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United States v. Standefer


February 9, 1979




Per Curiam

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 believable in that such evidence might suggest that Gulf received no special treatment by Niederberger. Appellant contends that the relevance of this testimony was misrepresented in the charge to the jury on § 201. We disagree.

The jury was instructed, in part:

"... the essential elements of this offense which must be proved by the government beyond a reasonable doubt are first that the recipient is an employee or official of a department or branch of the government; second, that he was acting in connection with his employment with the department or branch of government; third, that the defendant did give, offer or promise anything of value to him for or because of an official act performed or to be performed by him; fourth, that the defendant commits the act of giving, offering or promising knowingly and purposefully, and not through misunderstanding, inadvertence, mistake or some other innocent reason; and fifth, that such gift was with the purpose of giving a thing of value for or by reason of the official act performed or to be performed by him, that is, in this case, examination of the tax returns of the Gulf Oil Corporation.

"Now this is not, the Courts have said, a bribery statute, where... you have to show corrupt motives and willfully intending to violate the law where money is given to a public official for the performance of a specific act or duty.

"It is important for you to understand that in order to find this defendant guilty of giving, offering or promising anything of value to Agent Niederberger for or because of any official act performed or to be performed by him, that it is not necessary that you find the defendant gave such things of value with the intent of influencing an Internal Revenue Agent in performing his audit or audits of Gulf Oil Corporation's returns. It is sufficient if the defendant made these payments because of desire to create a better atmosphere with Niederberger with respect to the performance of the audit or appreciation for a speedy or favorable audit, and that Niederberger, knowing this, received a thing of value.

"Whether the tax returns as filed were proper or improper is irrelevant to the issue in this case. The evidence, however, must show to your satisfaction beyond a reasonable doubt that the defendant gave something of value to a public official for or because of any official act performed or to be performed by such official.

.. .

"I must say to you, however, that if on the other hand these acts in making these gifts to Niederberger had nothing to do with giving of things of value to a public official for performance of acts to be performed by him, but on the contrary, as contended by the defendant, these things were given as a matter of friendship or for social purposes only, then you should acquit the defendant."

Although defense counsel had not included, in his written requests for charge, a desired instruction on the relevance of the correctness of the audits, he had orally asked the court, while it was discussing points for charge with counsel, to advise the jury "that the failure of the Government to prove that anything was done improperly by Mr. Niederberger is a factor to be considered."*fn13 Government counsel had objected to this, reminding the court that the government was under no duty to prove a quid pro quo.*fn14 The trial judge thereupon declined to include the defense's oral request in his instructions.

After the instructions had been read to the jury, defense counsel objected to the portion of the charge set forth above that suggests that the propriety of Gulf's tax returns was "irrelevant," stating:

"I object to that portion of Your Honor's charge where you have taken from this jury the crucial fact of the defense that every audit that was performed was performed properly. At least they could so find.

"You said it was irrelevant, and yet you have told them they could consider all the facts and circumstances. "The most important fact and circumstance, of course, in connection with Standefer's intent is whether those audits were conducted properly or improperly.

"Having been conducted properly, it should be obvious that a finder of fact could weigh that very heavily in favor, even though it isn't an element of the crime."

The trial judge again concluded that this argument amounted to a defense predicated on the failure of the payments to "take," that is, to produce a clear quid pro quo in demonstrable actions by Niederberger, and refused to alter the charge.

After deliberating for more than three hours, the jury asked the Court: "Is intent to be considered in any of the nine counts?" The Court answered:

"The answer is yes.

"With respect to each of these counts, it is necessary that you find that the defendant did intend to give gratuities or vacation trips or what-have-you to Niederberger for the purpose or because of an official act... performed or to be performed by Niederberger; and as I have told you, it is necessary that you find that he did this not inadvertently or negligently or by reason of mistake, but intending to give these things to the Internal Revenue Agent for or because of official acts.

"For instance, with respect to the 201(f) charges, I told you it was necessary for the government to prove that the defendant committed the act of giving, offering or promising knowingly and purposefully and not through misunderstanding, inadvertence or for some other innocent reason, and that the gift was with the purpose or state of mind of giving a thing of value for or by reason of the official act performed or to be performed by the agent; and I told you on the other hand that if this had nothing to do - if giving these gratuities had nothing to do with the giving of things of value to a public official, but on the contrary were given as a matter of friendship and for social purposes only, then you should acquit him; and this is the thing you have to decide.

