Offenses by Officers & Employees of U.S. Page3

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 [Requested Instruction]

Appellant also claims prejudicial error because the trial court rejected his requested charge to the jury that he must be acquitted if the jury found that he was coerced by the revenue agents into making the payments he paid them. The trial court rejected this instruction because he found "not one scintilla of evidence in the case with regard to a shakedown." Our examination of the record confirms this conclusion, and we approve the forthright action of the court below in refusing to give the requested immaterial charge.

In three instances Umans did not pay the Internal Revenue agents until after they had completed their audits on the tax returns in issue, and, as to these payments, Umans claims there is no evidence in the record that the payments were made with intent to influence the agents, as required under 18 U. S. C. §201 and §201(b). This claim is without merit. Not only may Umans's similar acts involved in the other counts be considered with respect to his intent in making these three payments, United States v. Baneth, 155 F. 2d 978, 980 (2 Cir. 1946), but there is evidence in the record that indicates that in each of the three instances an arrangement or understanding with the agent had been arrived at, with payment to follow audit.

[Inspection of Grand Jury Minutes]

Appellant requested the trial judge to inspect the grand jury minutes. The request was refused. Because none of the government witnesses at the trial were witnesses before the grand jury, appellant claims that the trial judge should have inspected the minutes of the grand jury proceedings in order to determine whether there was testimony to support the indictment and whether there were inconsistencies between the testimony before the grand jury and that at trial. Appellant claims that the judge's failure to comply with his request was an abuse of discretion. There is no merit to this claim. The Government reveals that the indictment was based upon testimony of an Internal Revenue agent who summarized for the grand jury the contents of various affidavits of the witnesses who later testified at appellant's trial. While the grand jury testimony was not made available to appellant, these affidavits were furnished to him, and, even if the grand jury minutes had been turned over, the material therein would have added nothing to appellant's arsenal of information. Costello v. United States [56-1 USTC ¶9321], 350 U. S. 359 (1956), allows the Government to obtain indictments based on hearsay evidence.

While we are not condemning the procedure used here before the grand jury, we think it not amiss for us to state that excessive use of hearsay in the presentation of government cases to grand juries tends to destroy the historical function of grand juries in assessing the likelihood of prosecutorial success and tends to destroy the protection from unwarranted prosecutions that grand juries are supposed to afford to the innocent. Hearsay evidence should only be used when direct testimony is unavailable or when it is demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge. Appellant's claim of inconsistencies between grand jury and trial testimony is based on United States v. Borelli, 336 F. 2d 376 (2 Cir. 1964), cert. denied sub nom. Mogavero v. United States, 379 U. S. 560 (1956), which holds that the defendant is entitled for impeachment purposes to know about inconsistencies between the grand jury and trial testimony of trial witnesses. However, this claim was not raised by appellant at trial, and, even if it were, the claim has no merit, for appellant had the affidavits upon which the grand jury testimony was based.

[Statements of Government Witnesses]

Appellant maintains that he was prejudiced because statements of government witnesses were not turned over to him pursuant to his request under the Jencks Act, 18 U. S. C. §3500. These statements were sealed by the court. We have examined these sealed statements and find that they relate to payments received by the government witnesses from persons other than appellant, and the material not furnished to appellant in no way related to him. During the trial appellant cross-examined the government witnesses extensively as to their dealings with other persons. In each instance the witness admitted accepting money from other taxpayers' representatives. Since questions on cross-examination calling for details of other instances of bribery for which the witness had been indicted might properly have been excluded at trial, United States v. Irwin, 354 F. 2d 192, 198 (2 Cir. 1965), cert. denied, 383 U. S. 967 (1966), appellant was not prejudiced by the unavailability of the statements for impeachment purposes. None of the government witnesses were asked on direct examination about payments to them by persons other than appellant, and the withheld material did not directly relate to the subject matter of the witnesses' direct testimony. Under these circumstances, production was not required by the Jencks Act and the court's order sealing the statements was proper.

Appellant raises the question of the propriety of his being charged with aiding and abetting a violation of 26 U. S. C. §7214(a)(2) so as to preserve it for the United States Supreme Court. He does not urge it before this court, conceding that our opinion in United States v. Kenner, 354 F. 2d 780 (2 Cir. 1965), cert. denied, 383 U. S. 958 (1966), resolves the issue against him.

Appellant's final point that 18 U. S. C. §201(f) is void for vagueness need not be considered by us for we have vacated his convictions under that section on other grounds.

[Three Counts Vacated]

The judgment below should be affirmed except for the judgment of conviction upon the three counts charging violation of 18 U. S. C. §201(f), which is ordered vacated.

