The opinion of the court was delivered by: KNOX
The defendant F. W. Standefer together with Gulf Oil Corporation and Joseph F. Fitzgerald was charged in a nine-count indictment with offenses in connection with giving fees, compensation or rewards not prescribed by law to Cyril J. Niederberger, a supervisory internal revenue agent who was case manager for the audit of Gulf Oil Corporation income tax returns for the years 1959 to 1964, inclusive. The evidence showed that Standefer and Fitzgerald were vice presidents of Gulf Oil Corporation, Standefer being vice president in charge of tax administration.
The indictment contained counts of two types. Counts 1, 3, 5, 7 and 9, the odd numbered counts, charged that Standefer together with Gulf Oil and Fitzgerald aided and abetted Niederberger in receiving fees, compensation and rewards not provided by law for the performance of his duties as internal revenue agent in violation of 26 U.S.C. § 7214(a)(2).
Specifically they were charged with giving him vacation trips and outings to such places as Pompano Beach, and Doral Country Club, both in Florida, Sea View Country Club in New Jersey, Pebble Beach in California and Las Vegas, Nevada. The expenses of such trips were paid by Gulf Oil Corporation. The even numbered counts, 2, 4, 6, and 8 charge these defendants with promising, offering and giving things of value to wit: the same vacation trips to a supervisory internal revenue agent in violation of 18 U.S.C. § 201(f) and 18 U.S.C. § 2.
The only variation is that count 1 only charges payment of the balance due on the motel bill at Pompano Beach. (Gulf Oil did not pay for the transportation. Niederberger was in Florida on business.)
Previous to the case being called for trial Gulf Oil Corporation pleaded guilty and was sentenced and Fitzgerald pleaded nolo contendere and was sentenced after the trial.
Standefer went to trial on November 28, 1977, and on December 8, 1977, after a trial requiring eight trial days was found guilty by the jury on all counts. He has now filed motions for a new trial or in arrest of judgment alleging in the original motion 22 reasons and in a supplemental motion timely filed 3 additional reasons for new trial or arrest of judgment. The parties have thoroughly briefed the questions involved, have orally argued the same before the court and the matter is now ready for disposition.
Prior to Standefer's trial, Niederberger had gone to trial before Judge Snyder of this court on similar charges particularly for accepting illegal gratuities from Gulf Oil Corporation in the form of these trips paid for by Gulf in violation of 7214(a)(2) and 201(g). Niederberger was convicted on certain counts and found not guilty on others, particularly, he was found not guilty of counts in his indictment numbers 1 and 2 relative to the trip to Pompano Beach, Florida and also counts 4 and 6 relative to trips to Absecon, New Jersey and Pebble Beach, California. He was sentenced on March 29, 1977 and appealed his sentence to the Court of Appeals for the Third Circuit which on May 5, 1978, affirmed the same. See opinion in No. 77-1575 in the Court of Appeals filed May 5, 1978.
The facts in this case have succinctly been set forth in the opinion of the Court of Appeals in the following excerpt from the Niederberger case (references as to the exact counts of the Niederberger case are omitted):
"The facts, briefly summarized, are as follows: During the period between 1971 and 1974, Niederberger was employed by the IRS in its Pittsburgh office as a large case manager. This position required Niederberger to supervise a group of revenue agents assigned to audit certain corporate income tax returns filed by Gulf. Among Niederberger's responsibilities were the development and final approval of the audit plan, which is a detailed outline of the specific procedures to be utilized during the course of a particular audit. During the development of an audit plan, Niederberger was empowered to make all final decisions regarding the scope and depth of the areas of corporate taxation which were to be reviewed in the audit.
"During the same period that Niederberger was serving as the case manager for the Gulf audits, he accepted from Gulf - and at Gulf's expense - several golfing junkets at various resorts. More precisely, in January of 1973, Niederberger spent four days at the Doral Country Club in Miami Beach, Florida, in the company of Mr. John F. Fitzgerald who, at that time, was the Manager of Federal Tax Compliance for Gulf. Niederberger's entire bill was transferred to Fitzgerald's account, which was subsequently charged to Fitzgerald's American Express card.
"In August and September of 1973, Niederberger and his wife spent four days at the Seaview Country Club in Absecon, New Jersey, in the company of, among others, Mr. Fred W. Standefer, Gulf's Vice President of Tax Administration. The Niederbergers' expenses at Seaview were billed to Mr. Arthur V. Harris, who listed his billing address as the Gulf Oil Building, Pittsburgh, Pennsylvania.
"In April of 1974, Niederberger spent four days at the Del Monte Lodge in Pebble Beach, California, in the company of both Fitzgerald and Standefer. Again, Fitzgerald charged Niederberger's bill to his American Express card.
"Two months later, in June of 1974, Niederberger and his wife were guests of Fitzgerald for five days at the Desert Inn and Country Club in Las Vegas, Nevada."
