Offenses by Officers & Employees of U.S. Page1

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7214- Offenses by U.S. Employees: Offenses by Officers and Employees of the United States

 Part 1

   

[80-2 USTC ¶9481]F. W. Standefer, Petitioner v. United States

Supreme Court of the United States, No. 79-383, 444 US 1011, 6/9/80 , Affirming CA-3, 79-2 USTC ¶9533

On Writ of Certiorari to the United States Court of Appeals for the Third Circuit.

[Code Sec. 7214 and 18 USC §2]

Crimes: Offenses by IRS agents: Aiders and abettors: Acquittal of principal: Effect.--A corporate official was properly convicted of aiding and abetting an IRS agent in receiving compensation other than that permitted by law. The fact that the IRS agent had been acquitted of accepting such compensation was irrelevant because Congress, in enacting penalty provisions for aiders and abettors, did not intend that the acquittal of a principal would, under federal criminal law, necessarily exonerate such aider and abettor. Nor was the government estopped from relitigating the issue of the guilt of the IRS agent which was decided against the government at the IRS agent's trial. The doctrine of nonmutual estoppel was not applicable in a criminal case of this type.

Syllabus

Petitioner was indicted for, inter alia, aiding and abetting a named Internal Revenue Service agent in accepting unlawful compensation, in violation of 26 U. S. C. §7214(a)(2) and 18 U. S. C. §2, which provides that whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. Prior to the indictment, the IRS agent was acquitted of certain of the §7214(a)(2) violations which petitioner was accused of aiding and abetting. Petitioner moved to dismiss his indictment as to aiding and abetting these violations on the ground that since the agent had been acquitted of such violations, petitioner could not be convicted of aiding and abetting them. The District Court denied the motion, and after trial petitioner was convicted. The Court of Appeals affirmed.

Held: A defendant accused of aiding and abetting in the commission of a federal offense may properly be convicted despite the prior acquittal of the alleged actual perpetrator of the offense. Pp. 4-15.

(a) Read against its common-law background, 18 U. S. C. §2 evinces a clear congressional intent to permit such a conviction. The section gives general effect to what had always been the common-law rule for second-degree principals (principals who were actually or constructively present at the scene of the crime and aided and abetted its commission) and for all misdemeanants. The legislative history of §2 confirms this understanding. With the enactment of §2, all participants in conduct violating a federal criminal statute are "principals," and as such they are punishable for their criminal conduct, the fate of other participants being irrelevant. Pp. 5-10.

(b) The Government is not barred, under the doctrine of nonmutual collateral estoppel, from relitigating the issue of whether the IRS agent accepted unlawful compensation. Application of that doctrine is not appropriate here. In a criminal case, the Government is often without the kind of "full and fair opportunity to litigate" that is a prerequisite of estoppel. The application of collateral estoppel in criminal cases is also complicated by rules of evidence and exclusion unique to criminal law. Finally, in this case the important federal interest in the enforcement of the criminal law outweighs the economy concerns undergirding the collateral estoppel doctrine. Pp. 11-15. [79-2 USTC ¶9533] 610 F. 2d, affirmed.

BURGER, C. J., delivered the opinion for a unanimous Court.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari in this case to decide whether a defendant accused of aiding and abetting in the commission of a federal offense may be convicted after the named principal has been acquited of that offense.

I. In June 1977, petitioner Standefer was indicted on four counts of making gifts to a public official, in violation of 18 U. S. C. §201(f), and on five counts of aiding and abetting a revenue official in accepting compensation in addition to that authorized by law, in violation of 26 U. S. C. §7214(a)(2) and 18 U. S. C. §(2). ¹ The indictment charged that petitioner, as head of Gulf Oil Company's tax department, had authorized payments for five vacation trips to Cyril Niederberger, who then was the Internal Revenue Service agent in charge of the audits of Gulf's federal income tax returns. ² Specifically, the indictment alleged that Gulf, on petitioner's authorization, had paid for vacations for Niederberger in Pompano Beach (July 1971), Miami (January 1973), Absecon (August-September 1973), Pebble Beach (April 1974), and Las Vegas (June 1974). The four counts under 18 U. S. C. §201(f) related to the Miami, Absecon, Pebble Beach, and Las Vegas vacations; the five counts under 26 U. S. C. §7214(a)(2) and 18 U. S. C. §2 were one for each vacation. ³

Prior to the filing of this indictment, Niederberger was separately charged in a 10-count indictment--two counts for each of the five vacations--with violating 18 U. S. C. §201(g) and 26 U. S. C. §7214(a)(2). ⁴ In February 1977, Niederberger was tried on these charges. He was convicted on four counts of violating §201(g) in connection with the vacations in Miami , Absecon, Pebble Beach , and the Las Vegas and of two counts of violating §7215(a)(2) for the Pebble Beach and Las Vegas trips. He was acquitted on the §201(g) count involving the Pompano Beach trip and on the three counts under §7214(a)(2) charging him with accepting payments from Gulf for trips to Pompano Beach , Miami , and Absecon. ⁵

In July 1977, following Niederberger's trial and before the trial in his own case commenced, petitioner moved to dismiss the counts under §7214(a)(2) and 18 U. S. C. §(2) which charged him with aiding and abetting Niederberger in connection with the Pompane Beach, Miami, and Absecon vacations. Petitioner argued that because Niederberger, the only named principal, had been acquitted of accepting unlawful compensation as to those vacations he could not be convicted of aiding and abetting in the commission of those offenses. The District Court denied the motion.

Petitioner's case then proceeded to trial on all nine counts. At trial, petitioner admitted authorizing payment for all five vacation trips, but testified that the trips were purely social and not designed to influence Niederberger in the performance of his official duties. The jury returned guilty verdicts on all nine counts. ⁶ Petitioner was sentenced to concurrent terms of six months' imprisonment followed by two years' probation; he was fined a total of $18,000-$2,000 on each count.

