._ Counts 14 and 16 are dismissed on motion of defend- ant’s counsel. Defendant ccna on present. bail. Bail ‘pending ap- _ peal fixed: in the: sum of $5,000.00. unsecured bond. Ir Is OrpvereED that the Clerk deliv er a certified copy of this judgment and commitment to the United States Mar- shal or other qualified officer and that the copy serve as the eommitment of the defendant. United States District Judge “Inzer B. Wyatt Joun J. OLEAR, JR.-° * Clerk. (oun? | pa 49a Judgment of the United States Court ‘a Appeals — UNITED STATES COURT OF oe For THE remind Cincurr Ata Stated ierm of the United States Court , of Appeals, ‘in and for the ‘Second Circuit, é\ held at the United States Courthouse in the 4 City of New York, on the ninth day of April, ' 4 one thousand nine hundred and sixty- nine. Present: : ar ee Hon. Leonarp P. Moore,’ Hon. Henry J. FRIENDLY, Hoy. Winrrep Frrnsere, Circuit J udges. » = a f : . Unitep States or AMERICA, ’ Plaintiff-Appellee, site. bes | 1 : si ee - é e? Davin Bernarp Barasu, > Defendant- Appellant, © % Jr REMIAH CLYNE, LAWRENCE Govecisc: Erasato DeESin10, and Savi Wotr, . . Defendants. 5 Ope 9 2 ra ee 50a + Judgnient of the United States Court of Appeals 6: 5 + ‘Appeal from the United States District Court for the Southern District of New. Yerk. | : CW A, _ This cause came on to be. ‘heard on the transe eript of — record from the United States District Court for the Southern District of N ew York, and was argued by coun- sel. ON CONSIDERATION WHEREOF, it is now hereby ondived, and decreed that the judgment of said _—r Court. be and it hereby 1 is affirmed. A. ee Fusaro ; ‘ Clerk 4 5la Order of the United States Court of Appeals > Denying Petition for Rehearing” ~ UNITED STATES COURT OF APPEALS SECOND Circure 32225 — Unifen STATES OF AMERICA, ‘ to Plaintiff-Appellee,, pal aie’ Davip BERNARD Barasu, ~ ‘Defendant- Appéliaat, \ JEREMIAH CLYNE, LAWRENCE, MONTELLO, Erasmo DeESirb10, and Savi Wo tr, ~ , ; 4 _ Defendants. »s _— 2 ¢ . - A petition for a rehearing containing a suggestion that. _.the action be reheard en bane having been filed heérein. by counsel for the appellant and_no active circuit judge ° ° e be having requested that a vote be taken on said suggestion, .Upon consideration thereof, it is _ Ordexed that said petition he and it hereby is denied... J. Epwarn ‘Luparp ‘ - - Chief Judge May 23, 1969 | > | Usrrep Srares OF AMERICA; » @ Plaintiff- Souailve, | 9 Dayin Bernarp Barasu, ‘ eee nt Jenesnian ‘CLYNE, cuaiee Monte, Erasmo ‘DeSinto, and Sav Wotr, « : Defendants. a4 + Ly v > s f 1 he - > A petition for a rehearing and hearirig ‘en banc or, in the alternative, a motion to.stay the issuance’ of the man-— date havi ing been filed herein by eben for the appel- ——s. * Upon consideration thereof, it is Orpverep, thac said petition be and it hereby is denjed insofar as a rehearing is sought, and granted as to the stay of the issuance of the mandate, subject -to the pro- | visions of Rule 41(b). FRAP. and .it is if FURTHER ORDERED, that page 1829. of the Slip Sheet . opinion, footnote 5, he correctgd to delete the name .. , Sie? a Order of the United States eee of Ang ‘Granting Stay, ete. : P) 2 “Coady” and to substitute thétetor the name “Clyne; and that page 1845 of said Slip « ‘Sheet opinion. be eor- rected by ‘deleting in-line 8 of tlie ‘first paragraph the _words— oh “ouilty verdicts on bribery were returned frome 8,‘ 10, 18 and: 20)” \ and by sicbetituting herefor the following— “cuilty verdicts on bribery,.18 U.S.C. §201, (counts 8.and-10) and payments for the performance of an : .., Official act, 18 U.S.C. 4201(f) (counts TS’ and 20) . were pgerned. 9 { Lroxarp P. Moore S Henry J. Frrenpry WiILFreD ERINBERG ay TSC. | a ; U.S.C JJ May 23, 1969 / | , : . \ ~ o °. 54a >. U. S. Constitution | 5 eos ArTicLeE [V] | No persbn shall’ be held to answer for a capital, or _ otherwise infamous crime, unless on a presentment or — indictment: of a .Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in | actual service in Mime of War or public danger; nor shall any person be subject. for the same offence to be twice put in jeopardy of life or limb; nor shall be com- —pelled in any criminal case to be a witness against him- self, nor be deprived of life, libe?ty ‘or property, with- out due process of law; nor shall private property: be | taken for public use, without just compensation. Articte [VI] - In all criminal prosecutions, the accused shall enjoy, the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, to be confronted with the Witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of . Counsel for his defence. on, ng daa Relevant Statutes Tiree 18, U.S.C. a aes § 2. Principars (a) Whoever commits an offense against the United States or aids, abets, counsels, eommands, induces or pro- cures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an of- fense against wah United States, is punishable as ‘a prin- cipal. June 25, 1948, e. 645, 62 Stat. 684; Oct. 31, 1951, ¢. 