In addition to the above recited facts, the evidence in this case also showed payment of bill of Niederberger's in Pompano Beach, Florida in 1971. It also showed that Fitzgerald had acted under orders from Standefer and that in addition while at the Desert Inn, in Nevada, Standefer caused Fitzgerald to pay Niederberger $200 in cash. It further appeared that Niederberger had been assigned in December 1973 to investigate political contributions made by Gulf Oil routed through its subsidiary Bahamas Exploration Ltd., a Bahama Corporation. He had turned in a report in March 1974, just before the Pebble Beach outing recommending no further investigation of Gulf's contributions which it developed were much greater than revealed.
There was also testimony as to expensive Christmas parties and golf outings in the Pittsburgh area attended by Niederberger and other IRS agents.
In considering the evidence the court views it in the light most favorable to the government. Government of the Virgin Islands v. Petersen, 507 F.2d 898 (3d Cir. 1975).
The court holds that on the basis of the above facts there was sufficient evidence before the jury to convict the defendant beyond a reasonable doubt of the offenses with which he was charged and that the entire matter including his intent was for the jury to decide. This disposes of reasons 1 and 2 in the motion for new trial or in arrest of judgment.
Having thus determined that there is sufficient evidence generally to justify the conviction, we will now turn to the detailed reasons given for arrest of judgment and/or for new trial.
(2) Aiding and Abetting - Acquittal of Niederberger
Reasons Nos. 3, 4, 5, and 6.
As previously noted, Niederberger was acquitted on counts 1, 2, 3 and 4 of his indictment and defendant contends that his conviction on counts 1, 3 and 5 of the instant case cannot stand because the only person he could have aided and abetted under 18 U.S.C. § 2 was Niederberger who was acquitted of these charges.
It should be obvious of course that juries' verdicts need not be consistent. It is no grounds for acquittal that a defendant is acquitted on certain charges and convicted on others when he logically might have been convicted on all of them. It is the jury's prerogative to make such determinations.
What this court said with respect to the motion to dismiss is apropos of the same argument which is now presented here.
"The court holds that this is not grounds for dismissing Counts 1, 3 and 5 of the instant indictment. The Rule in this Circuit with respect to such matters was originally laid down in U.S. v. Klass, 166 F.2d 373 (3d Cir. 1948) with respect to charges of aiding and abetting wherein the court stated 'it is not necessary that the actual principal be tried or convicted nor is it material that the actual principal has been acquitted. The aider and abettor may be charged with the substantive offense and each participant must stand on his own two feet.'
"More recently this matter was considered by the court of Appeals for this Circuit in U.S. v. Bryan, 483 F.2d 88 (3d Cir. 1973). In that case, the co-defendant principal was acquitted because of lack of criminal intent but nevertheless it was held that the aider and abettor could be convicted. The court pointed out that a crime may be performed through the use of an innocent dupe. The court pointed out that semantic difficulties previously existing were eliminated from the Federal Criminal Code by the passage of 18 U.S.C. 2 which makes aiders and abettors punishable as principals. The court rejected the argument that an aider and abettor is guilty only if the principal is also convicted. The fact that the alleged principal may have been acquitted because of lack of criminal intent does not prevent the conviction of the aider and abettor. Another example would be where one entrusts the actual transportation of stolen goods across the state line to an innocent truck driver or bus driver who is unaware of the contents of a package entrusted to him. In such case the driver would be innocent because of lack of criminal intent but nevertheless the person who entrusted the goods to him and knew the contents of the package would be guilty as an aider and abettor and hence a principal."
We do not know on what grounds Niederberger may have been acquitted on counts 1, 2, 3, and 4. The jury may have determined that the evidence did not show willful intent on his part or may have concluded that the evidence as to these outings was insufficiently clear as furnishing a basis for conviction or for any other reason. This is no reason for acquitting Standefer of the charge of extending these gratuities and supplying these expensive golf outings to Niederberger.
It is obvious that 18 U.S.C. § 2 was passed to avoid some of the logical inconsistencies now raised by the defendant with respect to aiding and abetting. The purpose was to make it clear that a person who aided and abetted was a principal. The words are not merely aiding and abetting but the Act also covers counseling, commanding, inducing or procuring the commission of an offense and in subsection (b) causing an act to be done which if directly performed by him or another would be an offense against the United States.
For authority that the verdict of a jury need not be consistent and by the same token the verdicts of two juries except where the same person has been acquitted of the same offense in a prior trial in which case plea of once in jeopardy would prevent him from being tried again, see U.S. v. Cindrich, 241 F.2d 54 (3d Cir. 1957). The above also disposes of reason No. 6 of the grounds for new trial.
(3) Quid Pro Quo - Correctness of Tax Returns
Better Working Atmosphere
Reasons 8, 9, 11, 16, 18, 20, 24 of Motions for New Trial