ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 77-00139-02)
Before ALDISERT, ADAMS and HIGGINBOTHAM, Circuit Judges
For several years, officials of the Gulf Oil Corporation provided a series of gifts and gratuities to Cyril J. Niederberger, an agent with the Internal Revenue Service and the large case manager charged with auditing Gulf's compliance with federal income tax laws. The benefits bestowed on Niederberger varied in type and value, but included payment of a hotel bill for the Niederberger family in Pompano Beach, Florida; a four-day trip to the Doral Country Club in Miami Beach; a four-day vacation at the Seaview Country Club in Absecon, New Jersey; a trip to Del Monte Lodge in Pebble Beach, California; and a four-day trip to the Desert Inn in Las Vegas. As a result of these and other gifts, two federal prosecutions were commenced. The first was a ten-count indictment brought against Niederberger under two separate but similar statutes, 18 U.S.C. § 201(g) and 26 U.S.C. § 7214(a)(2). These statutes forbid the acceptance by an IRS agent of gratuities in any way related to the performance of an official duty. Niederberger was convicted on four of the five counts brought under § 201(g) and on two of the five counts brought under § 7214(a)(2). He was sentenced to six months in prison to be followed by a five-year period of probation, and fined $5,000. On appeal to this Court his conviction was affirmed. United States v. Niederberger, 580 F.2d 63 (3d Cir. 1978).*fn1
The second prosecution, and the one occasioning the present appeal, was brought against Fred W. Standefer, Gulf's Vice-President for Tax Administration. Standefer was convicted of providing illegal gratuities under 18 U.S.C. § 201(f), which is a companion provision to § 201(g), the subsection under which Niederberger had been convicted, and of aiding and abetting Niederberger in violating § 7214(a)(2). He was sentenced to six months in prison to be followed by a two-year period of probation, and fined $18,000. Here too, we affirm the conviction.
Standefer first assails his conviction on three of the counts of the indictment charging him with aiding and abetting Niederberger in violating § 7214(a)(2). That statute imposes a criminal sanction against:
Any officer or employee of the United States acting in connection with any revenue law of the United States -
(2) who knowingly demands other or greater sums than are authorized by law, or receives any fee, compensation, or reward, except as by law prescribed, for the performance of any duty.
Niederberger was convicted of violating this statute by accepting trips to Pebble Beach and Las Vegas, but was acquitted of § 7214(a)(2) charges based on the trips to Pompano Beach, Miami and Absecon. He was, however, convicted under § 201(g) of accepting the trips to Miami and Absecon, even though the conduct punishable under that statute does not appear to differ from the conduct punishable under § 7214(a)(2).*fn2 Standefer was convicted of aiding and abetting Niederberger in violating § 7214(a)(2) on counts covering all five trips. He was also convicted on four § 201(f) counts. Standefer does not question on this particular ground his convictions ofr aiding and abetting Niederberger in violating § 7214(a)(2) as to those counts on which Niederberger was himself convicted, but he does challenge the legality of his conviction on the other aiding and abetting counts on which the principal he is accused of aiding has been acquitted. Although this argument may have a certain appeal, we are not persuaded by it.
It is a well-established rule of criminal law that jury verdicts need not be consistent. Dunn v. United States, 284 U.S. 390, 393 (1932); United States v. Cindrich, 241 F.2d 54, 57 (3d Cir. 1957). A primary reason undergirding this precept is that juries do not always produce verdicts that are easily reconciled. This is rather pointedly illustrated by the Niederberger jury itself, which, as to certain of the counts, convicted him of receiving something of value "for or because of any official act performed or to be performed by him" (18 U.S.C. § 201(g)), but acquitted him of receiving "any fee, compensation, or reward... for the performance of any duty" (26 U.S.C. § 7214(a)(2)). We cannot say with any certainty what may have prompted the jury to arrive at these seemingly contradictory findings.*fn3 An insightful observation regarding this phenomenon of disparate jury verdicts was made by Mr. Justice Holmes in Dunn, where relying on a quotation from an opinion by Judge Learned Hand, he said:
"The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity."
That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.*fn4
Inasmuch as this is true of a single jury, it must a fortiori be true of different juries. Moreover, in this case the two juries did not reach contradictory conclusions about the basic underlying facts of these two prosecutions: both panels concluded that gratuities were passed from Standefer to Niederberger, that these gratuities were related to official acts performed by Niederberger, and that such conduct was illegal.