¹ Umans claims inconsistency between 26 U. S. C. §7214(a)(2):

§7214. Offenses by officers and employees of the United States

(a) Unlawful acts of revenue officers or agents.--Any officer or employee of the United States acting in connection with any revenue law of the United States--

(2) who knowingly demands other or greater sums than are authorized by law, or receives any fee, compensation, or reward, except as by law prescribed, for the performance of any duty;

* * *

shall be dismissed from office or discharged from employment and, upon conviction thereof, shall be fined not more than $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 thereof, for the use of the informer, if any, who shall be ascertained 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 be collected by execution.

which contains no element of intent on the part of a person bribing a public official and a provision which does require an intent to influence an official decision, 18 U. S. C. §201 (as effective until January 20, 19 63):

§201. Offer to officer or other person

Whoever promises, offers, or gives any money or thing of value, or makes or tenders any check, order, contract, undertaking, obligation, gratuity, or security for the 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 thereof, 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 of any committee of either House, or both Houses thereof, with intent to influence his decision or action on any question, matter, cause, or proceeding which may at any 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 with intent to influence him to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States, or to induce him to do so omit to do any act in violation of his lawful duty, shall be fined not more than three times the amount of such money or value of such thing or imprisoned not more than three years, or both.

He also claims inconsistency between 18 U. S. C. §201(f) (which became effective January 21, 19 63):

(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, and which contains no element of intent to influence an official act and a provision which does require such intent, 18 U. S. C. §201(b):

(b) 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--

(1) to influence any official act; or

(2) to influence such public 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

(3) to induce such 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,

* * *

Shall be fined 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 be disqualified from holding any office of honor, trust, or profit under the United States .

 

 

[67-2 USTC ¶9716] Sam Umans, Petitioner v. United States

Supreme Court of the United States , No. 41, 389 US 80, 88 SCt 253, 11/6/67

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

[1954 Code Sec. 7214(a)(2) and 18 U. S. C. 201]

Crimes: Bribery of Internal Revenue Service agents: Conviction.--The Supreme Court dismissed the writ of certiorari previously granted to a taxpayer who had been convicted of offering bribes to Internal Revenue Service agents and of aiding and abetting such agents in receiving illegal compensation for the performance of their duties. The writ was deemed improvidently granted.

Edward Brodsky, William Esbitt, 655 Madison Ave. , New York , N. Y., for petitioner. Ralph S. Spritger, Acting Solicitor General, Fred M. Vinson, Jr., Asst. Attorney General, Beatrice Rosenberg, Sidney M. Glazer, Dept. of Justice, Washington, D. C., for U. S.

PER CURIAM:

The writ of certiorari is dismissed as improvidently granted.

MR. JUSTICE HARLAN would affirm the judgment of the Court of Appeals substantially for the reasons stated in Judge Waterman's opinion for that court in United States v. Umans [66-2 USTC ¶9759], 368 F. 2d 725.

MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

 

 

 

 

[66-2 USTC ¶9767] United States of America , Appellee v. William Marks, Jr., Defendant-Appellant

(CA-2), U. S. Court of Appeals, 2nd Circuit, Docket No. 30498, 368 F2d 566, 11/9/66, Aff'g an unreported District Court decision

[1954 Code Sec. 7214(a)(2)]

Crimes: Offenses by U. S. employees: Aiding and abetting: bribery.--The taxpayer's convictions for bribery of an IRS agent and aiding and abetting an IRS agent to commit an unlawful act were affirmed. The court rejected his contention that the use of the uncorroborated testimony of his accomplices was improper along with his contention that his cross-examination was improperly limited.

Otto G. Obermaier, 60 E. 42nd, New York, N. Y., Robert M. Morgenthan, United States Attorney, Michael W. Mitchell, Assistant United States Attorney, New York, N. Y., for appellee. Maurice Edelbaum, 250 Broadway, New York , N. Y., for appellant.

Before WATERMAN, HAYS and ANDERSON , Circuit Judges.

PER CURIAM:

Appellant was convicted by jury verdict on two counts of bribing employees of the Internal Revenue Service and on two counts of aiding and abetting these employees in violating 26 U. S. C. §7214(a)(2).

Appellant contends that the federal rule permitting conviction on the uncorroborated testimony of accomplices is not one of invariable application, but that it is the "better practice" to require corroboration and that the circumstances of the present case call for the use of this "better practice." An identical contention was advanced in United States v. Armone, 363 F. 2d 385, 402 (2d Cir. 1966) and was rejected by this court in an opinion which cited United States v. Kelly, 349 F. 2d 720 (2d Cir. 1965), cert. denied, 384 U. S. 947 (1966). In the present case the trial judge instructed the jury that the government's witnesses were accomplices and that:

"You must, therefore, scrutinize their testimony with special care and act upon it with caution."

Appellant also argues that his trial was unfair because the court prevented the defense from cross-examining accomplice witnesses as to other occasions on which they had accepted bribes. Defendant was permitted to bring out that the government's witnesses had been convicted for accepting bribes, that they had not yet been sentenced and that they were testifying in the hope of avoiding jail sentences. It was well within the trial judge's discretion to limit further cross-examination on the issue of credibility. United States v. Irwin, 354 F. 2d 192 (2d Cir. 1965), cert. denied, 383 U. S. 967 (1966).

Affirmed.

