Lumbard, Chief Judge, and Hays and Anderson, Circuit Judges. Lumbard, Chief Judge (dissenting).
From sometime prior to 1962 through February 14, 1964, when the appellant was suspended, he held a position in the Internal Revenue Service as a tax technician, usually called an office auditor. It was his duty to examine federal income tax returns to see whether or not they accurately reflected the tax liability of the person filing the return. On December 7, 1964, an indictment in three counts was returned against him. The first count charged that on or about July 12, 1962, he and co-defendant Jeremiah Ryan, who was also an office auditor in another group within the New York office of the Internal Revenue Service, received a fee, not prescribed by law, from a co-defendant Kaufman, a certified public accountant, for auditing the 1961 income tax returns of Sidney and Carolyn Bell, clients of Kaufman. The second count similarly charged the appellant and co-defendant Lawrence Montello, an office auditor in another group within the New York office of the Internal Revenue Service, with receiving such a fee from Kaufman on or about May 7, 1962 for auditing the 1961 income tax return of Carlton and Shirley Spark, clients of Kaufman. Count three charged the appellant with receiving a sum of money from an accountant named Albert Goldstein in connection with the auditing of the income tax return of Eugene and Joan MacMillin, who were clients of Goldstein.
At the trial the principal witnesses for the Government were Kaufman, Ryan, Montello and Goldstein, each of whom testified to the transactions referred to in the indictment in which they were involved with the appellant.
Kaufman, after testifying to the appellant's activities in connection with the Bell return in the first count and the Spark return in the second count, also, over objection, testified to an additional almost identical transaction in which the appellant, for a payment to him by Kaufman of $50 audited the 1962 tax return of Herman and Wanda Sandberg, clients of Kaufman.
The defendant Byrd took the stand and testified in his own behalf. He denied ever having any conversation with Kaufman, Ryan, Montello or Goldstein concerning the payment to him of money for the auditing of any of the returns referred to in the indictment and he denied receiving or paying any money from or to Kaufman, Ryan, Montello or Goldstein in connection with the audit of any tax return. The jury returned verdicts of guilty against Byrd on all of the three counts.
On this appeal Byrd claims that the trial court committed plain error in its charge to the jury in failing to include criminal intent as one of the essential elements of the offense alleged in the three counts. There was no exception taken to the court's instructions but the appellant asserts that there were several other mistakes in the charge of sufficient gravity to constitute plain error. We conclude that, in the circumstances of this case, the omission of criminal intent as one of the enumerated essential elements of the offense charged, constituted plain error and that, therefore, the judgment must be reversed and the case remanded for a new trial.
By failing specifically to instruct the jury that criminal intent was an essential element of the offense, the court left what it did say about intent and the act being knowingly committed, unrelated to the other elements of the crime and omitted any instruction that criminal intent was an element which the Government, to convict, was required to prove beyond a reasonable doubt. While it did not define criminal intent as such, it did give one of the generally used definitions of "knowingly"*fn1 which in the circumstances of the case would have sufficed, because a finding that one acts knowingly presupposes that he was apprised of all of the facts which constitute the offense.
"Ordinarily one is not guilty of a crime unless he is aware of the existence of all those facts which make his conduct criminal. That awareness is all that is meant by the mens rea, the 'criminal intent', necessary to guilt, * * *."
United States v. Crimmins, 123 F.2d 271, 272 (2d Cir. 1941).
Examining the charge as a whole, however, this definition stands entirely unrelated to the other essential elements of the crime. What its significance is in the case and how it should be treated by the jury is left to conjecture. The definition of "knowingly" was immediately followed by a substantially correct instruction on the use, for the limited purpose of showing knowledge or intent, of the evidence of the prior similar offense which concerned the Sandberg tax return.*fn2 These portions of the charge were preceded by the instructions concerning proof beyond a reasonable doubt, but nowhere was the jury told that the Government was required to prove criminal intent beyond a reasonable doubt. The general admonition that the Government must prove the defendant guilty beyond a reasonable doubt, and the recitation that the indictment alleged that the acts "performed by this defendant were done unlawfully, knowingly and wilfully" are altogether too tenuous and imprecise to pass as an adequate explanation that criminal intent is an essential element of the offense which must be proven beyond a reasonable doubt. Actually the phrasing of the directions concerning the use of the evidence of the Sandberg incident tended to give to intent an undefined status, separate from the other essential elements. Statements such as "unless you first find that the other evidence in the case standing alone establishes the defendant's guilt beyond a reasonable doubt, then the fact that he committed this other act cannot fill in that blank," "So that you consider the Sandberg return not as proving any of these elements in this case," followed by "You must be satisfied beyond a reasonable doubt that they exist," while intended properly to caution the jury against using the evidence of the Sandberg matter on any element other than criminal intent, really left it to the jury to decide how much importance as a matter of law should be given to the factor of criminal intent and what standard of proof was required for it.
Even so, the court's treatment of the issue might have survived the test of plain error, Rule 52(b) F.R. Crim. P., except for its specific delineation of the essential elements of the offense.
The instructions which bore on intent came in the early part of the charge. Thereafter the court gave fairly full explanations of types of evidence, rulings on evidence, evaluation of testimony, an analysis of Government and defense evidence, the definition of accomplice and the cautionary remarks on dealing with accomplices' testimony, a reading of the applicable statute and comments on the three counts of the indictment. Then ...