Moore, Smith and Kaufman, Circuit Judges.
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. 691 (Act of June 25, 1948); 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 issue 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 receipt 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 Milanovich v. United States, 365 U.S. 551, 81 S. Ct. 728, 5 L. Ed. 2d 773 (1961), is controlling and requires reversal.
Section 201, Title 18,*fn1 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,*fn2 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,*fn3 would apply to Cohen's inducing or procuring the agents' commission of the crime of receiving.
Section 201(f), Title 18,*fn4 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.*fn5 The bribery counts, unlike the aiding and abetting counts, require proof of a specific corrupt intent to influence official action.*fn6 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.
Milanovich, 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 Milanovich were pointed out recently in United States v. Umans, 368 F.2d 725 (2 Cir., 1966), cert. granted, 386 U.S. 940, 87 S. Ct. 975, 17 L. Ed. 2d 872 (1967), cert. dismissed, after argument, as improvidently granted, 389 U.S. 80, 88 S. Ct. 253, 19 L. Ed. 2d 255 (Nov. 6, 1967). However, even if Milanovich 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 ...