"It has been suggested that I should inform you - and I think I have, I think you all understand - that the official act we are talking about here is the audit of the Gulf Oil Corporation returns in which this man was the Large Case Manager.

"On the other hand, I have also pointed out to you that these statutes do not require that corrupt intention which goes for the bribery case; and further I informed you that it is sufficient if these payments were paid for any reason in connection with the audit, because of a desire to create a better working atmosphere, or appreciation for a speedy and favorable audit, and that any of these would be purposes that whether the returns were correct or not is not relevant in this case. But it has to be for the purpose of giving these things to the agent on account of the audit of these returns and his position with respect thereto."

Here again defense counsel objected to the suggestion that the audit evidence was irrelevant. Once more, the court rejected his argument. Standefer insists that even if such evidence is not an element of the crime, it is relevant as a factor to be considered. It is this alleged error in the court's instructions to the jury that constitutes Standefer's second contention on appeal.

As a preliminary matter it must be stated that it is a long-established rule of law that an appellate court will look at the entire charge, not portions taken out of context, in order to determine if there was prejudicial error. United States v. Johnson, 462 F.2d 423, 429 (3d Cir. 1972) cert. denied 410 U.S. 937 (1973); 2 Wright, Federal Practice and Procedure, § 485. Keeping this in mind, we do not believe that the jury was misled by the Court's instructions. The section of the charge in question was made under § 201(f) which forbids illegal gratuities, not § 201(b), which requires a specific intent to bribe a public official. The two offenses differ greatly in degree.*fn15 Section 201(f), the lesser of the two, and the one involved here, requires only that the thing of value be given "for or because of any official act." We are satisfied that the jury understood the need to find such a relationship. Moreover, we are satisfied that the evidence amply supports that finding. Standefer argues that the trips were given to Niederberger for reasons of friendship only. Yet, there is no evidence that Standefer ever provided trips for Niederberger prior to his becoming case manager for the Gulf account. Nor does anything in the record show that Standefer was as generous with corporate funds in giving gifts to any non-business related friends.*fn16 Moreover, Standefer's immediate subordinate, and own witness, Joseph Fitzgerald, testified that he did not believe Standefer and Niederberger to be "close personal friends" but that he considered them to be "business friends,"*fn17 and Standefer himself, at one point, characterized the purpose of his expenditures as "to establish rapport" with the IRS.*fn18 Thus, the evidence was almost overwhelming that the relationship between Standefer and Niederberger was primarily business related and not merely social.

As to the specific attack raised here, there are sound reasons for refusing to emphasize evidence of the correctness of the audits. First, a defense based on the tax returns of a company and the decisions of the I.R.S. in auditing those returns may confuse the jury by leading it to believe that no wrong has been done if the government has found no errors in the returns or audits, or has failed to seek additional payments from the taxpayer. In this regard, it should be noted that the government's decision not to adjust an audit should not be taken as proof that that audit, or the return, was "correct" in any absolute sense.

Second, and equally important, controversy regarding the correctness of tax returns or audits tends to confuse the jury about the elements of the crime in question. The government is under no obligation under § 201(f) to demonstrate that Gulf actually received fair value for its gratuities. We have made it clear that proof of a quid pro quo is unnecessary in establishing a case under the illegal gratuity subsections of § 201. United States v. Niederberger, 580 F.2d 63, 68-69 (3d Cir. 1978); see United States v. Irwin, 354 F.2d 192, 197 (2d Cir. 1965), cert. denied 383 U.S. 967 (1966). As the trial judge observed, a desire for a speedy audit or good working relationship would constitute sufficient relationship to the "official act" required under § 201(f). No direct monetary benefit to the donor or his corporation need be shown.

Third, inclusion of evidence of the correctness of returns or audits invites a lawsuit within a lawsuit, with the parties litigating the correctness of the tax returns and the auditing procedures, not the passing of illegal gratuities, which is the gravamen of the offense in question. This concern has prompted the Court of Appeals for the Second Circuit to exclude all evidence of returns and audits:

In the course of the trial the appellant sought to introduce evidence showing that the returns of the taxpayers he represented, in the instances involved in this prosecution, were proper, as filed. The purpose of the offer was to show that he had no motive to make the payments other than to meet the demands of the agents at the Internal Revenue Service. This evidence was entirely irrelevant to the offense charged under § 201(f) and was properly excluded.*fn19

Standefer here was not faced with so complete an exclusion, only with a charge that did not specifically instruct the jury to consider this type of evidence.

