UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: December 19, 1967.
UNITED STATES OF AMERICA, APPELLEE,
MARTIN COHEN, DEFENDANT-APPELLANT
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. 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 -- it is a lesser form of bribery. See United States v. Umans, supra.
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.
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).
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.