But Standefer insists that as a matter of law the conviction of an aider and abettor cannot stand once the only principal who could have committed the crime has been acquitted. Federal statutory law, however, no longer draws a sharp distinction between aiders and abettors and principals. The distinction that formerly prevailed was abolished by Congress with the passage of 18 U.S.C. § 2, which treats aiders and abettors as principals. Furthermore, our case law rejects the proposition that an aider and abettor's status is in any way dependent on the status of the principal. As this Court observed in United States v. Provenzano:
The general rule is that in order to convict a defendant of aiding and abetting the commission of a substantive offense, the proof must establish that the crime in question was committed by someone and that the person charged as an aider and abettor, aided and abetted in its commission. It is not prerequisite to the conviction of the aider and abettor that the principal be tried and convicted or in fact even be identified. Each participant in an illegal venture is required to "stand on his own two feet."*fn5
The rule set forth in Provenzano has been the law in this Circuit for at least thirty years.*fn6 In United States v. Klass, 166 F.2d 373 (3d Cir. 1948),*fn7 we stated specifically:
It is not necessary that the actual principal be tried or convicted, nor is it material that the actual principal has been acquitted.*fn8
Only a few years ago this Court had an opportunity to reconsider the question whether one may be convicted of being an aider and abettor when an ascertained principal has been acquitted, when it sat en banc in United States v. Bryan, 483 F.2d 88 (3d Cir. 1973). Bryan had been indicted as an aider and abettor of a named principal, Echols, who was acquitted of the substantive charge of stealing a shipment of whiskey. Over a full and thoughtful dissent, we concluded that Bryan's conviction should be affirmed:
Appellant would seem to argue that the aider and abettor is guilty only if the principal is also convicted. The criminal law has no such requirement.... Aiders and abettors have been convicted in the past when the principal was unidentified, and even when he was acquitted.*fn9
Admittedly, the present case is in some respects different from Bryan, but we do not believe it warrants a rule different from the one adhered to there and in the previous decisions of this Court. We can find on these facts no theoretical or policy reason for departing from our past precedent and the application of neutral principles of law, in order to reach a result for Standefer at variance from the one we reached for Bryan.
The constitutional protection against double jeopardy obviously presents no impediment to Standefer's conviction since he was not in jeopardy at Niederberger's trial. This Court has also held recently that the application of collateral estoppel principles to criminal cases is not mandated by considerations of due process. U.S. ex rel. Hubbard v. Hatrack, No. 78-1429 (3d Cir. December 6, 1978). Furthermore, no considerations of basic fairness require departure from the rule stated in Bryan. Clearly if Niederberger had never been tried, there would be no obstacle to Standefer's conviction. Similarly, if Standefer had been acquitted of all charges, Niederberger, who was convicted of some, would not have merited a new trial. In any event, the abandonment of the rule expressed in Bryan might create an array of practical problems the likely result of which would be to place a high premium on "gamesmanship" in terms of which parties are prosecuted and in what order.*fn10
Given these considerations in addition to the well established rule permitting inconsistency in jury verdicts, we decline to depart from the rule stated in Klass and Provenzano and adopted by this Court en banc in Bryan that the criminal liability of the principal and his abettor is not contingent upon consistent verdicts as to each party. There was sufficient evidence produced at the Niederberger and Standefer trials for the juries to conclude that gratuities were provided by Standefer for an official act performed or to be performed by Niederberger. And although it is difficult to say what impelled the Niederberger jury in its consideration of certain of the trips to convict only under § 201(g) and not under § 7214(a)(2), as this Court stated in Klass and again in Provenzano, Standefer's conviction must stand "on its own two feet." The conclusions of the Niederberger jury do not call for a reversal on this point.*fn11
Standefer's next contention concerns the instruction to the jury. The defense, in response to the charges brought under § 201(f)*fn12 argued that golf trips were provided to the I.R.S. officer not "for or because of any official act performed or to be performed" by Niederberger, but for friendship or social purposes only. In support of this explanation of his generosity, Standefer, through his own testimony and that of his witnesses, as well as by cross-examination of government witnesses, attempted to show at trial that Niederberger's audits of Gulf's tax returns were not improper, that they resulted in additional assessments against Gulf of some $150 million over ten years, and that such audits had not been questioned or changed by the I.R.S. up to the time of trial, despite the indictment against Niederberger. Standefer argues that this evidence makes his defense of "social purposes" more ...