In sum, a fair reading of the entire charge leaves little doubt that the jury was made aware of Standefer's defense, and the necessity of finding, before returning a verdict of guilty, that the trips were given for or because of an official act. We do not believe that the jury was misled about the elements of the crime or the burden of proof required of the Government. The district court's charge on this question was not erroneous.


Appellant alleges certain other errors.He argues that the trial court erred in charging the jury that there was no need to show an agreement between Standefer and Niederberger; that the court erred in failing to give prior notice to counsel that a point for charge was affirmed; that the court erred in charging the jury as a matter of law that the vacation trips provided Standefer were not authorized; that the court erred in not charging the jury that the government's failure to call Niederberger should result in an unfavorable inference; and that the court erred in failing to instruct the jury that the fact that the trips were undertaken openly and publicly could be considered as negating evidence of wrongdoing.

Having considered these points as well as those already discussed we are not persuaded that a reversal of the jury's verdict is warranted. Accordingly, the judgment of the district court will be affirmed.

ALDISERT, Circuit Judge, dissenting.

The major question for decision is whether the district court erred by not dismissing three counts of aiding and abetting a federal revenue agent to receive a gratuity when the agent, Niederberger, as principal, had been acquitted in a previous trial. The majority finds no fault with these convictions. Because I would hold that these counts should have been dismissed as a matter of law, I would reverse the convictions and remand for a new trial on the remaining seven counts.

My disagreement with the majority is not molecular; it is molar. Our difference goes to the fundament of criminal law, nullum crimen, nulla poena, sine lege (no one shall be punished for anything not expressly forbidden by law). The majority has accepted the government's argument in this appeal; an argument, in my view, amounting to little more than pettifoggery. Not content with convictions on seven facially legitimate counts, the government presses for an affirmance on these three controversial counts (for which concurrent sentences were imposed) on aiding and abetting a principal in the commission of a crime previously adjudicated not to have been committed.

My position is straightforward and blunt: you cannot clap with one hand; it takes two to tango; to be guilty of aiding another to commit a crime there first has to be a crime.No amount of convoluted, turgid argument persuades me to accept the sophistry advanced by the government.

Stripped of persiflage, this appeal turns on a specific factual complex: an internal revenue agent, Niederberger, was acquitted of three counts of receiving gratuities from Standefer. After conviction on related counts, Niederberger appealed to this court where we rejected his argument that no conviction could stand without proof of criminal intent to do some specific, identifiable act in return for eachgift. We ruled that to prove the offense, the government need show only that Niederberger received the gratuity: " § 201(g) does not require... proof of a quid pro quo, nor does § 7214(a)(2)." United States v. Niederberger, 580 F.2d 63, 69 (1978).*fn1 We said:

What is proscribed, simply put, is a public official's receipt of a gratuity, to which he was not legally entitled, given to him in the course of his everyday duties, for or because of any official act performed or to be performed by such public official, and he was in a position to use his authority in a manner which could affect the gift-giver.


