The opinion of the court was delivered by: POLLACK
Milton Pollack, District Judge.
On January 27, a jury found Singleton guilty of two lesser included counts of wilful failure to file tax returns, 26 U.S.C. § 7203. At the same time, the jury announced that it was unable to agree on a verdict on four counts of tax evasion, 26 U.S.C. § 7201, among them the counts which included the lesser offenses of failure to file, and a mistrial was declared with respect to the tax evasion counts. Singleton moves to set aside the verdict on the section 7203 counts on the grounds that he was not adequately warned that the jury would be permitted to convict on the lesser offenses, that the charge was improper in various respects, and that the jury could not properly convict on the lesser charges while deadlocked with respect to the greater charges. He also moves for acquittal on all counts on the ground that the evidence was not sufficient to support a conviction. The motions should be denied.
CONTENTIONS OF THE PARTIES
The motion for acquittal on the ground of insufficient evidence merely reiterates motions made and denied during the trial and immediately after the verdict. No new authority has been cited, nor has any other reason been given why the Court should depart from rulings made with a fresh recollection of the evidence.
In the Brief in Support of Defendant's Motion for Post-Trial Relief, defendant argues, first, that the jury should not have been instructed that it could convict him of the lesser included offenses. In this connection, he asserts that the Court may not give such an instruction sua sponte, absent a request from either party (2-9), and that a lesser offense charge may only be given if the defense has been given notice in advance (10). Further, defendant asserts without elaboration that a violation of section 7203 is not a lesser included offense comprised by section 7206 because it is not "necessarily included," Sansone v. United States, 380 U.S. 343, 13 L. Ed. 2d 882, 85 S. Ct. 1004 (1965). (4 n. *) In addition, Singleton contends that the lesser included offense charge was fatally unclear because it did not adequately distinguish between the greater and the lesser offenses. (9-10 & n. *)
Second, defendant asserts that the jury may only consider a lesser included charge after unanimously acquitting of the greater offense. Thus, he asserts that the charge was defective because it failed to so instruct the jury, and that in any event the jury acted improperly in returning a verdict on the lesser offenses while deadlocked on the greater. (11-12)
After reading the trial transcript and the Court of Appeals' opinion in United States v. Tsanas, 572 F.2d 340 (2d Cir. 1978), cert. denied, 435 U.S. 995, 98 S. Ct. 1647, 56 L. Ed. 2d 84 (1978), defendant supplemented his brief with a letter, dated February 14, 1978. In the letter, he concedes that, as in the charge approved in Tsanas, the jury was instructed that "if you unanimously find him not guilty of such evasion, then" you may consider the lesser included offense. He endeavors to distinguish Tsanas on the grounds that (1) Tsanas requested a lesser included offense charge, (2) he did not object to the charge as given, and (3) the jury followed its instructions to consider the lesser charge only after unanimously acquitting of the greater.
In response, the government argues, first, that defendant had notice from the outset that failure to file was part of what the government intended to prove. Second, the government asserts that the Court could properly charge the jury on the lesser included offenses sua sponte. It notes that the leading case of United States v. Harary, 457 F.2d 471 (2d Cir. 1972), relied on by defendant, merely held that a prosecutor is not entitled to a lesser offense charge when the element distinguishing the greater and lesser offenses is not disputed, id. at 478. Finally, the government points out that in Tsanas, the Court of Appeals held (1) that a defendant is entitled to his choice of instructions either that the jury must unanimously acquit of the greater offense before considering the lesser or that it may consider the lesser if it cannot agree on the greater after reasonable efforts, and (2) that if the defendant fails to exercise this election, the Court is entitled to choose. The government asserts that Singleton never made such a choice, so that whichever procedure the Court adopted was proper.
1. Instruction on lesser offense sua sponte. The Court properly may instruct the jury concerning lesser included offenses without request from either party. "If the 'lesser included' hypothesis is clear from the evidence the court should give it without request . . .." 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 18.05, at 584 (3d ed. 1977). Indeed, a conviction might be reversed for failure to give such an instruction sua sponte, if it amounts to plain error. Giles v. United States, 144 F.2d 860, 861 (9th Cir. 1944) (dictum).
The government's discussion of Harary is correct. In addition, defendant relies on Walker v. United States, 135 U.S. App. D.C. 280, 418 F.2d 1116 (1969). However, that case, which affirmed the lesser offense conviction, was concerned only with whether defendant was given proper notice of the instruction. Indeed, defendant apparently overlooked the following footnote, although it appears on the page from which he quotes:
"Here the matter [of the lesser offense instruction] was not initiated by the prosecutor; it was picked up by the prosecutor after the judge advanced the point. While that procedure is permissible when instructions are discussed prior to summation, the procedure here ...