 

 

 

 

[68-1 USTC ¶9132] United States of America , Appellee v. Martin Cohen, Defendant-Appellant

(CA-2), U. S. Court of Appeals, 2nd Circuit, Docket No. 30993, 387 F2d 803, 12/19/67, Affirming unreported District Court decision

[1954 Code Sec. 7214]

Crimes: Inducing IRS agents to receive unlawful fees: Gratuity given to public official.--A jury verdict finding the defendant guilty of aiding and abetting the receipt by revenue agents of unlawful fees and of the giving of a gratuity not authorized by law to a public official was affirmed. The trial court committed no reversible error.

Stanley Hendricks, 565 5th Ave. , New York , N. Y., for appellant. Robert M. Morgenthau, United States Attorney, Robert L. Latchford, Jack Kaplan, Pierre N. Leval, Assistant United States Attorneys, New York, N. Y., for appellee.

Before MOORE, SMITH and KAUFMAN, Circuit Judges.

MOORE, Circuit Judge:

Martin Cohen (Cohen), defendant-appellant, appeals (1) from a judgment of conviction entered upon a jury verdict, and (2) from the denial of a motion for a new trial. The indictment had named Cohen and five co-defendants and had alleged a conspiracy count and twenty-two substantive counts. Prior to trial, the conspiracy count was dismissed and the five co-defendants pleaded guilty to various counts. The trial therefore proceeded against Cohen alone on counts 2 through 23.

In substance, counts 2 through 11 charged Cohen with giving money to Internal Revenue Service agents to influence their official acts (bribery), 18 U. S. C. Sec. 201, 62 Stat. 69 (Act of June 25, 19 48); count 12 involved a 1963 payment to an agent in violation of the amended (1962) and presently effective bribery statute, 18 U. S. C. Sec. 201(b); count 13 charged the defendant with giving a gratuity or other payment not authorized by law to a public official in violation of 18 U. S. C. Sec. 201(f) with respect to the same 1963 payment; and counts 14 through 23 involved the same payments as alleged in counts 2 through 11 but as receipts by the agents of unlawful fees, 26 U. S. C. Sec. 7214(a)(2) and Cohen's participation therein under the aiding and abetting statute, 18 U. S. C. Sec. 2.

On the trial, the indicted agents who pleaded guilty all testified against Cohen; in defense, Cohen denied the charges. The jury convicted. Were the issuance of veracity the only appellate question, immediate affirmance would be in order. However, the nature of the indictment counts and the jury's resolution thereof, namely, acquittal on counts 2 through 12 and conviction on counts 13 through 23 raise questions not only technical but which, as Cohen argues, may have so confused the jury that he was deprived of a fair trial. Without belittling Cohen's many appellate points, his primary contention would seem to be that the indictment divides the one offense, i. e., payment, into two offenses, payment by Cohen to the agents and receipts by the agents with Cohen the payor, thus aiding and abetting this offense. Cohen asks, in effect, how he could have been acquitted of the bribe payments and have been convicted of aiding and abetting the receiving of the same payment and giving a gratuity. Resolution of these questions requires an analysis of the essential elements of the respective statutes. In addition, consideration must be given to Cohen's argument that Milanovitch v. United States, 365 U. S. 551 (1961), is controlling and requires reversal.

The Statutes

Section 201, Title 18, ¹ makes it a crime to give money to a person acting for any agency of the United States in any official function with intent to influence his decision.

Section 7214, Title 26, ² on the other hand, merely makes it a crime for a revenue agent to receive compensation, except as by law prescribed, for the performance of any duty.

Section 2, Title 18, ³ would apply to Cohen's inducing or procuring the agents' commission of the crime of receiving.

Section 201(f), Title 18, ⁴ proscribes the giving of a gratuity or other payment not authorized by law to a public official for or because of any official act performed by that person.

Although it is not for the court to speculate as to the rationale used by the jury to acquit on the bribery counts and to convict on the aiding and abetting receiving counts, the differences in findings requisite to conviction are sufficiently clear. The aiding and abetting counts, unlike the bribery counts, require proof that the Internal Revenue Agent received a fee, not prescribed by law, for the performance of his duty. ⁵ The bribery counts, unlike the aiding and abetting counts, require proof of a specific corrupt intent to influence official action. ⁶ From a time standpoint alone, bribery requires that money be given or promised with the intent to influence an official's decision before that decision is reached. The payments in this case were made after the favorable audit reports had been submitted to Cohen and signed by his taxpayer clients. The jury therefore might well have considered that the requisite evidence as to intent was lacking, but that the payments were in the Section 7214 category, and that Cohen enabled the auditors to receive illegal compensation for the performance of their duty because that performance met with his satisfaction, thereby violating 18 U. S. C. §2.

Milanovitch, supra, did not involve these two distinct situations. There the defendant was charged (1) with aiding and abetting stealing certain goods, and (2) with receiving the same stolen goods. The limitations of Milanovitch were pointed out recently in United States v. Umans [66-2 USTC ¶9759] 368 F. 2d 725 (2 Cir., 1966), cert. granted, 386 U. S. 940 (1967), cert. dismissed, after argument, as improvidently granted, 36 L. W. 3188 (Nov. 6, 1967). However, even if Milanovitch applied, Cohen would have been entitled only to a charge that the jury could have found him guilty of one count or the other as to each transaction. And this is exactly what they did, so that no prejudice is shown.

