UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
December 4, 1975
UNITED STATES OF AMERICA, APPELLEE,
ANTHONY M. NATELLI AND JOSEPH SCANSAROLI, DEFENDANTS-APPELLANTS
527 F.2d 311.
Hays, Mulligan and Gurfein, Circuit Judges.
On SCANSAROLI's Petition for Rehearing
GURFEIN, Circuit Judge:
This matter comes before the panel again on Scansaroli's petition for rehearing pursuant to our grant of permission. On the original appeal we had reversed appellant's conviction and remanded for a new trial.*fn1
The single count charging violation of 15 U.S.C. § 78ff(a) upon which he was convicted involved the making of a false proxy statement which specified two false items therein: the "footnote" and the "nine-months earnings statement." We held that there was insufficient evidence to convict Scansaroli on the latter specification. See main opinion, 527 F.2d 311, Docket Nos. 75-1004, 75-1008, slip op. 5165, 5184, decided July 28, 1975.
We then granted a rehearing on the government's petition and held that under an old doctrine in this circuit we were constrained to decide that the failure of appellant specifically to ask the trial court to withdraw one of two specifications in a single count on the ground that it was insufficiently proved precluded appellate consideration. United States v. Mascuch, 111 F.2d 602, 603 (2 Cir.), cert. denied, 311 U.S. 650, 85 L. Ed. 416, 61 S. Ct. 14 (1940); United States v. Goldstein, 168 F.2d 666, 671 (2 Cir. 1948).
We accordingly reversed ourselves on the decision to grant a new trial to Scansaroli. We now withdraw our opinion on rehearing and reconsider this difficult question of appealability de novo.
We start with the proposition that there are many criminal cases where the failure to object has resulted in affirmance under Rule 30 as applied in Rule 52(a). Appellant's rather strident cries that our decision against him is unprecedented are hardly impressive. Many convictions are denied appellate review for failure to call the alleged error to the attention of the trial court so as to enable it to consider correction before verdict. Otherwise appellate review would become a game of hindsight.
We recognize, nevertheless, that even under the Mascuch-Goldstein line of cases, a proper request to the trial court would save the point. See, e.g., United States v. Adcock, 447 F.2d 1337, 1338-39 (2 Cir.), cert. denied, 404 U.S. 939, 30 L. Ed. 2d 252, 92 S. Ct. 278 (1971);*fn2 United States v. Pollak, 474 F.2d 828 (2 Cir. 1973). And see also Warszower v. United States, 312 U.S. 342, 345, 85 L. Ed. 876, 61 S. Ct. 603 (1941).*fn3 As we indicated in our original opinion, that is because Yates v. United States, 354 U.S. 298, 311-12, 1 L. Ed. 2d 1356, 77 S. Ct. 1064 (1957),*fn4 and Stromberg v. California, 283 U.S. 359, 367-68, 75 L. Ed. 1117, 51 S. Ct. 532 (1931), can be read as covering the situation where a jury may have convicted on the very specification which is insufficiently proved to make out an offense.
That is true, especially, when the specifications in the single count relate to two distinct incidents or fact patterns, see United States v. Guterma, 281 F.2d 742, 747 (2 Cir.), cert. denied, 364 U.S. 871, 5 L. Ed. 2d 93, 81 S. Ct. 114 (1960), rather than being merely a charge of alternate ways of violating a statute stated in the conjunctive. Cf. United States v. Astolas, 487 F.2d 275, 280 (2 Cir. 1973), cert. denied, 416 U.S. 955, 94 S. Ct. 1968, 40 L. Ed. 2d 305 (1974).
Assuming, as we have already in our original opinion, that reversal of the conviction of Scansaroli is required if counsel adequately raised the point below, we turn to the question of how much must be done by defense counsel to protect the record.
The Federal Rules of Criminal Procedure cast no light on the matter. Rule 29(a) simply provides for a motion for judgment of acquittal "of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses." No provision is made for a motion to withdraw one of two specifications in a single count on the ground of insufficiency. There may be an implication in Rule 30 that the failure to object to a particular specification is fatal because it amounts to a failure to object to an "omission" from the charge, but that is not clear. Finally, there is nothing in Rule 52(b) that tells us that the failure of the trial court to withdraw the particular specification without request is "plain error."
We must also consider the matter in practical terms, not only from the point of view of the particular defendant, but also in consideration of the requirements of the criminal justice process. Rule 7(c)(1) provides that "it may be alleged in a single count that . . . he [the defendant] committed it [the offense] by one or more specified means." The government treats the separate incidents of "the footnote" and the "nine-months statement" as specified means for committing the single crime. See original opinion, slip op. at 5167-69. And no one doubts that for pleading purposes the prosecution is right.
The government has argued from this that if our original ruling stands, it would compel the government in any false statement case, simply out of caution, to allege each incident constituting the "means" of committing the offense in a separate count or risk the reversal of a conviction based on afterthoughts on appellate review. We believe that this might be the better practice in cases like this where the incidents charged as in violation of a statute are discrete. On the other hand, when that is not done, appellate review is not generally available when the particular insufficiency has not in some way been called to the attention of the trial judge. We do not believe that Yates, supra, in spite of its broad language, dictates a contrary result. Cf. Turner v. United States, 396 U.S. 398, 420 & n. 42, 24 L. Ed. 2d 610, 90 S. Ct. 642 (1970).
What prompts our present consideration of Scansaroli's petition for rehearing is his argument that he did make it sufficiently clear to the trial judge that he wanted a judgment of acquittal or some equivalent on the "nine month earnings statement" specification. On reconsideration, we agree that the arguments of counsel for Scansaroli with respect to the sufficiency of the evidence, his motion to strike the evidence relating to the Eastern commitment (an essential part of the "nine-months earnings statement" specification) and the co-defendant's specific motion to withdraw the specification on the nine-months earnings statement make this a close question.*fn5 Cf. United States v. Lefkowitz, 284 F.2d 310, 313 n.1 (2 Cir. 1960). As the Supreme Court has recently intimated in Anderson v. United States, 417 U.S. 211, 223 n.12, 41 L. Ed. 2d 20, 94 S. Ct. 2253 (1974), we may, in our discretion, consider a "sufficiency-of-the-evidence claim" even though the question arose below "only with respect to the admissibility of [certain] testimony." While Anderson also involved the question of whether the particular statute was unconstitutionally vague, and all the cases cited by Mr. Justice Marshall involved similar constitutional questions, we have concluded that we have sufficient discretion to adopt the reasoning in Anderson on this appeal.
Accordingly, we do not purport to lay down a firm rule to govern the precise action required below for appealability where a single count contains more than one specification. Indeed, we could hardly do so without the empaneling of an en banc court. We decide simply, on further consideration, that appellant in this case did enough below to satisfy the spirit of the Mascuch-Goldstein rule. We accordingly withdraw our opinion on the government's petition and reinstate our original opinion as to Scansaroli in all respects. Cf. United States v. Love, 472 F.2d 490, 496 (5 Cir. 1973).