Hays, Mulligan and Gurfein, Circuit Judges.
On SCANSAROLI's Petition for Rehearing
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 ...