Cohen also argues that he was acquitted of the bribery charge in count 12 and, therefore, should have been acquitted of giving a gratuity to a public official (count 13). This contention is without merit because the gratuity count, unlike bribery, requires no corrupt intent--it is a lesser form of bribery. See United States v. Umans, supra.

Improper Joinder

All of the crimes charged were of the same character. Rule 8 (F. R. Crim. Proc.) authorizes joinder of counts in such a situation. No objection to the joinder or motion for a severance was made, although defendant was represented by able trial counsel. Furthermore, the testimony admitted was properly admissible on the aiding and abetting counts.

The Charge

Quite apart from failure to take objections to, and absence of "plain error" in, the charge, Cohen's appellate points are not well taken. Cohen did have "the greatest stake in the outcome of the trial" and the trial court's charge as to possible motive on Cohen's part to fabricate was entirely proper, particularly when coupled with instructions that the jury could also accept Cohen's version of the facts if they chose to do so.

The other objections to the charge now raised on appeal--but as to which no trial objections were taken--involve:

(1) criminal intent under the gratuity count (similar charge approved in United States v. Irwin, 354 F. 2d 192, 197 n. 3 (2 Cir., 1965));

(2) criminal intent under the aiding and abetting counts (somewhat similar situation in United States v. Umans, supra);

(3) inferences available to the jury from failure to call an available witness who may have had favorable information (see United States v. Comulada, 340 F. 2d 449, 452 (2 Cir., 1965)); and

(4) the immateriality of the correctness of the tax returns of Cohen's clients.

Analysis of these objections justifies the conclusion that the trial court committed no reversible error.

Improper Admission of Testimony

The jury could have drawn an inference from Cohen's self-introduction to an auditor "as a friend of Gilbert Sherman" that he was to be considered persona grata to the auditor co-defendant. The auditor's elaboration of the meaning of this statement--that he "would probably get paid"-- was hearsay. However, coupled with the other testimony, this answer does not constitute reversible error. Nor does the reference by the same auditor to the fact that he had stated to the government that there were other guilty accountants rise to this level. Testimony which also referred to other audits in which bribes were given and to which no objection was taken, was properly admitted. See United States v. Bozza, 365 F. 2d 206, 214 (2 Cir. 1966).

Summation

In context, the part of the government's summation in which the jury was told to acquit the defendant if they believed the government was party to a plot to convict an innocent man was proper. Cohen's claim that the prosecutor's personal belief in the credibility of the witness was expressed is unfounded.

We have considered other errors raised by Cohen but do not find that individually or collectively they constitute reversible error.

The Motion for a New Trial

The motion was properly denied. The taxpayer's knowledge or lack thereof of payments by Cohen to the auditors would not be exculpatory evidence.

Judgment affirmed.

¹ 18 U. S. C. §201 provides:

"Offer to officer or other person.

"Whoever promises, offers or gives any money or thing of value, or makes or tenders any check, order, contract, undertaking, obligation, gratuity, or security for the 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 thereof, 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 of any committee of either House, or both Houses thereof, with intent to influence his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may be law be brought before him in his official capacity, or in his place of trust or profit, or with intent to influence him to commit or aid in committing, or to collude in, or allow, any fraud, or make the opportunity 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 amount of such money or value of such thing or imprisoned not more than three years, or both.

"This section shall not apply to violations of section 212 of this title. (June 25, 1948, ch. 645, 62 Stat. 691.)"

18 U. S. C. §201(b) provides:

"Bribery of public officials and witnesses

"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--

"(1) to influence any official act; or

"(2) to influence such public 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

"(3) to induce such 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

* * *

"Shall be fined 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 be disqualified from holding any office of honor, trust, or profit under the United States . Added Pub. L. 87-849, §1(a), Oct. 23, 19 62, 76 Stat. 1119."

² 26 U. S. C. §7214 provides:

"Offenses by officers and employees of the United States .

"(a) Unlawful acts of revenue officers or agents.

"Any officer or employee of the United States acting in connection with any revenue law of the United States--

* * *

"(2) who knowingly demands other or greater sums than are authorized by law, or receives any fee, compensation, or reward, except as by law prescribed, for the performance of any duty;

* * *

"shall be dismissed from office or discharged from employment and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than five years, or both. The court may in its discretion award out of the fine so imposed an amount, not in excess of one-half thereof, for the use of the informer, if any, who shall be ascertained 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 be collected by execution."

³ 18 U. S. C. §2 provides:

"Principals

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

⁴ 18 U. S. C §201(f) provides:

"Whoever, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official; or * * *"

⁵ See Shuttlesworth v. City of Birmingham , 373 U. S. 262 (1968); United States v. Umans, 368 F. 2d 725 (2 Cir. 1966), cert. dismissed, 36 L. W. 3188 (Nov. 6, 1967).