Petitioner appealed his convictions to the Court of Appeals for the Third Circuit claiming, inter alia, that he could not be convicted of aiding and abetting a principal, Niederberger, when that principal had been acquitted of the charged offense. By a divided vote, the Court of Appeals, sitting en banc, rejected that contention. [79-2 USTC ¶9533] 610 F. 2d 1076 (1979). It concluded that "the outcome of Niederberger's prosecution has no effect on [petitioner's] convictions." Id., at 1078.

Because the question presented is one of importance to the administration of criminal justice on which the Courts of Appeals are in conflict, we granted certiorari. ⁷ We affirm.

II. Petitioner makes two main arguments: first, that Congress in enacting 18 U. S. C. §2 did not intend to authorize prosecution of an aider and abettor after the principal has been acquitted of the offense charged; second, that even if §2 permits such a prosecution, the government should be barred from relitigating the issue of whether Niederberger accepted unlawful compensation in connection with the Pompano Beach, Miami, and Absecon vacations. ⁸ The first contention relies largely on the common law as it prevailed before the enactment of 18 U. S. C. §2. The second rests on the contemporary doctrine of nonmutual collateral estoppel.

A. At common law, the subject of principals and accessories was riddled with "intricate" distinctions. 2 J. Stephen, History of the Criminal Law of England 231 (1883). In felony cases, parties to a crime were divided into four distinct categories: (1) principals in the first degree who actually perpetrated the offense; (2) principals in the second degree who were actually or constructively present at the scene of the crime and aided or abetted its commission; (3) accessories before the fact who aided or abetted the crime, but were not present at its commission; and (4) accessories after the fact who rendered assistance after the crime was complete. See W. LaFave & A. Scott, Criminal Law §63 (1972); 4 W. Blackstone, Commentaries on the Laws of England, 33 (1765); Perkins, Parties to Crime, 89 U. Pa. L. Rev. 581 (1941). By contrast, misdemeanor cases "d[id] not admit of accessaries [sic] either before or after the fact," United States v. Hartwell, 26 F. Cas. 196, 199 (1869); instead, all parties to a misdemeanor, whatever their roles, were principals. United States v. Dotterweich, 320 U. S. 277, 281 (1943); C. Torcia, 1 Wharton's Criminal Law, §33 (1978).

Because at early common law all parties to a felony received the death penalty, certain procedural rules developed tending to shield accessories from punishment. See W. LaFave & A. Scott, at 499. Among them was one of special relevance to this case: the rule that an accessory could not be convicted without the prior conviction of the principal offender. See 1 M. Hale, Pleas of the Crown, 623-624 (1847). Under this rule, the principal's flight, death, or acquittal barred prosecution of the accessory. And if the principal were pardoned or his conviction reversed on appeal, the accessory's conviction could not stand. In every way, "an accessory follow[ed], like a shadow, his principal." I J. Bishop, Criminal Law §666 (8th ed. 1892).

This procedural bar applied only to the prosecution of accessories in felony cases. In misdemeanor cases, where all participants were deemed principals, a prior acquittal of the actual perpetrator did not prevent the subsequent conviction of a person who rendered assistance. R. Humphreys and Turner, 3 All Eng. L. Rep. 689 (1965); R. v. Burton, 13 Cox, C. C. 71, 75 (1875). And in felony cases a principal in the second degree could be convicted notwithstanding the prior acquittal of the first-degree principal. King v. Taylor and Shaw, 168 Eng. Rep. 283 (1785); R. v. Wallis, 91 Eng. Rep. 294 (1703); Brown v. State, 28 Georgia 199 (1859); State v. Whitt, 113 N. C. 716, 18 S. E. 715 (1897). Not surprisingly, considerable effort was expended in defining the categories--in determining, for instance, when a person was "constructively present" so as to be a second-degree principal. 4 Blackstone Commentaries on the Laws of England 34 (1765). In the process, justice all too frequently was defeated.

To overcome these judge-made rules, statutes were enacted in England and in the United States. In 1848 the Parliament enacted a statute providing that an accessory before the fact could be "indicted, tried, convicted, and punished in all respects as if he were a principal felon." 11 & 12 Vic. ch. 46. s. 1 (emphasis added). As interpreted, the statute permitted an accessory to be convicted "although the principal be acquitted." R. v. Hughes, Bell's Crown Cases 242, 248 (1860). Several state legislatures followed suit. ⁹ In 1899, Congress joined this growing reform movement with the enactment of a general penal code for Alaska which "abrogated" the common-law distinctions and provided that "all persons concerned in the commission of a felony . . . must be indicted, tried, and punished as principals, as in the case of a misdemeanor. Act of Mar. 3, 1899, ch. 429, §§ 184-187, 30 Stat. 1282 (emphasis added). In 1901 Congress enacted a similar provision for the District of Columbia. ¹⁰

The enactment of 18 U. S. C. §2 in 1909 was part and parcel of this same reform movement. The language of the statute, as enacted, unmistakably demonstrates the point:

"Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces or procures its commission, is a principal." Act of March 4, 19 09, ch. 321, 35 Stat. 1152 (emphasis added). ¹¹

The statute "abolishe[d] the distinction between principals and accessories and [made] them all principals." Hammer v. United States 271 U. S. 620, 628 (1926). Read against its common-law background, the provision evinces a clear intent to permit the conviction of accessories to federal criminal offenses despite the prior acquittal of the actual perpetrator of the offense. It gives general effect to what had always been the rule for second-degree principals and for all misdemeanants.