Thus, this court, enunciating the law of this case, determined that the government, to make out a case under § 7214(a)(2), need not prove criminal intent by Niederberger to do a specific, reciprocall act. It is conceded by all parties that Niederberger was not legally entitled to any gratuity, that he was in a position to use his authority as an internal revenue agent in a manner which could affect the gift-giver, and that his relationship to Gulf involved the performance of his official acts. Thus, the sole issue for the jury was whether Niederberger did in fact receive the gratuity in his official capacity. All the government had to prove was that Niederberger received as a federal agent that which Standefer gave. The jury found that Niederberger did not receive what the government said Standefer gave. Nonetheless, the government prosecuted Standefer for aiding and abetting Niederberger in receiving that which he did not receive. To reason as the district court did here in denying Standefer's motions to dismiss, that "[the] jury may have determined that the evidence did not show willful intent on [Niederberger's] part," 452 F.Supp. 1178 at 1182, is to inject an element in the charged offense - willful intent to do a specific act - which this court rejected and excluded in defining the elements of the charged offense. 580 F.2d at 69.*fn2 Thus, even assuming but not conceding, the soundness of the decision in United States v. Bryan, 483 F.2d 88 (3d Cir. 1973), the offense charged here is not akin to a charge of larceny where a principal may be acquitted on the basis of lack of criminal intent to commit a crime, while at the same time another may be convicted upon proof that in the act of aiding and abetting he had a knowing intention to commit a crime. Rather, this is a case where the prior acquittal of the principal is tantamount to a judicial resolution that no crime was committed. This court having held that the ingredient which would constitute culpability was the reception of a gratuity by Niederberger in his official capacity and a jury having found that he did not receive such a gratuity, what emerges, jurally speaking, is a judicial determination of nullum crimen. To hold otherwise, in my view, is to fabricate a result that cannot possibly be explained in language comprehensible to the public, and can be justified only by a resort to concepts of wooden conceptual jurisprudence, begriffsjurisprudenz, an outmoded decisional technique which I thought had been given a decent burial long ago, along with feoffments and common law pleadings.*fn3

Surely the public will not readily understand a state of affairs where a court finds that a revenue agent did not receive a gift but a private citizen helped him receive the gift he did not receive. This is the stuff that "monkey yarns" in newspapers are made of, that smirking telecasters eagerly devour in thirty-second squibs. "People do take judicial reasoning seriously," Professor Charles A. Miller observes, "and they are not fools nor being fooled in doing so, at least no more than in other forms of communication or with respect to other strands that form the web of a political culture."*fn4 Legal reasoning must not be esoteric or artificial; it must be capable of public comprehension and not a ritual understandable only to an elite legal priesthood.


Because the heart of the government's contention is that this appeal is controlled by specific precedent, it is necessary first to examine the basic doctrine of stare decisis: that a court should abide by its former decisions, its precedents, and not depart from or vary them "unless entirely satisfied, in the first place, that they were wrongly decided, and, in the second place, that less mischief will result from their overthrow than from their perpetuation."*fn5 A judicial precedent is a legal precept attaching a detailed legal consequence to a detailed set of facts of an adjudged case or decision of a court which is then considered as furnishing the rule for the determination of a subsequent case arising in the same court, or a lower court in the judicial hierarchy, containing identical or similar material facts as those in the adjudged case or decision.*fn6

As the essential element of the common law method of adjudication, a system, described by Harlan Fiske Stone, the applicability of previous cases as controlling precedents "built up by the gradual accretion of special instances,"*fn7 depends on the presence of identical or similar material facts. What should control, as distinguished from what should influence, are rules of law in the narrow sense, precepts attaching a definite, detailed legal consequence to a definite, detailed set of facts, or "fairly concrete guides for decision geared to narrow categories of behavior and prescribing narrow patterns of conduct."*fn8 By way of contrast, what should influence, as distinguished from what should control, are principles of law, which unlike rules of law, usually do not "threaten any definite official action in case of any definitely described conduct. They do not provide any patterns for definite situations,"*fn9 and although often there is no bright line distinction between a legal rule and a principle, at least the terms "serve to mark differences in degree in the precision of guides to decisionmaking."*fn10

Thus, a rule is a normative legal precept containing both a specific result and specific facts; the legal result depends upon the establishment of certain facts stipulated or found in the antecedent part of the rule. Because principles are broader legal precepts and constitute only the starting points of legal reasoning, they differ from rules in their mode of application to specific fact situations. Principles do not necessarily determine, as rules do, the outcome of a dispute to which they are applied. They influence the decision one way or another; in Professor Dworkin's felicitous phrase, principles incline, but do not control, judicial decisions.*fn11

Thus, to conclude that a previous case unerringly commands a given result because it is binding precedent, as does the majority by relying on United States v. Bryan, supra, requires analysis in light of the foregoing.

The majority states:

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.

Majority opinion at 6.