⁶ United States v. Umans, supra

 

 

 

[69-1 USTC ¶9328] United States of America , Appellee v. David Bernard Barash, Defendant-Appellant

(CA-2), U. S. Court of Appeals, 2nd Circuit, Docket No. 32225, 412 F2d 26, 4/9/69, Aff'g unreported District Court decision

[Code Sec. 7214]

Crimes: Tax evasion: Bribery of revenue agents: Aiding and abetting the taking of bribes.--Various assignments of error were overruled by the Court of Appeals, and the conviction of a certified public accountant on charges of offering, promising and giving bribes to IRS agents with intent to influence office audit examinations and for aiding and abetting certain revenue agents under Code Sec. 7214(a)(2) in the taking of bribes was affirmed.

Robert M. Morgenthau, United States Attorney, David M. Dorsen, John E. Sprizzo, Assistant United States Attorneys, New York, N. Y., for appellee. Louis Bender, Lloyd A. Hale, 225 Broadway, New York , N. Y., for defendant-appellant.

Before MOORE , FRIENDLY and FEINBERG, Circuit Judges.

MOORE, Circuit Judge:

This is an appeal by David Bernard Barash from a judgment of conviction entered against him in the district court, after a ten-day trial. The case was before the district court upon remand after this court reversed a previous conviction of Barash at a first trial. United States v. Barash, 365 F. 2d 395 (1966).

The indictment named Barash, a certified public accountant and attorney, in 32 counts relating to 16 transactions in which he was alleged to have made improper payments to several Internal Revenue Service agents in return for favorable adjustments in connection with audits of personal income tax returns of Barash's clients. Counts 1 through 12 charged him with offering, promising and giving bribes to 3 agents with intent to influence office audit examinations in violation of the prior 18 U. S. C. §201, and counts 13 through 16 charged him with the same crime in violation of the present statute, 18 U. S. C. §201(b). ¹ Counts 17 through 20 charged a violation of 18 U. S. C. §201(f), which makes it a crime to pay a public official a sum of money "for or because of any official act performed or to be performed" by them. Counts 21 through 32 charged Barash with aiding and abetting ² the violation of 26 U. S. C. §7214(a)(2), which proscribes revenue officers from knowingly demanding or receiving sums of money except as prescribed by law.

At the first trial, Barash was acquitted on counts 7, 13, 15, 17, 19 and 27, relating to alleged unlawful payments to Internal Revenue Service agents Montello and Wolf, but was convicted on the remaining counts, which concerned agents Clyne, DeSibio and Coady. He was sentenced to concurrent terms of imprisonment of a year and a day on each count. On appeal, this court reversed and remanded for a new trial because hearsay testimony was erroneously admitted, cross-examination was improperly restricted and the charge to the jury was in error in two respects, namely, (1) threat of economic harm as an element of intent, and (2) payment alone sufficient to establish intent.

At the second trial, there were thirteen pairs of counts representing, and numbered identically as, those upon which Barash had been convicted at the first trial, charging unlawful payments to Clyne, DeSibio and Coady. On October 21, 19 67, the jury returned a verdict of guilty on counts 8, 10, 18, 20-26 and 28-32. On the other counts the jury either returned a verdict of not guilty, or reported that it was unable to agree. Barash was sentenced to concurrent terms of imprisonment for nine months and a fine of $1,000 on each of counts 21-26 and 28-32; to terms of imprisonment of five years, execution suspended, with a fine of $2,500 on each of counts 8 and 10; and to terms of imprisonment of two years, execution suspended with probation of five years, and a fine of $2,500 on each of counts 18 and 20. The total fine was $21,000.

The Facts

The Government's case against Barash consisted of the testimony of agents Clyne and DeSibio, who had pleaded guilty to charges against them in the indictment, and that of Coady, a Government undercover agent. Clyne, involved in all but three of the transactions resulting in convictions, gave substantially the same testimony at the second trial that he had given at the first. ³ He testified that Barash paid him a total of $225 for false audits in 1960, followed by lesser sums in each of the succeeding three years. DeSibio gave testimony as to two similar transactions in 1961 involving payments of about $25 each. Coady, the undercover agent, testified that he met Barash in 1963 upon an introduction by a former Internal Revenue Service auditor, Miss Jeanne Lupesco, ⁴ and upon the request of Barash assigned an audit to himself, contrary to normal office procedure, and approved certain deductions without any inquiry as to their accuracy. A few minutes later, according to Coady's testimony, Barash gave him an envelope containing $50.

Appellant's defense consisted of his own testimony and that of some additional witnesses who testified as to his good reputation. Barash, on the stand, admitted that he gave money to Clyne on several occasions ⁵ but said that those transactions were Christmas gifts having nothing to do with the audits. The money, explained Barash, had been given merely to create a more pleasant working atmosphere. In response to the testimony of DeSibio, Barash said that he had taken DeSibio to lunch upon the conclusion of a normal audit. Both Clyne and DeSibio, Barash suggested, had implicated him to gain mitigation of sentences they were to receive for crimes arising from these and other transactions. And finally, Barash testified that his $50 payment to Coady was wholly unrelated to the audit performed, but was given out of sympathy induced by Coady's indication that he was in debt and was soon to go to a Marine training camp.