The legislative history of §2 confirms the understanding. The provision was recommended by the Commission to Revise and Codify the Criminal and Penal Laws of the United States as "in accordance with the policy of recent legislation" by which "those whose relations to a crime would be that of accessories before the fact according to the common law are made principals." Final Report of the Commission to Revise and Codify the Laws of the United States 118-119 (1906). The Commission's recommendation was adopted without change. The House and Senate Committee reports, in identical language, stated its intended effect:

"The committee has deemed it wise to make those who are accessories before the fact at common-law principal offenders, thereby permitting their indictment and conviction for a substantive offense. At common law an accessory can not be tried without his consent before the conviction or outlawry of the principal except where the principal and accessory are tried together; if the principal could not be found or if he had been indicted and refused to plead, had been pardoned or died before conviction, the accessory could not be tried at all. This change of the existing law renders these obstacles to justice impossible." S. Rep. No. 10, 60th Cong., 1st Sess., Pt. 1, at 13 (1908); H. R. Rep. No. 2, 6th Cong., 1st Sess., at 13 (1908). ¹²

And on the floor of the House of Representatives, Representative Moon, the chairman of the joint select committee, put the point simply: "[we] have abolished the existing arbitrary distinctions between felonies and misdemeanors." 42 Cong. Rec. 585 (1908).

This history plainly rebuts petitioner's contention that §2 was not intended to authorize conviction of an aider and abettor after the principal had been acquitted of the offense charged. ¹³ With the enactment of that section, all participants in conduct violating a federal criminal statute are "principals." As such, they are punishable for their criminal conduct; the fate of other participants is irrelevant. ¹⁴

B. The doctrine of nonmutual collateral estoppel was unknown to the common law and to the Congress when it enacted §2 in 1909. ¹⁵ It emerged in a civil case in 1942, Bernhard v. Bank of America Nat. Trust & Savings Assn., 19 Cal. 2d 807, 112 P. 2d 892. This Court first applied the doctrine in Blonder-Tongue v. University Foundation, 402 U. S. 313 (1971). There, we held that a determination of patent invalidity in a prior infringement action was entitled to preclusive effect against the patentee in subsequent litigation against a different defendant. Just this past Term we again applied the doctrine--this time "offensively"--to hold that a defendant who had had a "full and fair" opportunity to litigate issues of fact in a civil proceeding initiated by the Securities and Exchange Commission could be estopped from religitating those issues in a subsequent action brought by a private plaintiff. Parklane Hosiery Co. v. Shore, 439 U. S. 322 (1979). In both cases, application of nonmutual estoppel promoted judicial economy and conserved private resources without unfairness to the litigant against whom estoppel was invoked.

Here, petitioner urges us to apply nonmutual estoppel against the government; specifically he argues that the government should be barred from relitigating Niederberger's guilt under §7214(a)(2) in connection with the vacation trips to Pompani Beach, Miami, and Absecon. That issue, he notes, was an element of his offense which was determined adversely to the government at Niederberger's trial. ¹⁶

This, however, is a criminal case, presenting considerations different from those in Blonder-Tongue or Parklane Hosiery. First, in a criminal case, the government is often without the kind of "full and fair opportunity to litigate" that is a prerequisite of estoppel. Several aspects of our criminal law make this so: the prosecution's discovery rights in criminal cases are limited, both by rules of court and constitutional privileges; it is prohibited from being granted a directed verdict or from obtaining a judgment notwithstanding the verdict no matter how clear the evidence in support of guilt, compare Fed. Rule Civ. Proc. 50; it can not secure a new trial on the ground that an acquittal was plainly contrary to the weight of the evidence, compare Fed. Rule Civ. Proc. 59; and it can not secure appellate review where a defendant has been acquitted. See United States v. Ball, 163 U. S. 662, 671 (1896).

The absence of these remedial procedures in criminal cases permits juries to acquit out of compassion or compromise or because of "their assumption of a power which they had no right to exercise, but which they were disposed through lenity." Dunn v. United States, 284 U. S. 390, 393 (1932). See generally H. Kalven & H. Zeisel, The American Jury, 193-347 (1966). ¹⁷ It is of course true that verdicts induced by passion and prejudice are not unknown in civil suits. But in civil cases, post-trial motions and appellate review provide an aggrieved litigant a remedy; in a criminal case the government has no similar avenue to correct errors. Under contemporary principles of collateral estoppel, this factor strongly militates against giving an acquittal preclusive effect. See Restatement (Second) of Judgments §68.1 (Ten. Draft No. 3, May 1976) (denying preclusive effect to an unreviewable judgment). ¹⁸

The application of nonmutual estoppel in criminal cases is also complicated by the existence of rules of evidence and exclusion unique to our criminal law. It is frequently true in criminal cases that evidence inadmissible against one defendant is admissible against another. The Exclusionary Rule, for example, may bar the government from introducing evidence against one defendant because that evidence was obtained in violation of his constitutional rights. And the suppression of that evidence may result in an acquittal. The same evidence, however, may be admissible against other parties to the crime "whose rights were [not] violated." Alderman v. United States, 394 U. S. 165, 171-172 (1969). Accord, Rakas v. Illinois, 439 U. S. 128, 134 (1978). In such circumstances, where evidentiary rules prevent the Government from presenting all its proof in the first case, application of nonmutual estoppel would be plainly unwarranted. ¹⁹

It is argued that this concern could be met on a case-by-case basis by conducting a pretrial hearing to determine whether any such evidentiary ruling had deprived the Government of an opportunity to present its case fully the first time around. That process, however, could prove protracted and burdensome. Under such a scheme, the Government presumably would be entitled to seek review of any adverse evidentiary ruling rendered in the first proceeding and of any aspect of the jury charge in that case that worked to its detriment. Nothing short of that would insure that its opportunity to litigate had been "full and fair." If so, the "pre-trial hearing" would fast become a substitute for appellate review, and the very purpose of litigation economy that estoppel is designed to promote would be frustrated.

Finally, this case involves an ingredient not present in either Blonder-Tongue or Parklane Hosiery: the important federal interest in the enforcement of the criminal law. Blonder-Tongue and Parkland Hosiery were disputes over private rights between private litigants. In such cases, no significant harm flows from enforcing a rule that affords a litigant only one full and fair opportunity to litigate an issue, and there is no sound reason for burdening the courts with repetitive litigation.

