Moore, Friendly and Feinberg, Circuit Judges. Friendly, Circuit Judge, concurring (with whom Feinberg, Circuit Judge, also concurs).
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).*fn1 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*fn2 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, 1967, 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 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.*fn3 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,*fn4 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*fn5 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.*fn6
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).*fn7 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 the law. Such an approach leads to the belief that, if the jury had wished to accept Barash's version that he was the ...