Defense of Economic Coercion

In the first of many claims of reversible error, Barash asserts that it was error for the trial judge to exclude the defense of economic coercion from the jury's consideration of the counts under 26 U. S. C. §7214(a)(2) and 18 U. S. C. §201(f), the provisions covering unlawful payment of gratuities. In the first appeal of this case we said:

We think that if a government officer threatens serious economic loss unless paid for giving a citizen his due, the latter is entitled to have the jury consider this, not as a complete defense like duress but as bearing on the specific intent required for the commission of bribery. Cf. United States v. Miller, 340 F. 2d 421, 425 (4th Cir. 1965). While it is arguable that this is also true with respect to giving gratuities under 18 U. S. C. §201(f), or to being an accessory to the receipts prohibited by 26 U. S. C. §7214(a), offenses which have no requirement of specific intent, see United States v. Irwin, [354 F. 2d 192, 197 (2d Cir. 1965), cert. denied, 383 U. S. 967, 86 S. Ct. 1272, 16 L. Ed. 2d 308 (1966)], and carry a significantly lower punishment, we incline to the view that as to these offenses economic pressure is irrelevant. 365 F. 2d at 401-402. ⁶

Although criminal intent is a necessary element for conviction under the gratuity counts, no specific intent is required. In this case, accepting Barash's version of the facts, the payments were received by the auditors "otherwise than as provided by law for the proper discharge of official duty," as provided for in §201(f). ⁷ In measuring intent, it matters not whether the payments were made because of economic duress, a desire to create a better working atmosphere, or appreciation for a speedy and favorable audit.

It is somewhat of a misnomer to refer to "the defense of economic coercion"; rather it (economic coercion) is related to the ultimate fact conclusion of intent. The trial court did not "rule out" such coercion as Barash argues. Specifically, the trial court told the jury that it could consider Barash's version of Clyne's coercive approach as "pressure" and that it might "consider the conduct of Clyne as bearing on the issue whether the defendant in making such payment or payments had the intent to influence official action, which is an essential element of the offense under old Section 201 and present Section 201-B."

The trial court can scarcely be held in error for following our opinion in which we said that the offenses specified in 18 U. S. C. §201(f) and 26 U. S. C. §7214(a) "have no requirement of specific intent." The court was entitled to accept our "view that as to these offenses economic pressure is irrelevant." 365 F. 2d at 402. The charge instructed that the receipt (by Clyne and DeSibio) of compensation or reward must have been with "criminal intent" and that Barash to have aided and abetted must have "associated himself with the criminal venture, that he participated in it as something he wished to bring about, that he, by his act or acts, endeavored to make it successful."

Appellate courts will never know how much or how little a jury is able to absorb from the reading of stilted indictments and adverbial statutes, from the specification of a series of essential elements necessary to convict and the "boilerplate" forced upon trial judges by time-honored and cumulative 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 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 Clyne's economic pressure, the charge adequately gave it this choice as to the counts where it could have been a factor in reaching their determination.

Entrapment by Coady

Barash next contends that the trial court erroneously failed to instruct the jury on the issue of entrapinent in connection with his payment of $50 to undercover agent Coady. The fact that Barash made no offer or promise to pay Coady with respect to the audit, coupled with Coady's hints that he was about to go into the armed forces and was in debt establish, it is averred, inducement sufficient to support a charge of entrapment. But the most Barash could testify to was that Coady suggested a general financial need several days before the $50 was given. There was no evidence given sufficient to warrant a jury finding that Coady induced or initiated the crime, a finding necessary to satisfy the first element of entrapment. United States v. Dehar, 388 F. 2d 430, 432-433 (2d Cir. 1968). In fact, Barash's own testimony completely refutes even any inference of attempted entrapment by Coady. Furthermore, Coady's conversations and behavior fall short even of constituting solicitation, which in itself is insufficient to constitute entrapment. United States v. Berry , 362 F. 2d 756, 758 (2d Cir. 1966). Therefore, there was no error in the court's failure to charge as to entrapment.