That is not so here. The Court of Appeals opinion put the point well:

"[T]he purpose of a criminal court is not to provide a forum for the ascertainment of private rights. Rather it is to vindicate the public interest in the enforcement of the criminal law while at the same time safeguarding the rights of the individual defendant. The public interest in the accuracy and justice of criminal results is greater than the concern for judicial economy professed in civil cases and we are thus inclined to reject, at least as a general matter, a rule that would spread the effect of an erroneous acquittal to all those who participated in a particular transaction. To plead crowded dockets as an excuse for not trying criminal defendants is in our view neither in the best interests of the courts, nor the public." 610 F. 2d at 1093.

In short, this criminal case involves "completing policy considerations" that outweigh the economy concerns that undergird the estoppel doctrine. See Restatement (Second) of Judgments §68.1(e) and comments thereto; cf. Commissioner v. Sunnen [48-1 USTC ¶9230], 333 U. S. 591 (1948).

III. In denying preclusive effect to Niederberger's acquittal, we do not deviate from the sound teaching that "justice must satisfy the appearance of justice." Offutt v. United States, 348 U. S. 11, 14 (1954). This case does no more than manifest the simple, if discomforting, reality that "different juries [may] reach different results under any criminal statute. That is one of the consequences of our jury system." Roth v. United States, 354 U. S. 476, 492 (1957). While symmetry of results may be intellectually satisfying, it is not required. See Hamling v. United States, 418 U. S. 87, 101 (1974).

Here, petitioner received a fair trial at which the Government bore the burden of proving beyond reasonable doubt that Niederberger violated 26 U. S. C. §7214(a)(2) and that petitioner aided and abetted him in that venture. He was entitled to no less--and to no more.

The judgment of the Court of Appeals is

Affirmed.

¹ 18 U. S. C. §201(f) provides, in relevant part, as follows:

"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 act performed or to be performed by such public official . . . [is guilty of an offense]."

26 U. S. C. §7214(a)(2) punishes:

"Any officer or employee of the United States acting in connection with any revenue law of the United States . . . who knowingly demands other or greater sums than are authorized by law, or receives any fee, compensation, or reward, except as by law prescribed, for the performance of any duty."

18 U. S. C. §2 provides in relevant part:

"Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."

² The indictment also named Gulf Oil Corporation and Joseph Fitzgerald, a manager in Gulf's tax department, as defendants. Gulf pleaded guilty and Fitzgerald nolo contendere to all nine counts.

³ It appears that the statute of limitations had run on any violation of 18 U. S. C. §201(f) in connection with the Pompano Beach vacation.

⁴ 18 U. S. C. §201(g) punishes:

"Whoever, being a public official . . ., otherwise than as provided by law for the proper discharge of official duty, directly or indirectly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him."

⁵ Niederberger was sentenced to six months' imprisonment followed by a five-year period of probation, and he was fined $5,000. His convictions were affirmed by the Court of Appeals. United States v. Niederberger, 580 F. 2d 63 (CA-3 1978).

⁶ The jury was instructed that in order to render a guilty verdict on the §7214(a) counts it must determine (1) that Niederberger knowingly "received a fee, compensation or reward except as prescribed by law . . . for the performance . . . of any duty" and (2) that petitioner "willfully aided and abetted [him]." App. 52a-56a.

⁷ The Courts of Appeals for the Fifth Circuit, the Ninth Circuit, and the District of Columbia have reached the same conclusion as the Third Circuit. See United States v. Musgrave, 483 F. 2d 327, 331-332 (CA-5 1973); United States v. Azadian, 436 F. 2d 81 (CA-9 1971); Perkins v. United States, 315 F. 2d 120, 122 (CA-9 1963); Gray v. United States, 104 U. S. App. D. C. 153, 260 F. 2d 483 (1958). The Court of Appeals for the Fourth Circuit has taken the contrary view that "where the only potential principal has been acquitted, no crime has been established and the conviction of an aider and abettor cannot be sustained." United States v. Shuford, 454 F. 2d 772, 779 (1971). Accord, United States v. Prince, 430 F. 2d 1325 (CA-4 1970). See also n. 11, infra.

⁸ Petitioner also challenges the instructions to the jury on criminal intent. We agree with the Court of Appeals that the instructions were correct.

⁹ By 1909, when §2 was enacted, 13 states had enacted legislation providing that the acquittal of the actual perpetrator was not a bar to the conviction of one charged with giving him aid. See Cal. Stat. ch. 99, §§ 11-12 (1850) (see People v. Bearss, 10 Cal. 68-70 (1858)); Del. Laws (Rev. Code) §§ 2919-2921 (1852); Iowa Rev. Code §4314 (1882) (see State v. Lee, 91 Iowa 499, 501-502, 60 N. W. 119, 120 (1894); Kan. Gen. Stat. §5180 (1889) (see State v. Bogue, 52 Kan. 79, 86-87, 34 P. 410, 412 (1893); Ky. Stat. §1128 (1903) (see Commonwealth v. Hicks, 118 Ky. 637, 642, 82 S. W. 265, 266 (1904); Miss. Code §1026 (1906) (see Fleming v. State, 142 Miss. 872, 880-881, 108 S. 143, 144-145 (1926)); Mont. Codes Ann. (Penal Code) §1854 (1895); N. Y. Penal Code §29 (1895) (see People v. Kief, 126 N. Y. 661, 663-664, 27 N. E. 556, 557 (1891)); N. D. Rev. Codes §8060 (1895); Okla. Stat. §5523 (1890); S. D. Ann. Stat. §8250 (1899); Utah Comp. Laws §4752 (1907); Wash. Code of Proc. §1189 (1891) (see State v. Gifford, 19 Wash. 464, 467-468, 53 P. 709, 710 (1898)).

