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United States v. Umans


decided: October 27, 1966.


Lumbard Chief Judge, Waterman and Anderson, Circuit Judges.

Author: Waterman

WATERMAN, Circuit Judge:

Certain taxpayers took deductions on income tax returns for items of travel, entertainment, and the like, in excess of sums that could be substantiated. Appellant, a certified public accountant, then entered into arrangements with auditing employees of the Internal Revenue Service by which appellant made surreptitious cash payments to the employees and, upon audit, the employees disallowed a lesser portion of the deductions than should have been disallowed. Appellant was named a defendant in 24 counts of a 27 count indictment. In nine of these counts he was charged with aiding and abetting codefendants, Internal Revenue Service agents, in receiving illegal fees, compensations and rewards for the performance of their duties, in violation of 26 U.S.C. § 7214(a)(2) and 18 U.S.C. § 2; in three with giving money to various codefendant Internal Revenue Service agents during the year 1963, in violation of 18 U.S.C. § 201(f); in nine other counts with giving money to the various agents with intent to influence their official acts during the years 1961 and 1962, in violation of 18 U.S.C. § 201; and in three other counts, which set forth the same acts that allegedly violated 18 U.S.C. § 201(f), with corruptly giving money to various agents of the Internal Revenue Service with intent to influence their official acts during the year 1963, in violation of 18 U.S.C. § 201(b). After a jury trial in the United States District Court for the Southern District of New York, Murphy, J., he was convicted on all 24 counts and sentenced to two years' imprisonment on each count, the sentences to run concurrently.

Eight issues have been presented for appellate consideration.

First, appellant maintains that the trial court committed prejudicial error when it did not instruct the jury that in order to convict appellant on the nine counts charging the aiding and abetting of violations of 26 U.S.C. § 7214(a)(2) one of the elements of the crimes necessary to be proved was criminal intent. It is not entirely clear whether appellant is maintaining that the charge was deficient as to appellant's intent to aid and abet or that it was deficient relative to the Internal Revenue Service agents' intent to commit the crime. But we note that no objection as to either was made to the charge as given, and no request for a further charge as to anyone's intent was made to the trial court before the jury retired. Therefore, unless there was a charge so deficient that we must consider it to be "plain error" no objection to the charge will be here countenanced. See Fed. R. Crim. P. 30, 52(b).

With reference to Umans's intent to aid and abet the commission of the nine crimes, the charge given was proper. It followed the standard laid down in Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S. Ct. 766, 770, 93 L. Ed. 919 (1949) quoting L. Hand, J., in United States v. Peoni, 100 F.2d 401, 402 (2 Cir. 1938) that the defendant "in some sort associate himself with the venture, that he participate in it as something he wishes to bring about, that he seek by his action to make it succeed." Further, the jury convicted Umans on other counts that involved the same incidents, and as to those counts the jury was instructed that to find him guilty he must have made the payments with "an intent on the part of the defendant to corruptly influence the employee as to the audit then pending before him." Under these circumstances, we find no inadequacy in the charge as to the need of proof of Umans's intent to aid and abet.

The trial court's charge did not include any instructions that proof of the criminal intent of Internal Revenue Service agents to commit the crimes they committed in violation of 26 U.S.C. § 7214(a)(2) was necessary in order to convict Umans of having committed the crimes he was charged with having committed in aid thereof. This was error, as one's criminal intent is a necessary element of the proof required to convict under that statute. In United States v. Byrd, 352 F.2d 570, 572 (2 Cir. 1965) such an omission in a charge was held by this court to be plain error requiring reversal of a conviction despite the absence of an objection at trial. It is also a necessary element of the proof needed to convict one who aids and abets a violation. See United States v. Jones, 308 F.2d 26, 32 (2 Cir. 1962).

We do not consider the omission here, however, sufficiently prejudicial, in the absence of an objection at trial, to require reversal of Umans's convictions on these counts. The agents whose criminal acts Umans was charged with aiding and abetting were prosecuted together with him in the same indictment with him, prior to Umans's trial had pleaded guilty to having committed the crimes, had testified for the Government at Umans's trial, and had admitted their guilt on the stand in the jury's presence. The jury knew the agents had the required criminal intent from the agents' own testimony.

Appellant next claims that, as he had been convicted for committing the same criminal acts under 18 U.S.C. § 201 (b) on the one hand, and, on the other, under § 201(f), and had also been convicted for the same criminal acts on the one hand under 26 U.S.C. § 7214(a)(2), and, on the other, under 18 U.S.C. § 201, he had been, in both instances, convicted of having committed mutually inconsistent crimes.

It appears that in both claimed inconsistent instances one of the two statutes requires proof of an extra element to convict, a specific intent to influence official action, while the other statute only requires proof that payment was made to an agent in a situation where no payment was necessary.*fn1 There are no contradictory elements of required proof between the two statutes; only additional elements of proof.

Moreover, there is no merit to appellant's contention that counts under § 201(f) charge appellant with paying the agents "properly" to perform their duties; the section makes it criminal to pay an official a sum which he is not entitled to receive regardless of the intent of either payor or payee with respect to the payment. United States v. Irwin, 354 F.2d 192, 198 (2 Cir. 1965), cert. denied, 383 U.S. 967, 86 S. Ct. 1272, 16 L. Ed. 2d 308 (1966). Therefore, the correct relationship between § 201(b) and § 201(f) is that § 201(f) is a lesser included offense of § 201(b). There is no reason to believe that Congress intended that there should be concurrent convictions and sentences under both sections, and we should not allow multiple convictions based on the same transactions even where the sentences are concurrent. The sentences on the lesser § 201 (f) counts therefore are vacated. This will have no effect upon appellant's term of imprisonment because the vacated sentences are concurrent with those remaining in force.

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 reference 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.

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, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (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. 960, 85 S. Ct. 647, 13 L. Ed. 2d 555 (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.

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 crossexamination 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, 86 S. Ct. 1272, 16 L. Ed. 2d 308 (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 that question for the consideration of the United States Supreme Court in the event of an appeal. 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, 86 S. Ct. 1223, 16 L. Ed. 2d 301 (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.

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.

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