The crime charged in Bryan was stealing whiskey. The crime of theft requires proof of criminal intent. The question posed at Bryan's trial was whether the principal had a criminal intent to steal or was an "innocent dupe of what was obviously a very well planned, originally at least, enterprise to steal... liquor." 483 F.2d at 94 n.7. The district court, sitting as a fact finder, resolved the question of reasonable doubt in favor of the principal and, finding no criminal intent, acquitted him. It nevertheless found that although the principal did not intend to steal, the aider and abettor intended that the principal steal the whiskey, and accordingly convicted him. This court affirmed the conviction of the aider and abettor.

Unlike the majority which finds "in these facts no theoretical or policy reason to depart from our past precedent," I find the facts in this case as different from Bryan as night is from day.Where in Bryan, being an innocent dupe was a legal defense, this court has ruled that in this case the crime is made out merely by receiving the gratuity in one's official capacity; being an innocent dupe is no defense. Receiving a gratuity is a crime under this particular federal statute, 18 U.S.C. § 7214(a)(2), only when the gratuity is received in the official capacity as federal revenue agent. Standefer, not being a federal agent, as a matter of statutory definition of the offense, could not have been indicted as a principal.

We must distinguish between the historical or narrative facts, which the majority properly explains in note 11, and the legal precepts which govern those facts. To me, what is important here is that a court has acquitted Niederberger of being a principal under the statute which formed the basis for the indictment. Since Standefer could not have been indicted as a principal, and since the only person who could have been a principal was acquitted, I would hold as a matter of law that Standefer cannot be found guilty of aiding and abetting the commission of that crime. I perceive this as a dramatic distinction between Bryan and this case. Additionally, in Bryan, the offense of larceny required proof of criminal intent; here, the offense would have been established by proof that the principal received a gratuity in his official capacity without a quid pro quo. To conclude, as does the majority, that there is no difference in material facts in these cases is to do violence to basic precepts of common law judicial process. It is to run counter to basic tenets of the common law decisional process, neatly described by Professor Edward H. Levi: "the scope of a rule of law, and therefore its meaning, depends upon a determination of what facts will be considered similar to those present when the rule was first announced. The finding of similarity or difference is the key step in the legal process."*fn12

Every case relied upon by the Bryan majority was decided on the basis of a close analysis of the facts: the conclusion reached in each case that a prior acquittal of the principal did not necessarily pretermit the subsequent or concurrent prosecution of the aider and abettor was buttressed by an analysis of the ingredients of the charged offense; each court decided that a case could be made out against the latter notwithstanding the acquittal of the former. See discussion in United States v. Bryan, supra, 483 F.2d at 92-94. No comparable analysis may be made here where the principal was charged with receiving a gratuity as an official revenue agent, and a prior court has determined that no gratuity was received. There being no reception of a gratuity, there was no crime. "It is generally recognized that there can be no conviction for aiding and abetting someone to do an innocent act." Shuttlesworth v. Birmingham, 373 U.S. 262, 265 (1963).


The foregoing discussion assumes the viability of Bryan v. United States, supra. My focus thus far has been to demonstrate major distinctions between the material facts before us and those present in Bryan. This is not to agree that Bryan was a sound decision, however, for with Chief Judge Seitz I joined in Judge Gibbons's dissent in Bryan. Reiterating my agreement with what was said there and reaffirming my endorsement of Judge Gibbons's thoughtful analysis, I would not extend that holding beyond the facts that controlled there. A court "must be alert to see that a doubtful precedent be not extended by mere analogy to a different case if the result will be to weaken or subvert what it conceives to be" sound legal precepts. Dimick v. Schiedt, 293 U.S. 474, 485 (1935).

What divided the Bryan court and what divides the court here is the weight to be placed on competing principles of criminal law in cases where no rule of law is obvious, where the source of decision is not unerringly supplied by precedent, statute or the Constitution. Because a rule of law is predicated on specific facts, a rule is either accepted or rejected. A rule may not conflict with another rule: if two rules conflict, one of them cannot be a valid rule. Either the facts of the case fall within the ambit of the antecedent portion of the rule (the facts giving rise to it), in which event the case must be dealt with as the rule dictates, or it does not, in which event the case is unaffected by the rule. So defined, rules cannot conflict with one another. Where the court decides that a case is not controlled by a rule, it resorts to broader legal precepts, principles, because, as Ronald Dworkin explains, "principles have a dimension that rules do not - the dimension of weight or importance. When principles intersect (the policy of protecting automobile consumers intersecting with principles of freedom of contract, for example), one who must resolve the conflict has to take into account the relative weight of each."*fn13