Since then, at least 21 other states have enacted legislation with that effect. See 1977 Ala. Laws, Act. No. 607, §425; Ariz. Rev. Stat. Ann. §13-304-1 (1978); Ark. Stat. Ann. §41-304 (1977); Colo. Rev. Stat. §18-1-605 (1973) (see Robert v. People, 103 Colo. 250, 87 P. 2d 251 (1938)); Conn. Gen. Stat. §53a-9 (1979); Fla. Stat. §777.011 (1976) (see Butts v. State, 286 So. 2d 28 (1973)); Ga. Code §26-802 (1978); Ill. Rev. Stat. ch. 38 §5-3 (1972); Ind. Code §35-41-2-4 (1979); La. Rev. Stat. Ann. §14.24 (West) (1974) (see State v. McAllister, 366 S. 2d 1340 (1978)); Me. Rev. Stat. Ann., Tit. 17-A §57; Mich. Comp. Laws §767.39 (1968) (People v. Smith, 271 Mich. 553, 260 N. W. 911 (1935)); Mo. Rev. Stat. §562.046 (1978); Neb. Rev. Stat. §28-206 (Cum. Supp. 1978) (State v. Rice, 188 Neb. R. 728, 199 N. W. 2d 480 (1972)); N. H. Rev. Stat. Ann. §626.8 (1974); N. J. Stat. Ann. §2C:2-6 (West 1979); N. M. Stat. Ann. §30-1-13 (1978); Penn. Cons. Stat. 18 §306 (Cum. Supp. 1979); S. C. Code §16-1-50 (State v. Massey, 229 S. E. 2d 332 (1976)); Tex. Code Ann. §77.03 (1973); Wis. Stat. §39.05 (1958).

Eleven other states have enacted statutes that modify the common-law rule; these statutes have not been authoritatively construed on whether an accessory can be prosecuted after his principal's acquittal. See Haw. Rev. Stat. §702-225 (1976); Idaho Code §19-1431 (1979); Mass. Gen. Laws Ann. ch. 274 §3 (1970); Minn. Stat. §609.05 (1964); Nev. Rev. Stat. §195.040 (1979); Ohio Rev. Code Ann. §2923.03 (1979); Okla Stat., Tit. 21 §172 (1971); Ore. Rev. Stat. §161.160 (1979); Vt. Stat. Ann. Tit. 13 §3 (1974); Va. Code §18.2-21 (1975); W. Va. Code §61-11-7 (1977); Wyo. Stat. §6-1-7114 (1977).

Only four states--Maryland, North Carolina, Rhode Island, and Tennessee--clearly retain the common-law bar. See State v. Wood, 284 Md. 189, 396 A. 2d 1041 (1978); State v. Jones, 101 N. C. 719, 8 S. E. 147 (1888) (interpreting N. C. Gen. Stat. §14-15 (1969)); R. I. Gen. Laws §11-1-3 (1956); Pierce v. State, 130 Tenn. 24, 168 S. W. 851 (1914).

The Model Penal Code provides that an accomplice may be convicted "though the person claimed to have committed the offense . . . has been acquitted." §2.06(7) and see comments Tentative Draft No. 1, May 1953, at 38-39.

¹⁰ The provision is still in effect; it provides that all persons "aiding or abetting the principal offender, shall be charged as principals, not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes. . . ." Act of March 3, 19 01, ch. 854, Section 908, 31 Stat. 1337; D. C. Code §22-105 (1976) (emphasis added).

¹¹ In 1951 the words "is a principal" were added to read "is punishable as a principal." That change was designed to eliminate all doubt that in the case of offenses whose prohibition are directed at members of specified classes (e.g., federal employees) a person who is not himself a member of that class may nonetheless be punished as a principal if he induces a person in that class to violate the prohibition. See S. Rep. No. 1020, 82d Cong., 1st Sess., 7-8 (1951). The change was fully consistent with congressional intent to treat accessories before the fact as principals and to abolish the common-law procedural bar. Indeed, by the time of the 1951 re-enactment, the circuit courts that had addressed the question had concluded that §2 authorizes conviction of an aider and abettor notwithstanding the prior acquittal of the perpetrator of the offense. See United States v. Klass, 166 F. 2d 373, 380 (CA3 1948); Von Patzoll v. United States, 163 F. 2d 216 (CA10 1946); Kelly v. United States, 258 F. 392, 402 (CA6 1919); Rooney v. United States, 203 F. 928, 931-932 (CA9 1913). Congress manifested no intent to disturb this interpretation. See Lorillard v. Pons, 434 U. S. 575, 580 (1978).

¹² Petitioner emphasizes the fact that the committee report fails to mention the common-law rule that the prior acquittal of a principal barred conviction of an accessory, and argues accordingly that Congress did not view that rule as an "obstacle to justice." The Court of Appeals correctly rejected this argument, being unwilling to "apply the canon of statutory interpretation . . . expressio unius, exclusio alterius . . . to the language employed in a committee report." 610 F. 2d, at 1084 (emphasis added). We agree. Petitioner's argument would permit an omission in the legislative history to nullify the plain meaning of a statute. The language of §2 abolishes the common-law categories and treats all parties as principals. It is not necessary for Congress in its committee reports to identify all of the "weeds" which are being excised from the garden.

¹³ It bears mention that even prior to 1909 petitioner would not have prevailed in his attempt to bar prosecution on the §7214(a)(2) counts. As the government notes, the version of 26 U. S. C. §7214 then in effect defined the offense to be a misdemeanor. See R. S. 3169 (1878). Hence, the prior acquittal of his principal would not have barred petitioner's prosecution. And because petitioner accompanied Niederberger on four of five trips and therefore was "present" at the scene of the crime, see Tr. 1018-1020, 1024-1927, 1034-1036, 1096, he could have been convicted at common law for those crimes even if the offense had been designated a felony.

¹⁴ Nothing in Shuttlesworth v. Birmingham, 373 U. S. 262 (1963), relied on by petitioner, is to the contrary. There, petitioner had been convicted of aiding and abetting others to violate a city trespass ordinance which subsequently was declared constitutionally invalid. See Gober v. Birmingham, 373 U. S. 374 (1963). Shuttlesworth's case merely applied the rule that "there can be no conviction for aiding and abetting someone do an innocent act." Id., at 265. Here, by contrast, the government proved in petitioner's case that Niederberger had violated §7214(a)(2) in connection with each of the five trips. See n. 6, supra.