Testimony of Lupesco

Jeanne Lupesco, a former Revenue Service auditor, testified that Barash approached her in 1963 and inquired whether she "knew" anybody in a certain group to which Barash had been assigned for an audit. She responded by introducing Barash to Coady. In order to demonstrate what Barash meant by this question, and why Coady was selected, the Government asked her about her prior dealings with Barash. She answered that in 1958 Barash had given her $80 in return for a favorable audit. Barash contends that the admission of this testimony constituted reversible error, primarily because the Lupesco transaction was too remote from the 1963 transactions and thus had little probative value. Even though the jury was instructed that the Lupesco testimony was to be admitted as a prior similar act solely as to the Coady transactions, and even though he was not convicted on the Coady bribery count (16), Barash argues that prejudice arose because the testimony "was quite similar to DeSibio's" and may well have influenced the jury's verdict as to the count (20) on which he was convicted. But the evidence was probative on Barash's state of mind, by helping to explain the prior relationship between himself and Miss Lupesco and the meaning of his conversation with her. To be admitted such evidence `does not need to have strong, full, superlative, probative value, does not need to involve demonstration or to produce persuasion by its sole and intrinsic force, but merely to be worth consideration by the jury.' 1 Wigmore, Evidence (3d ed. 1940), 411." United States v. Kahaner, 317 F. 2d 459, 471 (2d Cir.), cert. denied, 375 U. S. 836 (1963). Since the Lupesco testimony was properly admitted as to the Coady count (16), and since Judge Wyatt specifically limited the jury's consideration of this evidence to that count (which was eventually dismissed), the possible prejudice to Barash was minimal, and insufficient to establish grounds for reversal.

Failure of Proof on DeSibio counts

Barash urges that the testimony offered was insufficient to justify a jury conviction on the counts involving DeSibio. In support of this position he cites DeSibio's lack of certainty of the exact amount of the payments made to him or of the exact words used by Barash in suggesting improper payments, and confusing jury instructions. On appeal the evidence must be viewed most favorably to the Government. United States v. Aiken, 373 F. 2d 294, 296 (2d Cir.), cert. denied, 389 U. S. 833 (1967). DeSibio testified that Barash had told him in words or substance, that "there would be something in it for him" if certain deductions were fraudulently allowed in 1961, and that he would not have prepared the same audit report if he had not believed that payment from Barash was forthcoming. Similar testimony was given as to a later transaction. This evidence satisfied the requisite elements of the bribery statutes here and a fortiori, the less demanding standard of 26 U. S. C. 7214(a)(2). Neither do we find merit in Barash's assertion that the trial judge confused the jury by giving a specific answer to a specific question about a portion of the charge rather than repeating the instructions verbatim.

The Verdict

After more than 13 hours of deliberation over a two-day period, the jury sent a statement to the trial judge that it was unable to reach a verdict on some of the counts. At that point of time, the court accepted the verdict of guilty on those counts as to which the jury had reached a conclusion ⁸ and in a supplemental charge asked the jury to deliberate further as to the remaining counts. ⁹ Following an additional three hours of deliberation, the jury announced as to the remaining counts that it had reached a verdict on some counts but could not agree on the others. ¹⁰ Barash maintains that the trial court erred in giving what he characterizes as an Allen charge because it was coercive in and of itself, and in the context in which it was given. We disagree. The lower court's charge "made it sufficiently clear that a juror ought not abandon his personal conviction." United States v. Bilotti, 380 F. 2d 649, 654 (2d Cir.), cert. denied, 389 U. S. 944 (1967). Furthermore, in view of the fact that more than three hours elapsed between the time of the charge and the jury's final verdict, the jury had ample time for thoughtful consideration which would negate coercion. United States v. Furlong, 194 F. 2d 1, 4 (7th Cir.), cert. denied, 343 U. S. 950 (1952); United States v. Rao, 394 F. 2d 354, 356 (2d Cir. 1968). Similarly, the claim that the supplemental charge was given prematurely has no merit. The jury here retired to deliberate at 11:25 a. m. and emerged at 11:30 p. m. to announce that it was unable to reach a unanimous decision on a number of counts. The court permitted the jury to go home to sleep. The next day the jury deliberated for two more hours before the court gave its supplemental charge. We think the trial court acted well within its proper discretion in so timing the charge. ¹¹

Barash further attacks the verdict on the grounds that the trial judge improperly sent the jury back for further deliberations after accepting their verdict of guilty on a number of the counts. But no authority has been offered in support of this proposition. The cases cited by Barash hold that silence by the jury as to its verdict on particular counts in a multi-count indictment operates as an acquittal if the verdict is accepted by the trial judge and the jury is discharged. ¹² This rule is designed to protect a defendant against double jeopardy in cases of retrial on the counts as to which the jury had been silent, and is inapplicable to the present situation. The practice of sending the jury back for further deliberations on unresolved counts has been followed in this circuit since United States v. Cotter, 60 F. 2d 689, 690-691 (2d Cir.), cert. denied, 287 U. S. 666 (1932), see also United States v. Frankel, 65 F. 2d 285, 288-289 (2d Cir.), cert. denied, 290 U. S. 682 (1933), and we adhere to that practice here.