The competing principles at work here are well known. Weighing in favor of the government are fundamental precepts that crime be prevented, public safety promoted, public norms of behavior vindicated by the imposition of merited punishment, and anti-social conduct deterred by the imposition of penalties. Arrayed in favor of the appellant is the guiding principle of criminal law - the presumption of innocence - and the complementary principles that penal laws are to be strictly construed, that ambiguities should not be resolved so as to embrace offenses not clearly within the law, that facts charged and proved must bring the defendant plainly and unmistakably within the statute, and, above all, that no person can be criminally punished unless the acts for which he is punished were clearly forbidden.

Judges of this court constantly strive to seek an accommodation between these sets of competing principles. There are times, however, when the scales seem evenly balanced, when it is difficult to determine exactly where the weight does lie. When this occurs, when the difference is slight or imperceptible, or when the balance seems equal, the jural philosophy of the individual judge comes into play, consciously or otherwise. It comes into play by means of the expression of a value judgment that places a greater weight on one competing principle than another. "Indeed, the most important attributes of a judge are his value system and his capacity for evaluative judgment," writes Professor Robert S. Summers. "Only through the mediating phenomena of reasons, especially substantive reasons, can a judge articulately bring his values to bear."*fn14


The issue before us constitutes a classic example of how our jural philosophy is implicated both in fashioning the rule of Bryan and in applying that rule to the facts before us. Where there is a close case in criminal law, necessitating the expression of the court's value judgment, I will cast my lot in favor of the individual and not the society that seeks to regulate his conduct. To me this is an a priori proposition distilled not only from the Constitution but from the philosophy that undergirds the foundation of Anglo-American concepts of common law; it is a basic precept that distinguishes our criminal law systems from the inquisitorial systems in vogue under the civilian law codes of Continental Europe. It was succinctly expressed by Judge Gibbons in his Bryan dissent. "Administration of a technical and often semantical criminal justice system is the price we pay for the balance struck in the Constitution between the federal government and the individual defendant." 483 F.2d at 99.*fn15 The balance is struck because, in Dean Rostow's words, "[the] root idea of the Constitution is that man can be free because the state is not."*fn16

The expression of this value judgment is not confined to the fashioning of a rule for a particular case; it begins in the choice of a controlling legal precept, continues through the interpretation of that choice, and persists finally in the application of the precept as interpreted to the facts at hand. Value judgments inhere throughout; in Professor Von Mehren's view, this is not a mechanical process.*fn17 Therefore, it is not enough to say that this panel is bound by the rule of Bryan. To say we are bound is to express a judgment that the material facts here are similar to the Bryan facts, or that it is socially desirable to extend that rule to cover these facts. To say we are not bound is to express a contrary value judgment. Basically, facts govern and circumscribe the relevance of values in the decisional process. Values do not take form in a vacuum; their range depends always on the limitation of the factual range. Thus, judges' decisions are governed by their beliefs about facts as well as abstract rules; the act of deciding involves both the determination of material facts and the determination of what rules are to be applied to the facts. Jerome Frank observed, cynically perhaps, that a judge "unconsciously selects those facts which, in combination with the rules of law which he considers to be pertinent, will make 'logical' his decision."*fn18 Karl Llewellyn noted the distinction between the "strict" view of precedent, confining the case to its particular facts, and the "loose" view that suggests: "No matter how broad the statement, no matter how unnecessary on the facts or the procedural issues, if that was the rule the court laid down, then that the court has held. Indeed, this view carries over often into dicta, and even into dicta which are grandly obiter."*fn19

At bottom there are two dimensions of this court's division, a division which can be traced to basic differences in the value judgment made when weighing competing criminal law principles. One dimension is the conclusion that the material facts here are identical or similar to those of Bryan. To decide which facts are similar and material is a purposeful decision. The second dimension is the decision to extend the rule to a variant set of facts. To do this a judge must first be convinced of the desirability of the rule being extended. I find the Bryan rule offensive to those principles protecting an individual's freedom, which I believe deserve priority over those favoring the society that would regulate him. This is an even more telling reason why I am loathe to extend the rule beyond the limited facts that give it birth.

Accordingly, I dissent.

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