655, § 17b, 65 Stat. 717. , rome . . TITLE 18 U.S.C. § 201, Orrer To OFFICER OR OTHER ,PERSQN Whoever promises, offers, or gives any money or thing of value or makes or tenders any check, order, contract, payment of money or for the delivery or conveyance of anything of value to any officer or employee or person acting for or on behalf-of the United States, or any department or agency théreof, in any official function, under or by authority of any such department or agency or to any officer or person acting for or on behalf of either House of Congress, or any coinmitee of" either House, or Houses thereof, with intent to influence his: ‘decifjon or action on any: question, matter, cause, or proceeding may at any time be pending, or which may h to commit or aid in committing, or td collude in, dr allow. any fraud, or make opportunity for the commission of % Ait gs 56a * § e ~ Relevant Statutes . _ any fraud, @& the. United States, or to induce him to do * or omit to any any act in violation 4f his lawful duty, shall be fined not more«than three times the amount of such money or value of such thing or inftprisoned not more than three years, or both.’ eke This secion shall not apply to violations of section 212. itle. June 25, 1948, c. 645, 62 Sat. 691. 8 Tigte.18 U.S.C. § 201. Bripery or PuBLic OFFICIALS AND WITNESSES (a) For the purpose of this: section: “public official” means Member of Congress, or Resident Commissioner, either before or after he has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency or branch of Government, or a juror; and “person who has been selected to be a public official” means any person who has been nominated or appointed to be a public official, or has been officially informed thathe will be so nominated or . appointed; and rh i ac sacpeeresaata tn ema “official act” means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at .any time be pending, or which may by law, be brought before: any public official, in his official capacity, or in his place of trust or profit. - am, Wie, Aare ae 4 Relevant Stabites- ‘(b) Whoever, directly or indirectly, corruptly gives, offers or promisés 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 ahything of value to any other person or entity, with intent— (1) to influence any Official act; or (2) to influence such public official or person who , has been selected to be a public offi¢ial to commit or aid in committing; or collude in, dr allow, any fraud, or make opportunity for fhe commission of any fraud, on the United States; or ° (3) to induce public 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, or (c) Whoever, being a public official or person selected to be a public official, directly or indirectly, corruptly asks, ~~demands, exacts, solicts, seeks, accepts, receives, or agrees to receive anything of value for himself or for any other person or entity, in return for: | (1) being influenced in his performance of any official act; or : 4 ” . . + . o% . : a . (2) being influenced to commit or aid in eommit- - ting or tg collude_in, er-allow, any fraud, or make ‘ opportunity for the commission of any fraud, on the United States; or. : (3) being induced to do or omit to do any act in violation of his official duty; & 2 ~ s? 58a : Relevant Statutes : Shall be ned not more than $20,000 or three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may pe disqualified from holding any office of honor, trust or profit under. the United States. (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, for or because: of any official aet -performed by such public oMtial, former public official, or person selected to be a public official; or ty (g) Whoever, being a public official, former public offici- al, or person selected to, be a public official, otherwise than * . as provided by law for the proper discharge of official, duty, directly or indirectly asks, demands, exacts, solicts, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act per-. formed or to be performed by him; or Shall be fined not more than $10,000 or imprisoned for not more than two years, or both. . Added Pub. L. 87-849, §1(a), Oct. 23, 1962 76 Stat. 1119. Tz 6UBC. > § 7214. OFFENSES BY OFFICERS AND EMPLOYEES OF THE UNIT- ED STATES. —_— 4 (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— * * cd z) . bi A a 8 59a Relevant Statutes - . (2) who knowingly demands other or greater sums than are authorized by law, or receivés any fee, compensation, or reward, except as by law pre-. scribed, for the performance of any duty) ¥ ~ ~\ os a, * * * in| \4 shall be dismissed from office or discharged from employ- ment and,.upon conviction thereof, shall be fined not more thanw$10,000, or imprisoned not more than 5 years, or... both.. The court may in its discretion award out of the’ fine so imposed an amount, not in excess of one-half there- of, for the use of the informer, if any, who shall he: as- certained by the judgment of the court. The court also shall render judgment against the said officer or employee for.-the amount of damages sustained in favor of the party injured, to pe collected by execution. ea Ru.es or CriminaL PRocEDURE d Rute 31. Verpict . (a) Return. The verdict shall be unanimous. Tt shall -be returned by the jury to the judge in open court. (b) Several Defendants. 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Ri seas | , (2%) (®) eTzz§ to's ™ | “92 pue 7§ -D s'n gx ; ,@ ysezeg worz squsewted 3 ~ 3drasez Tebatrr »Szuaeby P6S.) S3320TI TM UAT De _ Tz Sut3Qaeqy.pue burpty P Ka, ; (29.) este Apeogd oz “ : Rea ((3) Toz$ *D s*n Bt) (T9,) Teddety audTo ST . ~ FFpny, 203 Quewdeg ( z9 ‘ ) zestey Apeod oI e “ “ (19,) Teddet» : bl’ ((q)t0zS “o*s'n BT) .,, (09,) XOTWINH 1 ZT “ mh pe : iT) (09,) ueuwperazg eudTO IT s wf -(09.) opezzty. otqtsed oT . 2 of . na’ ) ° --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0688%3A1. Public record. Not legal advice.