Grand Jury Proceedings

It is claimed that reversal of Barash's conviction is required because of lack of competent evidence before the grand juries which indicted him. The investigations leading to the indictments involved four grand juries and more than 40 witnesses. Clyne, DeSibio, Coady and Lupesco testified in person before one of these grand juries, giving testimony which incriminated Barash. The fact that an Internal Revenue Inspector, in the interests of economy of time, summarized this evidence before the grand jury which ultimately indicted Barash, was not improper. Though caveats have been issued against excessive use of hearsay before grand juries, its use has always been accepted where, as here, it is "demonstrably inconvenient to summon witnesses able to testify to facts from personal knowledge." United States v. Umans [66-2 USTC ¶9759], 368 F. 2d 725, 730 (2d Cir. 1966), cert. dismissed, 389 U. S. 80 (1967); Costello v. United States [56-1 USTC ¶9321], 350 U. S. 359, 363, 76 S. Ct. 311, 100 L. Ed. 406 (1955). In view of the array of grand juries involved here, and the inconvenience in recalling witnesses who had already testified from personal knowledge, the instant case is well within the Umans rule, supra. Furthermore, Barash's related contention, that there was reversible error because he was allegedly given the grand jury minutes only after Clyne left the witness stand cannot prevail--particularly since the court offered to permit Clyne's recall.

Trial Court's Charge

Barash has alleged four errors in the court's charge to the jury. It is first asserted that the court erred in failing to instruct the jury that no inference could be drawn against Barash from the testimony of Clyne and DeSibio that they had pleaded guilty to charges of accepting unlawful payments. The trial judge had indicated that he would give the jury a compromise form of this instruction ¹³ but thereafter failed to do so. Barash, however, neglected to bring this omission to the court's attention and is, therefore, precluded from raising the point on appeal. Federal Rules of Criminal Procedure, Rule 30. ¹⁴

Nor do we find that the jury should have been instructed that the audit was "completed" as soon as the auditor had agreed on the amount to be disallowed, or alternatively, that a "no change" report would be filed. Such an instruction theoretically would enable the jury to infer from a payment after "completion" of the audit that the payment was not made to influence the agent's act. But in view of the considerable evidence showing many continuing responsibilities of the auditor in connection with the audit after "completion," the trial judge was correct in charging otherwise. ¹⁵

The third alleged error in the charge is that the trial court omitted the element of intent in its instructions to the jury on the counts under §7214(a)(2). There is no basis for this contention. After clearly indicating that a necessary element for the conviction of Clyne and DeSibio was the receipt of money "with a criminal intent, that is, with bad purpose and motive," the court instructed the jury on Barash's intent as follows:

In order to find that the defendant aided or abetted another, in this case Clyne or DeSibio or both, to commit the offenses charged in these counts, you must find that the defendant, in some way, associated himself with the criminal venture, that he participated in it as something he wished to bring about, that he, by his act or acts, endeavored to make it successful.

This language has been specifically found proper, in United States v. Umans, supra, at 728.

Finally, Barash contends that the trial judge failed properly to present his defense theory to the jury. He claims that his case was characterized as a mere denial of the testimony of the Government's witnesses, thus tending "to eliminate from consideration by the jury of [his] factual testimony of the circumstances of each audit." We have examined the record, however, and find that the factual summary was fair and accurate. Toward the beginning of his instructions, the trial judge said:

Before considering the separate counts in the indictment I call the jury's attention to the fact that in these instructions I do not propose to review or summarize the evidence because the trial has not been so long as to make that necessary or desirable. You have heard the evidence presented and on yesterday you had the benefit of the closing arguments of counsel. If I mention any evidence in the course of these instructions it will be only for the particular purpose which will be indicated. You are to attribute no significance to my failure to mention any evidence.

Following brief summaries of the testimony of Clyne and DeSibio, the trial judge told the jury that he referred to "this testimony, * * * which you heard Mr. Barash deny from the witness stand, not to indicate any opinion as to whether you should accept that testimony * * * or not but solely in order to relate the government's evidence to the different counts and for no other purpose." Furthermore, the summary of Coady's testimony was followed by the statement to the jury that "[y]ou [the jury] heard Mr. Barash testify that he did give to Coady an envelope containing $50, but under circumstances different from those to which Coady testified, and with an intent different from that alleged in the indictment." We find no unfairness in these instructions to the jury.

Duplication of Counts

The concluding point for our consideration is Barash's contention that it was error to submit to the jury the counts under 18 U. S. C. former §201 as well as the counts under 26 U. S. C. 7214(a)(2), ¹⁶ thus permitting the jury to convict on both counts. In the recent decision of United States v. Cohen, 387 F. 2d 803 (2d Cir. 1967), we made clear the differences in the requirements for conviction under these sections:

The aiding and abetting counts, unlike the bribery counts, require proof that the Internal Revenue Agent received a fee, not prescribed by law, for the performance of his duty. The bribery counts, unlike the aiding and abetting counts, require proof of a specific corrupt intent to influence official action. From a time standpoint alone, bribery required that money be given or promised with the intent to influence an official's decision before that decision is reached. Id. at 805-806.

The jury, concluded the court, might well have considered that Cohen did not possess the requisite intent for a bribery conviction, but that the payments were within the reach of the milder standard of §7214(a)(2). And in fact the jury did convict Cohen only on the lesser counts, handing down acquittals on all charges of bribery. That case is therefore applicable here as to most of the counts, in 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 a few hours later convicted 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: can 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 under the "paired" counts of §201(b) and §201(f), ¹⁷ and under 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,