¹⁵ In 1912 in Bigelow v. Old Dominion Copper Co., 225 U. S. 111, 127, this Court stated that it was "a principle of general elementary law that the estoppel of a judgment must be mutual." See also Stone v. Farmers Bank, 174 U. S. 409 (1899); Keokuk & W. R. Co. v. Missouri, 152 U. S. 301, 317 (1894); Litchfield v. Goodnow, 123 U. S. 549, 552 (1887).

¹⁶ Petitioner does not contend that the Constitution prevents the government from prosecuting him on the three §7214(a)(2) counts as to which Niederberger was acquitted. Nothing in the Double Jeopardy Clause or the Due Process Clause forecloses putting petitioner trial as an aider and abettor simply because another jury has determined that his principal was not guilty of the offenses charged. Compare Ashe v. Swenson, 397 U. S. 436 (1970).

¹⁷ Niederberger's case demonstrates the point. As to the Absecon and Miami vacations, the jury convicted Niederberger of receiving something of value "because of any official act performed . . . by him," 18 U. S. C. §201(g), but acquitted him of receiving "any fee, compensation, or reward . . . for the performance of any duty," 26 U. S. C. §7214(a)(2). No explanation has been offered for these seemingly irreconcilable determinations. This inconsistency is reason, in itself, for not giving preclusive effect to the acquittals on the Absecon and Miami counts. See Restatement (Second) Judgments, §88(4). See also 610 F. 2d, at 1112 (Gibbons, J., concurring in part and dissenting in part); Harary v. Blumenthal [77-2 USTC ¶9472], 555 F. 2d 1113, 1116-1117 (CA-2 1977).

¹⁸ This is not to suggest that the availability of appellate review is always an essential predicate of estoppel. See Johnson Co. v. Wharton, 152 U. S. 252 (1894); see generally 1B Moore's Federal Practice ¶0.416[5]. The estoppel doctrine, however, is premised upon an underlying confidence that the result achieved in the initial litigation was substantially correct. In the absence of appellate review, or of similar procedures, such confidence is often unwarranted.

¹⁹ Indeed, as the Court of Appeals observed, to give the first case preclusive effect would undermine the Alderman rule by affording a defendant whose rights were not violated the benefits of suppression. See 610 F. 2d, at 1094, n. 51.

 

 

 

 

 

[56-1 USTC ¶9347]United States of America v. Ernest T. Waldin

In the United States District Court for the Eastern District of Pennsylvania, Criminal Nos. 18412, 18512, 138 FSupp 791, February 16, 19 56

[1939 Code Secs. 145(b) and 4047(e)(4)--corresponding to 1954 Code Secs. 7201 and 7214(a)(4)]

Indictment of former deputy collector for conspiracy: Sufficiency.--Defendant, who was a deputy collector of internal revenue when the tax liability of a certain taxpayer was under investigation, was indicted on charges that he represented to that taxpayer that criminal prosecution of the latter was imminent, and that defendant's influence within the Internal Revenue Service was such that he could straighten out the taxpayer's difficulties by securing termination of the investigation and reduction of the tax if defendant and certain unnamed associates were paid $20,000, which amount, the indictment charges, was received by defendant from the taxpayer. The defendant challenges the sufficiency of the indictment as not alleging an overt act to effect the object of the claimed conspiracy, and also alleges that the charge of violation of 1939 Code Sec. 4047(e)(4) (conspiracy by an internal revenue officer or agent with any other person to defraud the United States) was insufficient by reason of its failure to allege that the defendant was acting under the authority of a revenue law, since he had not disclosed to the taxpayer that he was an internal revenue officer. The court holds that seven overt acts were charged, that they were related to the evasion or defeat of taxes and the defrauding of the United States, and that the fact that defendant did not make his capacity as an agent known to the taxpayer and that the alleged act was committed outside of the zone to which he was assigned is of little significance. It denies the motion to dismiss the indictment.

W. Wilson White, United States Attorney, Alan J. Swotes, Assistant United States Attorney, Philadelphia, Pa., for plaintiff. Benjamin R. Donolow, Philadelphia, Pa., for defendant.

Opinion

LORD, District Judge:

This action is before the Court on Defendant's Motion to Dismiss Indictments 18412 and 18512.

[Indictment of Deputy Collector]

The defendant was indicted on June 1, 19 55 under indictment number 18412, with violation of 18 U. S. C. A. §371 and 26 U. S. C. A. §145(b). Subsequent to this, on September 20, 19 55, a superseding indictment (indictment 18512) was returned by the grand jury. This latter indictment contained all the charges included in the former one; however, it also contained another offense, to wit, violation of 26 U. S. C. A. §4047(e)(4).

Because of the overlapping of the two indictments and in the interests of brevity, I shall consider only indictment 18512 and the disposition accorded it will control both.

Indictment 18512 charges that the defendant was a Deputy Collector of Internal Revenue when the tax liability of one Francesco Mogavero was under investigation. Further, that defendant conspired with unknown persons to put Mogavero in fear of criminal prosecution and that defendant represented to Mogavero that their influence within the Internal Revenue was such that they could straighten out his difficulties by Mogavero paying defendant and his unknown associates $20,000.

The requisite overt acts charged in the indictment consisted of statements by both defendant and others to Mogavero that they could use their influence to procure termination of the investigation of his affairs and his tax liability reduced; demands by both defendant and another for the sum of $20,000 and finally receipt by defendant of that sum from Mogavero.

[Sufficiency of Indictment]

The issues raised by the briefs are:

1. Must an indictment charging a defendant with conspiracy in violation of 18 U. S. C. A. §371, 26 U. S. C. A. §145(b) and 26 U. S. C. A. §4047(e)(4) allege an overt act to effect the object of said conspiracy?

2. Are the present indictments insufficient for failure to allege such an act?

3. Is indictment 18512 insufficient to charge a violation of 26 U. S. C. A. §4047(e)(4) by reason of its failure to allege that the defendant was acting under the authority of a revenue law?

I will consider the issues in that order.

[Conspiracy]

The pertinent portions of 18 U. S. C. A. §371 read as follows:

"§371. Conspiracy to commit offense or to defraud United States

"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one of such persons do any act to effect the object of the conspiracy, . . .." (Italics supplied)

The legislative history of this statute was discussed by this Court in United States v. Tanz, Criminal No. 18458 (1955), and need not be repeated here. Suffice to say that section 371 is a general conspiracy statute and is applicable to any one who in any manner attempts to commit any offense against the United States.

It is expressly stated in section 371 that to have an actionable violation in the form of a conspiracy there must be an overt act in furtherance of the conspiracy thereby giving effect to the object of the conspiracy.

Title 26 U. S. C. A. §145(b) invokes a penalty upon any individual who wilfully attempts in any manner to evade or defeat any tax. The pertinent portion of this section reads:

"§145. Penalties

. . .

"(b) Failure to collect and pay over tax, or attempt to defeat or evade tax. Any person required under this chapter to collect, account for, and pay over any tax imposed by this chapter, who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, . . ." (Italics supplied)

It is apparent that the wording and phrasing of this section is similar to that used in the general conspiracy statute, section 371. However, one difference should be noted. Title 18 U. S. C. A. §371 finds its birth in the criminal code whereas 26 U. S. C. A. §145(b) arises by virtue of the internal revenue code. It is too well settled to warrant citation of authority for the proposition that statutes imposing criminal liability are to be strictly construed. With this principle in mind, I am, by the very clear and express provisions of both sections, obliged to conclude that each section is applicable in its scope to any person who in any manner attempts to evade or defeat by fraud or otherwise taxes due the government.

[Statute of Limitations]

The defendant has raised a question as to the applicable period of limitation. Section 3748 of 26 U. S. C. A. covers violations of the internal revenue laws of the United States and, in pertinent part, states:

"§3748. Periods of limitation

"(a) Criminal prosecutions. No person shall be prosecuted, tried, or punished, for any of the various offenses arising under the internal revenue laws of the United States unless the indictment is found or the information instituted within three years next after the commission of the offense, except that the period of limitation shall be six years--

"(1) for offenses involving the defrauding or attempting to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner,

"(2) for the offense of willfully attempting in any manner to evade or defeat any tax or the payment thereof, and

. . .

"For offenses arising under section 37 of the Criminal Code, March 4, 19 09, 35 Stat. 1096 (U. S. C., Title 18, §88), where the object of the conspiracy is to attempt in any manner to evade or defeat any tax or the payment thereof, the period of limitation shall also be six years. . . ."

Defendant agrees that the proper period of limitation is six years with respect to 18 U. S. C. A. §371. However, he urges that for the six-year period to apply to 26 U. S. C. A. §145(b) an act must be shown on the part of the defendant to effect the object of the conspiracy. This contention brings into consideration the second issue and the prerequisite overt acts necessary to sustain a violation of 18 U. S. C. A. §371 (the general conspiracy statute), as well as the applicable period of limitation to be applied to 26 U. S. C. A. §145(b).

[Overt Act]

It is not questioned that an overt act is a vital element when grounded in a general conspiracy statute as in the instant case. Nor is it disputed that a mere conspiracy, without an overt act done in pursuance thereof, is not criminally punishable. Hyde v. United States, 225 U. S. 347, 359 (1911). However, the overt act need not be of itself a criminal act and still less need it constitute the very crime that is the object of the conspiracy. United States v. Holte, 236 U. S. 140, 144 (1914). Even though the conspiracy be fully formed, it may fail in its object and the contemplated crime may never be consummated, yet the conspiracy is none the less punishable. Williamson v. United States, 207 U. S. 425, 447 (1907).

It is submitted by the defendant that no such overt act is stated in either indictment and therefore the indictments fail to state facts sufficient to constitute an offense against the United States. The indictment alleges seven overt acts. The first act alleged that the defendant and one of his co-conspirators informed the taxpayer's attorney that a contemplated indictment against his client could be suppressed by certain persons providing Mogavero "put up" what money they would ask. The second alleged act was that defendant informed Mogavero that he has a "contact" who could "straighten out" Mogavero's tax affairs. Thirdly, that defendant and one of his co-conspirators informed Mogavero that he was in a lot of trouble, and was going to be indicted, but that it could all be "taken care of" and his tax liability reduced, if he would pay the sum of $20,000. The fourth, fifth and sixth acts consisted of the defendant's demand for the money. The seventh and final act charged was that defendant received from Mogavero the sum of $20,000, and at that time promised Mogavero that there would be no indictment and that his tax liability would be "cut down".

The defendant earnestly contends that "not one act of all of the seven alleged to have been committed bears the slightest relevancy to the evasion or defeat of any tax or the defrauding of the United States." With this I cannot agree. It is my opinion that the acts alleged are sufficient to support a charge of conspiring to defeat or defraud the United States of tax monies. In the instant case each act was a logical and necessary step in the carrying through of a carefully formulated scheme. The very first overt act alleged, i. e., defendant calling Mogavero's attorney and informing him of the contemplated indictment of Mogavero, is of such a nature that without it there could never be an achievement of the object of the conspiracy. This is not to say that the overt act must be in and of itself of such a character as to be an integral part of the conspiracy and that the failure of it would cause collapse of the planned object. United States v. Holte, supra. Indeed, the act itself may be lawful and of no particular significance by itself, yet if it be directed toward a desired object which is unlawful, it is punishable. By the second act, the defendant let it be known to the taxpayer directly that defendant could suppress the contemplated indictment if he, Mogavero, "put up" money. The third act was the demand for a stipulated sum, to wit, $20,000. The fourth, fifth and sixth acts flowed freely in the current of this scheme, they being the actual demands for the monies for the services rendered by the defendant and his co-conspirators. Finally the curtain fell on the last act, and defendant was "paid off". To say these acts are meaningless and there is not the slightest connection alluded to between the alleged extortion from Mogavero and a United States loss of tax revenue or departmental corruption is to spread the cloak of immunity over those whose intent is clearly manifested.

The defendant cites numerous cases in support of his contention, none of which is the case at bar. He relies upon Hyde v. United States, 225 U. S. 347 (1911) in support of his position that an overt act is necessary to complete the offense. There is no disagreement with this principle. However, it is worthy of note that the court said in the Hyde case (p. 360):

". . . The action of the latter was to be induced or influenced; and this might be through deception, it might be through fraud, or it might be through innocent agents and acts of themselves having no illegality, but effectually causing and moving official action to the consummation of the end designed and contemplated. Overt acts of all these kinds were charged. The bribery and deception of the officers, the intervention of attorneys and the seemingly harmless mailing of information and directions all are charged and all had some relation to the scheme devised and were steps to its accomplishment. . . ."

This case involved an action brought under section 5440 of the Revised Statutes which is the predecessor of the statute presently before the court.

The defendant urges that since there is no allegation that any of the departments of the government, or its agents, were contacted officially, unofficially, legally or illegally, no crime has been made out against the United States and therefore the overt acts alleged are of no import. The Statute in question (18 U. S. C. A. §371) clearly states "If two or more persons conspire . . . in any manner or for any purpose . . . [to] do any act to effect the object of the conspiracy . . ." The conspiracy coupled with the overt act to defraud the United States is the crime, and it is not a requisite element that overtures be made to the government or any agency or department thereof. This conclusion is clear from a reading of the statute. It is further supported by the case of Heskett v. United States, 58 Fed. (2d) 897 (9th Cir. 1932) when the court said (p. 902):

"To sustain the conspiracy count, it was necessary for the government to prove only that the accused entered into an agreement so to represent themselves, and that, in furtherance of that agreement, they committed one of the overt acts charged in the indictment. . . ."

The final issue to be decided is the sufficiency of the indictment charging violation of 26 U. S. C. A. §4047(e)(4) by reason of its failure to allege that defendant was acting under the authority of a revenue law. This involves an interpretation of the Statute.

The defendant is indicted as an officer and employee of the Internal Revenue Department. However, the defendant asserts that the charged violation is improper because defendant did not represent himself as a Revenue Officer and that the victim did not know he was a Revenue Officer. Therefore, he argues, he was acting outside his department and in the capacity of a private citizen and cannot be indicted for violation of section 4047(e)(4). As authority for this, defendant cites United States v. Gerdel 103 Fed. Supp. 635, 637 (E. D. Mo. 1952) [52-1 USTC ¶9337]. This is clearly distinguishable from the instant case. In the Gerdel case the charged violation was of section 4047(e)(2), whereas the violation under question is of section 4047(e)(4). These two sections are independent of each other and constitute different illegal acts. The facts in the Gerdel case are simple. The defendant there merely prepared income tax returns for taxpayers at their homes in the evening for a fee. The court said that even though "the defendant had a 'duty' to assist taxpayers and prepare income tax returns under regulations or directive at the Collector's office, does not establish conclusively the duty followed him wherever he went after leaving his place of employment."

But this is not our case, for the acts of Gerdel did not consist of a fraudulent scheme to defeat or defraud the United States of tax monies due.

The pertinent portions of the act under construction (26 U. S. C. A. §4047(e)(4)) read:

"(e) Every officer or agent appointed and acting under the authority of any revenue law of the United States--

. . .

"(4) Who conspires or colludes with any other person to defraud the United States; or"

To sustain defendant's contention that the fraudulent act must be done under the authority of his office would be to unduly restrict the scope of the statute. The statute is descriptive only. An agent or officer of the Internal Revenue Department occupies a position of utmost fidelity and loyalty to the government and as a necessary consequence to this is vested with access to records and knowledge not available to the taxpayer in general. It is because of this that Congress enacted section 4047 and provided therein a greater penalty when an officer or agent breaches his responsibility to insure that his duties be performed with utmost faithfulness and loyalty.

At the time defendant communicated with taxpayer he was in fact a revenue agent and is alleged to have conspired to defraud the United States. The mere fact that defendant did not make his capacity as an agent known to the taxpayer and the act was committed outside of the "zone" to which he was assigned is of little significance. The important fact is that at all the times alleged he was employed by the Internal Revenue Service. If the court should adhere to defendant's interpretation of the statute, it would result in the strained conclusion that only if defendant made his capacity as an agent known to the taxpayer, and further, committed the questionable acts only within the "zone" assigned could he be charged with violation of section 4047(e)(4). With this I cannot agree.

The defendant was before this Court on other charges involving the same offense. The Court dismissed the indictment. United States v. Waldin, No. 15625, July 23, 19 51. At that time the government charged violation of section 4047(e)(10). Judge Ganey stated in construing section 4047(e)(10):

"Since the defendant in the instant case had no authority to compromise, adjust or settle the taxpayer's alleged violation of law, he cannot be indicted under this statute. This conclusion is reached with extreme reluctance, . . ." (Italics supplied)

In the case at bar, in addition to the other Statutes hereinbefore recited, the defendant is charged with violation of section 4047(e)(4) which is for conspiracy and is a different offense than that ruled upon by Judge Ganey. I therefore conclude his ruling is not controlling here.

It is my opinion that the indictments as stated are sufficient in all respects and therefore the defendant's Motion to Dismiss is DENIED.

 

 

 

[57-1 USTC ¶9672]United States of America v. Ernest T. Waldin

U. S. District Court, East. Dist. Pa., Criminal No. 18512, 149 FSupp 912, 4/9/57

[1939 Code Sec. 4047--similar to 1954 Code Sec. 7214]